Detroit News, Inc. v. City of Detroit

• Citation: 185 Mich.App. 296,460 N.W.2d 312
• Decision Date: 25 September 1990
• Docket Number: Docket No. 118278
• Parties: The DETROIT NEWS, INC., a Michigan corporation, Plaintiff-Appellee, v. CITY OF DETROIT, a municipal corporation, Defendant-Appellant, and Michigan Municipal League, Amicus Curiae. 185 Mich.App. 296, 460 N.W.2d 312, 17 Media L. Rep. 2333
• Court: Court of Appeal of Michigan — District of US

Page 312

460 N.W.2d 312

The DETROIT NEWS, INC., a Michigan corporation, Plaintiff-Appellee, v. CITY OF DETROIT, a municipal corporation,

Defendant-Appellant,

and

Michigan Municipal League, Amicus Curiae.

Docket No. 118278.

185 Mich.App. 296, 460 N.W.2d 312, 17 Media L. Rep. 2333

Court of Appeals of Michigan.

Submitted June 5, 1990.

Decided Aug. 23, 1990.

Released for Publication Sept. 25, 1990.

[185 MICHAPP 297] Butzel, Long, Gust, Klein & Van Zile by Richard E. Rassel, James E. Stewart and Leonard M. Niehoff, Detroit, for plaintiff.

Bell & Gardner, P.C. by Samuel C. Gardner and Athina T. Siringas, Detroit, for defendant.

[185 MICHAPP 298] Miller, Canfield, Paddock & Stone by Roderick K. Daane and Charles A. Duerr, Ann Arbor, for amicus curiae Mich. Municipal League.

Before GRIBBS, P.J., and CAVANAGH and MARILYN J. KELLY, JJ.

PER CURIAM.

Plaintiff The Detroit News, Inc., filed this action pursuant to the Michigan Freedom of Information Act (FOIA), M.C.L. Sec. 15.231 et seq.; M.S.A. Sec. 4.1801(1) et seq. At issue was whether closed sessions of the Detroit City Council held on January 29, and February 3, 1988, were held in violation of the Open Meetings Act (OMA), M.C.L. Sec. 15.261 et seq.; M.S.A. Sec. 4.1800(11) et seq., and, if so, whether the minutes of those meetings should be released to the public. The trial court concluded that the meetings were held in violation of the OMA and that the minutes should be disclosed under the FOIA. We affirm.

The underlying facts involve defendant's acquisition of property for the Chrysler Jefferson/Connor Project. A consent final judgment detailing defendant's acquisition of fifteen acres of land with equipment and inventory for approximately $42 million was entered on January 12, 1988. The consent judgment was approved by Emmett Moten, head of the city's Department of Community and Economic Development, by Donald Pailen, Corporation Counsel for the city, by an assistant corporation counsel and by a special assistant corporation counsel. The city council, by means of a December 10, 1986, resolution, expressly authorized Mr. Moten to enter into an agreement for use and possession of the subject property and to execute that agreement and any ancillary documents on behalf of the city.

[185 MICHAPP 299] On January 28, 1988, the members of the Detroit City Council unanimously passed a resolution to close their January 29, 1988, session for the ostensible purpose of discussing settlement strategy in connection with pending litigation relative to the Chrysler Jefferson/Connor Project. Through a second resolution, the meeting was continued to February 3, 1988.

Plaintiff filed a freedom of information request for a copy of the minutes of the two closed sessions of the city council. Plaintiff's request was denied by the city and plaintiff filed the complaint in this case alleging a violation of the FOIA.

Plaintiff subsequently amended its complaint to add a count alleging violation of the Open Meetings Act. Plaintiff sought a preliminary injunction to enjoin defendant from violating the OMA, a declaratory judgment that the closed meetings of January 29, and February 3, 1988, violated the OMA, and sought to have the city produce a sealed copy of the minutes for in camera review.

Defendant filed a motion for summary disposition, arguing a lack of jurisdiction in the trial court to review the matter and claiming that plaintiff had failed to state a claim upon which relief could be granted and that there was no genuine issue of material fact. The trial court denied defendant's motion in a comprehensive written opinion. The trial court examined the consent final judgment and the minutes of the closed meetings and concluded that litigation was not pending at the time the closed sessions were held. The trial court determined that the closed city council meetings violated the OMA and that the minutes of those meetings were public records subject to disclosure under the FOIA. The trial court also enjoined further closed sessions to discuss the Chrysler Jefferson/Connor Project.

[185 MICHAPP 300] On appeal, defendant contends that the city's motion for summary disposition should have been granted because plaintiff's amended complaint did not state a cause of action and because the trial court lacked jurisdiction to invalidate the closed meetings. Defendant argues that plaintiff made no showing of irreparable injury because of the closed meetings and presented no evidence that any violation of the OMA occurred.

We note initially that there is no merit to defendant's claim that plaintiff failed to meet its burden of proof in this matter. Once a request has been made under the FOIA and denied by defendant, the burden falls upon defendant to show a viable defense. Pennington v. Washtenaw Co. Sheriff, 125 Mich.App. 556, 564-565, 336 N.W.2d 828 (1983). Exemptions are affirmative defenses to requests for documents. An affirmative defense cannot succeed unless the matters upon which it rests are proved. The burden of producing evidence and establishing these facts rests upon the defendant. Booth Newspapers, Inc. v. Regents of the University of Michigan, 93 Mich.App. 100, 108-109, 286 N.W.2d 55 (1979). Because the defendant controls the material requested, it is difficult for the plaintiff in an FOIA case to confidently assert circumstances and facts in its favor. Accordingly, the burdens of pleading and proof are allocated to rectify this disadvantage. Id.

We also reject defendant's claim that the preliminary injunction in this case was improper. The OMA allows an individual to commence a civil action for injunctive relief to either compel compliance with the OMA or enjoin further noncompliance with the act. M.C.L. Sec. 15.271; M.S.A. Sec. 4.1800(21). Because the purpose of the act is to promote openness in government, it is given a broad interpretation. Wexford Co. Prosecutor v. Pranger, 83 [185 MICHAPP 301] Mich.App. 197, 204, 268 N.W.2d 344 (1978). As defendant argues, injunctive relief involves an extraordinary remedy which is available only when justice requires, when there is not an adequate remedy at law and when there exists a real and imminent danger of irreparable injury. Wexford Co. Prosecutor, supra at 205, 268 N.W.2d 344. However, much like an action under the FOIA, an OMA action challenging a closed-door session places the plaintiff at a distinct disadvantage in garnering factual support for its claim. With only the defendant aware of what actually occurred at a meeting, the burden of establishing that a meeting is exempt from the OMA should fall upon the party claiming exemption. We believe it is implicit in the purpose of "sunshine laws" such as the OMA that there is real and imminent danger of irreparable injury when governmental bodies act in secret.

The trial court also acted properly in conducting an in camera review of the minutes. As is often the case in FOIA matters, the affidavits filed by defendants were wholly conclusory and lacking in factual allegations of what actually occurred at the closed meetings. See Evening News Ass'n v. City of Troy, 417 Mich. 481, 515-516, 339 N.W.2d 421 (1983), reh. den. 418 Mich. 1202 (...