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A Better Partnership
December 19, 2014

MSC holds that private third party records may be considered public records subject to FOIA disclosure requirements

In Amberg v. City of Dearborn, No. 149242, the Michigan Supreme Court held that private third party records may be public records subject to disclosure under the Freedom of Information Act (FOIA) so long as the government collects or retains the record in the performance of an official function.
In this case, attorney James Amberg requested surveillance videos from the City of Dearborn via FOIA request in preparation of pending criminal proceedings. The City of Dearborn possessed the videos, but refused to hand them over. A private party recorded the videos, but immediately turned them over to the City as relevant evidence for the pending proceedings. The City asserted that because a private third party created the surveillance, the videos are not public records within the meaning of FOIA and thus not subject to mandatory disclosure under MCL 15.233. The Wayne Circuit court agreed with the City and granted it summary disposition. The Court of Appeals affirmed the decision in an unpublished split opinion.
Under MCL 15.231, the government must provide Michigan citizens with “full and complete information regarding the affairs of the government and the official acts of those who represent them as public officials and public employees.” A person who provides a written FOIA request is entitled to receive and review copies of the requested records. What determines whether records in possession of a public body are public records is whether the public body prepared, owned, used, possessed, or retained them in the performance of an official function.
The Michigan Supreme Court held that the surveillance videos should have been disclosed to Amberg. The Court reasoned that the misdemeanor citation was pending when the City received the recordings. The Court further opined that the videos were collected by the City to support its decision to issue the misdemeanor criminal citation, thus retaining the videos in the performance of an official function. Therefore, the Supreme Court reversed the judgments of the lower courts and remanded the case to the Wayne Circuit Court for entry of an order denying the City’s motion for summary disposition.

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