Thomas v. City of New Baltimore, Docket No. 236438.

• Decision Date: 20 February 2003
• Docket Number: Docket No. 236438.
• Citation: 254 Mich. App. 196,657 N.W.2d 530
• Parties: Robert P. THOMAS, Plaintiff-Appellant, v. CITY OF NEW BALTIMORE, Joseph Grajek, Ann Billock, and Michael Mertens, Defendants-Appellees.
• Court: Court of Appeal of Michigan — District of US

657 N.W.2d 530

254 Mich. App. 196

Robert P. THOMAS, Plaintiff-Appellant, v. CITY OF NEW BALTIMORE, Joseph Grajek, Ann Billock, and Michael Mertens, Defendants-Appellees.

Docket No. 236438.

Court of Appeals of Michigan.

Submitted November 6, 2002, at Detroit.

Decided November 26, 2002, at 9:05 a.m.

Released for Publication February 20, 2003.

Robert P. Thomas, in propria persona.

Plunkett & Cooney, P.C. (by Christine D. Oldani and Peter W. Peacock), Detroit, for the defendants.

Before: TALBOT, P.J., and NEFF and FITZGERALD, JJ.

NEFF, J.

Plaintiff appeals as of right from an order denying his motion for summary disposition, dismissing his claims under the Freedom of Information Act (FOIA), M.C.L. § 15.231 et seq., and dismissing his retaliatory harassment and civil rights claims after the trial court concluded that defendant city of New Baltimore properly issued a citation for the storage of plaintiff's boat on vacant property in violation of a city ordinance. We reverse and remand.

I. Basic Facts and Procedural History

The chronology and alleged underlying facts of this case are not at issue on appeal. On February 12, 2001, plaintiff made an FOIA request to defendant Ann Billock, the clerk of the city of New Baltimore, for certain public records related to a development project in the city:

[1] All materials submitted to the City of any date relating to the compliance of Bay-Rama, Inc. with the New Baltimore Woodlands Ordinance at the Festival Park property adjoining St. Claire Drive, of any date.

[2] All reports, analyses, memoranda or correspondence prepared by Mayor Joe Grajek or his designee in response to the application of Bay-Rama, Inc. for a woodlands permit for Festival Park, of any date.

[3] All proposals, plans, and drawings for the construction of Festival Park, of any date.

[4] All agendas, minutes, resolutions, and permits relating to the consideration and approval or rejection of the proposals, plans and drawings for the construction of Festival Park, of any date.

Defendant Joseph Grajek, the city's mayor, responded to the request the same day by producing three records and orally assuring plaintiff that these were all the public records within the scope of the request. However, when plaintiff later attended a city council meeting that evening, he discovered two undisclosed public records posted on a bulletin board outside council chambers. The following day, on February 13, 2001, plaintiff hand-delivered an FOIA appeal letter to the mayor, pursuant to M.C.L. § 15.240(1)(a). In that letter, plaintiff expressly stated that, "[b]ecause it is evident that the City has wrongly denied the existence of records about Festival Park that were described sufficiently in the FOIA request to allow them to be identified, I request that you [the mayor] undertake another search of City records and provide me with an amended disclosure of the results." Subsequently, the mayor responded to the appeal by producing a booklet containing the two public records and orally assuring plaintiff that there were no other documents.

Nonetheless, at a subsequent city council meeting on February 26, 2001, plaintiff learned of city planning commission records, also allegedly within the scope of his FOIA request, which the city had failed to produce. On March 1, 2001, plaintiff filed this FOIA action seeking disclosure of the requested records.

On March 6, 2001, plaintiff amended his complaint to add claims of "retaliatory harassment" and civil rights violations based on alleged harassment by the mayor and New Baltimore Police Officer Michael Mertens in retaliation for plaintiff's opposition to the Festival Park plans and his legal action against the city. According to the amended complaint, on March 5, 2001, Officer Mertens told plaintiff that he had orders, originating from the mayor, to issue a citation to plaintiff for any violation of law, and that plaintiff's boat was stored on a vacant residential lot in violation of a city ordinance. The boat, which was on a trailer and properly registered, had been stored seasonally for several years on a lot adjoining a duplex plaintiff rented, which was destroyed by a fire on October 8, 2000. Until March 2, 2001, plaintiff had rented and occupied a garage on the duplex property, which was demolished on March 5, 2001, in preparation for reconstruction of the dwelling unit. Officer Mertens informed plaintiff that the boat must be removed or Mertens would issue a citation. Plaintiff's lessor was subsequently issued a citation for a municipal civil infraction for the storage of plaintiff's boat on the vacant lot.

On March 21, 2001, defendants mailed plaintiff the minutes of the city's planning commission meeting, dated March 21, 1995, completing the requested FOIA production. Plaintiff moved for summary disposition regarding the FOIA claim and for a declaratory judgment regarding his right to store his boat on the vacant residential lot. The court denied plaintiff's motion for summary disposition and dismissed plaintiff's FOIA claim on the ground that it was moot because plaintiff had received the remaining public records. With respect to plaintiff's request for a declaratory judgment, the circuit court concluded that the zoning ordinance prohibited the storage of a boat on a vacant residential lot, and accordingly, dismissed plaintiff's claims of retaliatory harassment and civil rights violations.

II. FOIA Claim Plaintiff argues that he was a "prevailing" party pursuant to the FOIA, and that

the circuit court erred in failing to award him actual costs and dismissing plaintiff's FOIA claim as moot. We conclude that plaintiff completely prevailed on this issue and that the circuit court abused its discretion in denying plaintiff actual costs.

This Court reviews de novo a trial court's grant or denial of a motion for summary disposition. Maiden v. Rozwood, 461 Mich. 109, 118, 597 N.W.2d 817 (1999). In reviewing a motion under MCR 2.116(C)(10), this Court must consider all documentary evidence in a light most favorable to the nonmoving party. Scharret v. Berkley, 249 Mich.App. 405, 410, 642 N.W.2d 685 (2002). 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 Court reviews a trial court's factual findings for clear error and reviews de novo questions of law. Schroeder v. Detroit, 221 Mich.App. 364, 366, 561 N.W.2d 497 (1997). Statutory interpretation is a question of law reviewed de novo. Oakland Co. Bd. of Co. Rd. Comm'rs v. Michigan Prop. & Cas. Guaranty Ass'n, 456 Mich. 590, 610, 575 N.W.2d 751 (1998).

The FOIA is a mechanism through which the public may examine and review the workings of government and its executive officials. Messenger v. Ingham Co. Prosecutor, 232 Mich.App. 633, 641, 591 N.W.2d 393 (1998). It was enacted to carry out this state's strong public policy favoring access to government information, recognizing the need for citizens to be informed so that they may fully participate in the democratic process and thereby hold public officials accountable for the manner in which they discharge their duties. MCL 15.231(2); Scharret, supra at 411, 642 N.W.2d 685; Messenger, supra at 641, 591 N.W.2d 393. By its express terms, the FOIA is a prodisclosure statute; a public body must disclose all public records not specifically exempt under the act. MCL 15.233(1); Herald Co. v. Bay City, 463 Mich. 111, 119, 614 N.W.2d 873 (2000); Scharret, supra at 411, 642 N.W.2d 685.

The FOIA sets forth specific requirements that must be followed in filing and responding to information requests. 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 the failure to so respond constitutes a final determination to deny the request. MCL 15.235(2) and (3); Scharret, supra at 411-412, 642 N.W.2d 685. "[I]f a public body makes a final determination to deny a request, the requesting person may either appeal the denial to the head of the public body or commence an action in the circuit court within 180 days." Id. at 412-413, 642 N.W.2d 685, citing M.C.L. § 15.235(7). If a plaintiff prevails in an action to compel disclosure under the FOIA, the circuit court must award reasonable attorney fees, costs, and disbursements to the plaintiff. Scharret, supra at 414, 642 N.W.2d 685.

In this case, the trial court dismissed plaintiff's FOIA claim, concluding that the claim was moot because plaintiff had received the requested public records. The court denied plaintiff's request for costs pursuant to M.C.L. § 15.240(6), finding "no evidence that the City had the information at the time requested," and further that the costs incurred were not related solely to plaintiff's FOIA claim because plaintiff's complaint included a count for a declaratory judgment. We disagree.

Under the FOIA, the trial court must award reasonable attorney fees, costs, and disbursements to a prevailing party. MCL 15.240(6). "A party prevails in the context of an FOIA action when the action was reasonably necessary to compel the disclosure, and the action had a substantial causative effect on the delivery of the information to the plaintiff." Scharret, supra at 414, 642 N.W.2d 685 (emphasis in original). The mere fact that plaintiff's substantive claim under the FOIA was rendered moot by disclosure of the records after plaintiff commenced the circuit court action is not determinative of plaintiff's entitlement to fees and costs under M.C.L. § 15.240(6).

The record indicates that defendants violated the FOIA by failing to respond to plaintiff's FOIA requests as required by statute, M.C.L. § 15.235(2); MCL 15.240(2), and by failing to follow their duty to timely disclose all records within plaintiff's request, particularly when defendants do not allege that they were...