Traverse City Record-Eagle v. Traverse City Area Pub. Sch. Bd. of Educ.

• Decision Date: 13 May 2021
• Docket Number: 354586
• Citation: 337 Mich.App. 281,975 N.W.2d 104
• Parties: TRAVERSE CITY RECORD-EAGLE, Plaintiff-Appellee/Cross-Appellant, v. TRAVERSE CITY AREA PUBLIC SCHOOLS BOARD OF EDUCATION and M. Sue Kelly, Defendants-Appellants/Cross-Appellees.
• Court: Court of Appeal of Michigan — District of US

337 Mich.App. 281

975 N.W.2d 104

TRAVERSE CITY RECORD-EAGLE, Plaintiff-Appellee/Cross-Appellant,

v.TRAVERSE CITY AREA PUBLIC SCHOOLS BOARD OF EDUCATION and M. Sue Kelly, Defendants-Appellants/Cross-Appellees.

No. 354586

Court of Appeals of Michigan.

Submitted May 4, 2021, at Grand Rapids.

Decided May 13, 2021, 9:10 a.m.

Butzel Long, PC, Bloomfield Hills (by Robin Luce Herrmann, Joseph E. Richotte, and Javon R. David ) for Traverse City Record-Eagle.

O'Neill Wallace & Doyle, PC, Saginaw (by Kailen C. Piper and Gregory W. Mair ) for Traverse City Area Public Schools Board of Education and M. Sue Kelly.

The Smith Appellate Law Firm (by Michael F. Smith ) for Detroit Free Press, The Detroit News, Michigan Press Association, MLive Media Group, Michigan Coalition for Open Government, Bridge Michigan, and Society of Professional Journalists—Detroit Chapter, Amici Curiae.

Before: Murray, C.J., and Karen M. Fort Hood and Gleicher, JJ.

Karen M. Fort Hood, J. Defendants, the Traverse City Area Public Schools Board of Education (TCAPS) and M. Sue Kelly,¹ appeal by leave granted² the trial court's decision granting partial summary disposition for plaintiff, the Traverse City Record-Eagle,³ and granting partial summary disposition for defendants. The trial court granted plaintiff's motion as it related to its disclosure claim under the Freedom of Information Act (FOIA), MCL 15.231 et seq. , and it granted defendants’ motion as it related to plaintiff's violation claim under the Open Meetings Act (OMA), MCL 15.261 et seq. Defendants appeal the trial court's decision on the FOIA claim. In a cross-appeal, plaintiff appeals the trial court's decision on the OMA claim. We affirm as to both issues.

I. FACTUAL BACKGROUND

This case involves the interplay between FOIA and the OMA. Ann Cardon was hired by defendants as the school superintendent, but soon after her hiring, various complaints arose against her. Defendants convened a meeting to discuss the complaints, and Cardon requested a closed session under the OMA. The closed session was granted. At the session, a document created by Kelly and referred to by the parties as the "Kelly document" contained the complaints against Cardon. That document is the subject of the FOIA issue in this case. No formal decision was reached after the closed session, however, soon after the meeting, Cardon and defendants mutually agreed that Cardon would resign. After this, defendants held an open meeting and moved to name Jim Pavelka as the interim superintendent. At a future open meeting, defendants formally ratified Pavelka's contract.

Plaintiff filed its FOIA request and requested the Kelly document; defendants refused, maintaining that the document was exempt from disclosure. Plaintiff filed this action, seeking the Kelly document and alleging numerous OMA violations. Relevant to this appeal, plaintiff argued that defendants’ conduct with Pavelka was improper and outside the OMA requirements. Each party moved for partial summary disposition. The trial court ultimately granted summary disposition in plaintiff's favor as to the FOIA claim, ruling that the Kelly document was subject to disclosure. The trial court granted summary disposition in defendants’ favor as to the OMA claim, ruling that plaintiff had failed to create a genuine issue of material fact and that defendants were entitled to judgment as a matter of law.

II. STANDARD OF REVIEW

"This Court reviews de novo a trial court's decision on a motion for summary disposition, as well as questions of statutory interpretation and the construction and application of court rules." Dextrom v. Wexford Co. , 287 Mich. App. 406, 416, 789 N.W.2d 211 (2010) (citations omitted). A motion is properly granted pursuant to MCR 2.116(C)(10) when "there is no genuine issue with respect to any material fact and the moving party is entitled to judgment as a matter of law." Dextrom , 287 Mich. App. at 415, 789 N.W.2d 211. This Court "must examine the documentary evidence presented and, drawing all reasonable inferences in favor of the nonmoving party, determine whether a genuine issue of material fact exists. A question of fact exists when reasonable minds could differ as to the conclusions to be drawn from the evidence." Id. at 415-416, 789 N.W.2d 211. "This Court is liberal in finding genuine issues of material fact." Jimkoski v. Shupe , 282 Mich. App. 1, 5, 763 N.W.2d 1 (2008).

Additionally, questions of statutory interpretation, construction, and application are reviewed de novo. Dextrom , 287 Mich. App. at 416, 789 N.W.2d 211. "When interpreting a statute, [this Court] must ascertain the Legislature's intent," which is accomplished "by giving the words selected by the Legislature their plain and ordinary meanings, and by enforcing the statute as written." Griffin v. Griffin , 323 Mich. App. 110, 120, 916 N.W.2d 292 (2018) (quotation marks and citation omitted). If a statute is unambiguous, it must be applied as plainly written. McQueer v. Perfect Fence Co. , 502 Mich. 276, 286, 917 N.W.2d 584 (2018). This Court may not read something into the statute "that is not within the manifest intent of the Legislature as derived from the words of the statute itself." Id. (quotation marks and citation omitted).

Finally, "certain FOIA provisions require the trial court to balance competing interests," and "when an appellate court reviews a decision committed to the trial court's discretion, such as [a] balancing test[,] ... the appellate court must review the discretionary determination for an abuse of discretion and cannot disturb the trial court's decision unless it falls outside the principled range of outcomes." Herald Co., Inc. v. Eastern Mich. Univ. Bd. of Regents , 475 Mich. 463, 470, 472, 719 N.W.2d 19 (2006). But "where a party challenges the underlying facts that support the trial court's decision," the clear error standard applies. Id. at 472, 719 N.W.2d 19. "Clear error exists only when the appellate court is left with the definite and firm conviction that a mistake has been made." Id. at 471, 719 N.W.2d 19 (quotation marks and citation omitted).

III. THE KELLY DOCUMENT

Defendants contend that the trial court incorrectly concluded that the Kelly document was unprotected by the OMA and disclosable under FOIA. We disagree.

FOIA "requires public bodies to release certain information at a citizen's request." City of Warren v. Detroit , 261 Mich. App. 165, 166, 680 N.W.2d 57 (2004). Except when expressly exempted, "a person has a right to inspect, copy, or receive copies of [a] requested public record of [a] public body." MCL 15.233(1). A "public record" is defined as

a writing prepared, owned, used, in the possession of, or retained by a public body in the performance of an official function, from the time it is created. Public record does not include computer software. This act separates public records into the following 2 classes:

(i ) Those that are exempt from disclosure under [ MCL 15.243 ].

(ii ) All public records that are not exempt from disclosure under [ MCL 15.243 ] and that are subject to disclosure under this act. [ MCL 15.232(i).]

The purpose of FOIA is for people to "be informed so that they may fully participate in the democratic process." MCL 15.231(2).

Our Legislature created numerous exemptions to the general rule of disclosure. See MCL 15.243. Relevant to this appeal are "[r]ecords or information specifically described and exempted from disclosure by statute ." MCL 15.243(1)(d) (emphasis added). One such exemption described by statute applies to minutes of a closed meeting conducted under the OMA. Normally, the minutes of open meetings held by public bodies are disclosable to the public. See MCL 15.269. The same is not true of the minutes for closed meetings.

MCL 15.268 provides:

A public body may meet in a closed session only for the following purposes:

(a) To consider the dismissal, suspension, or disciplining of, or to hear complaints or charges brought against, or to consider a periodic personnel evaluation of, a public officer, employee, staff member, or individual agent, if the named person requests a closed hearing. A person requesting a closed hearing may rescind the request at any time, in which case the matter at issue shall be considered after the rescission only in open sessions. [Emphasis added.]

MCL 15.267(2) provides that "[a] separate set of minutes shall be taken by the clerk or the designated secretary of the public body at the closed session. These minutes shall be retained by the clerk of the public body, are not available to the public , and shall only be disclosed if required by a civil action filed under [ MCL 15.270 ], [ MCL 15.271 ], or [ MCL 15.273 ]."⁴ (Emphasis added.) These minutes are not disclosable to the public under a FOIA request; only a court order can require their disclosure. Titus v. Shelby Charter Twp. , 226 Mich. App. 611, 615, 574 N.W.2d 391 (1997). The exemptions from MCL 15.243 "are narrowly construed, and the burden of proof rests on the party asserting the exemption." Bradley v. Saranac Community Sch. Bd. of Ed. , 455 Mich. 285, 293, 565 N.W.2d 650 (1997).

Defendants heavily rely on Titus for the contention that the Kelly document is not disclosable because it should be considered part of the exempt meeting minutes. In Titus , this Court held that the meeting "minutes" of a closed session described in the OMA and exempt from disclosure include transcripts of the closed meeting. Titus , 226 Mich. App. at 615, 574 N.W.2d 391. In reaching this conclusion, we stated:

The plain and ordinary meaning of "minutes" of a meeting refers to the official record of the proceedings at a group's meeting. Random House Webster's College Dictionary (2d ed., 1995), p. 837. [ MCL 15.269(1) ] of the OMA does not purport to be an exclusive listing of the information that may be contained in minutes of a meeting. The requirement in the statute that the "minutes must show" certain items is properly read as a minimum requirement,

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