Herald Co., Inc. v. Tax Tribunal

• Citation: 258 Mich. App. 78,669 N.W.2d 862
• Decision Date: 07 October 2003
• Docket Number: Docket No. 234625.
• Parties: HERALD COMPANY, INC., d/b/a Grand Rapids Press, Plaintiff-Appellee, v. TAX TRIBUNAL and Tax Tribunal Chairman, Defendant-Appellants, and City of Grand Rapids, Defendant.
• Court: Court of Appeal of Michigan (US)

669 N.W.2d 862

258 Mich. App. 78

HERALD COMPANY, INC., d/b/a Grand Rapids Press, Plaintiff-Appellee, v. TAX TRIBUNAL and Tax Tribunal Chairman, Defendant-Appellants, and City of Grand Rapids, Defendant.

Docket No. 234625.

Court of Appeals of Michigan.

Submitted March 5, 2003, at Lansing.

Decided August 12, 2003, at 9:00 a.m.

Released for Publication October 7, 2003.

Butzel Long (by Dawn Phillips Hertz), Ann Arbor, for the plaintiff.

Michael A. Cox, Attorney General, Thomas L. Casey, Solicitor General, and Thomas Quasarano, Assistant Attorney General, for the defendants.

Before: DONOFRIO, P.J., and SAAD and OWENS, JJ.

DONOFRIO, P.J.

Defendants¹ the Michigan Tax Tribunal (MTT) and its chairman, appeal as of right an order denying defendants' motion for summary disposition, an order granting a motion by plaintiff, Herald Company, Inc., for summary disposition, and an order denying defendants' motion for reconsideration, and awarding plaintiff attorney fees for a violation of the Open Meetings Act (OMA), M.C.L. § 15.261 et seq. We affirm in part, reverse in part, and remand for further proceedings.

In 1996, the Amway Hotel Corporation (Amway) challenged its property tax assessment by the city of Grand Rapids before the MTT. This case arose when plaintiff, the local newspaper, brought an action in the circuit court alleging violations of the OMA through application of the Freedom of Information Act (FOIA), M.C.L. § 15.231 et seq., involving Amway's tax assessment case before defendants. During the discovery phase of that action, the MTT hearing referee issued a protective order holding Amway's financial information confidential. The protective order covered,

[a]ny and all financial data or information... including but not limited to assets and liabilities, income and expenses, cash-flows, acquisition costs for all or any part of such property, projections and proforma statements, regardless of by whom prepared, room rates and rates or prices for other goods and services rendered by [Amway] on or from the property.

Defendants' hearing referee made no inquiry into the confidential nature of items designated under the protective order, but allowed Amway and the city of Grand Rapids to stipulate and designate as confidential any document on which they agreed. The protective order was self-limiting regarding the admissibility of evidence, and by its own language further provided that its issuance alone was not a consideration in a subsequent confidentiality determination.

At the hearing before defendants, Amway requested that defendants close the hearing when there was testimony identified by the parties as confidential under the protective order. The referee complied with the request when stipulated confidential information was involved, and conducted closed sessions of the tribunal. The referee explained that the information stipulated by the parties as confidential was not required by law, was exempt from the FOIA, and therefore, subject to a closed session hearing by exemption under the OMA.

Because plaintiff was excluded from the tax hearing and was unable to obtain the hearing's exhibits, plaintiff sought declaratory and injunctive relief in the circuit court regarding defendants' alleged violations of the OMA and against the city of Grand Rapids for alleged violations of the FOIA.² The facts were not in dispute and the parties brought cross-motions for summary disposition. The trial court denied defendants' motion for summary disposition and granted plaintiff's motion for summary disposition, except for its request for injunctive relief. The court held that the underlying tax case was adjudicatory in nature,³ and that the information kept confidential was not for use in developing governmental policy. Therefore, the FOIA, M.C.L. § 15.243(1)(f), did not exempt the information from disclosure, and there was no basis for holding a closed session under the OMA, M.C.L. § 15.268(h). The trial court further concluded that defendants violated the separation and description section of the FOIA, M.C.L. § 15.244. A successor judge denied defendants' motions for reconsideration and clarification, and awarded fees and costs to plaintiff. This appeal followed.

Defendants first argue that the trial court refused to consider defendants' motion for reconsideration and clarification merely because the court did not want to review an opinion and order issued by a predecessor judge. We disagree. We review a trial court's denial of a motion for reconsideration for an abuse of discretion. In re Beglinger Trust, 221 Mich.App. 273, 279, 561 N.W.2d 130 (1997). The movant must show that the trial court made a palpable error and that a different disposition would result from correction of the error. MCR 2.119(F)(3). Moreover, a motion for reconsideration that merely presents the same issues already ruled on by the court generally will not be granted. Id.

After reviewing the record, we find that defendants' motion for reconsideration did not raise any error that misled the court or the parties, but rather questioned the trial court's reasoning and its decisions on issues of law already decided by the court. Therefore, the trial court did not abuse its discretion when it denied reconsideration of these issues. In re Beglinger Trust, supra at 279, 561 N.W.2d 130.

Next, defendants argue that they properly closed the tax assessment hearing to protect the confidentiality of information under the protective order. A trial court's grant of summary disposition is reviewed de novo to determine whether the moving party was entitled to judgment as a matter of law. Maiden v. Rozwood, 461 Mich. 109, 118, 597 N.W.2d 817 (1999). Further, because this issue also raises a question of statutory interpretation, we will review it de novo. Yaldo v. North Pointe Ins. Co., 457 Mich. 341, 344, 578 N.W.2d 274 (1998). We review for an abuse of discretion a trial court's decision whether to invalidate a decision made in violation of the OMA. Nicholas v. Meridian Charter Twp. Bd., 239 Mich.App. 525, 533-534, 609 N.W.2d 574 (2000).

"[T]he purpose of the OMA is to promote governmental accountability by facilitating public access to official decision making and to provide a means through which the general public may better understand issues and decisions of public concern." Kitchen v. Ferndale City Council, 253 Mich.App. 115, 125, 654 N.W.2d 918 (2002), citing Booth Newspapers, Inc. v. Univ. of Michigan Bd. of Regents, 444 Mich. 211, 231, 507 N.W.2d 422 (1993). Similarly, with regard to the FOIA, Michigan public policy declares that all persons except prisoners are entitled to complete information regarding the affairs of government and the official acts of those who represent them so that they may fully participate in the democratic process. M.C.L. § 15.231(2); Herald Co. v. Bay City, 463 Mich. 111, 118, 614 N.W.2d 873 (2000). "[I]t is clear and indisputable that the OMA and the FOIA have a common purpose, manifesting this state's public policy favoring public access to government information...." Kitchen, supra at 125, 654 N.W.2d 918.

On appeal, defendants specifically argue that the application of an FOIA exemption, M.C.L. § 15.243(1)(f), discharged them from holding an open meeting under the OMA, M.C.L. § 15.268(h).⁴ The OMA provides that a public body may meet in a closed session "[t]o consider material exempt from discussion or disclosure by state or federal statute." M.C.L. § 15.268(h). Defendants assert that the FOIA, specifically M.C.L. § 15.243(1)(f), provided the basis for nondisclosure of the financial information at issue because the material was for use by defendants in developing governmental policy, and therefore, they properly closed the meeting pursuant to the OMA. M.C.L. § 15.268(h). M.C.L. § 15.243(1)(f) states, in pertinent part:

(1) A public body may exempt from disclosure as a public record under this act any of the following:

* * *

(f) Trade secrets or commercial or financial information voluntarily provided to an agency for use in developing governmental policy if:

(i) The information is submitted upon a promise of confidentiality by the public body.

(ii) The promise of confidentiality is authorized by the chief administrative officer of the public body or by an elected official at the time the promise is made.

(iii) A description of the information is recorded by the public body within a reasonable time after it has been submitted, maintained in a central place within the public body, and made available to a person upon request. This subdivision does not apply to information submitted as required by law or as a condition of receiving a governmental contract, license, or other benefit. [Emphasis added.]

To further the purpose of the OMA, its requirements are interpreted broadly and its exemptions are interpreted narrowly. Booth Newspapers, Inc, supra at 223, 507 N.W.2d 422. With this in mind, we find that the underlying tax assessment challenge was simply a tax determination involving a single taxpayer, lacking the policy-making potential contemplated by the Legislature in drafting this exemption to the FOIA. M.C.L. § 15.243(1)(f). Since the individual tax determination did not involve the development of governmental policy, M.C.L. § 15.243(1)(f) did not apply. Ultimately, defendants' errant reliance on M.C.L. § 15.243(1)(f) of the FOIA as the basis for its refusal to disclose the requested documents also caused defendants to violate the OMA when the MTT closed the hearing on the basis of this exemption. For these reasons, we conclude that summary disposition in favor of the plaintiff was proper.

Significantly, in light of the proceedings before the MTT, we need to bring attention to the interplay of the procedural requirements in the FOIA and the OMA. Section 14 of the FOIA provides:

(1) If a public record contains material which is not exempt under section 13, as well as material which is exempt from disclosure under

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