Emilee Kathryn Buckmaster v. Department of State ( 2019 )

If this opinion indicates that it is “FOR PUBLICATION,” it is subject to
revision until final publication in the Michigan Appeals Reports.
STATE OF MICHIGAN
COURT OF APPEALS
EMILEE KATHRYN BUCKMASTER, FOR PUBLICATION
April 11, 2019
Plaintiff-Appellee, 9:00 a.m.
v No. 343931
Court of Claims
DEPARTMENT OF STATE, LC No. 17-000309-MZ
Defendant-Appellant.
Before: SWARTZLE, P.J., and CAVANAGH and CAMERON, JJ.
CAVANAGH, J.
Defendant, Michigan Department of State, appeals by leave granted1 an order denying
defendant’s motion for summary disposition of this case arising under the Michigan Freedom of
Information Act (FOIA), MCL 15.231 et seq. We affirm in part and reverse in part.
In 2017, plaintiff’s attorney sent defendant a request under the FOIA seeking all vehicle
registration and licensing records associated with plaintiff’s name and a certain vehicle.
Defendant, through its FOIA Coordinator, denied the request for the following reasons with the
following instructions:
Pursuant to the Freedom of Information Act (FOIA), MCL § 15.231 et seq your
request is denied because the exemption contained in MCL § 15.243(1)(d), which
authorizes the Department to withhold “. . . record or information specifically
described and exempted from disclosure by statute.” MCL § 257.208b(1)
(emphasis added) of the Michigan Vehicle Code . . . provides[:]
The Secretary of State may provide a commercial look-up service
of records maintained under this act. For each individual record
1
Buckmaster v Dep’t of State, unpublished order of the Court of Appeals, entered October 25,
2018 (Docket No. 343931).
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looked up, the secretary of state shall charge a fee specified
annually by the legislature, or if the legislature does not specify a
fee, a market-based price established by the secretary of state. The
secretary of state shall process a commercial look-up request only
if the request is in the form or format prescribed by the secretary
of state.
You must complete the enclosed Record Lookup Request form and pay upfront
the associated lookup fees to obtain any driving and/or vehicle records from our
Department that are not exempt from release. The fee for each record lookup is
$11, $12 if certified for court purposes.
Defendant notified plaintiff of the right to appeal this decision to the Secretary of State’s
designee or to bring a court action challenging the decision. Defendant also attached a record
look-up request form, which stated underneath the title that “[t]here is an $11.00 charge for each
record that is found. Certification is an additional $1.00.”
Plaintiff then filed this action in the Court of Claims, alleging a wrongful denial of
requested records under MCL 15.240. Plaintiff acknowledged that the Michigan Vehicle Code
(MVC), MCL 257.1 et seq., permits defendant to create and provide a commercial look-up
service and that defendant had done so, but plaintiff asserted that the commercial look-up service
did not constitute the exclusive way for persons to obtain public records from defendant.
Plaintiff alleged that she could also obtain the records through a FOIA request and that by
denying her request, defendant violated the FOIA. Thus, plaintiff requested an order compelling
disclosure of the records, a declaration that defendant violated the FOIA, an award of all costs,
disbursements, and attorney fees, and punitive damages.
Defendant responded to plaintiff’s complaint by filing a motion for summary disposition
under MCR 2.116(C)(8) and (C)(10), arguing that it lawfully denied plaintiff’s FOIA request
because plaintiff failed to pay the required fee as established under the MVC, MCL 257.208b(1).
Defendant argued that, as stated in MCL 15.234(10), the FOIA’s fee provisions do not “apply to
public records prepared under an act or statute specifically authorizing the sale of those public
records to the public, or if the amount of the fee for providing a copy of the public records is
otherwise specifically provided by an act or statute.” Thus, defendant argued, “when a person
requests public records maintained pursuant to the MVC, the fee provisions within the MVC
apply.” In other words, the MVC fee provisions preempted the FOIA fee provisions, as stated in
the FOIA at MCL 15.234(10), and as this Court held in Ellison v Dep’t of State, 320 Mich. App.
169, 180; 906 NW2d 221 (2017). Because plaintiff did not pay the full MVC fee in advance,
defendant argued, plaintiff’s request for the records was properly denied.
Plaintiff opposed defendant’s motion, arguing that defendant did not deny the FOIA
request because plaintiff failed to pay the fee required by the MVC. Rather, defendant denied
the FOIA request because the motor vehicle records were allegedly “exempt” from disclosure
under the FOIA and could only be produced through the commercial look-up service. Plaintiff
disagreed with defendant’s position, arguing that motor vehicle records could be requested
through the FOIA or the MVC: they are not exempt. Plaintiff agreed that the FOIA deferred to
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the MVC’s fee provision and that the MVC established the fee as $11 per record. Although the
MVC’s fee provision applied, plaintiff argued, the FOIA otherwise controlled the request.
Plaintiff also argued that no legal authority existed for defendant’s requirement that a requester
complete a “record lookup request form” when the request is made through the FOIA, rather than
the MVC.
The Court of Claims denied defendant’s motion for summary disposition, holding: “The
Secretary of State can neither require the commercial look up nor require advance payment of
the fee associated with a commercial look up form.” Defendant then filed an application for
leave to appeal, which was granted. Buckmaster v Dep’t of State, unpublished order of the Court
of Appeals, entered October 25, 2018 (Docket No. 343931).
On appeal, defendant argues that it lawfully denied plaintiff’s FOIA request because the
MVC’s fee provisions apply and plaintiff failed to pay the required fee as established under
MCL 257.208b(1); thus, its motion for summary disposition should have been granted. We
agree, in part.
We review de novo a trial court’s decision on a motion for summary disposition. Barnes
v Farmers Ins Exch, 308 Mich. App. 1, 5; 862 NW2d 681 (2014). This FOIA case involves issues
of statutory interpretation which we also review de novo. See Mich Federation of Teachers v
Univ of Mich, 481 Mich. 657, 664; 753 NW2d 28 (2008). The primary goal of statutory
interpretation is to give effect to the Legislature’s intent. TRJ & E Props, LLC v Lansing, 323
Mich. App. 664, 670; 919 NW2d 795 (2018). “The language of the statute itself is the primary
indicator of the Legislature’s intent.” Id. When the language of the statute is clear and
unambiguous, judicial construction is not permitted and this Court applies it as written, giving
the words their plain and ordinary meaning. Mich Federation of Teachers, 481 Mich. at 664
(citation omitted). “When two statutes cover the same general subject, they must be construed
together to give reasonable effect to both, if at all possible.” Titus v Shelby Charter Twp, 226
Mich. App. 611, 615; 574 NW2d 391 (1997).
Plaintiff brought her request for records under the FOIA, which generally allows a public
body to charge fees for the search, copying, or providing of the public record. MCL 15.234(1).
However, the FOIA’s fee statute “does not apply to public records prepared under an act or
statute specifically authorizing the sale of those public records to the public, or if 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(10).
The MVC lists various driving records the Secretary of State must maintain. MCL
257.204a. Those records, unless confidential or restricted by law from disclosure, must be
available to the public as set forth in the MVC, the FOIA, or other applicable laws. MCL
257.208a. The MVC also contains the following provision regarding the procedure for obtaining
driving records:
(1) The secretary of state may provide a commercial look-up service of
records maintained under this act. For each individual record looked up, the
secretary of state shall charge a fee specified annually by the legislature, or if the
legislature does not specify a fee, a market-based price established by the
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secretary of state. The secretary of state shall process a commercial look-up
request only if the request is in a form or format prescribed by the secretary of
state. . . . [MCL 257.208b(1).]
This Court has interpreted these FOIA and MVC provisions to mean that motor vehicle records
can be requested through the MVC or FOIA, but the MVC’s fee provision applies. Ellison, 320
Mich. App. at 179-180.
In this case, defendant does not dispute that plaintiff could request records maintained
under the MVC through a FOIA request. And plaintiff did not dispute that the MVC fee of $11
per record applied to her FOIA request for motor vehicle records. Therefore, there is no dispute
that the $11 MVC fee applied to plaintiff’s FOIA request for motor vehicle records.
The issues in dispute are the timing of the payment of the fee and the form of the request
for records. The MVC states that “[t]he secretary of state shall not provide an entire
computerized central file or other file of records maintained under this act to a nongovernmental
person or entity, unless the person or entity pays the prescribed fee for each individual record
contained within the computerized file.” MCL 257.208b(9). Consequently, in Ellison this Court
affirmed the trial court’s conclusion that the defendant properly denied the plaintiff’s FOIA
request for motor vehicle records because the plaintiff failed to pay the associated MVC fee of
about $1.6 million. Ellison, 320 Mich. App. at 181. By the statute’s plain language, the requested
records are not to be provided unless the fees are paid. Therefore, in this case, the trial court
erred by concluding that defendant could not require plaintiff to pay—in advance—the fee for
the production of the motor vehicle records requested through FOIA.
Regarding the form of the request for public records, defendant reads into Ellison a
requirement that the request for motor vehicle records must be made through the commercial
look-up service using the record look-up request form. The Ellison Court did not directly
address the plaintiff’s failure to complete the record look-up request form associated with the
commercial look-up service. Rather, the Court noted: “A FOIA request need only be descriptive
enough that a defendant can find the records containing the information that the plaintiff seeks.”
Id. at 178. Thus, contrary to defendant’s argument, Ellison does not establish that plaintiff was
required to use the commercial look-up service and complete the record look-up request form.
The MVC fee provision referring to the commercial look-up service states that the
“secretary of state may provide a commercial look-up service of records” and that the “secretary
of state shall process a commercial look-up request only if the request is in a form or format
prescribed by the secretary of state.” MCL 257.208b(1) (emphasis added). The plain language
of this MVC provision only requires that, if a request for records is made through the
commercial look-up service, it must be in the proper form. MCL 257.208b(1) does not mandate
the use of the commercial look-up service.
In fact, as stated in MCL 257.208a, the MVC permits a request for motor vehicle records
to be made in accordance with procedures set forth in the FOIA. And the FOIA directs the
production of a public record upon a public body’s receipt of “a written request that describes a
public record sufficiently to enable the public body to find the public record . . . .” MCL
15.233(1). Our Supreme Court has cautioned against a “restrictive reading” of the FOIA
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standard governing the description of records to be produced because the FOIA “is a
prodisclosure act.” Coblentz v Novi, 475 Mich. 558, 572; 719 NW2d 73 (2006). Accordingly,
our Supreme Court has noted, the “FOIA does not establish detailed requirements for a valid
request.” The Herald Co v Bay City, 463 Mich. 111, 120; 614 NW2d 873 (2000), mod on other
grounds by Mich Federation of Teachers, 481 Mich. at 682. Consistent with the FOIA’s stated
purpose of granting all persons full and complete information regarding governmental affairs
the Legislature did not impose detailed or technical requirements as a
precondition for granting the public access to information. Instead, the
Legislature simply required that any request be sufficiently descriptive to allow
the public body to find public records containing the information sought. [The
Herald Co, 463 Mich. at 121.]
Defendant’s argument that a request for motor vehicle records must be made through the
commercial look-up service would write the FOIA method for requesting motor vehicle records
out of the MVC, as well as impose a detailed and technical requirement that does not comport
with the purpose of the FOIA. See id. Accordingly, the trial court did not err by concluding that
defendant could not require plaintiff to use the commercial look-up service and associated form.
Further, defendant’s reliance on the FOIA exemption set forth at MCL 15.243(1)(d) is
misguided. Generally, the FOIA makes information publicly available unless otherwise
exempted. MCL 15.233(1); see also The Herald Co, 463 Mich. at 121. The FOIA exempts from
disclosure “[r]ecords or information specifically described and exempted from disclosure by
statute.” MCL 15.243(1)(d). For example, the FOIA exempts from disclosure minutes of closed
executive sessions when the Open Meetings Act prohibits their disclosure unless a civil action is
properly filed. The Local Area Watch v Grand Rapids, 262 Mich. App. 136, 143-146; 683 NW2d
745 (2004). By contrast, the MVC states that motor vehicle records maintained under the MVC
“shall be available to the public in accordance with procedures prescribed in this act,” the FOIA,
or another act unless otherwise restricted from disclosure. MCL 257.208a (emphasis added).
That is, the MVC does not exempt the production of motor vehicle records; rather, it requires
their disclosure. This case turns on the procedural requirements, not the FOIA exemption.
Therefore, defendant’s reliance on the FOIA exemption in its FOIA denial letter was an
improper characterization; the records are not exempt from disclosure and are obtainable if the
proper procedure is followed.
In summary, the trial court erred by concluding that defendant could not require advance
payment of the fee for the production of motor vehicle records. But the trial court properly held
that defendant could not mandate use of the commercial look-up service when a request for
motor vehicle records is made through the FOIA.
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Affirmed in part, reversed in part, and remanded for further proceedings consistent with
this opinion. We do not retain jurisdiction.
/s/ Mark J. Cavanagh
/s/ Brock A. Swartzle
/s/ Thomas C. Cameron
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