IN THE CIRCUIT COURT FOR THE COUNTY OF WASHTENAW
Case Number 93-1817-CZ
CHETLY ZARKO
Plaintiff,
v
THE BOARD OF REGENTS OF THE UNIVERSITY OF MICHIGAN
Defendant
______________________________________________/
R. Bruce Laidlaw (P16346)
Attorney for Plaintiff
Charles A. Duerr (P12994)
Miller, Canfield, Paddock and Stone, P.L.C.
Attorneys for Defendant
ORDER AND DECISION GRANTING IN PART, DENYING IN PART, DEFENDANT'S MOTION FOR SUMMARY DISPOSITION AND SUA SPONTE RENDERING JUDGMENT
At a session of said court, in the Courthouse, Washtenaw County Michigan, on June 30, 1995
PRESENT: HONORABLE KARL V. FINK, CIRCUIT COURT JUDGE
MCR 2.116b provides the Court the authority to summarily dispose of
a case. The burden that a party must meet in order to receive Summary Disposition
is onerous. If the facts, as viewed in the light most favorable to the
opposition show that the moving party is correct in his theory, only then
can he succeed. However, if there are facts in controversy, the ultimate
resolution of which could determine the outcome of the case, the
case is not "ripe" for summary disposition. Case law holds that the test
is whether or not the kind of record which might be developed, giving the
benefit of any reasonable doubt to the non-moving party, would leave open
an issue upon which reasonable minds might differ. Limebaugh v Berdish,
144 Mich App 750, 376 NW2d 400 (1985).
Defendant moves for summary disposition under authority of MCR 2.116(A)(8)
charging that the Plaintiff failed to state a claim on which relief could
be granted, and MCR 2.116(A)(10) claiming that there is no genuine issue
as to any material fact and the moving party is entitled to judgment or
partial judgment as a matter of law.
The facts in this case as presented by both parties in their respective
briefs show there is no issue of material fact so that this case is a proper
one for summary disposition in that only questions of law remain. The essence
of the undisputed facts are that the Defendant participated in computer
conference exercises, the access to which was limited. In at least one
of those conferences, the participants were the Regents for the University
of Michigan, personally. Plaintiff sought, through the Freedom of Information
Act, access to those conferences, by ". . . the least expensive way by
duplicating the electronic file to an account (RC6P), or by permitting
the file electronically so that my account (RC6P) can read the file." Upon
filing this suit, Plaintiff was given a hard copy of what was presented
as a complete transcript of the conferences. Not being satisfied that this
met the obligation of the Defendant as required by the Michigan Freedom
of Information Act, Plaintiff pressed his suit for an electronic copy of
the conferences.
The Defendant raises several issues in its motion for summary Disposition and each will be addressed in the order of their presentation. The first claim is that the Defendant did not violate Michigan' Freedom of Information Act (MCLA 15240 et seq.) By the withholding of the electronic records because they supplied the Plaintiff with a transcript of the conferences. The Court is not persuaded by their arguments. Rather, the Court finds compelling David Farrell and the Detroit News, Inc. v City of Detroit, 530 NW 2d 105, 209 Mich App 7 (1995) where the Court held that Michigan's Freedom of Information Act is different from the federal government's in that Michigan requires the supplying of the requested record whereas the federal act requires the supplying of the information. Therefore, although the Defendant's action would likely have met the federal standard, they were not sufficient to meet Michigan's. Therefore, the Court finds that the Defendant is in violation of Michigan's Freedom of Information Act. As the Courts's finding of violation is tantamount to resolving the entire case with all other issues being ancillary to that finding, the Court exercises the power granted to it under MCR 2.116(1)(2) and orders the Defendant to comply with Michigan's Freedom of Information Act by supplying the Plaintiff with electronic copies of the requested conferences.
The next issue raised by the Defendant addressed reasonable attorney fees, costs and disbursements. Under Michigan's Freedom of Information Act, MCLA 15.240(4) it is provided that if the requestor prevails, he shall (mandatory wording) be awarded reasonable attorney's fees, costs and disbursements. See House Speaker v Governor, 491 NW 2d 832, 195 Mich App 376, rev. 506 NW 2d 190, 443 Mich 560 (1992). A defendant's good faith in a Freedom of Information Act action has no bearing on a plaintiff's claim for attorney fees. Dawkins v Department of Civil Service, 344 NW 2d 43, 130 Mich App 669 (1983). The Court retains discretion in determining what is a reasonable fee, Michigan Tax Management Services Co. V City of Warren, 473 NW 2d 263, 437 Mich 506 (1991), Yarbrough v Department of Corrections, 501 NW 2d 207, 199 Mich App 180 (1993). Finally, if the requestor has not hired an outside attorney, then no fees were expended and no recompense is due. Schnizel v Wilkerson, 313 NW 2d 167, 110 Mich App 600 (1981). Farrel, supra, held that Michigan's Freedom of Information Act requires the supplying of the actual electronic records when requested whereas the federal Freedom of Information Act requires the supplying only the requested information. Plaintiff, by written request sought access to the records although in paragraph 5 of his complaint, he claims to have "requested access to certain information. . ." Upon the filing of his suit, the Defendant supplied Plaintiff with the requested "information." The fact that the Farrel decision is so new (February 21, 1995), the fact that the Plaintiff interchanged "information" with "records" in his own presentation, and the fact that the Defendant supplied the "information" requested shortly after suit was filed convinces the Court that the Defendant was not operating in an arbitrary and capricious manner and knowingly counter to the holding in Farrel. Therefore, having found that the Defendant was in violation of the Michigan Freedom of Information Act, but was not operating in an arbitrary or capricious manner under the provision of Michigan's Freedom of Information Act and the cited cases, it is ordered that the Defendant shall pay to the Plaintiff reasonable attorney's fees, costs and disbursements dealing with this law suit but that no punitive damages are appropriate. In determining reasonableness as to attorneys fees, the court looks to the affidavit of the Plaintiff presumable dated the same date as his Brief in Opposition to Defendant's Motion for Summary Disposition to which it was attached, November 18, 1994. In that affidavit, Plaintiff claims that he has spent $182.00 in costs and $9,856 in attorney fees. Since the date of that affidavit, more costs have been incurred. Plaintiff shall provide Defendant with an itemization of costs and fees.
The Defendant's third issue, that the conferences were not "writings" within the Freedom of Information Act definitions does not require further discussion as by finding Defendant to be in violation of Michigan's Freedom of Information Act, by necessity, the Court found the electronic records to be "writings" and "public records" which is the Defendant's fourth issue.
Similarly, the Court does not find that the conferences fell under the privacy exemptions of Michigan's Freedom of Information Act nor were they exempt from compelled disclosure and so the Defendant's fifth and sixth issues are denied.
Defendant's seventh, eighth, ninth and tenth issues deal with the Open Meetings Act. The decision of Circuit Court Judge Patrick J. Conlin of the Washtenaw County Circuit Court in case no. 94-24661 CZ between the same two parties as the current case, and rendered in May 1995, is persuasive as to the fact that the defendant is a "public body" and thus the Open Meetings Act is applicable. The purpose of the Open Meetings Act is to promote openness and accountability of a public body. Booth Newspapers, Inc. v University of Michigan Board of Regents, 481 NW 2d 778, 192 Mich App 574 (1992). The Open Meetings Act defines "meeting" as the convening of a public body at which a quorum is present for the purpose of deliberating toward or rendering a decision on a public policy. MCLA 15.262(b). The act does not apply to a meeting which is a social or chance gathering or conference not designed to avoid this act. MCLA 15.263(10). A telephone conference meeting is prohibited un the Act. Op. Atty. Gen. No. 5183, p. 21(1977). The briefs and attachments are persuasive that the conferences were set up for the convenience of the participants and that they were instructed that they were not to serve as "meeting for the transaction of business." The court distinguishes this type of conference from the forbidden telephone conference in that during a telephone conference, all parties are joined together, simultaneously, with direct give and take, live time discussion with no intruders or record. The conferences at issue did not have simultaneous participation, were not live time, and were used for the passing of information rather than live group discussion. Therefore, the Court finds that these conferences were not meetings within the parameters of the Open Meetings Act and therefore, the Open meetings Act was not violated. Further discussion as to the time limitations of the Plaintiff's action is not addressed because it is moot.
The Court finds merit in the Defendant's eleventh issue and grants its motion that the Standards of Conduct for Public Officer and Employees Act has no applicability to the Defendants in this case as to the facts at issue.
Therefore, Defendant's Motion for Summary Disposition is granted as to the violation of the Open Meetings Act and Ethics Act but is denied as to the Freedom of Information Act.
In the complaint, Plaintiff seeks 12 prayers of relief. The first prayer is that this Court take jurisdiction of this case which the Court has done. The second prayer is that this Court order Defendant to make a proper reply to Plaintiff's request which, by virtue of the findings and holdings of this Decision and Order has become a moot prayer. The third payer is for this Court to rule that all electronic records created by public employees using public funds be considered public records pursuant to the Freedom of Information Act. This prayer is overly broad in its demands and is beyond the authority of this Court to grant. The decision here rendered is limited to the parties and facts as presented and such universal declaration as would be required to meet the third prayer is neither the intent nor purpose of this decision. The fourth prayer is that the Defendant is required to follow the law. This Court, and this law suit can not prospectively forecast which meetings and conferences that the Defendants engage in fall within the definitions and parameters of the Open Meetings Act so that this Court will not, because it cannot, grant the fifth prayer as requested. For the reasons presented above, this Court does not find that the Defendant acted in an arbitrary or capricious manner so that Plaintiff's sixth prayer is denied. As a direct result of the previous denial, the Plaintiff's seventh prayer, that he be awarded punitive damages, is not permitted and thus not granted. As was discussed above, Defendant did not violate the Open Meetings Act so that the eighth prayer, for damages resulting therefrom, is denied. The ninth prayer is for punitive damages due to violation of the Ethics Act. As the Court found no violation of the Ethics Act, damages are not appropriate. The tenth prayer was for reasonable attorney's fees, costs , and disbursements. As discussed above, this prayer is granted as to the costs and fees, there being no claim for disbursements. Prayers eleven and twelve are generic prayers and by the rendering of this opinion, become moot.
IT IS ORDERED that:
A. Defendant provide Plaintiff with an electronic copy of the requested conferences by duplicating the electronic files or, at the option of the Defendant, by permitting the Plaintiff electronic access to the files so that he can read and copy them himself;
B. Defendant pay Plaintiff's costs and reasonable attorneys' fees.
C. If necessary, Plaintiff may present an additional order or Judgment.