IN THE CIRCUIT COURT FOR THE COUNTY OF WASHTENAW
JON ZEEFF,
Plaintiff'
v
MUSKEGON COUNTY,
Defendant.
NO. 96-6739 CZ
APPEARANCES:
R. BRUCE LAIDLAW (P16346)
Attorney for Plaintiff
STEPHEN C. CORWIN (P27262)
Attorney for Defendant
OPINION AND ORDER rendered by the HONORABLE PATRICK J. CONLIN,
CIRCUIT JUDGE at Ann Arbor, Michigan on September 12, 1996.
Plaintiff filed his Complaint on March 1, 1996, alleging violation of the Freedom of Information Act (hereafter "FOIA") [MCL 15.231, et seq.; MSA 4.1801(1), et seq.] because he requested and was denied "copies of computer records containing real property information," (Complaint, paragraph 3). Attached to the Complaint are exhibits showing that Plain tiff's counsel sent a letter to Frank Bednerak, Muskegon County Administrator, on October 25, 1995 (Exhibit A). That letter requested records in electronic format showing real property parcel identifications; taxpayer identifications; property addresses; property zoning or use classifications; state equalized values; and the current year's taxes. Id. Plaintiff s counsel received a letter dated November 15, 1995, from James M. Elwell, Director of Central Services, on behalf of Mr. Bednerak. Exhibit B. That letter refers to MCL 48. 101; MSA 5.71 1, which sets transcript fees for county treasurer's records. Id. The letter asked whether Plaintiff would be willing to pay the fees as set forth in that statute for delinquent tax records, and advised that the county bills for taxes under a contract for such services; the letter stated that Plaintiff should obtain the information he sought through the individual municipalities because the County did not own, maintain, or generate those records in the performance of an official function. Id. Plaintiff's counsel responded by letter dated December 8, 1995, that Mr. Elwell's letter was untimely, and that Defendant must comply with the request by virtue of the fact that Defendant had the records in its possession.
Plaintiff has filed a motion for summary disposition pursuant to MCR 2.116(C)(10). Before addressing that argument, the Court must rule on the issue of venue. Defendant seeks a change of venue, citing MCL 600.1615; MSA 27A.1615, which provides for actions to be brought in the county in which the governmental unit sits. Defendant is a governmental unit (See, Affidavit of Defendant's counsel). As Defendant notes, public policy favors such a result due to the cost and inconvenience of trying suits in other counties. See, Hoffman v Bos, 56 Mich App 448 (1974). The FOIA confers jurisdiction on the circuit court in which the complainant resides. MCL 15.240; MSA 4.1801(10). Jurisdiction is not the same thing as venue; "[s]ection 10(1) is not a venue provision, but, rather, confers jurisdiction upon particular circuit courts," Curry v Jackson Circuit Court, 151 Mich App 754, 758 (1986). However, "a motion for a change in venue must be filed before or at the time the defendant files an answer," [emphasis added; MCR 2.221(A)]. Because jurisdiction is proper, and because Defendant failed to timely file the motion for a change in venue, that motion is denied.
Turning to the motion for summary disposition, the Court notes initially that the FOIA'spurpose is stated at MCL 15.231; MSA 3.1801(1): "[A]llpersons... are entitled to full and complete information regarding the affairs of government and the official acts of those who represent them as public officials and public employees, consistent with this act. The people shall be informed so that they may fully participate in the democratic process." The Supreme Court has stated that "all public records are subject to full disclosure under the act unless the material is specifically exempt under § 13. Also, when a public body refuses to disclose a requested document under the act, and the requester sues to compel disclosure, the public agency bears the burden of proving that the refusal was justified under the act. MCL 15.240(1); MSA 4.1801(10)(1)." Swickard v Wayne County Medical Examiner, 438 Mich 536, 544 (1991). The FOIA exempts from its normal fee structure "public records prepared under an act or statute specifically authorizing the sale of those public records to the public, or where the amount of the fee for providing a copy of the public record is otherwise specifically provided by an act or statute," [MCL 15.234; MSA 4.1801 (4)]. Defendant appears to concede that Plaintiff is entitled to the records, but must pay for them according to the fee structure found at MCL 48.101; MSA 5.711. The Court disagrees. That statute provides for fees to be charged when "[a] county treasurer... makers] upon request a transcript of any paper or record on file in the treasurer's office...".". Plaintiff has not requested a transcript of any paper or record on file with the treasurer.
"The relevant questions are whether the tape exists, whether it is a public record under the FOIA, and whether it is exempt," Farrell v City of Detroit, 209 Mich App 7, 19 (1995). Defendant must provide the public record itself, not just the information contained therein. Farrell, supra, citing Pavne v Grand Rapids Police Chief, 178 Mich App 193 (1989). Defendant cannot ask the treasurer to prepare transcripts in satisfaction of Plaintiff's request; thus Defendant's use of MCL 48.101; MSA 5.711 is not a valid defense for its failure to provide the information. Defendant does not deny that the records sought by Plaintiff exist, does not deny that it is a public record, and does not assert an exemption. That the records are prepared for local municipalities is not relevant. Also, the Court notes that Alpena Title. Inc. v Alpena County, 84 Mich App 308 (1978), merely provides that the FOIA does not repeal or modify existing law. The case does not support Defendant's position regarding fees.
Finally, Plaintiff requests an award of costs and fees. The FOIA provides for an award of "reasonable attorneys' fees, costs, and disbursements," MCL 15.240; MSA 4.1801(10), if a person prevails in an action. Because the Court is granting Plaintiff's motion for summary disposition, Plaintiff can be said to be the prevailing party, and shall be awarded reasonable fees. However, the Court is of the Opinion that there was a genuine dispute here regarding which statute controlled, and thus Defendant cannot be said to have "arbitrarily and capriciously violated this act by refusal or delay in disclosing or providing copies of a public record," Id. Counsel shall attempt to resolve what constitutes a "reasonable" fee; if they are unable to do so, they shall submit briefs addressing the elements of reasonable fees as set forth in Wood v DAIIE, 413 Mich 573 (1982), and the Court will issue an Opinion.
For the above-stated reasons, Plaintiff's motion for summary disposition
is granted. Plaintiff's request for attorney fees and costs is granted.
Plaintiff's request for punitive damages is denied.
It is so Ordered.
Patrick J. Conlin (P12126)
Circuit Judge
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