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158240 - Susan Bisio v City of the Village of Clarkston

Susan Bisio,

 

Richard Bisio

 

Plaintiff-Appellant,

 

v

(Appeal from Ct of Appeals)

 

 

(Oakland – Bowman, L.)

 

The City of The Village of Clarkston,

 

Julie O’Connor

 

Defendant-Appellee.

 

Summary

Plaintiff, an attorney, submitted a request to defendant city under the Freedom of Information Act (FOIA), MCL 15.231 et seq., requesting, among other things, documents relating to a real estate development project and the cleanup of a vacant property. The city provided plaintiff with most of the records she requested, but it declined to provide certain items in the files of the city attorney, declaring that he was not a “public body” for purposes of the FOIA. Plaintiff filed this lawsuit. The parties filed cross motions for summary disposition. The trial court granted the city’s motion, ruling that the contested records were not “public records” because the city did not use or retain them in the performance of an official function. Consequently, the trial court denied plaintiff’s cross motion for summary disposition as moot. The Court of Appeals affirmed in an unpublished opinion, relying on Hoffman v Bay City School Dist, 137 Mich App 333 (1984), and Breighner v Mich High Sch Athletic Ass’n, 471 Mich 217 (2004), to reject plaintiff’s argument that the agent-principal doctrine should apply to the determination of a public record under the FOIA. The Supreme Court has granted plaintiff’s application for leave to appeal to address: (1) whether the Court of Appeals erred in holding that the contested documents were not within the definition of “public record” in § 2(i) of the FOIA; and (2) whether the city attorney, who was appointed under the city charter, was an agent of the city such that his correspondence with third parties, which was never shared with the city or in the city’s possession, were public records subject to the FOIA, see Breighner and Hoffman.​