“Public record”; MCL 15.232(i); Amberg v Dearborn; Official function; Kestenbaum v Michigan State Univ; Contracting out; FOIA avoidance; Distinguishing MacKenzie v Wales Twp; Bearing on decision-making; Hopkins v Duncan Twp; Outside counsel invoices; Indirect payment by insurer; Detroit News, Inc v Detroit

The court held that outside counsel’s billing invoices sent only to defendant-County’s insurer were not “public records” under FOIA because the County never “prepared, owned, used, possessed, or retained” them “in the performance of an official function.” A law firm representing litigants against the sheriff sought the sheriff’s defense counsel invoices under FOIA. The County denied the request because the invoices were never sent to or held by the County, were sent to its insurer, and were paid by the insurer. On appeal, the court applied MCL 15.232(i), which defines a public record as a writing “prepared, owned, used, in the possession of, or retained by a public body in the performance of an official function[.]” It reiterated that “actual possession of the record is not dispositive,” but also that documents are not public records merely because a public body possessed them. It assumed without deciding that hiring and compensating counsel can be an official function under MCL 49.71 and MCL 49.73, but held that did not make these invoices public records because the County “never directly used the invoices, did not provide any of the data used to create the invoices, and did not have access to any of the data contained in the invoices.” Nothing in the compensation statutes required the County to review them. Distinguishing MacKenzie, it emphasized the County could perform the function of compensating counsel by leaving payment details to its insurer and “had no need for the invoices to carry out that function.” Distinguishing Detroit News, it noted the invoices did not reflect actions of public officials or employees where the outside law firm’s attorneys were not public officials, and the County only “indirectly compensated” counsel through the insurer. Because the invoices could not “possibly have affected the County’s decision-making” and shed no light on “official actions,” the court affirmed summary disposition.