IN THE CIRCUIT COURT FOR THE COUNTY OF WASHTENAW
_________________________
JON ZEEFF,
Plaintiff,
-v-
CITY OF ANN ARBOR,
Defendant.
No. 93-1548-CZ
____________________________/
OPINION AND ORDER rendered by the HONORABLE PATRICK J. CONLIN,
CIRCUIT JUDGE at Ann Arbor, Michigan on May 16, 1994.
APPEARANCES:
R. BRUCE LAIDLAW (Pl6346)
Attorney for Plaintiff
THOMAS J. BLESSING (P36242)
SUSAN L. CAMERON (P47273)
Attorneys for Defendant
In the fall of 1993, Plaintiff, Jon Zeeff, made a Freedom of Information
Act ("FOIA") request to Defendant, City of Ann Arbor, for current data
used to produce "Traffic Condition Section Condition Reports" and "Property
Information" reports. Defendant offered to provide Mr. Zeeff paper copies
of the Traffic Condition Section Condition Reports and microfiche copies
of the Property Information reports. Mr. Zeeff, however, requested that
the data be provided to him in computer format. Defendant declined to provide
the data in the desired format. and Plaintiff initiated this action to
compel its production. Defendant motions for Summary Disposition pursuant
to MCR 2.116(C)(8) and (C)(10). Plaintiff responds and requests that the
Court render judgment in his favor pursuant to MCR 2.116(I)(2). At a hearing
held on February 23, 1994, the Court granted judgment in favor of Plaintiff
as to his request for the data to produce the Traffic Condition Section
Condition Reports. The Court took the remaining issue under advisement.
A Motion for Summary Disposition brought pursuant to MCR 2.116(C)(8)
tests the legal sufficiency of the claim by the pleadings alone. Parkhurst
Homes, Inc. v McLaughlin, 187 Mich. App. 357, 360; 466 N.W.2d 404 (1991).
Summary disposition is appropriate only when the claim is so clearly unenforceable
as a matter of law that no factual development could justify the right
to recovery. Id. In contrast, a motion brought pursuant to MCR 2.116(C)(10)
tests the factual support for a valid claim. The Court must give the benefit
of any reasonable doubt to the nonmoving party, and in order to grant the
motion, must find that the record which might be developed will leave open
no issues upon which reasonable minds may differ. Rizzo v Kretschmer,
389 Mich. 363, 372; 207 N.W.2d 316 (1973); Anderson v Kemper Ins. Co.,
128 Mich. App. 249, 252; 340 N.W.2d 87 (1983). If the Court determines
that the nonmoving party is entitled to judgment as a matter of law, the
Court may grant Summary Disposition in his favor. MCR 2.116(I)(2).
I. INTRODUCTION TO FOIA
The preamble to the Michigan Freedom of Information Act provides:
It is the public policy of this state that all persons 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. MCLA 15.231(2).The Michigan supreme Court has endeavored for an interpretation of the FOIA consistent with this underlying policy of full disclosure. Swickard v. Wayne County Medical Examiner, 438 Mich. 536, 543-45; 475 N.W.2d 304 (1991). Accordingly, all public records are subject to disclosure unless specifically exempted by the act. Id. at 544; MCLA 15.233(l). When a public body, such as the City of Ann Arbor, refuses a FOIA request, and the requester sues to compel disclosure, "the public agency bears the burden of proving that the refusal was justified under the act." Swickard, 438 Mich. at 544.
II. PUBLIC RECORD
Defendant's initial series of objections to Plaintiff's FOIA request concern whether Plaintiff requested a "public record" as defined by the FOIA. A "public record" is "a writing prepared, owned, used, in the possession of, or retained by a public body in the performance of an official function, from the time it is created." MCLA 15.232(c) (emphasis added). A "writing" consists of:
handwriting, typewriting, printing, photostating, photographing, and every other means of recording, and includes letters, words, pictures, sounds, or symbols, or combinations thereof, and papers, maps, magnetic or paper tapes, photographic films or prints, microfilm, microfiche, magnetic or punched cards, discs, drums or other means of recording or retaining meaningful content. MCLA 15.232(e) (emphasis added).Defendant initially asserts that Plaintiff's requested "reports" and "information" are not public records, but are discrete bits of data that are not stored in an assembled form. The Court is not persuaded by this argument. The FOIA definition of a "writing" encompasses the data requested by Plaintiff. The data is recorded within Defendant's computer system. As the requested data is a "writing," it is a public record, for it is retained by Defendant in the performance of an official function-- the collection of property taxes. Defendant also contends that Plaintiff's request for "current" data is not specific. The Court is not persuaded by this argument. "Current" data clearly means data as it exists at the time the record is copied. The Court finds that Plaintiff's FOIA request was specific enough for Defendant to locate the public record.
Defendant additionally contends that the assemblage of the data would
require it to create a new public record. A public body is not required
to make an new public record in order to comply with a FOIA request. MCLA
15.233(3), (4). Defendant maintains that because the requested data is
not kept in an individual file, the acts necessary to comply with the request
amount to the creation of a new record. Defendant argues that the data
exists only in electronic form and must be processed in order to create
usable information. Defendant apparently completes this task once per year,
generates a printout of the data and destroys the computer file containing
the processed data. The Court is not persuaded by Defendant's argument.
The public can access the data by means of a computer terminal in the Assessor's
office. As the data is accessible in the desired format at the Assessor's
office, the Court finds that production of the data does not require the
creation of a new public record.
Lastly, Defendant maintains that it complied with the FOIA when it offered
to furnish microfiche copies of the property reports. Defendant asserts
that it is not required to provide copies of public records in the format
requested. Defendant relies on the United States District Court decision
in Dismukes v. Department of Interior, 603 F Supp 760 (D.D.C.
1984). However, the Dismukesholding has been questioned in light
of the United States Supreme Court decision in United States Department
of Justice v. Tax Analysts, 492 US 136 (1989). Petroleum
Info. Corp. v. Department ofInterior, 976 F2d 1429, 1437 n.11 (D.C.
Cir. 1992). The FOIA defines a "public record" not on the basis of the
information contained within the record, but on an item specific basis.
MCLA 15.232(c), (e). Compare MCLA 15.243 (defining exemptions on
the basis of the content of the public record). Public records are subject
to a FOIA request unless they fall within an exemption. MCLA 15.233(l).
Thus, if an item in a requested format is a public record, a FOIA request
is not satisfied when the same information is provided in another format.
This determination is unaffected by the recent Michigan Court of Appeals
holding in Densmore v. Department of Corrections, 203 Mich.
App. 363; 512 N.W.2d 72 (1993). In Densmore, the requester received
the public record and then made an identical second request. Plaintiff's
request has yet to be satisfied.
The Court finds that Plaintiff made a FOIA request that sufficiently
described a public record. Therefore, unless the requested item is exempt
from disclosure, Defendant must provide the data requested by Plaintiff.
MCLA 15.233(l).
III. SECTION (1) (a) EXEMPTION
Defendant asserts that the information included in the assessor's property database is exempt as information that constitutes an invasion of privacy. Section 13(l) (a) of the FOIA provides:
'A public body may exempt from disclosure as a public record under this act:
Information of a personal nature where the public disclosure of the information would constitute a clearly unwarranted invasion of an individual's privacy. MCLA 15.243(l)(a).This exemption is narrowly construed. Swickard v. Wayne Co.Medical Examiner, 438 Mich. 536, 544; 475 N.W.2d 304 (1991). Prior to the majority opinion in Swickard, the Michigan courts had not determined whether the balancing of interests in disclosure and nondisclosure, and the use to which the materials may be put, were irrelevant in determining if a record fell within the privacy exemption. See id. at 569-75 (Levin, J., writing separately). The majority in Swickard, however, set forth a two-prong test for analyzing whether a public record fell within the privacy exemption. First, the requested material must be information of a personal nature; that is, the information must relate to intimate affairs, activities or interests as dictated by the "customs, mores, or ordinary views of the community." Id. at 547. Second, if the information is of a personal nature, an inquiry into whether the invasion of privacy is "clearly unwarranted" is necessary. Id. This two-prong analysis was recently applied in Booth Newspapers, Inc. v University of Michigan Board of Regents, 444 Mich. 211, 231-34; 507 N.W.2d 422 (1993).
Defendant has failed to satisfy its burden of showing that the requested
material contains information of a personal nature. The Court cannot comprehend
how the assessed value of one's property relates to intimate affairs, activities
or interests. Defendant argues that the assessed value of property could
be combined with other data to infringe on one's privacy. While the City
of Ann Arbor's protection of its citizen's from pesky telemarketers and
computer-literate criminals may be noble, it is not a proper basis to deny
a FOIA request. "[T]he FOIA 'personal nature' exemption does not prohibit
the disclosure of information that could conceivably lead to the revelation
of personal information." Id. at 233 (emphasis in original). Accordingly,
the Court finds that the public record requested does not contain information
of a personal nature.
Defendant contends that the release of the information on computer tape
is a factor to consider in determining whether the information falls within
the exemption. In support of its argument, Defendant relies on the Michigan
Supreme Court decision in Kestenbaum v. Michigan State University,
414 Mich. 510; 327 N.W.2d 783 (1982), and the Michigan Court of Appeals
decision in Mullin v. Detroit Police Department, 133 Mich.
App. 46; 348 N.W.2d 708 (1984). These pre-Swickard cases considered
the format of the record as a factor in determining whether the invasion
of privacy was "clearly unwarranted." Under the Swickard approach, the
"personal nature" test is a separate inquiry. Booth Newspapers,
Inc., 444 Mich. at 233. The Court, having found that the assessment data
is not of a personal nature, does not make a determination under the second
prong of the Swickard analysis. As the assessment data is not of
a personal nature, the privacy exemption does not apply to Plaintiff's
FOIA request.
IV. CONCLUSION
In summary, the Court finds that Plaintiff made an FOIA request that
sufficiently described a public record. Furthermore, the Court finds that
the requested public record does not contain information of a personal
nature. Thus, MCLA 15.243(l)(a) does not exempt the public record from
disclosure. Accordingly, Defendant's Motion for Summary Disposition is
denied and the Court grants Judgment in favor of Plaintiff. MCR 2.116(I)(2);
MCR 2.116(C)(10).
PATRICK J. CONLIN (PI2126)
Circuit Judge
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