ZARKO V. REGENTS OF UNIVERSITY OF MICHIGAN, 1993-1995
Cases litigated by R. Bruce Laidlaw on behalf of freelance writer Chetly Zarko

The two judgements below were the final orders of Washtenaw County Circuit Court judges following two Freedom of Information Act lawsuits brought by freelance writer Chetly Zarko in 1993 and 1994 against the University of Michigan for refusing to produce certain public records. U-Michigan Defense attorneys referred to the cases numerically because of their chronology of filing as Zarko 1 and Zarko 2. In all, five Zarko Research has been involved in five FOIA litigations against U-Michigan as of 2007, and receive documents in 4 of them.

Decision of court in suit seeking release of presidential search documents from the University of Michigan. Release of documents ordered. Award of attorneys' fees.

S T A T E O F M I C H I G A N

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

FOIA and other claims brought personally by Plaintiff. FOIA claims tried by Bruce Laidlaw. Fees of $12,992.02 ordered.

STATE OF MICHIGAN

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.

Karl V. Fink

Circuit Judge