Bitterman v. Vill. of Oakley

• Decision Date: 22 January 2015
• Docket Number: Docket No. 320984.
• Citation: 309 Mich.App. 53,868 N.W.2d 642
• Parties: BITTERMAN v. VILLAGE OF OAKLEY.
• Court: Court of Appeal of Michigan — District of US

309 Mich.App. 53

868 N.W.2d 642

BITTERMAN

v.VILLAGE OF OAKLEY.

Docket No. 320984.

Court of Appeals of Michigan.

Submitted Oct. 15, 2014, at Lansing.

Decided Jan. 22, 2015, at 9:00 a.m.

Outside Legal Counsel PLC, Hemlock, (by Philip L. Ellison ) for plaintiff.

Plunkett Cooney (by Mary Massaron, Detroit, Audrey J. Forbush, Rhonda R. Stowers, Flint, and Hilary A. Ballentine, Bloomfield Hills) for defendant.

Before: METER, P.J., and WHITBECK and RIORDAN, JJ.

Opinion

RIORDAN, J.

Plaintiff, Shannon Bitterman, appeals as of right the circuit court's order granting partial summary disposition in favor of defendant, village of Oakley (the “Village”), in this case brought under the Freedom of Information Act (FOIA), MCL 15.231 et seq. The Village cross-appeals. We affirm in part, reverse in part, and remand for further proceedings consistent with this opinion.

I. FACTUAL BACKGROUND

On March 20, 2013, Bitterman made a two-part FOIA request to the Village, seeking records, documents, and information about Village police reservists from the previous three years. She also requested a copy of an audio recording from a September 13, 2011 Village council meeting. On March 21, 2013, the Village's clerk denied both requests, citing the civil litigation exemption, MCL 15.243(1)(v). On April 3, 2013, Bitterman filed a complaint in the circuit court, alleging that her requests were wrongfully denied. Bitterman also submitted a second FOIA request to the Village on April 3, 2013, requesting a list containing the names, full addresses, and telephone numbers of every donor to the Village of Oakley Police Donation Fund for the previous five years. On April 8, 2013, the Village denied the request for donor information, citing the privacy exemption, MCL 15.243(1)(a). Bitterman amended her complaint to add allegations that the April 3 FOIA request was wrongfully denied.

Subsequently, on April 19, 2013, the Village asserted an additional ground for denying Bitterman's request for information relating to the police reservists. It sent Bitterman a letter stating that it was denying her FOIA request because she failed to sufficiently identify the information she sought. The Village also denied her request for the audio recording of the council meeting because the recording had been destroyed before Bitterman submitted her FOIA request, so it had no existing recording.

The parties filed cross-motions for summary disposition. In its motion, the Village argued that the information on the police reservists was exempt from disclosure because Bitterman's request was overly broad and failed to sufficiently describe a public record. The Village contended that it does not maintain a list of police reservists—active or inactive. The Village also argued that the disclosure of the information regarding the police reservists was protected by numerous FOIA exemptions and that the privacy exemption of MCL 15.243(1)(a) applied to Bitterman's request. Bitterman contended that the Village should not be able to assert in the circuit court the additional defenses listed in its April 19 letter.

The circuit court ruled that the names, addresses, and telephone numbers of the donors to the police fund were exempt from disclosure under the privacy exemption, MCL 15.243(1)(a). Further, the court held that the names of active police reservists were exempt from disclosure under Subparagraph (viii ) of the law enforcement exemption, MCL 15.243(1)(s) (viii ). However, the court held that the names of inactive police reservists were not exempt pursuant to either the law enforcement exemption or the privacy exemption and ordered disclosure of the nonexempt information. Finally, the court held that the Village did not have to disclose the audio recording because the recording was not in existence at the time that Bitterman made her March 20 FOIA request.¹

II. MORE RECENT DEVELOPMENTS

On October 10, 2014, the circuit court issued an injunction prohibiting the Village's police department from operating.² Thus, in effect, all village of Oakley police reservists now are inactive. Subsequently, on October 14, 2014, the Village council ordered the release of the names of all police officers and reservists who have served the Village. At oral argument in this Court on October 15, 2014, Bitterman's counsel advised us of the recent developments. We then ordered supplemental briefing on the effect of those recent developments on this appeal.

In her supplemental brief, Bitterman argues that by deciding to release the names of the police reservists, the Village has waived its challenge to disclosure under the FOIA. She relies on the public domain doctrine from federal freedom of information act cases. The Village responds that the recent events are not relevant to the issue before this Court, i.e., whether the Village lawfully refused to disclose the requested information on the basis of the cited exemptions. The Village maintains that this Court should review the circuit court's decision in light of the information that was before the Village when it decided the issue. The Village also argues that the public domain doctrine does not apply because Bitterman has not shown that the information at issue has been preserved in a permanent public record.

In State News v. Mich. State Univ., 481 Mich. 692, 703–704, 753 N.W.2d 20 (2008), our Supreme Court explained:

We agree with the Court of Appeals statement that “public bodies and trial courts can only make decisions on FOIA matters on the basis of the information that is before them at the time, and it is not the function of appellate courts to second-guess those decisions on the basis of information that later becomes available.” We disagree, however, with the panel's further, contrary musings that the passage of time and subsequent events could negate the applicability of a FOIA exemption. Rather, we hold that unless the FOIA exemption provides otherwise, the appropriate time to measure whether a public record is exempt under a particular FOIA exemption is the time when the public body asserts the exemption.

The denial of a FOIA request occurs at a definite point in time. The public body relies on the information available to it at that time to make a legal judgment whether the requested public record is fully or partially exempt from disclosure. The determinative legal question for a judicial body reviewing the denial is whether the public body erred because the FOIA exemption applied [sic: did not apply?] when it denied the request. Subsequent developments are irrelevant to that FOIA inquiry. There is no indication from the text of either the privacy or the law-enforcement-purposes exemption or from another, independent FOIA provision that the public body's assertion of a FOIA exemption may be reexamined by the circuit court or an appellate court while taking into consideration information not available to the public body when it denied the request.

In accordance with State News, we will not consider the fact that the Village police department's operations were halted and all of the police reservists became inactive when evaluating the applicability of the relevant exemptions in this matter.

In addition, although our Supreme Court noted that the “release of the requested public record by the public body would render the FOIA appeal moot because there would no longer be a controversy requiring judicial resolution,” id. at 704 n. 25, 753 N.W.2d 20, the issue in this case is not moot because the parties' supplemental briefs indicate that despite the Village council's decision to release the names of reservists, the names, in fact, have not been released to the public. Accordingly, notwithstanding the recent developments, we will address the arguments raised in the appeal and cross-appeal.

III. THE FREEDOM OF INFORMATION ACT

The FOIA is written to provide to those who seek it “ ‘full and complete information regarding the affairs of government and the official acts of those who represent them as public officials and public employees,’ thereby allowing them to ‘fully participate in the democratic process.’ ” Amberg v. Dearborn, 497 Mich. 28, 30, 859 N.W.2d 674 (2014), quoting MCL 15.231(2). Further, MCL 15.231(2) states in its entirety that “[i]t is the public policy of this state that all persons, except those persons incarcerated in state or local correctional facilities, are entitled to full and complete information regarding the affairs of government and the official acts of those who represent them as public officials and public employees, consistent with this act. The people shall be informed so that they may fully participate in the democratic process.”

Except under certain specifically delineated exceptions, a person who “ ‘provid[es] a public body's FOIA coordinator with a written request that describes a public record sufficiently to enable the public body to find the public record’ is entitled ‘to inspect, copy, or receive copies of the requested public record of the public body.’ ” Amberg, 497 Mich. at 30, 859 N.W.2d 674, quoting MCL 15.233(1) ; see also Coblentz v. City of Novi, 475 Mich. 558, 573, 719 N.W.2d 73 (2006) (“A FOIA request must be fulfilled unless MCL 15.243 lists an applicable specific exemption.”).

A. THE VILLAGE'S ASSERTION OF NEW DEFENSES AFTER ITS FIRST RESPONSE

Bitterman argues that the Village is estopped from raising any new defenses in support of its decision to deny her FOIA requests after it made its “final determination to deny the request” pursuant to MCL 15.235(4). This exact issue was addressed in Stone Street Capital, Inc. v. Bureau of State Lottery, 263 Mich.App. 683, 688 n. 2, 689 N.W.2d 541 (2004), where we explained that “a public body may assert for the first time in the circuit court defenses not originally raised at the administrative level.” Accordingly, Bitterman's argument is without merit.

B. THE DONORS TO THE POLICE FUND

Bitterman next argues that the circuit court erred by holding that the names³ of the donors...