Pennington v. Washtenaw County Sheriff, Docket No. 57413
| Decision Date | 01 August 1983 |
| Docket Number | Docket No. 57413 |
| Citation | 336 N.W.2d 828,125 Mich.App. 556 |
| Parties | Joseph Lee PENNINGTON, Plaintiff-Appellant, v. WASHTENAW COUNTY SHERIFF, Defendant-Appellee. 125 Mich.App. 556, 336 N.W.2d 828 |
| Court | Court of Appeal of Michigan — District of US |
[125 MICHAPP 557] Joseph Lee Pennington in pro. per.
Office of the Corporation Counsel for Washtenaw County by Eliot G. Striar, Ann Arbor, for defendant-appellee.
[125 MICHAPP 558] Before HOLBROOK, P.J., and J.H. GILLIS and HOEHN, JJ.
Plaintiff requested investigative records from the Washtenaw County Sheriff, pursuant to the Freedom of Information Act (FOIA), M.C.L. Sec. 15.231 et seq.; M.S.A. Sec. 4.1801(1) et seq. Defendant refused to release all the records requested and some of those released had portions deleted. Plaintiff filed a complaint in the trial court to compel disclosure. Defendant moved for summary judgment. Following an in camera view of the records sought by plaintiff, the trial court granted defendant's motion. Plaintiff appeals as of right.
On December 8, 1977, defendant pled guilty in Washtenaw County Circuit Court to one count each of kidnapping, second-degree criminal sexual conduct, and felony-firearm. He was sentenced to 10 to 50 years, 10 to 15 years, and 2 years, respectively. Defendant appealed to this Court, challenging the validity of his guilty plea. This Court affirmed his conviction in an unpublished per curiam opinion on October 17, 1979 (Docket # 78-1341). The Supreme Court denied leave to appeal on March 17, 1980. 408 Mich. 865 (1980).
On March 5, 1979, plaintiff wrote to defendant requesting:
"(1) a listing of each and all records and or documents, and (2) a copy of each and all records and or documents contained in all of the files of the Washtenaw County Sheriff Department indexed and or maintained under my name and all documents returnable by a search for documents containing my name."
On March 12, 1979, defendant released documents [125 MICHAPP 559] contained in plaintiff's Washtenaw County Jail inmate file.
On March 24, 1979, plaintiff again wrote to defendant:
Plaintiff also sought medical records, security reports, transfer documents, and personal property listings which pertained to him. Defendant failed to respond.
On March 7, 1979, plaintiff wrote to defendant, renewing his request for a list of all records or documents containing his name or maintained under his name. Defendant responded on March 14, 1979, stating that all documents contained in plaintiff's criminal file, other than medical records, had been released. Defendant also furnished plaintiff with medical release forms at that time.
Defendant responded on May 15, 1979, supplying plaintiff with only his medical records, stating:
On June 5, 1979, plaintiff filed a complaint in pro per in Jackson County Circuit Court seeking:
"each and all the records and or documents indexed and or maintained under Plaintiff [sic ] name, or in reference to Plaintiff under any means, and all documents returnable by a search for documents containing Plaintiff [sic ] name within the Defendant [sic ] files and or all Defendant [sic ] sub-unit files * * * [and]
[125 MICHAPP 561] "the Defendant to conduct a search of each and all of its and its sub-units files for any references to Plaintiff by name, or identification number, nature of contact with Defendant, and or what so ever means the Defendant maintains information in regards to individuals, its [sic ] has had contact with during the ordinary course of business."
Pursuant to the FOIA, he also sought costs and attorney fees, M.C.L. Sec. 15.240(4); M.S.A. Sec. 4.1801(10)(4), and $500 punitive damages, M.C.L. Sec. 15.240(5); M.S.A. Sec. 4.1801(10)(5).
On June 5, 1979, upon motion of the Jackson County Circuit Court, the action was transferred to Washtenaw County as that was found to be plaintiff's residence for purposes of the FOIA. An order to that effect was entered the same day.
Due to problems encountered in serving defendant, an answer was not filed until October 30, 1979. As affirmative defenses, defendant asserted that:
Plaintiff replied on November 8, 1979, stating that there was no evidence to support defendant's [125 MICHAPP 562] assertions of its affirmative defenses and, further, that criminal discovery was an irrelevant matter.
On March 12, 1980, copies of the disputed documents were released to the trial court for an in camera inspection. On November 4, 1980, an order issued which stated that the trial court would view the disputed documents in camera before resolving the controversy.
On November 18, 1980, defendant moved for summary judgment pursuant to GCR 1963, 117.2(3). However, no supporting affidavits were submitted, as required by GCR 1963, 117.3. Also, at that time, since plaintiff had exhausted his criminal appeals, defendant was willing to release an expurgated copy of one disputed report. Plaintiff answered the motion on December 4, 1980, and supplied an affidavit setting forth items of factual dispute.
On March 23, 1981, the trial court issued a written opinion finding that the deleted portions of the one disputed report and the entire report containing the interview with the victim were exempt from disclosure pursuant to M.C.L. Sec. 15.243(1)(b)(iii); M.S.A. Sec. 4.1801(13)(1)(b)(iii). Upon release of the expurgated report, defendant's motion for summary judgment would be granted. Summary judgment was granted in favor of defendant, "pursuant to GCR 117", on April 10, 1981.
Plaintiff appeals as of right.
The primary issue we need decide is whether the trial court erred by granting summary judgment, pursuant to GCR 1963, 117.2(3), in favor of defendant. We answer in the affirmative.
It is well settled that failure to file supporting affidavits necessitates reversal, regardless of whether the pleadings and other proof would support the motion. DeMare Bros Construction Co, Inc. [125 MICHAPP 563] v. Teska, 49 Mich.App. 642, 646, 212 N.W.2d 602 (1973); Nabkey v. Kent Community Action Program, Inc, 99 Mich.App. 480, 483, 298 N.W.2d 11 (1980). The latter case was an FOIA action procedurally similar to the case at bar. Further, if a public body seeks a
Hence, the trial court erred in granting defendant's motion for summary judgment.
Even if defendant had supplied the necessary affidavits, it is unclear whether it has met its burden justifying nondisclosure. Initially, it should be noted that
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