Freedom of Information Act (FOIA) (MCL 15.231 et seq.); “Public record”; MCL 15.232(e); “Public body”; MCL 15.232(d)(iii); Principle that public records are not insulated from FOIA by their location or the fact that a private entity created them originally for its own use; Amberg v. City of Dearborn; Use of agency principles to argue that documents the city attorney sent & received while negotiating for the defendant-city are public records; Breighner v. Michigan High Sch. Athletic Ass’n; Hoffman v. Bay City Sch. Dist.; MacKenzie v. Wales Twp.; Reliance on case law from foreign jurisdictions; In re Jajuga Estate; Nissen v. Pierce Cnty. (WA); Knightstown Banner LLC v. Town of Knightstown (IN App.); State ex rel Findlay Publ’g Co. v. Hancock Cnty. Bd. of Comm’rs (OH); Forum Publ’g Co. v. City of Fargo (ND); Creative Rests., Inc. v. Memphis (TN App.); Evidence of plaintiff’s motive & intended use of the requested records; Taylor v. Lansing Bd. of Water & Light; Rataj v. City of Romulus; Clerical-Technical Union of MI State Univ. v. Board of Trs. of MI State Univ.; Harmless error; MCR 2.613(A)

The court concluded that plaintiff’s argument that the documents the city attorney sent and received while negotiating for defendant-city were public records subject to disclosure under FOIA based on agency principles was not supported by the relevant statutes’ plain language, Michigan case law, or the foreign case law she cited. Further, while the trial court erred in denying her motion in limine to exclude evidence of her motive and intended use of the documents, the error was harmless. Thus, it affirmed summary disposition for the city. The court noted that the definition of “public body” in MCL 15.232(d)(iii) “does not include officers or employees acting on behalf of cities, townships, and villages. By contrast, MCL 15.232(d)(i),” which defines the term as to “the executive branch of state government, does include officers and employees acting on behalf of the public body. Had the Legislature so intended, it could have included officers or employees, or agents, in the definition of public body that pertains to cities, townships, and villages. That it did not indicates the Legislature’s intent to limit ‘public body’ in § 232(d)(iii) to the governing bodies of the entities listed.” The court concluded that Breighner supported this interpretation. Plaintiff contended that Breighner’s holding was irrelevant because she did not assert that the city attorney was a public body, but instead that “because an agent’s records are the principal’s records, the city attorney’s records are defendant’s records; thus, to the extent that the city attorney possesses them in the conduct of city business, defendant possesses them in the performance of an official function.” However, this argument did “not circumvent the requirement of § 232(e) that public records are those prepared, owned, used, possessed or retained in the performance of an official function by the ‘public body’ and Breighner’s indication that ‘public body’ does not include agents of the public body.” Case law also suggests that “for a record to become a public record subject to FOIA, the record has to be adopted by the public body itself in one of the ways stated in § 232(e), not simply used, possessed, or retained by someone acting on behalf of the public body.”