Scharret v. City of Berkley

• Decision Date: 17 April 2002
• Docket Number: Docket No. 233038.
• Citation: 642 N.W.2d 685,249 Mich. App. 405
• Parties: Carolyn J. SCHARRET, Plaintiff-Appellant, v. CITY OF BERKLEY, Defendant-Appellee.
• Court: Court of Appeal of Michigan — District of US

642 N.W.2d 685

249 Mich. App. 405

Carolyn J. SCHARRET, Plaintiff-Appellant, v. CITY OF BERKLEY, Defendant-Appellee.

Docket No. 233038.

Court of Appeals of Michigan.

Submitted November 5, 2001, at Detroit.

Decided January 29, 2002, at 9:00 a.m.

Released for Publication April 17, 2002.

Cummings, McClorey, Davis & Acho, P.L.C. (by Anne McClorey McLaughlin), Livonia, for the plaintiff.

O'Connor, DeGrazia & Tamm, P.C. (by Julie McCann O'Connor and Laurie Stewart Kotch), for the defendant.

Before NEFF, P.J., and WILDER and COOPER, JJ.

WILDER, J.

In this action brought pursuant to the Michigan Freedom of Information Act (FOIA), M.C.L. § 15.231 et seq., plaintiff appeals as of right from a circuit court order granting defendant summary disposition pursuant to MCR 2.116(C)(10) and denying plaintiff the same under MCR 2.116(I)(2). We reverse in part and affirm in part.

I. Facts and Proceedings

On October 9, 2000, plaintiff sent defendant a letter seeking certain information regarding Dan Murray, an independent contractor who served as defendant's home inspector. It is undisputed that plaintiff's letter was sent pursuant to the FOIA and that it complied with all the necessary elements of an FOIA request. Despite this, defendant failed to respond to plaintiff's request within the statutorily mandated time limit. MCL 15.235(2). Because plaintiff did not receive a response from defendant, on October 30, 2000, plaintiff sent an identical request to defendant.

On November 1, 2000, Michael Tyler, defendant's assistant city manager and FOIA coordinator, sent plaintiff a letter acknowledging her October 9, 2000, request and indicated that he would respond to plaintiff's FOIA request by November 10, 2000. Notwithstanding this response, Tyler's written response was not sent to plaintiff until November 13, 2000. That response informed plaintiff that despite "a good faith review of [defendant's] files" and inquiries of "relevant employees," defendant was unable to find any public records pertaining to the information plaintiff sought. The letter then went on to state:

While any of the [requested] public records may exist, they have not to [sic] been found in any reasonably expected file location. An exhaustive search of all city records during regular working hours would burden the City with an unreasonable expense because such an undertaking would require an extensive diversion of staff personnel from their daily responsibilities. If you would like the City to conduct an examination and review of all documents, the City requires that you pay a fee representing the cost of staff time outside of normal working hours, including a 50 % deposit therefore. Please advise me if you would like the City to prepare an estimate of the time and cost upon which a deposit would be based.

The response also informed plaintiff that while Tyler did not believe the response was a denial, if plaintiff believed the response constituted a denial, plaintiff was entitled, pursuant to § 10 of the FOIA, to appeal his decision to defendant's City Council or seek judicial review in the circuit court. MCL 15.240.

After receiving defendant's letter, plaintiff filed the instant action in the Oakland Circuit Court. Plaintiff's complaint alleged that defendant failed to timely respond to her October 9, 2000, request and that defendant's failure to respond within five days constituted a denial of her request. Plaintiff's complaint also alleges that defendant wrongfully denied the request she resubmitted on October 30, 2000. Defendant moved for summary disposition pursuant to MCR 2.116(C)(8) and (10), arguing that it responded within the time frame permitted by the FOIA. Plaintiff opposed defendant's motion and filed a cross-motion for summary disposition contending both that defendant's failure to timely respond to her October 9, 2000, request constituted a final determination to deny the request, and that defendant's November 13, 2000, response to her resubmitted request was untimely and a final determination to deny the request.

Defendant challenged plaintiff's characterization of its November 13, 2000, response as either untimely or a denial and further asserted that plaintiff waived the right to sue with respect to defendant's failure to timely respond to plaintiff's October 9, 2000, request, specifically because she resubmitted the request. According to defendant, plaintiff's resubmission of her request did not permit her to then characterize defendant's failure to timely respond to the October 9, 2000, request as a final determination to deny the request.

After hearing oral arguments on the parties' cross-motions for summary disposition, the trial court issued a written opinion granting defendant's summary disposition motion and denying plaintiff's motion. In granting defendant's motion, the trial court determined that even though defendant denied plaintiff's initial request by failing to timely respond, plaintiff chose not to commence an action to compel disclosure on the basis of her October 9, 2000, request because she resubmitted the request on October 30, 2000. The trial court further concluded that defendant's November 13, 2000, response did not deny plaintiff's second request for the information and that defendant did not violate the FOIA. Lastly, the trial court found that plaintiff was not entitled to costs and attorney fees because disclosure of the requested information was not compelled by plaintiff's lawsuit.

II. Standard of Review

This Court's review of a trial court's grant or denial of summary disposition is de novo in order to determine whether the moving party was entitled to judgment as a matter of law. Sumner v. General Motors Corp. (On Remand), 245 Mich.App. 653, 659, 633 N.W.2d 1 (2001), citing Maiden v. Rozwood, 461 Mich. 109, 118, 597 N.W.2d 817 (1999). In reviewing an MCR 2.116(C)(10) motion, we are to consider all the documentary evidence in the light most favorable to the nonmoving party. Sumner, supra; Morales v. Auto-Owners Ins. Co., 458 Mich. 288, 294, 582 N.W.2d 776 (1998). A motion for summary disposition under MCR 2.116(C)(10) may properly be granted if there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. Id.

This case also requires us to interpret statutory language. Statutory interpretation is a question of law that we review de novo. Etefia v. Credit Technologies, Inc., 245 Mich.App. 466, 469, 628 N.W.2d 577 (2001), citing Oakland Co. Bd. of Co. Rd. Comm'rs v. Michigan Property & Casualty Guaranty Ass'n, 456 Mich. 590, 610, 575 N.W.2d 751 (1998); In re S R, 229 Mich. App. 310, 314, 581 N.W.2d 291 (1998).

In considering a question of statutory construction, this Court begins by examining the language of the statute. We read the statutory language in context to determine whether ambiguity exists. If the language is unambiguous, judicial construction is precluded. We enforce an unambiguous statute as written. Where ambiguity exists, however, this Court seeks to effectuate the Legislature's intent through a reasonable construction, considering the purpose of the statute and the object sought to be accomplished. [Macomb Co. Prosecutor v. Murphy, 464 Mich. 149, 158, 627 N.W.2d 247 (2001)

(citations omitted).]

Unless defined in the statute, every word or phrase of a statute should be accorded its plain and ordinary meaning, taking into account the context in which the words are used, Phillips v. Jordan, 241 Mich.App. 17, 22-23, n. 1, 614 N.W.2d 183 (2000), citing Western Michigan Univ. Bd. of Control v. Michigan, 455 Mich. 531, 539, 565 N.W.2d 828 (1997). Further, the language must be applied as written, Camden v. Kaufman, 240 Mich.App. 389, 394, 613 N.W.2d 335 (2000); Ahearn v. Bloomfield Charter Twp., 235 Mich.App. 486, 498, 597 N.W.2d 858 (1999), and nothing should be read into a statute that is not within the manifest intent of the Legislature as indicated by the act itself. In re S R, supra at 314, 581 N.W.2d 291.

III. Analysis

Plaintiff first argues that the trial court erred in determining that defendant did not violate the FOIA, and by granting defendant's summary disposition motion and denying plaintiff's summary disposition motion. We agree.

The Legislature's stated purpose in enacting the FOIA is to entitle all persons except prisoners to complete information regarding the affairs of the government and the official acts of those who represent them as public officials and public employees so that they may fully participate in the democratic process. MCL 15.231(2); Detroit Free Press, Inc. v. Dep't of Consumer & Industry Services, 246 Mich.App. 311, 314, 631 N.W.2d 769 (2001); Larry S Baker, PC v. City of Westland, 245 Mich.App. 90, 93, 627 N.W.2d 27 (2001). Pursuant to the FOIA, a public body must disclose all public records not specifically exempt under the act. MCL 15.233(1); Baker, supra at 94, 627 N.W.2d 27. MCL 15.235 provides that, unless otherwise agreed to in writing, a public body must respond to a request for a public record within five business days after it receives the request and that the failure to so respond constitutes the public body's final determination to deny the request. MCL 15.235(2) and (3).

Here, the record clearly establishes that plaintiff requested information pursuant to the FOIA on October 9, 2000, and that defendant did not respond to plaintiff's request until November 1, 2000. Defendant's November 1, 2000, letter specifically stated that it was written in response to plaintiff's October 9, 2000, request. According to M.C.L. § 15.235(2) and (3), defendant was required to respond to plaintiff's request within five business days after receiving the request, and its failure to timely respond constituted its final determination to deny the request. Because M.C.L. § 15.235 is clear and unambiguous, defendant's failure to respond to plaintiff's October 9, 2000, request within five business days constituted a final...