e-Journal Summary

e-Journal Number : 58858
Opinion Date : 12/16/2014
e-Journal Date : 12/17/2014
Court : Michigan Supreme Court
Case Name : Amberg v. City of Dearborn
Practice Area(s) : Freedom of Information Act, Municipal
Judge(s) : Memorandum Opinion - Young, Jr., Cavanagh, Markman, Kelly, Zahra, McCormack, and Viviano
Full Text Opinion
Issues:

Whether copies of video surveillance recordings created by third parties but received by defendants during the course of pending criminal misdemeanor proceedings constitute "public records" within the meaning of the Freedom of Information Act (FOIA) (MCL 15.231 et seq.) thus requiring their disclosure by defendants; MCL 15.231(2); MCL 15.243; MCL 15.233(1); Coblentz v. City of Novi; "Public record" defined; MCL 15.232(e); "Writing" defined; MCL 15.232(h); Whether the recordings were in the possession of or retained by defendants "in the performance of an official function, from the time [they were] created"; Detroit News, Inc. v. Detroit; MCL 15.243(1)(b); Whether the case was rendered moot by the eventual release of the recordings to plaintiff; Fees and costs under MCL 15.240(6); Thomas v. New Baltimore; Scharret v. City of Berkley; MCL 15.240(7)

Summary

As to whether copies of video surveillance recordings created by third parties but received by defendants during the course of pending criminal misdemeanor proceedings constitute "public records" within the meaning of FOIA, thus requiring their disclosure by defendants, the court held that contrary to the lower courts' opinions, the video surveillance recordings are public records within the meaning of FOIA. Thus, in lieu of granting leave to appeal, it reversed the judgment of the Court of Appeals and remanded the case to the trial court for entry of an order denying defendants' motion for summary disposition and for further proceedings, including, on a proper motion, a determination whether plaintiff is entitled to reasonable attorney fees, costs, and disbursements under MCL 15.240(6). Defendants asserted that the surveillance recordings plaintiff sought were not public records within the meaning of FOIA and did not need to be disclosed to plaintiff under MCL 15.233(1). What was in dispute was whether the recordings were in the possession of or retained by defendants "in the performance of an official function, from the time [they were] created." This requirement "makes clear that the mere possession of the recordings by defendants is not sufficient to make them public records." However, because FOIA "does not require that the record[s] be created by the public body," that the recordings were created by private entities did not necessarily insulate the records from FOIA. What ultimately determines whether records in the possession of a public body are public records within the meaning of FOIA is "whether the public body prepared, owned, used, possessed, or retained them in the performance of an official function." On this question, the court agreed with the dissenting Court of Appeals judge that the recordings at issue were public records because they were in the possession of or retained by defendants "in the performance of an official function, from the time [they were] created." The undisputed facts showed that defendants received copies of the recordings as relevant evidence in a pending misdemeanor criminal matter. The Court of Appeals majority claimed that defendants "did not use the recordings in the performance of an official function - specifically, their issuance of a criminal misdemeanor citation - because they did not obtain the recordings until after they issued the citation." While this may be true, the citation remained pending when defendants received the recordings, and the issuance of the citation is not the only official function that the court must consider. Even if the recordings "did not factor into defendants' decision to issue a citation, they were nevertheless collected as evidence by defendants to support that decision." As a result, the recordings are public records within the meaning of FOIA, and defendants were required to produce them in response to plaintiff's FOIA request.

Full Text Opinion