[nfbmi-talk] Fw: Fw: more free technical ass foia
joe harcz Comcast
joeharcz at comcast.net
Mon Mar 28 04:53:01 UTC 2011
----- Original Message -----
From: "joe harcz Comcast" <joeharcz at comcast.net>
To: <nfbmi-talk at nfbnet.org>
Sent: Sunday, March 27, 2011 7:58 PM
Subject: [nfbmi-talk] Fw: more free technical ass foia
----- Original Message -----
From: joe harcz Comcast
To: Jo Anne Pilarski
Cc: Geri. Taecken ; Luzenski, Sue (DLEG) ; margwolfe at usa.net ; John Scott
MCB ; quasarano at michigan.gov ; mikecox at michigan.gov ; Richard Clay ;
president.nfb.mi at gmail.com ; Joe Sibley MCBVI Pres. ; nfbmi-talk at nfbnet.org
Sent: Saturday, June 19, 2010 10:19 PM
Subject: more free technical ass foia
Official Board Correspondence
June 19, 2010
Paul Joseph Harcz, Jr.
1365 E. Mt. Morris Rd.
Mt. Morris, MI 48458
Joeharcz at comcast.net
Members Michigan Commission for the Blind
Jo Anne Pilarski, Chair
Michael Geno, Vice-Chair via Susan Luzinski, Administrative asst., Patrick
D. Cannon, director MCB
Geraldine Taeckens, Commissioner
Margaret Wolfe, Commissioner
John Scott, Commissioner
All,
Please find a Freedom of Information Act case that is a part of your ongoing
education on MCB’s obligations to follow the FOIA. I offer it free of charge
in the public interest as technical assistance.
Sincerely,
Paul Joseph Harcz, Jr.
Cc: T. Quasarano, Michigan Attorney General’s Office
Cc: Mike Cox, Michigan Attorney General
Cc: National Federation of the Blind
Cc: Michigan Council of the Blind and Visually Impaired
Cc: Advocates for the Blind
Cc: Melvin Farmer, DELEG FOIA Officer
STATE OF MICHIGAN
COURT OF APPEALS
Table with 2 columns and 3 rowsJONI TAYLOR,
Plaintiff-Appellee/Cross-Appellant, UNPUBLISHED
June 27, 2006
APPROVED FOR
PUBLICATION
August 29, 2006
9:15 a.m. v
LANSING BOARD OF WATER AND LIGHT, No. 265533
Ingham Circuit Court
LC No. 04-1505-AW Defendant-Appellant/Cross-
Appellee.
Table endBefore: Fort Hood, P.J., and Cavanagh and Servitto, JJ.
PER CURIAM.
Defendant appeals as of right an order granting, in part, summary
disposition in
Plaintiff’s favor and ordering defendant to disclose certain documents
pursuant to the Michigan
Freedom of Information Act (FOIA). Plaintiff cross appeals from that portion
of the order
finding requested personnel records exempt from disclosure and denying their
release. Because
we conclude that none of the documents requested by plaintiff were exempt
from disclosure, we
affirm in part and reverse in part.
Plaintiff filed this action seeking an order compelling defendant, a public
body, to
produce documents she requested under the Michigan Freedom of Information
Act (“FOIA”). In
the request, plaintiff sought disclosure of, among other things, Virginia
Cluley’s (and others’)
personnel files, e-mails between identified individuals on specific dates,
correspondence between
named individuals on specific dates, and approval and expense reimbursement
information for
named individuals on specific dates. Defendant denied the request in a
September 29, 2004 letter
stating, “[i]t is apparent that the intended use of the requested documents
is for the civil lawsuit
of Cluley v. Lansing Board of Water and Light and that you are acting as the
Plaintiffs’ agent
and on their behalf in requesting the documents. Therefore, the requested
items are exempt from
disclosure under FOIA.” Plaintiff thereafter filed an action against
defendant, alleging defendant
improperly denied the request in violation of the FOIA.
Defendant moved for summary disposition in the trial court, arguing that at
the time of
plaintiff’s FOIA request, defendant was involved in litigation with
plaintiff’s best friend,
Virginia Cluley, who had told plaintiff about the lawsuit she had filed
against defendant.
Defendant also pointed out that Mrs. Cluley’s counsel in that lawsuit was
the same counsel who
prepared plaintiff’s FOIA request and who currently represents plaintiff,
and argued that
-1-
plaintiff’s FOIA request was an attempt to circumvent the discovery rules
governing the Cluley
action. Defendant claimed that it thus properly denied the request as
seeking information exempt
from disclosure under MCL 15.243(1)(v). The trial court disagreed and, on
September 26, 2005,
entered an order denying defendant’s motion for summary disposition and
granting summary
disposition in favor of plaintiff1, with the exception of requested
personnel records, which the
trial court deemed not subject to disclosure. Both parties now appeal the
order.
This Court reviews de novo a trial court's ruling on a motion for summary
disposition.
Corley v Detroit Bd of Ed, 470 Mich 274, 277; 681 NW2d 342 (2004). In
considering a motion
pursuant to MCR 2.116(C)(10), a court considers affidavits, pleadings,
depositions, admissions
and other documentary evidence submitted by the parties in a light most
favorable to the
nonmoving party. Id. If the proffered evidence fails to establish a genuine
issue of material fact,
the moving party is entitled to judgment as a matter of law. Maiden v
Rozwood, 461 Mich 109,
120; 597 NW2d 817 (1999). Issues concerning the interpretation of a statute
are questions of law
that we also review de novo. Dressel v Ameribank, 468 Mich 557, 561; 664
NW2d 151 (2003).
Defendant argues on appeal that the requested documents are in fact exempt
from
disclosure under MCL 15.243(1)(v). Defendant contends that in denying its
motion for summary
disposition and granting summary disposition in favor of plaintiff, the
trial court construed MCL
15.243(1)(v) too narrowly and in a manner contrary to legislative intent.
Plaintiff, in her cross-
appeal, contends that while the trial court appropriately ruled in her
favor, it also erred in
excluding the requested employee personnel files, given that defendant did
not argue the same
were exempt and there is no specific FOIA exemption for personnel records.
The purpose of the FOIA is to provide all persons, except those persons
incarcerated in
state or local correctional facilities, with “full and complete information
regarding the affairs of
government and the official acts of those who represent them as public
officials and public
employees. . . The people shall be informed so that they may fully
participate in the democratic
process.” MCL 15.231(2). The FOIA mandates a policy of full disclosure,
Stone Street Capital,
Inc v Bureau of State Lottery, 263 Mich App 683, 687; 689 NW2d 541 (2004),
and a public body
must disclose all public records that are not specifically exempt under the
Act upon written
request. MCL 15.233(1); Scharret v City of Berkley, 249 Mich App 405, 411;
642 NW2d 685
(2002).
Pursuant to MCL 15.243 (1), a public body may exempt the following from
disclosure:
(a) Information of a personal nature if public disclosure of the information
would constitute a
clearly unwarranted invasion of an individual's privacy.
. . .
(d) Records or information specifically described and exempted from
disclosure by statute.
. . . (v) Records or information relating to a civil action in which the
requesting party and the public
body are parties. Although not specified on the record, summary disposition
was presumably granted in
plaintiff’s favor pursuant to MCR 2.116(I)(2).
-2-
The exemptions must be narrowly construed and the party seeking to invoke
the exemption must
prove that nondisclosure is in accord with the intent of the Legislature.
City of Warren v City of
Detroit, 261 Mich App 165, 169-170; 680 NW2d 57 (2004). If a request for
information held by
a public body falls within an exemption, the decision to release the
information becomes
discretionary. Bradley v Saranac Community Schools Bd of Ed, 455 Mich 285,
292-293; 565
NW2d 650 (1997). Whether requested information fits within an exemption from
disclosure
under FOIA is mixed question of fact and law and, on appeal, the trial
court's factual
determinations are reviewed for clear error, but its legal conclusions are
reviewed de novo. Stone
Street Capital, Inc, supra.
Case law is clear that initial as well as future uses of information
requested under the
Freedom of Information Act are irrelevant in determining whether the
information falls within
exemption, as is the identity of the person seeking the information. See
e.g., Clerical-Technical
Union of Michigan State University v Board of Trustees of Michigan State
University, 190 Mich
App 300; 475 NW2d 373, (1991); State Employees Ass'n v Department of
Management and
Budget, 428 Mich 104; 404 NW2d 606 (1987). Thus, the public body asserting
the exemption in
MCL 15.243(1)(v) must prove that it is a party to a civil action with the
requesting party.
Otherwise, this Court's ruling in Central Michigan Univ
Supervisory-Technical Ass'n, MEA/NEA
v Bd of Trustees of Central Michigan Univ, 223 Mich App 727, 730; 567 NW2d
696 (1997)
(holding that the FOIA does not conflict with the court rules governing
discovery, nor does it
supplement or displace them) is applicable, and the public body is afforded
no exemption from
disclosure based solely on the status of one of the parties as litigants.
A plain reading of MCL 15.243(1)(v) would require a conclusion that the
trial court
correctly ruled the requested documents were non-exempt. The plain language
of the exemption
cited by defendant applies only to information relating to a civil action in
which both the
requesting party and the public body are parties. “Party” is not defined in
the statute itself, but is
defined in Black's Law Dictionary (6th ed.), p. 775, as: "[t]hose by or
against whom a legal suit
is brought. . .”2 Plaintiff in this matter is the admitted best friend of
Ms. Cluley, a party involved
in a lawsuit against defendant. However, there is no dispute plaintiff was
not and is not a party to
the Cluley action. MCL 15.243(1)(v) thus serves as no basis for exempting
the records requested
by plaintiff.
This Court is well aware a literal interpretation of statutory language is
disfavored when
that interpretation would lead to an absurd result. See, Houghton Lake Area
Tourism &
Convention Bureau v Wood, 255 Mich App 127, 142-143; 662 NW2d 758 (2003).
This Court is
also well aware that a literal application of statutory language leads to an
absurd result in this
matter. Plaintiff testified that when requesting the documents at issue she
was acting as Ms.
Cluley’s friend, and the attorney who prepared the FOIA request for
plaintiff is none other than
Ms. Cluley’s trial counsel in the Cluley litigation. Moreover, plaintiff
acknowledged that Ms.
Cluley was present during at least one discussion concerning the FOIA
request, and plaintiff
frequently testified to a lack of knowledge or memory as to why she
requested specific
documents. It could be inferred, then, that plaintiff was merely an
instrument through which Ms.
Cluley sought to gain information concerning the Cluley lawsuit. The literal
application of the
2 This Court may examine dictionary definitions if a statute does not
expressly define its terms.
People v Rutledge, 250 Mich App 1, 6; 645 NW2d 333 (2002).
-3-
statute, then, would allow a party to obtain information by proxy that he or
she would otherwise
not be entitled to receive through the FOIA, thereby easily avoiding the
exemption.
Nevertheless, our Supreme Court has determined that the “absurd result” rule
applies
only when statutes are ambiguous See, Gilbert v Second Injury Fund, 463 Mich
866, 867; 616
NW2d 161 (2000); People v McIntire, 461 Mich 147, 155-156; 599 NW2d 102
(1999) (If the
language is plain and unambiguous, we may not depart from a literal
construction even to avoid
an absurd or unjust result, lest we engage in impermissible judicial
lawmaking); Koontz v
Ameritech Services, Inc, 466 Mich 304, 312; 645 NW2d 34 (2002) (“Because the
proper role of
the judiciary is to interpret and not write the law, courts simply lack
authority to venture beyond
the unambiguous text of a statute”).
In our view, there is no ambiguity in the statute that would require
judicial construction.
As FOIA exemptions are to be narrowly construed (See City of Warren v City
of Detroit, supra)
and the term “party” has a distinct and precise legal definition, the
Legislature is presumed to
have intended the meaning it plainly expressed. Pohutski v City of Allen
Park, 465 Mich 675,
683, 641 NW2d 219 (2002). Absent an ambiguity in the statute, we must forgo
judicial
construction and an examination of legislative history. Luttrell v Dep't of
Corrections, 421 Mich
93, 101; 365 NW2d 74 (1984).
While defendant may disagree with the restrictive language of the exemption
at issue and
the result of its application, our legislature has elected to make it so.
And however distasteful the
result in this case may be to this Court, it does not give us license to
avoid applying the
unambiguous language of the statute. We thus affirm the trial court’s order
that the documents
are non-exempt from disclosure under FOIA.
Addressing plaintiff’s cross appeal, this Court notes that in denying
plaintiff requested
personnel records, the trial court simply stated “I think there are separate
rules on personnel
files.” No reference was made, however to any specific rule the court relied
upon in finding the
personnel records exempt form disclosure and this Court was unable to locate
any provision in
FOIA specifically exempting personnel records, other than those of law
enforcement, from
disclosure.
If the trial court were relying upon MCL 15.243 (1)(a), the exemption
relating to
information of a personal nature, such reliance would be misplaced. This
Court has previously
held that personnel documents of public school teacher and principals, which
contained
performance appraisals, disciplinary actions, and complaints relating to
these employees'
accomplishments in their public jobs, did not contain information of
embarrassing, intimate,
private, or confidential nature, and, thus, were not "personal in nature"
and exempt from
disclosure under privacy exemption under Freedom of Information Act (FOIA).
See, Bradley v
Saranac Community Schools Bd of Educ, 455 Mich 285; 565 NW2d 650 (1997).
This Court sees
no distinction, and defendant has articulated none, between the personnel
files of public school
employees and other public body employees such as those whose records were
requested. As a
result, there was no basis to find the personnel records exempt from
disclosure and that portion
of the trial court’s ruling is therefore reversed.
-4-
Affirmed in part and reversed in part.
/s/ Karen M. Fort Hood
/s/ Mark J. Cavanagh
/s/ Deborah A. Servitto
-5-
_______________________________________________
nfbmi-talk mailing list
nfbmi-talk at nfbnet.org
http://www.nfbnet.org/mailman/listinfo/nfbmi-talk_nfbnet.org
To unsubscribe, change your list options or get your account info for
nfbmi-talk:
http://www.nfbnet.org/mailman/options/nfbmi-talk_nfbnet.org/joeharcz%40comcast.net
More information about the NFBMI-Talk
mailing list