IN THE CIRCUIT COURT FOR THE COUNTY OF WASHTENAW
CHETLY ZARKO,
Plaintiff,
v
THE REGENTS OF THE UNIVERSITY OF MICHIGAN,
Defendant.
____________________
No. 94-2461 CZ
APPEARANCES:
R. BRUCE LAIDLAW (P16346)
Attorney for Plaintiff
MILLER, CANFIELD, PADDOCK & STONE
Attorneys for Defendant
OPINION AND ORDER
At a session of said Court held in the city of Ann Arbor, Washtenaw
County, in the State of Michigan on May 31, 1995. PRESENT: HONORABLE PATRICK
J. CONLIN, Circuit Judge
Plaintiff filed his Freedom of Information Act request [hereafter "FOIC":
MCL 15.231, et seq.; MSA 4.1801(1), et seq.] and Open Meetings Act action
[hereafter "OMA": MCL 15.261, et seq.; MSA 4.1800(11), et seq.] on April
19, 1994 seeking documents to which Defendant denied Plaintiff access.
Defendant filed a motion for summary disposition pursuant to MCR 2.116(C)(8)
and (10). The Court heard oral arguments and took the matter under advisement.
Plaintiff's request is for documents regarding the selection of Mr.
James L. Duderstadt as the president of the University. Defendant has claimed
that some documents were released, some were released with redacted portions,
and some were withheld to protect the privacy interests of specific individuals;
Defendant claims its actions are proper. Defendant seeks summary disposition
of Plaintiff's action, arguing that Plaintiff is not a prevailing party
in an underlying action in which this Court Ordered Defendant to disclose
documents related to the search for president after being directed to do
so by the Supreme Court [Booth Newspapers, Inc. v Board f Regents, 444
Mich 211 (1993)], and therefore, Plaintiff cannot merely rely on that action
to obtain the relief sought. Defendant also asserts that the OMA and FOIA
are not applicable to Defendant during a presidential search pursuant to
the Michigan Constitution; the OMA claims are time-barred; and the redacted
portions of documents and those withheld are exempt from disclosure. Plaintiff
argues that his requested relief is permissible under FOIA.
The only issue before this Court is whether Plaintiff may obtain the
redacted portions of documents released to the media pursuant to the Booth
opinion. It should be noted from the outset that the burden of sustaining
its denial falls on the public body. MCL 15.240; MSA 4.1801(6).
Defendant asserts that the Opinion and Order issued in Booth, supra,
did not require Defendant to provide the documents to anyone that may request
them. Defendant also argues that because Plaintiff was not a party to the
Booth action, he cannot rely on the doctrines of res judicata or collateral
estoppel. Finally, Defendant claims that Plaintiff may not point to Booth
to supply the elements lacking in the instant action.
The Court is not persuaded by these arguments. While Booth does not
state that Defendant must make the documents available to anyone that requests
them, it does state that the documents are subject to disclosure; they
are not exempt. The FOIA is a disclosure statute and the exemptions are
to be narrowly construed. State Employees Association v Department f Management
and Budget, 428 Mich 104 (1987). Under FOIA, all persons are entitled to
full and complete information about the official acts of public employees.
MCL 15.231(2); MSA 4.1801(1)(2). The FOIA does not stand for the proposition
that some persons or entities are entitled to document disclosure and some
are not, or that the documents may be disclosed in full to particular persons
and redacted to others. Therefore, what was disclosed to the Booth plaintiffs
must be disclosed to this Plaintiff. Defendant's argument that the Booth
holding does not require document disclosure to anyone requesting it is
incorrect in that the Act itself requires disclosure to all. Booth found
the disclosure proper; the Act mandates that it not be limited in application.
Having determined that disclosure of the redacted portions of documents
sought by Plaintiff is proper, the Court will address Defendant's remaining
arguments only briefly.
Defendant claims that the Michigan Constitution prevents disclosure.
In support, Defendant turns to Justice Riley's dissenting opinion in Booth,
supra. Although the majority refused to examine the issue because it was
raised for the first time on appeal, Justice Riley states that she finds
public universities' governing boards' autonomy violated by application
of OMA and FOIA. By reviewing the legislative and litigated history of
university autonomy in Michigan, the opinion expresses the belief that
"the application of the OMA and the FOIA to the regents is simply beyond
the realm of legislative authority," (at p 264). The dissent concludes,
"The Legislature, possesses no power to force defendant to comply with
the OMA and the FOIA during the presidential selection process," (p 267).
This Court respectfully disagrees with that conclusion. The OMA provides
for public meetings of public bodies to be open to members of the public.
MCL 15.263; MSA 4.1800(13). The FOIA provides for the dissemination of
information from persons representing members of the public. MCL 15.231;
MSA 4.1801(1). The OMA specifically provides for inapplicability of the
Act to some boards and panels, as well as some committee actions. Id. Defendant
is not among those to which the OMA is applicable. Similarly, the FOIA
lists specific exemptions for disclosure. MCL 15.243; MSA 4.1801(13). Defendant
is a "public body" under FOIA. MCL 15.232: MSA 4.1801(2). The OMA definition
of "public body" includes "a board... which is empowered by state constitution...
to exercise governmental or proprietary authority or perform a governmental
or proprietary function,..." MCL 15.262; MSA 4.1800(12). Defendant in the
instant case is a board entrusted with an enormous governmental function:
the running of the University of Michigan for and on behalf of Michigan
taxpayers. It is essential that the Board be accountable to those for whom
it works. [See, University of Michigan Regents v Employment Relations Comm,
389 Mich 96, 108 (1973), quoted at Booth, supra, p 259]. Defendant has
distinct authority derived from the Constitution, but must answer to the
laws and people of the State while exercising that authority. Because Defendant's
authority is constitutional in origin, it does not follow that Defendant
is immune from accountability.
Defendant next argues that Plaintiff's OMA claims are timebarred. The
OMA provides for commencement of an action 180 days after the date of the
violation giving rise to the cause of action. MCL 15.273; MSA 4.1800(23).
Defendant asserts that the "triggering" events under the OMA were the private
meetings that occurred in violation of the statute. Plaintiff's request
for documents, according to Defendant, is a FOIA matter. Plaintiff does
not concede that his OMA requests are time-barred, but does acknowledge
that he is not seeking $500.00 in damages from each member of Defendant
Board pursuant to the OMA. Therefore, this Court does not need to address
whether OMA damages are time-barred; Plaintiff is not pursuing his requested
relief.
Finally, Defendant claims that the documents (in their complete and
unredacted forms) sought by Plaintiff are exempt from disclosure under
the FOIA. Defendant claims that the privacy and advisory exemptions are
applicable. As stated earlier in this Opinion this Court believes that
this Plaintiff is as entitled as any person to obtain the documents. Furthermore,
this argument does not work given the fact that the documents have been
released already. Defendant cannot justify exempting things already released.
While the purpose of the request by the media or Plaintiff is irrelevant,
State Employees Association, supra, the fact that the documents already
have been released operates to destroy Defendant's argument. Logic, as
well as the FOIA itself, cannot permit that release to occur for only some
individuals.
For the reasons stated above, Defendant's motion for summary disposition is denied. The burden is on Defendant to sustain its denial [MCL 15.240; MSA 4.1801(6)], and the Court is not convinced by its arguments. It is so Ordered.
Patrick J. Conlin
Circuit Judge