Local Area Watch v. City of Grand Rapids, Docket No. 243849.

• Decision Date: 21 July 2004
• Docket Number: Docket No. 243849.
• Citation: 683 N.W.2d 745,262 Mich.App. 136
• Parties: The LOCAL AREA WATCH, Plaintiff-Appellant, v. CITY OF GRAND RAPIDS, Grand Rapids City Commission, and Grand Rapids Historic Preservation Commission, Defendants-Appellees.
• Court: Court of Appeal of Michigan — District of US

683 N.W.2d 745

262 Mich.App. 136

The LOCAL AREA WATCH, Plaintiff-Appellant, v. CITY OF GRAND RAPIDS, Grand Rapids City Commission, and Grand Rapids Historic Preservation Commission, Defendants-Appellees.

Docket No. 243849.

Court of Appeals of Michigan.

Submitted February 4, 2004, at Grand Rapids.

Decided May 20, 2004, at 9:05 a.m.

Released for Publication July 21, 2004.

Peter W. Steketee, Grand Rapids, for the plaintiff.

Daniel A. Ophoff and Catherine M. Mish, Grand Rapids, for the defendants.

Before: MURRAY, P.J., and MURPHY and MARKEY, JJ.

MARKEY, J.

Plaintiff brought this action under Michigan's Freedom of Information Act (FOIA), M.C.L. § 15.231 et seq., and appeals by right the trial court's order granting summary disposition to defendants. Plaintiff, a nonprofit corporation, brought suit against defendants seeking an order requiring defendants to produce certain public records not exempt under the FOIA, reasonable attorney fees, and punitive damages. Plaintiff moved for summary disposition, but the trial court ruled in favor of defendants, entirely dismissing plaintiff's claim. We affirm.

I. Summary of Facts and Proceedings

Plaintiff is a Michigan nonprofit corporation. William Q. Tingley is plaintiff's executive director and the secretary and general manager of Proto-Cam, Inc. (Proto-Cam),¹ a tool manufacturer that owns and operates a manufacturing facility at 1009 Ottawa Avenue, N.W. in Grand Rapids. The Proto-Cam facility is located across an alley from an old furniture plant on North Monroe Avenue (the B & G Building) that has been recently redeveloped into commercial offices and residential living space. Tingley believes that the developers of the B & G Building removed soil from beneath the building and disposed of it in other locations, including the Grand Rapids Water Filtration Plant. Tingley suspected the soil contained a high level of industrial waste. Tingley believes that such activity violated § 20120c of the Michigan Natural Resources and Environmental Protection Act, M.C.L. § 324.20120c, and that defendant city of Grand Rapids may have accommodated this activity and helped to conceal it.

Tingley, in his capacity as the executive director of plaintiff, wrote to the mayor of the city of Grand Rapids, requesting under the FOIA all public records in defendant's possession regarding both the B & G Building and the water filtration plant in connection with their redevelopment by certain developers. Plaintiff also made sixty-five additional requests that included, inter alia, requests for the minutes of the city commission meetings of the committee of the whole and the minutes from all its executive sessions.²

The City's FOIA coordinator responded by letter dated July 18, 2001, denying in part and granting in part plaintiff's request. Specifically, defendants denied plaintiff's request for executive session minutes, citing M.C.L. § 15.243(1)(d) (exempting from disclosure records or information specifically exempted from disclosure by statute).

Plaintiff appealed defendants' denial to the head of the public body, the Grand Rapids city manager. Plaintiff argued, in part, that the purposes for the executive sessions were other than those allowed under the Open Meetings Act (OMA), M.C.L. § 15.261 et seq., and therefore, the exemption cited by the FOIA coordinator did not apply. The city manager, in a letter dated August 27, 2001, denied plaintiff's appeal without explanation.

On January 7, 2002, plaintiff filed this lawsuit in circuit court, solely alleging a violation of the FOIA and seeking a determination regarding what requested records are exempt under FOIA (through inspection in camera by the court), and an order that nonexempt records be released to plaintiff, together with costs, reasonable attorney fees, and punitive damages, all pursuant to § 10 of the FOIA, M.C.L. § 15.240. Plaintiff alleged that the executive session meetings were prohibited by the OMA; therefore, the minutes should not be protected under the FOIA. Plaintiff requested that the trial court review these minutes in camera to determine whether the defendants complied with the OMA. Plaintiff did not plead a separate claim under the OMA.

On January 30, 2002, plaintiff served its first interrogatories and first request for production of documents on defendants. On March 12, 2002, defendants' counsel asked for a one-week extension of time in which to answer the interrogatories, and plaintiff's counsel agreed. On March 25, 2002, defendants' counsel asked for another extension, to March 29, 2002. On April 4, defendants' counsel indicated that he had been sick and that is why the interrogatories had not been answered. Plaintiff did not agree to any further extensions of time.

Finally, on May 8, 2002, plaintiff's counsel received a response to plaintiff's interrogatories and request for production of documents. In the response, it was revealed that the requested executive session minutes from the dates of November 21, 2000, through April 17, 2001, were probably destroyed pursuant to § 7(2) of the OMA, M.C.L. § 15.267(2), which provides that minutes from closed sessions "may be destroyed 1 year and 1 day after approval of the minutes of the regular meeting at which the closed session was approved."³ Plaintiff's counsel sent defendants' counsel a letter on May 10, 2002, requesting, inter alia, that defendant assure plaintiff that any remaining executive session minutes from the dates involved in the request would not be destroyed while this litigation was pending. On the same day, defendants' counsel replied to this request with a letter affirming that because defendants are authorized by statute to destroy executive session minutes, he would refuse plaintiff's request unless ordered by a court to do so.

On May 19, 2002, plaintiff filed a motion for a preliminary injunction to prevent the destruction of documents by the defendants while this case was pending. After the motion hearing on June 7, 2002, the trial court found that defendants would suffer no harm if an injunction were issued; therefore, the court issued an order enjoining defendants from destroying any executive session minutes coming within the descriptions contained in plaintiff's original FOIA request.

On June 6, 2002, defendants filed their response to plaintiff's first interrogatories and request for production of documents. Defendants stated that plaintiff's original FOIA request had been recirculated and that all the requested records were available for inspection. Plaintiff discovered that several documents were being released pursuant to the discovery request that it had not received pursuant to its original FOIA request, in violation of the FOIA. In addition, following the June 7, 2002, hearing, defendants' counsel for the first time produced for plaintiff's counsel several police reports.

On July 1, 2002, plaintiff moved for summary disposition and sanctions against defendants for failure to provide or permit discovery. Specifically, plaintiff argued that it was entitled to summary disposition under MCR 2.116(C)(9) and (10). To find that there was no genuine issue of material fact, plaintiff asked the trial court to draw inferences from defendants' failure to provide or permit discovery as provided by MCR 2.313(B)(2). The trial court heard plaintiff's motion on August 16, 2002. The trial court held that executive session minutes enjoy an absolute exemption from disclosure under the FOIA; consequently, they were not discoverable. By implication, therefore, the trial court rejected plaintiff's argument that under the FOIA alone, the court could review defendants' actions to ensure compliance with the OMA. Because that was the only issue left in the case, the trial court dismissed plaintiff's entire action and set aside the preliminary injunction.

II. Standard of Review

We review de novo the trial court's decision to grant or deny summary disposition. MacDonald v. PKT, Inc., 464 Mich. 322, 332, 628 N.W.2d 33 (2001). "The trial court properly grants summary disposition to the opposing party under MCR 2.116(I)(2) if the court determines that the opposing party, rather than the moving party, is entitled to judgment as a matter of law." Washburn v. Michailoff, 240 Mich.App. 669, 672, 613 N.W.2d 405 (2000). This Court also reviews questions of statutory interpretation de novo. Roberts v. Mecosta Co. Gen. Hosp., 466 Mich. 57, 62, 642 N.W.2d 663 (2002). "Whether a public record is exempt from disclosure under the FOIA is a mixed question of fact and law, and we review the trial court's factual findings for clear error and review questions of law de novo." Detroit Free Press, Inc v. City of Warren, 250 Mich.App. 164, 166, 645 N.W.2d 71 (2002). We review any discretionary decisions made by the trial court for clear abuse. Federated Publications, Inc. v. City of Lansing, 467 Mich. 98, 106, 649 N.W.2d 383 (2002).

III. Analysis

A

We conclude that the trial court did not err by dismissing plaintiff's complaint because the relief that plaintiff sought, judicial review of a public body's decision to hold a closed session, is available only through a civil action filed under § 10, 11, or 13 of the OMA. Plaintiff's action stated a claim exclusively under § 10(1)(b) of the FOIA, M.C.L. § 15.240(1)(b), seeking disclosure of the executive session minutes and alleging that defendants' claimed exemption violated the FOIA. We hold that where relief is sought only under the FOIA, judicial review is not available to determine whether a public body had the authority under the OMA to go into closed session⁴ and thereby exempt minutes of that meeting from disclosure under the FOIA. See Titus v. Shelby Charter Twp., 226 Mich.App. 611, 574 N.W.2d 391 (1997). We distinguish Manning v. East Tawas, 234 Mich.App. 244, 593 N.W.2d 649 (1999), in which this Court upheld the trial court's order to disclose redacted closed session minutes after review in camera because the...