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 The Court of Appeals affirmed in an unpublished opinion, relying on Hoffman v Bay City School Dist, 137 Mich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.