Susan Bisio v. the City of the Village of Clarkston ( 2018 )

STATE OF MICHIGAN
COURT OF APPEALS
SUSAN BISIO, UNPUBLISHED
July 3, 2018
Plaintiff-Appellant,
v No. 335422
Oakland Circuit Court
THE CITY OF THE VILLAGE OF LC No. 2015-150462-CZ
CLARKSTON,
Defendant-Appellee.
Before: BECKERING, P.J., and M. J. KELLY and O’BRIEN, JJ.
PER CURIAM.
Plaintiff, Susan Bisio, appeals as of right from an order granting summary disposition of
her claim under Michigan’s Freedom of Information Act (FOIA), MCL 15.231 et seq., to
defendant, City of the Village of Clarkston, and deeming moot her cross-motion for summary
disposition on defendant’s defenses.1 Plaintiff also challenges the trial court’s June 8, 2016 order
denying her motion in limine to exclude evidence of her motive for requesting the records at
issue and her intended use of them. For the reasons stated below, we affirm the trial court’s
grant of summary disposition to defendant on plaintiff’s FOIA claim.
1
We permitted the Michigan Press Association and Detroit Free Press to file a joint amicus brief
on behalf of plaintiff. Susan Bisio v The City of the Village of Clarkston, unpublished order of
the Court of Appeals, entered June 21, 2017 (Docket No. 335422). We also permitted the
Michigan Municipal League and the Michigan Townships Association to file a joint amicus brief
on behalf of defendant. Susan Bisio v The City of the Village of Clarkston, unpublished order of
the Court of Appeals, entered July 26, 2017 (Docket No. 335422). We also granted plaintiff’s
motion for leave to reply to the joint amicus brief of the Michigan Press Association and Detroit
Free Press. Susan Bisio v The City of the Village of Clarkston, unpublished order of the Court of
Appeals, entered September 6, 2017 (Docket No. 335422).
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I. STATEMENT OF PERTINENT FACTS AND PROCEDURAL HISTORY
On June 7, 2015, plaintiff submitted a FOIA request to defendant requesting, among
other things, correspondence referenced in certain monthly billing invoices submitted to the city
by the city attorney, Thomas Ryan, and by engineering consultants Hubbell, Roth, & Clark
(HRC). The documents requested pertained primarily to a development project at 148 N. Main
Street and the cleanup of vacant property located at Walden Road and M-15. Plaintiff also
requested any other correspondence “pertaining to the conditional rezoning of 148 N. Main and
storm water collection, retention, or detention at the proposed redevelopment at 148 N. Main
from January 1, 2014 to the present.” Plaintiff received most of the records she requested, but a
letter from the city attorney informed her that 18 of the items referenced in his invoices were not
public records. Subsequent communications brought the release of a few more records and
corrections of some of the deficiencies in disclosures already made. Defendant maintained,
however, that certain items in the city attorney’s files and the files of the HRC were not public
records because the city had never received the records and neither the city attorney nor HRC
was a “public body” for purposes of FOIA.
On December 4, 2015, plaintiff filed a FOIA complaint asking the court to order
defendant to produce all of the records she had requested, regardless of where they were located.
In its answer, defendant denied having violated FOIA by refusing to disclose public records and
asserted affirmative defenses under MCR 2.116(C)(8) (failure to state a claim), (C)(5) (plaintiff
is not the party in interest), and (C)(6) (prior action asserting the same claims). Defendant
contended that the purpose of plaintiff’s FOIA request was to obtain documents for use by her
husband, Richard Bisio, in a complaint he had previously filed against defendant alleging
violation of the Open Meetings Act, MCL 15.261 et seq (OMA).2 Accordingly, defendant
asserted that the requested documents were exempt under MCL 15.243(1)(v) because they
related “to a civil action in which the requesting party and the public body are parties.”
Along with her FOIA complaint, plaintiff filed a motion for partial summary disposition.
Relying on agency principles, plaintiff argued that the city attorney was defendant’s agent and
stood in defendant’s shoes such that the documents the city attorney possessed that pertained to
city business belong to defendant. Therefore, the requested documents are public records
because they are “in the possession” of defendant and because the city attorney, as an agent for
defendant, “used” them to conduct city business and “retained” them. Plaintiff further argued
2
Five days before plaintiff filed the underlying FOIA complaint, her attorney and husband,
Richard Bisio, filed a complaint alleging that defendant violated the OMA. After defendant
denied plaintiff’s request in part, Richard amended his OMA complaint to add a count asking for
a declaratory judgment that written documents to and from the city attorney, in his capacity as
city attorney, were public records under FOIA, regardless of their being kept in his private files.
Defendant has maintained throughout the instant action that plaintiff, as a proxy for her husband,
submitted her FOIA request to obtain for Richard’s use in his OMA case documents otherwise
not available to him.
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that neither the physical location of the records in the city attorney’s office nor the fact that the
city attorney is not a “public body” changes the character of the records as “public records.”
Defendant filed a response to plaintiff’s motion for partial summary disposition and a cross-
motion for summary disposition pursuant to MCR 2.116(C)(6), asserting that Richard Bisio was
the real party in interest and that plaintiff’s FOIA complaint was in service of his OMA
complaint. With these motions still pending, plaintiff filed a motion for summary disposition on
defendant’s affirmative defenses, contending that they were “based on the erroneous premise that
Susan Bisio is not a person separate from her husband and that the ‘real’ plaintiff here is Richard
Bisio.”
Subsequent to oral argument, the trial court denied both of plaintiff’s motions, finding
that a genuine issue of material fact existed as to whether the records were public records and
that facts could be developed to support defendant’s affirmative defenses. Prior to oral
argument, defendant and Richard had entered into a consent judgment in Richard’s OMA claim
that preserved plaintiff’s FOIA claim. Consequently, the trial court also denied as moot
defendant’s motion for summary disposition pursuant to MCR 2.116(C)(6).
Plaintiff next filed a motion in limine to exclude evidence of her motive for requesting
records and for her intended use of the records. She asserted that defendant based its defenses
primarily on the erroneous assumption that she is just a “front” for her husband and that she filed
her FOIA request at his behest “to obtain records for use in his now-dismissed lawsuit against the
city.” Denying this assumption as untrue, plaintiff argued that a requester’s motive and intended
use of the documents requested is nevertheless irrelevant, and irrelevant evidence is inadmissible
under MRE 402. Defendant responded by indicating that granting plaintiff’s motion would be
premature, as discovery had not yet closed, and further discovery might produce evidence that
plaintiff intended by her FOIA action to obtain documents relevant to her husband’s now-
dismissed OMA case. The trial court denied plaintiff’s motion.
After discovery closed, defendant filed a motion for summary disposition primarily on
the ground that the records sought were not public records for purposes of FOIA because they
were not “prepared, owned, used, in the possession of, or retained by a public body in the
performance of an official function.” Plaintiff responded with a cross-motion for summary
disposition on the defendant’s asserted exemptions from disclosure as well as on the exemptions
defendant did not formally assert. In addition, plaintiff sought summary disposition on her
request for imposition of a civil fine and award of punitive damage as provided for under FOIA,
citing MCL 15.240(7) and MCL 15.240a(7).
Subsequent to oral argument, the trial court granted defendant’s motion for summary
disposition and deemed plaintiff’s cross-motion moot. The trial court found no documentary
evidence establishing that the city attorney shared the contested records with defendant, that
defendant used the contested records to make a decision related to the subject matter of the
records, or that defendant retained the contested records in performance of an official function.
Thus, the trial court concluded that the contested records were not public records. Accordingly,
the trial court granted defendant summary disposition of plaintiff’s complaint pursuant to MCR
2.116(C)(10) and denied as moot plaintiff’s cross motion for summary disposition. This appeal
followed.
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II. ANALYSIS
A. STANDARDS OF REVIEW
We review a trial court’s summary disposition decision de novo. Thomas v City of New
Baltimore, 254 Mich App 196, 200; 657 NW2d 530 (2002). Summary disposition under MCR
2.116(C)(10) is proper if the documentary evidence filed by the parties and viewed in the light
most favorable to the party opposing the motion fails to show a genuine issue of material fact,
and the moving party is entitled to judgment as a matter of law. Quinto v Cross & Peters Co,
451 Mich 358, 362; 547 NW2d 314 (1996). “A genuine issue of material fact exists when the
record, giving the benefit of reasonable doubt to the opposing party, leaves open an issue upon
which reasonable minds might differ.” West v Gen Motors Corp, 469 Mich. 177, 183; 665
NW2d 468 (2003).
We also review de novo questions of statutory interpretation. Ellison v Dep’t of State,
320 Mich App 169, 175; 906 NW2d 221 (2017). “If the language of a statute is clear and
unambiguous, the plain meaning of the statute reflects the legislative intent and judicial
construction is not permitted.” Id. quoting Herald Co. v City of Bay City, 463 Mich 111, 117-
118; 614 NW2d 873 (2000).
We review a trial court’s decision on a motion in limine for an abuse of discretion. See
Lockridge v Oakwood Hosp, 285 Mich App 678, 693; 777 NW2d 511 (2009). An abuse of
discretion occurs when the decision results in an outcome falling outside the range of principled
outcomes. Arabo v Michigan Gaming Control Bd, 310 Mich App 370, 397-398; 872 NW2d 223
(2015). “A court by definition abuses its discretion when it makes an error of law.” In re Waters
Drain Drainage Dist, 296 Mich App 214, 220; 818 NW2d 478 (2012).
B. PUBLIC RECORDS
Plaintiff first contends that the trial court erred in granting defendant summary
disposition based on its conclusion that the records at issue are not public records. We disagree.
The purpose of FOIA is to allow the public to “examine and review the workings of
government and its executive officials.” Thomas, 254 Mich App at 201. Unless public records
are exempt from disclosure under MCL 15.243, they are subject to disclosure under FOIA. MCL
15.232(e)(i) and (ii). A “public record” means “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.” MCL 15.232(e). A “public body” includes “[a] county, city, township,
village, intercounty, intercity, or regional governing body, council, school district, special
district, or municipal corporation, or a board, department, commission, council, or agency
thereof.” MCL 15.232(d)(iii). Public records are not insulated from FOIA by their location or
the fact that a private entity created them originally for its own use. See, e.g., Amberg v City of
Dearborn, 497 Mich 28; 859 NW2d 674 (2014) (private businesses’ surveillance videos
collected as evidence by law enforcement personnel were public records because they were used
to support the defendant’s decision to issue a citation).
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Plaintiff contends that the city attorney is defendant’s agent and that the documents that
the city attorney creates, possesses, retains, and uses in the conduct of his work for defendant
belong to defendant, the city attorney’s principal. For this reason, the letters at issue are records
“prepared, owned, used, in the possession of, or retained” by defendant. Plaintiff also contends
that the city attorney performed an “official function” for defendant when he sent or received
each letter in his capacity as city attorney, and each letter involved city business. According to
plaintiff, limiting “official business” to formal decisions of the type reflected in meeting minutes
reads the FOIA statute too narrowly and gives defendant too much discretion in deciding what
constitutes a public record.
Plaintiff’s use of agency principles to argue that the contested documents the city
attorney sent and received while negotiating for the city are public records subject to disclosure
under FOIA is seductive, but it is unsupported by the plain language of the relevant statutes, by
Michigan caselaw, and by the foreign caselaw relied upon by plaintiff.
Absent an ambiguity, the Court may presume that MCL 15.232(e) expresses the
Legislature’s intent that in order for a record to be subject to FOIA, a public body must have
prepared, owned, used, possessed or retained the record in the performance of an official
function. See Ellison, 320 Mich App at 175 (“If the language of a statute is clear and
unambiguous, the plain meaning of the statute reflects the legislative intent and judicial
construction is not permitted.”) The definition of “public body” provided by 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 provides the definition of “public body” relevant 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. This interpretation finds support in the Michigan Supreme Court’s
decision in Breighner v Mich High Sch Athletic Ass’n, 471 Mich 217; 683 NW2d 639 (2004).
At issue in Breighner was whether the Michigan High School Athletic Association
(MHSAA) was a “public body” as defined at MCL 15.232(d). Breighner, 471 Mich at 219. The
plaintiffs argued that the MHSAA was a public body as defined by § 232(d)(iii) because “it acts
as an ‘agent’ for its member schools[.]” Id. at 232. The trial court ruled for the plaintiff on other
grounds, but this Court reversed in a split decision, with the majority rejecting the plaintiffs’
argument that the MHSAA is an ‘agent’ of the state and therefore subject to FOIA under §
232(d)(iii). Breighner, 471 Mich at 224.
Affirming this Court’s decision, the Michigan Supreme Court observed that the majority
and the parties “appear to have assumed that § 232(d)(iii) includes ‘agents’ of enumerated
governmental entities in the definition of ‘public body.’ ” Id. at 232. Disagreeing, the Breighner
Court stated that “agent” and “agency” were not the same thing, and that “[h]ad the Legislature
intended any ‘agent’ of the enumerated governmental entities to qualify under § 232(d)(iii), it
would have used that term instead of ‘agency.’ ” Id. at 232-233. The Court further noted in a
footnote that it would “defy logic to conclude that any person or entity qualifying as an ‘agent’
of one of the enumerated governmental bodies would be considered a ‘public body’ for purposes
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of FOIA. Id. at 233 n 6. These observations are arguably nonbinding dicta, but we find the
reasoning of the Supreme Court persuasive and consistent with the plain language of §
232(d)(iii) and with Michigan caselaw. See Eyde Bros Dev Co v Eaton Co Drain Comm’r, 427
Mich 271, 286; 398 NW2d 297 (1986); Dye v St. John Hosp and Med Ctr, 230 Mich App 661,
669; 584 NW2d 747 (1998).
Plaintiff argues that the Breighner Court’s holding is irrelevant to the case at bar because
she has never claimed that the city attorney was a public body. Rather, she argues 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. Plaintiff’s argument is unavailing
because it does 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. Plaintiff’s argument is also unsupported by caselaw suggesting 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. In Hoffman v Bay City Sch Dist, 137 Mich App 333; 357 NW2d 686
(1984), this Court held that records created by the school district’s attorney during his
investigation of the district’s finance department were not public records because the attorney
reported his findings orally, without at any time sharing the documents in his investigatory file
with the district. Like Hoffman, the records at issue in this case have remained in possession of
the city attorney. There is no evidence suggesting that he has shown them to the city council,
that council members have used them for the basis of a decision, or even that the letters sent and
received have resulted in an agreed-upon proposal that the city attorney could submit for the
council’s consideration.
Plaintiff and his amici contend that Hoffman was wrongly decided. The amici argue that
the Court should have concluded that the attorney’s investigation records were public records,
but that they were exempt under MCL 15.243(g) as attorney-client privilege, subsection (h) as
work product, or subsection (m) as frank communication. Plaintiff contends that Hoffman
should be limited to its facts and that the work of the charter-appointed city attorney on behalf of
the defendant city is qualitatively different from “an internal investigation by a retained attorney
on which no action was taken.” Plaintiff further contends that Hoffman has been superseded by
cases such as MacKenzie v Wales Twp, 247 Mich App 124, 129; 635 NW2d 335 (2001).
Plaintiff relies on MacKenzie for the proposition that “FOIA applies to records in the ‘control’ of
a public body, not just those in its possession” and that “it is the content of the record, not its
location, that determines whether it is a public record.”
We do not believe that MacKenzie has superseded Hoffman; in fact, this Court
distinguished its holding in MacKenzie from that in Hoffman. At issue in MacKenzie was
whether magnetic computer tapes created from tax information provided by two townships and
possessed by a third party at the behest of the defendant townships were public records subject to
disclosure under FOIA. MacKenzie, 247 Mich App at 125-126. The townships used the
magnetic computer tapes created by the third party to generate tax notifications to their
respective property owners. The third party kept the tapes after creating them, but sent the
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documents from which it created the tapes back to the townships. When the plaintiff requested a
copy of the tapes pursuant to FOIA, both townships argued essentially that the tapes were not
subject to release under FOIA because the townships did not possess the tapes. The trial court
granted summary disposition to the defendants, finding that the tapes “were not ‘records’ as
defined by FOIA because defendants did not create or possess the tapes.” Id.
On appeal, this Court determined that the magnetic computer tapes were public records
because defendants used them to perform the official function of preparing tax notices for
property owners. Id. at 129. Distinguishing the case from Hoffman, the Court observed that the
attorney in Hoffman created and retained information and reported only his opinion of the results
of his investigation to the school board, not the information actually obtained during his
investigation. In MacKenzie, however, the townships had access to the information from which
the computer tapes were created, had provided that information to the third party so it could
create the tapes at issue, used the tapes to send tax notifications to their property owners, and
maintained a measure of control over the tapes. Id. at 130-131. Thus, although in both Hoffman
and MacKenzie, the alleged public records were not in the possession of the relevant public
bodies, the determining factor was not the location of the records at issue, but whether they were
“prepared, owned, used, or retained” by the public bodies in the performance of an official
function. In Hoffman they were not, but in MacKenzie they were.
Plaintiff relies on a number of cases from foreign jurisdictions to contend that records
prepared on behalf of a public body and held remotely are public records subject to FOIA
requests. See In re Jajuga Estate, 312 Mich App 706, 723 n 7; 881 NW2d 487 (2015) (noting,
“[c]ases from other jurisdictions, although not binding, may be persuasive”). Having reviewed
these cases, we do not find them applicable to the case at bar.
Plaintiff first relies on Nissen v Pierce Co, 183 Wash 2d 863, ¶ 17; 357 P3d 45 (2015).
However, Nissen is inapplicable because it addresses whether work product prepared by an
agency employee is necessarily a record of a state or local agency subject to disclosure under
Washington law. The city attorney in the case at bar is not employed by defendant, and
defendant is not a state agency. Plaintiff also relies on Knightstown Banner, LLC v Town of
Knightstown, 838 NE2d 1127 (Ind App, 2005), and State ex rel Findlay Publishing Co v
Hancock Co Bd of Comm’rs, 80 Ohio St 3d 134; 684 NE2d 1222 (1997), to argue that a public
body’s documents filed in an attorney’s law office are public records subject to disclosure. But,
these cases are distinguishable from the case at bar because the documents involved in
Knightstown Banner and State ex re Findlay Publishing were settlement agreements drafted,
adopted, and used by the public bodies to obtain release from liability during the course of their
respective attorneys’ representation. Knightstown Banner, LLC, 838 NE2d at 1133; State ex re
Findlay Publishing Co, 80 Ohio St 3d at 137. As the trial court noted in the instant case, there is
no evidence that defendant used the letters prepared by its city attorney. Plaintiff’s reliance on
Forum Publishing Co v City of Fargo, 391 NW2d 169 (ND, 1986), is misplaced because the
breadth of North Dakota’s statute guaranteeing public access to records far exceeds that of
Michigan. Under North Dakota law, all records of a public body are public records, without
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regard to whether the public body prepared, owned, used, possessed, or retained them in the
performance of an official function. 3 This is not the law in Michigan.
Finally, Creative Restaurants, Inc v Memphis, 795 SW2d 672 (Tenn App, 2014),
addresses whether subleases of real property owned by the city in its Beale Street Historic
District and held in the office of the city’s part-time attorney were public records. Creative
Restaurants, Inc, 795 SW2d at 673-674. The city had leased the property to the Beale Street
Development Corporation, which sublet it to a private concern that changed its name to Beale
Street Management, which, in turn, sublet properties to tenants. The subleases benefitted the
city’s development of the property and listed the city as landlord as long as it was not in default.
Id. Under these circumstances, and considering that the city had “financial, cultural, historical
and political interests” in the property, the court held that the subleases qualified as public
records under Tennessee’s Open Records Act. Id. at 678. The court determined that the city’s
integral involvement in the Beale Street property and in the subleasing scheme is what made the
subleases public records. In the present case, plaintiff presented no evidence that defendant is
similarly involved in the two properties that are the subject of the disputed correspondence.
Plaintiff’s foreign cases support her proposition that public records held remotely are
subject to disclosure under FOIA. But they are not instructive on the issue of whether records
prepared, used, and obtained by a city attorney during the course of negotiating issues relevant to
the city’s environmental concerns but not submitted to the city, and with no evidence of the city
having acted on them, are public records under MCL 15.232(e). All of the relevant foreign cases
involve records that the public bodies had somehow used in the performance of an official
function, regardless of whether the public body ultimately possessed the records. Likewise, the
plain language of the relevant statutes defining public record and public body, as well as relevant
Michigan caselaw, do not support plaintiff’s contention that the city attorney’s possession and
use of records in his role as city attorney is tantamount to the public body’s use and possession of
the records in the performance of an official function. Plaintiff’s argument, though appealing, is
ultimately unsuccessful because it represents an expansion of the definition of “public body” and
of “public record” that is unsupported by Michigan law. For these reasons, we affirm the trial
court’s grant of summary disposition to defendant on plaintiff’s FOIA claims. Given our
disposition of this issue, we need not address plaintiff’s argument regarding the inapplicability of
the exceptions to disclosure provided in MCL 15.243.
3
NDCC 44-04-18(1) provides:
Except as otherwise specifically provided by law, all records of public or
governmental bodies, boards, bureaus, commissions or agencies of the state or
any political subdivision of the state, or organizations or agencies supported in
whole or in part by public funds, or expending public funds, shall be public
records, open and accessible for inspection during reasonable office hours.
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B. MOTIVE AND INTENDED USE
Plaintiff argues that the trial court abused its discretion by denying her motion to exclude
evidence of her motive and intended use of the requested records. We agree, but conclude that
the error is harmless.
The seminal case addressing the relevance of a party’s intended use of documents
requested under FOIA is Taylor v Lansing Bd of Water and Light, 272 Mich App 200 (2006). At
issue in Taylor was whether MCL 15.243(1)(v) exempted records requested from the Lansing
Board of Water and Light (“BWL”) by the plaintiff on behalf of her best friend, Virginia Cluley,
who was involved in litigation against the BWL. The plaintiff filed a FOIA request for records
that were relevant to Cluley’s case against the BWL, but were unavailable to Cluley pursuant to
MCL 15.243(1)(v).4 See Taylor, 272 Mich App at 202. The defendant denied the request,
claiming exemption under MCL 15.243(1)(v) and arguing that plaintiff was acting as Cluley’s
agent to obtain documents to assist her in her case against the BWL. Id. The trial court
disagreed, denied the defendant’s motion for summary disposition, and ordered the defendant to
produce the requested documents. Defendant appealed.
On appeal, this Court noted that “exemptions must be narrowly construed, and the party
seeking to invoke an exemption must prove that nondisclosure is in accord with the intent of the
Legislature. Id. at 205. The public body asserting the exemption in MCL 15.243(1)(v) has the
burden to prove that it is a party to a civil action involving the requesting party.” Id. Otherwise,
“the public body is afforded no exemption from disclosure based solely on the status of one of
the parties as litigants.” Id. “[I]nitial as well as future uses of information requested under FOIA
are irrelevant in determining whether the information falls within the exemption.” Id. Because
the plaintiff was not a party to the Cluley lawsuit with the BWL, MCL 15.243(1)(v) did not
operate to exempt her request for documents related to the lawsuit. See also Rataj v City of
Romulus, 306 Mich App 735, 752-753; 858 NW2d 116 (2014) (whether the attorney seeking
disclosure of records sought to obtain evidence for another lawsuit was irrelevant); Clerical-
Technical Union of Michigan State Univ v Bd of Trustees of Michigan State Univ, 190 Mich App
300, 303; 475 NW2d 373 (1991) (deeming irrelevant “[t]he initial as well as the future use of the
requested information”).
Although the trial court erred in denying plaintiff’s motion in limine, the error was
harmless with regard to the court’s ultimate decision on plaintiff’s FOIA claim. “An error in the
admission or the exclusion of evidence, [or] an error in a ruling . . . is not ground for . . .
vacating, modifying, or otherwise disturbing a judgment or order, unless refusal to take this
action appears to the court inconsistent with substantial justice.” MCR 2.613(A). The trial
court’s ruling that the records at issue are not public records subject to disclosure under FOIA,
4
MCL 15.243(1)(v) provides that “[a] public body may exempt from disclosure as a public
record . . . [r]ecords or information relating to a civil action in which the requesting party and the
public body are parties.”
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and this Court’s affirmation of that ruling, renders harmless the trial court’s denial of plaintiff’s
motion in limine.5
Affirmed.
/s/ Jane M. Beckering
/s/ Michael J. Kelly
/s/ Colleen A. O’Brien
5
Although plaintiff’s claim that the trial court erred in not granting her motion in limine is
effectively a moot point given our conclusion that the records sought are not public records
under FOIA, plaintiff contends that this issue is relevant to defendant’s motion for fees, which
the trial court took under advisement pending our decision on appeal.
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