[nfbmi-talk] State Supreme Court FOIA Decision

Terry D. Eagle terrydeagle at yahoo.com
Sat Dec 20 15:46:02 UTC 2014

State Supreme Court affirms Freedom of Information Act includes videos,
other recordings held by public bodies



According to the Michigan Supreme Court, police surveillance videos are fair
game for the Freedom of Information Act (FOIA).(Photo: Todd McInturf / The

Detroit News)
Michigan's Supreme Court took a firm stand for the public's right to public
information by unanimously affirming that video surveillance tapes obtained

by police are fair game under the Freedom of Information Act.


In a memorandum signed by all seven justices, the court clarified FOIA's
reach includes "pictures, sounds, or combinations thereof."


The action was brought by James Amberg, an attorney who was seeking copies
of surveillance tapes made by private businesses but held by the Dearborn



Amberg believed the tapes would aid the case of his client, who faced
misdemeanor criminal proceedings. Dearborn police had collected the tapes as

to justify issuing a citation.


Dearborn initially refused the request, claiming recordings are not public
records and thus not subject to FOIA. It later argued that because the tapes

were made by private businesses, and not the police, they did not belong to
the public.


A Wayne Circuit Court judge agreed and the state Court of Appeals upheld
that decision.


The state's high court, however, was unambiguous in declaring that
recordings are public records, the same as printed documents.


"A public record is a writing prepared, owned, used, in the possession of,
or retained by a public body in the performance of an official function,"

justices wrote. "The word 'writing' is defined in FOIA as any means of


The strong statement by the court should discourage public bodies from
trying to shield any form of public record from FOIA. The justices wrote
that "except

under certain specifically delineated exceptions," if a written FOIA request
describes a public record in enough detail that it can be found, the record

should be produced for review.


In other words, unless the law specifically excludes a record from FOIA,
public bodies should assume that record is covered by the act.


In the case, Dearborn seized on the words "from the time they were created"
that appear in Freedom of Information Act. Since the tapes were made by

businesses and later turned over to police, they weren't in the city's
possession until after they were created.


The justices memo blew that argument apart, declaring the phrase "from the
time they were created" was included to make it clear FOIA applied to

created only after the act took effect, and not just to records created by a
public body.


That's also an important clarification of the law.


Since the recordings were held by the department as part of its official
duties, the justices wrote, they were public records and should be released.


This is not a decision that will get a lot of attention. But it is an
important affirmation of the public's right to know.


Increasingly, public entities are forgetting they work for the people, and
that the product of their work belongs to the people.


Rulings such as this one serve to bring them back to that reality.




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