Title Office, Inc. v. Van Buren County Treasurer

• Decision Date: 04 April 2002
• Docket Number: Docket No. 225377.,Docket No. 225376
• Citation: 249 Mich. App. 322,643 N.W.2d 244
• Parties: TITLE OFFICE, INC., Plaintiff-Appellee, v. VAN BUREN COUNTY TREASURER, Defendant-Appellant, and Allegan County Treasurer, Branch County Treasurer, Hillsdale County Treasurer, Ionia County Treasurer, Jackson County Treasurer, Kalamazoo County Treasurer, Livingston County Treasurer, Defendants. Title Office, Inc., Plaintiff-Appellee, v. Allegan County Treasurer, Branch County Treasurer, Hillsdale County Treasurer, Ionia County Treasurer, Jackson County Treasurer, Kalamazoo County Treasurer, Livingston County Treasurer, Defendants-Appellants, and Van Buren County Treasurer, Defendant.
• Court: Court of Appeal of Michigan — District of US

643 N.W.2d 244

249 Mich. App. 322

TITLE OFFICE, INC., Plaintiff-Appellee, v. VAN BUREN COUNTY TREASURER, Defendant-Appellant, and Allegan County Treasurer, Branch County Treasurer, Hillsdale County Treasurer, Ionia County Treasurer, Jackson County Treasurer, Kalamazoo County Treasurer, Livingston County Treasurer, Defendants.

Title Office, Inc., Plaintiff-Appellee, v. Allegan County Treasurer, Branch County Treasurer, Hillsdale County Treasurer, Ionia County Treasurer, Jackson County Treasurer, Kalamazoo County Treasurer, Livingston County Treasurer, Defendants-Appellants, and Van Buren County Treasurer, Defendant.

Docket Nos. 225376, 225377.

Court of Appeals of Michigan.

Submitted September 11, 2001, at Lansing.

Decided January 18, 2002, at 9:30 a.m.

Released for Publication April 4, 2002.

Warner Norcross & Judd LLP (by Daniel R. Gravelyn and Andrew C. Shier), Grand Rapids, for Title Office, Inc.

Kreis, Enderle, Callander & Hudgins, P.C. (by Thomas G. King), Kalamazoo, for Van Buren County Treasurer.

Cohl, Stoker & Toskey, P.C. (by Bonnie G. Toskey and Richard D. McNulty), Lansing, for Allegan County Treasurer and others.

Before: O'CONNELL, P.J., and WHITE and SMOLENSKI, JJ.

SMOLENSKI, J.

In this consolidated case, defendants appeal as of right from a circuit court order granting plaintiff's motion for summary disposition. Under MCR 7.215(I)(1), we are bound to follow the rule established in Oakland Co. Treasurer v. Title Office, Inc., 245 Mich.App. 196, 627 N.W.2d 317 (2001), and therefore must affirm the circuit court's order. However, if not for the effect of MCR 7.215(I)(1), we would reverse the circuit court's order and remand for entry of summary disposition in favor of defendants. Therefore, we request that the chief judge of this Court convene a special panel to address this issue, as provided in MCR 7.215(I)(3).

I. Factual and Procedural Background

Under the Michigan Freedom of Information Act (FOIA), M.C.L. § 15.231 et seq., plaintiff requested that each of the defendant county treasurers provide electronic copies of certain property tax records.¹ The county treasurers agreed to provide plaintiff with the requested electronic copies, but notified plaintiff that it would be required to pay the statutorily mandated fee of twenty-five cents a record, pursuant to the transcripts and abstracts of records act (TARA), M.C.L. § 48.101.² Plaintiff refused to pay the statutorily mandated fee, arguing that the FOIA required the county treasurers to provide the electronic copies for the "actual incremental cost" of reproducing the records. MCL 15.234(1).³ The county treasurers took the position that one of the exceptions to the FOIA cost provisions applied to plaintiff's request, and that plaintiff would have to pay the fees mandated by the TARA.

Plaintiff filed suit in the circuit court, seeking a mandamus order directing the county treasurers to provide plaintiff with electronic copies of the requested records. Plaintiff also sought an order prohibiting the county treasurers from charging plaintiff the statutory fee mandated by the TARA, and requiring the county treasurers to charge plaintiff only the "actual incremental cost" of reproducing the electronic copies. Subsequently, defendant Livingston County Treasurer filed a complaint requesting a declaratory judgment that the TARA governed the cost of reproducing the electronic records requested by plaintiff. Both cases were consolidated for decision in the circuit court.⁴ Plaintiff moved for summary disposition pursuant to MCR 2.116(C)(10), arguing that none of the FOIA's exceptions applied to its record request. The circuit court agreed, granted plaintiff's motion for summary disposition, and ordered the county treasurers to provide plaintiff with the requested records for no more than the "actual incremental cost" of reproduction. Defendants appeal as of right.

II. Standard of Review

A motion for summary disposition brought under MCR 2.116(C)(10) tests the factual support for a plaintiff's claim. Spiek v. Dep't of Transportation, 456 Mich. 331, 337, 572 N.W.2d 201 (1998). When deciding such a motion, courts must consider the affidavits, pleadings, depositions, admissions, and other documentary evidence submitted or filed in the action to determine whether a genuine issue of any material fact exists to warrant a trial. Id. We review de novo a trial court's grant of a party's motion for summary disposition. Id.

Furthermore, issues of statutory interpretation involve questions of law that are subject to review de novo. 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). The primary goal of judicial interpretation of statutes is to discern and give effect to the intent of the Legislature. People v. Morey, 461 Mich. 325, 329-330, 603 N.W.2d 250 (1999); Frankenmuth Mut. Ins. Co. v. Marlette Homes, Inc., 456 Mich. 511, 515, 573 N.W.2d 611 (1998). The rules of statutory construction merely serve as guides to assist the judiciary in determining legislative intent with a greater degree of certainty. In re Quintero Estate, 224 Mich.App. 682, 692-693, 569 N.W.2d 889 (1997).

Because our judicial role precludes imposing different policy choices than those selected by the Legislature, our obligation is, by examining the statutory language, to discern the legislative intent that may reasonably be inferred from the words expressed in the statute. If the language of a statute is clear and unambiguous, the plain meaning of the statute reflects the legislative intent and judicial construction is not permitted. We must give the words of a statute their plain and ordinary meaning. [Herald Co. v. Bay City, 463 Mich. 111, 117-118, 614 N.W.2d 873 (2000) (citations omitted).]

III. FOIA Cost Provisions

Under the FOIA, all persons "are entitled to full and 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." MCL 15.231(2). To that end, the FOIA contains specific guidelines regarding the fee that government officials may charge for providing copies of government records covered by the act. MCL 15.234. In the present case, the parties do not dispute that the FOIA governs defendants' obligation to provide plaintiff access to the requested property tax records. Rather, the parties dispute whether the FOIA cost provisions govern the fee that plaintiffs must pay for the records. To resolve this question, we must examine the FOIA cost provisions and their exceptions.

The FOIA provides, in pertinent part:

(1) A public body may charge a fee for a public record search, the necessary copying of a public record for inspection, or for providing a copy of a public record. Subject to subsections (3) and (4), the fee shall be limited to actual mailing costs, and to the actual incremental cost of duplication or publication including labor, the cost of search, examination, review, and the deletion and separation of exempt from nonexempt information as provided in section 14....

(2) A public body may require at the time a request is made a good faith deposit from the person requesting the public record or series of public records, if the fee authorized under this section exceeds $50.00. The deposit shall not exceed 1/2 of the total fee.

(3) In calculating the cost of labor incurred in duplication and mailing and the cost of examination, review, separation, and deletion under subsection (1), a public body may not charge more than the hourly wage of the lowest paid public body employee capable of retrieving the information necessary to comply with a request under this act. Fees shall be uniform and not dependent upon the identity of the requesting person. A public body shall utilize the most economical means available for making copies of public records. A fee shall be charged for the cost of search, examination, review, and the deletion and separation of exempt from nonexempt information as provided in section 14 unless failure to charge a fee would result in unreasonably high costs to the public body because of the nature of the request in the particular instance, and the public body specifically identifies the nature of these unreasonably high costs. A public body shall establish and publish procedures and guidelines to implement this subsection.

(4) This section does not apply to public records prepared under an act or statute specifically authorzing the sale of those public records to the public, or if the amount of the fee for providing a copy of the public record is otherwise specifically provided by an act or statute. [MCL 15.234 (emphasis added).]

Plaintiff argues that the county treasurers must provide the requested records for the "actual incremental cost" of reproducing those records, pursuant to subsection 1 of the above statute. However, defendants argue that one or both of the exceptions provided in subsection 4 apply to the present case because another statute, the TARA, either specifically authorizes the sale of property tax records to the public or specifically provides the amount of the fee for providing a copy of the public record to the public. We conclude that the TARA does not specifically authorize the sale of public records to the public, but does specifically provide the amount of the fee for providing a copy of the public record to the public. Accordingly, we would hold that the FOIA's cost provisions do not apply to plaintiff's request for electronic copies of property tax records.

IV. Authorized Sale of Public Records

Defendants argue that the FOIA cost provisions do not apply in the present case because the TARA specifically authorizes the sale of property tax records to the public. We conclude that defendants' argument is incorrect and that the trial court appropriately granted plaintiff's motion with regard to this issue.⁵ The TARA, provides, in pertinent...