Surveillance Recordings Created by Private Entity “Public Records” Subject to FOIA Disclosure Where Law Enforcement Takes Possession of Such Records in Pending Investigation

In Amberg v. City of Dearborn, released on December 16, 2014, the Michigan Supreme Court has held that video surveillance created by a private entity but handed over to law enforcement officials for a pending misdemeanor investigation were public records subject to disclosure under Michigan’s Freedom of Information Act (FOIA).

The video surveillance was created by the security cameras at a private business.  The plaintiff was an attorney who submitted a FOIA request for the video surveillance to the City of Dearborn Police Department, which was in possession of the video in connection with a pending misdemeanor criminal citation against the attorney’s client.

The trial court and the Court of Appeals had held that the police department was not required to hand over the video surveillance on the basis that it was not a “public record”, having been created by a private entity.

A public record is defined by Michigan Compiled Laws (MCL) 15.232(e) as 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.  The police department asserted the records were created by a private entity and were not therefore records in their possession in the performance of an official function from the time they were created.

As noted by the Court, while the mere possession of the records does not make them “public records” subject to FOIA disclosure, the fact that the recordings were created by a private entity was not dispositive in the decision whether to disclose the records upon a FOIA request.  The Court holds that what ultimately determines whether such information should be disclosed is whether the public entity from which the information is sought prepared, owned, used, or possessed them in the performance of an official function.  Since the criminal misdemeanor citation was pending and the police department had received the records as evidence for that pending matter, they were “public records” in the possession of the city and the police department in the performance of its official functions.

The Court also holds the plaintiff’s attorney was entitled to costs and attorneys fees for the violation, even though during the pendency of the proceedings disputing the FOIA denial, the surveillance video was ultimately turned over to the attorney.  The Court reasons that the mere fact that plaintiff’s substantive claim for a refusal to comply with FOIA was rendered moot by disclosure of the information after suit was commenced, he ultimately prevailed in the FOIA action, which under the statute entitles him to fees and costs.


Prins v. Michigan State Police II – Court of Appeals Remands for Circuit Court to Consider Reasonableness of Attorney Fees Award for State Police Violation of FOIA

This case has been up to the Supreme Court, which changed its mind on review, and then down again.  The first issue, which I previously wrote about, concerned the date the 180-day appeal period begins to run from denial of a FOIA request.  Prins v. MSP I

The circuit court ruled the date of receipt by the government agency triggered the period.  The Court of Appeals reversed, holding that the date of the postmarked response denying the request was the trigger date.  This rendered Plaintiff’s appeal timely.  The Supreme Court initially granted the Michigan State Police’s application for leave to appeal, but then vacated that order in January of 2012.  See my other post about this:  Prins v. MSP Supreme Court

This opinion by the Court of Appeals addresses a second appeal by Plaintiff and addresses the important issue of calculating “reasonable attorney” fees that can be awarded for a governmental entity’s arbitrary and capricious denial of a FOIA request.

The Court here, in a published opinion, remands to the circuit court commanding an analysis of that issue pursuant to the Supreme Court’s guidance in Smith v. Khouri, 481 Mich. 519, 526-533 (2008). The Court here concludes that the list of factors enunciated in that Court and as found in Rule 1.5(a) of the Michigan Rules of Professional Conduct apply equally to the question of attorneys fees in FOIA cases.

The important take away from this case, Smith, and others that address the statutory award of attorney fees is that the “reasonableness” calculation is left to the discretion of the trial court judge and can be “more” or “less” than that being requested by the attorneys submitting the bill to the court.

Here is the opinion:  Prins v. MSP II.opn