i

SUPREME COURT STATE OF MICHIGAN

SUSAN BISIO,

Plaintiff-Appellant,

v.

THE CITY OF THE VILLAGE OF CLARKSTON,

Defendant-Appellee.

Supreme Court No. 158240

Court of Appeals Case No. 335422

Oakland Circuit No. 15-150462-CZ Honorable Leo Bowman

KEMP KLEIN LAW FIRM Richard D. Bisio (P30246) 201 West Big Beaver Road, Suite 600 Troy, Michigan 48084 (248) 740-5698 Richard.bisio@kkue.comAttorneys for Appellant Susan Bisio

BUTZEL LONG, P.C. Robin Luce Herrmann (P46880) Joseph E. Richotte (P70902) Stoneridge West 41000 Woodward Avenue Bloomfield Hills, Michigan 48304 (248) 258-1616 Luce-herrmann@butzel.comrichotte@butzel.comAttorneys for Amicus Curiae Michigan Press Association

HERSCHEL P. FINK (P13427) 160 West Fort Street Detroit, Michigan 48226 (313) 749-9979 hfink@freepress.comAttorney for Amicus Curiae Detroit Free Press, Inc.

O’CONNOR, DeGRAZIA, TAMM & O’CONNOR, P.C. Julie McCann O’Connor (P38484) 40701 Woodward Avenue, Suite 105 Bloomfield Hills, Michigan 48304 (248) 433-2000 imoconnor@odtlegal.comAttorneys for Appellee City of the Village of Clarkson

MILLER CANFIELD PADDOCK & STONE, PLC Irene Bruce Hathaway (P32198) Steven D. Mann (P67785) 150 West Jefferson, Suite 2500 Detroit, Michigan 48226 (313) 963-6420 hathawayi@millercanfield.commann@millercanfield.comAttorneys for Amicus Curiae the Michigan Municipal League and the Michigan Townships Association

BRIEF OF AMICI CURIAE the MICHIGAN MUNICIPAL LEAGUE AND the MICHIGAN TOWNSHIPS ASSOCIATION

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TABLE OF CONTENTS

Page

TABLE OF AUTHORITIES ......................................................................................................... iv

I. INTEREST OF AMICI CURIAE .................................................................................. viii

II. QUESTIONS PRESENTED .............................................................................................. x

III. COUNTER-STATEMENT OF JURISDICTION ............................................................. xi

IV. COUNTER-STATEMENT OF FACTS .......................................................................... xii

V. STANDARD OF REVIEW ............................................................................................ xiii

VI. ARGUMENT ..................................................................................................................... 1

A. Introduction .................................................................................................................. 1

B. Documents not prepared, owned, used or ever in the possession of a public body are not within FOIA’s definition of a public record ..................................................... 3

1. What is a Public Body? ......................................................................................... 3

2. What is a Public Record ......................................................................................... 4

C. Bisio’s claims are based on a logical fallacy ............................................................... 5

D. The Common Law Would not Allow Access to Bisio’s Requested records ............... 6

E. Th rules of statutory interpretation do not support Bisio’s claims .............................. 8

1. Application of Michigan law on statutory interpretation ....................................... 8

2. Federal interpretation of FOIA laws applies the same standards ....................... 11

F. FOIA could have been amended by the Legislature if it agreed with Bisio’s Argument .................................................................................................................... 12

G. Michigan Case Law does not Support a Claim that a Municipal or Local Governmental “agent” or his Documents, are Subject to FOIA ............................... 13

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TABLE OF CONTENTS (CONT.)

Page

H. None of Bisio’s authority supports the broadened interpretation of FOIA she Requests .................................................................................................................... 15

1. Bisio misquotes Detroit News v. Detroit .............................................................. 15

2. None of Bisio’s authority supports her claim that the Ryan documents are “public records” ........................................................................................... 16

3. Bisio’s foreign case law is inapplicable .............................................................. 17

VII. CONCLUSION ............................................................................................................... 18

VIII. RELIEF REQUESTED ................................................................................................... 19

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TABLE OF AUTHORITIES

Page(s)

Cases

724 Booth v. Univ. of Michigan Bd. of Regents, 444 Mich. 211, 507 NW2d 422 (1993) .......................................................................................................................................15

In re AJR, 496 Mich 346; 852 NW2d 760 (2014) .........................................................................12

Bisio v. City of Vill. of Clarkston, ---Mich ---, 933 NW2d 36 (2019) .............................................1

Bisio v. City of Vill. of Clarkston, No. 335422, 2018 WL 3244117 (Mich App July 3, 2018), appeal granted, 933 NW2d 36 .............................................................................8, 18

Breighner v Michigan High Sch Athletic Ass’n, Inc, 471 Mich 217; 683 NW2d 639 (2004) ............................................................................................................................3, 14

Briggs Tax Serv, LLC v Detroit Pub Sch, 485 Mich 69; 780 NW2d 753 (2010) ............................8

Burton v. Tuite, 78 Mich. 363, 44 NW 282 (1889) ..........................................................................7

Carr v. General Motors Corp., 425 Mich 313, 389 NW2d 686 (1986) ........................................13

Detroit City Council v. Mayor of Detroit, 283 Mich App (2009)..................................................10

Detroit Edison Co v Celadon Trucking Co, 248 Mich App 118; 638 NW2d 169 (2001) .......................................................................................................................................12

Detroit News, Inc. v Detroit, 204 Mich App 720, 516 NW2d 151 (1994)(Bisio Brief ) .......................................................................................................................................15

Detroit v Whittemore, 27 Mich 281 (1873) ...................................................................................16

DiBenedetto v. West Shore Hospital, 461 Mich 394, 402, 605 NW2d 300 (2009). .......................9

Fletcher v Board of Ed, 323 Mich 343; 35 NW2d 177 (1948) ......................................................16

Food Mktg. Inst. v. Argus Leader Media, --U.S. --, 139 S Ct 2356, 204 L Ed 2d 742 (2019) ..........................................................................................................................11, 12

Ford Motor Co v City of Woodhaven, 475 Mich 425; 716 NW2d 247 (2006)................................8

Frame v. Nehls, 452 Mich. 171, 550 NW2d 739 (1996) .................................................................9

Garey v Kelvinator Corp, 279 Mich 174; 271 NW 723 (1937) ....................................................16

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TABLE OF AUTHORITIES (CONT.)

Page(s)

Cases (cont.)

Gordon Sel–Way, Inc. v. Spence Bros., Inc., 438 Mich 488, 475 NW2d 704 (1991) .......................................................................................................................................13

Green v. Ziegelman, 282 Mich App 292 (2009) ............................................................................15

Hoffman v Bay City Sch Dist, 137 Mich App 333; 357 NW2d 686 (1984) .......................13, 14, 15

Hopkins v Duncan Twp, 294 Mich App 401; 812 NW2d 27 (2011), appeal denied, 491 Mich 908, 810 NW 2d 582 (2012) ....................................................................................15

Houghton Lake Area Tourism & Convention Bureau v Wood, 255 Mich App 127; 662 NW2d 758 (2003) .............................................................................................................10

House Speaker v Governor, 443 Mich 560; 506 NW2d 190 (1993) .......................................13, 17

Hughes Aircraft Co. v. Jacobson, 525 U.S. 432, 119 S.Ct. 755, 142 L.Ed.2d 881 (1999) .......................................................................................................................................11

Jackson v. PKM Com., 430 Mich 262, 422 NW2d 262 (2016). ..................................................10

Jones v. Rath Packing, 430 US 519, 97 S Ct 1305, 5 L Ed 604 (1997). ......................................10

Kissinger v. Reporters Comm. for Freedom of the Press, 445 US 136, 100 S Ct 960, 63 L Ed 2d 267 (1980) .....................................................................................................11

Kraft v. Detroit Entm’t, L.L.C., 261 Mich App 534, 683 NW2d 200 (2004) ................................10

Lansing v. Lansing Twp., 356 Mich 641, 97 NW2d 804 (1959) .....................................................9

Lash v. Travers City, 479 Mich 180, 735 NW2d 628 (2007) ........................................................10

Lesner v Liquid Disposal, Inc, 466 Mich 95; 643 NW2d 553 (2002) ...........................................12

MacKenzie v Wales Twp, 247 Mich App 124; 635 NW2d 335 (2001) ...................................14, 17

MEA/NEA v Howell Bd of Ed, 287 Mich App 228; 789 NW2d 495 (2010)..................................17

Motyka v. Detroit, GH & M Ry Co, 260 Mich. 396; 244 NW 897 (1932) ................................8, 15

Nixon v. Warner Commc’ns, Inc., 435 US 589, 98 S Ct 1306, 55 L Ed 2d 570 (1978) .........................................................................................................................................7

Nowack v. Fuller, 243 Mich 200, 219 NW 749 (1928) ...................................................................7

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Osborn v Bank of the U.S., 22 US 738; 6 L Ed 204 (1824) ...........................................................12

TABLE OF AUTHORITIES (CONT.)

Page(s)

Cases (cont.)

Roberts v. Legacy Meridian Park Hosp., Inc., 97 F Supp 3d 1245, 1252 (D Or 2015) ..........................................................................................................................................5

Robinson v. Detroit, 462 Mich 439, 613 NW2d 307 (2000) .....................................................9, 13

Ross Dress for Less, Inc. v. Makarios-Oregon, LLC, 210 F. Supp. 3d 1259, 1269–70 (D. Or. 2016) .....................................................................................................................5, 6

Schindler Elevator Corp. v. United States ex rel. Kirk, 563 U.S. 401, 131 S.Ct. 1885, 179 L.Ed.2d 825 (2011) .................................................................................................11

Sharp v City of Benton Harbor, 292 Mich App 351; 806 NW2d 760 (2011) ...............................18

Shinholster v. Annapolis Hosp., 471 Mich 540, 685 NW2d 275 (2004) .......................................15

Sun Valley Foods Co. v. Ward, 460 Mich. 230, 596 NW2d 119 (1999) .........................................9

U.S. Dep’t of Justice v. Tax Analysts, 492 US 136, 109 S Ct 2841, 106 L Ed 2d 112 (1989) ................................................................................................................................11

Walen v. Dep’t of Corrections, 443 Mich 240, 505 NW2d 519 (1993) ........................................13

Walloon Lake Water System v Melrose Twp, 163 Mich App 726, 415 NW2d 292 (1987) .................................................................................................................................16, 17

Walters v Leech, 279 Mich App 707; 761 NW2d 143 (2008) .........................................................8

Statutes

MCL 15.231 .....................................................................................................................................1

MCL. § 15.232 ....................................................................................................................... passim

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Court Rules

MCR 7.215(J)(1) ............................................................................................................................13

TABLE OF AUTHORITIES (CONT.)

Page(s)

Other Authorities

Scalia, Antonin and Garner, Bryan Reading Law: The Interpretation of Legal Texts p. 56 (First Edition 2012) .................................................................................................8

Brown, Gary Elson, “The Right to Inspect Public Records in Ohio”, 37 OHIO ST. L. J. 51 8, 51 8–1 9 (1976) .........................................................................................................7

Matter of Interpretation: Federal Courts and the Law (New Jersey: Princeton University Press 1997) .............................................................................................................12

Ruggero, J. Aldisert, “Logic for Lawyers: A Guide to Clear Legal Thinking” (1989) .........................................................................................................................................5

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I. INTEREST OF AMICI CURIAE

This brief was authored by Irene Bruce Hathaway, and was not authored in whole or in

part by any party or counsel for a party. The Michigan Municipal League (“MML”) is a

Michigan non-profit corporation whose purpose is to improve municipal government and its

administration through cooperative effort. MML’s membership is comprised of 521 Michigan

local governments, of which 478 are also members of the Michigan Municipal League Legal

Defense Fund (the “Legal Defense Fund”). MML operates the Legal Defense Fund through a

board of directors. The Legal Defense Fund is representing the member local governments in

litigation of statewide significance.

This amici curiae brief is authorized by the Legal Defense Fund’s Board of Directors,

whose membership includes the president and executive director of MML, and the officers and

directors of the Michigan Association of Municipal Attorneys: Clyde J. Robinson, city

attorney, Kalamazoo; John C. Schrier, city attorney, Muskegon; James J. Murray, city

attorney, Boyne City and Petoskey; Thomas R. Schultz, city attorney, Farmington and Novi;

Lauren Trible-Laucht, city attorney, Traverse City; Ebony L. Duff, city attorney, Oak Park;

Steven D. Mann, city attorney, Milan; Laurie Schmidt, City Attorney St. Joseph; Suzanne

Curry Larsen, City Attorney Marquette; Amy Lusk, City Attorney Saginaw, Brenda F. Moore,

Mayor Pro Tem, Saginaw; MML President Daniel P. Gilmartin MML CEO and Executive

Director and Christopher J. Johnson, general counsel of the MML.

The Michigan Townships Association (“MTA”) is a Michigan non-profit corporation.

Its membership consists of more than 1,230 townships within the State of Michigan (including

both general law and charter townships), joined together to provide education, exchange of

information and guidance to, and among, township officials to enhance the more efficient and

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knowledgeable administration of township government services under the laws and statute of

the State of Michigan.

This litigation raises an issue of critical significance to Michigan municipalities:

whether the Michigan Freedom of Information Act (“FOIA”) should be expanded in scope to

apply not only to a public body, but also to any agent of a public body. While FOIA requires

disclosure of public records in the possession of a public body, it has never been held to apply

to an alleged agent of a public body.

Plaintiff-Appellant Susan Bisio (“Bisio”) asks this Court to interpret MCL 15.232’s

definition of a public body differently from established controlling legal authority. Specifically,

Plaintiff-Appellant seeks a ruling that public records which were not prepared by, owned by,

used by, in the possession of, or retained by, a public body in the performance of an official

function, are subject to FOIA. Plaintiff-Appellant Bisio seeks to expand FOIA to make all

agents of a public body subject to the same FOIA requirements as a public body, something

that was never allowed at common law.

If the Supreme Court reverses the decision of Court of Appeals, it will expand the

application of FOIA to many different types of agents of municipal and local governmental

entities, including consultants, attorneys, accountants, contractors, and any other person or

entity who might be alleged to be an “agent” of the municipal or local government. Not only

would this cause an enormous expansion of FOIA, it will exponentially increase costs and

will discourage people and companies from doing business with a municipality. The extent to

which non-public documents in the hands of municipal and local governments’ agents are

subject to FOIA is of extreme importance to amici curiae applicants.

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II. QUESTIONS PRESENTED

WHETHER THE COURT OF APPEALS ERRED IN HOLDING THAT DOCUMENTS WHICH WERE NOT PREPARED, OWNED, USED OR EVER IN THE POSSESSION OF A PUBLIC BODY ARE NOT SUBJECT TO FOIA’S DEFINITION OF A “PUBLIC RECORD” AS DEFINED MCL 15.231 et seq

Plaintiff-Appellant Bisio answers: “Yes” Defendant-Appellee answers: “No” Amici curiae answers: “No”

WHETHER THE CITY’S CHARTER-APPOINTED ATTORNEY 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, WAS A PUBLIC RECORD SUBJECT TO FOIA.

Plaintiff-Appellant Bisio answers: “Yes” Defendant-Appellee answers: “No” Amici curiae answers: “No”

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III. COUNTER-STATEMENT OF JURISDICTION

Amici curiae adopt The City of the Village of Clarkston’s Statement of Jurisdiction.

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IV. COUNTER-STATEMENT OF FACTS

Amici curiae adopt The City of the Village of Clarkston’s Statement of Facts.

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V. STANDARD OF REVIEW

Amici curiae adopt The City of the Village of Clarkston’s Standard of Review.

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VI. ARGUMENT

A. Introduction

This Court granted Plaintiff-Appellant Susan Bisio’s (“Bisio”) application for leave to

appeal to this Court from the Court of Appeals’ unpublished opinion of July 3, 2018. This Court

directed the parties to address the questions of “(1) whether the Court of Appeals erred in

holding that the documents sought by the plaintiff were not within the definition of “public

record” in § 2(i) of the Freedom of Information Act (FOIA), MCL 15.231 et seq.1; and (2)

“whether the defendant city’s charter-appointed attorney was an agent of the city such that his

correspondence with third parties, which were never shared with the city or in the city’s

possession, were public records subject to the FOIA” Bisio v. City of Vill. of Clarkston, ---Mich

---, 933 NW2d 36 (2019). Based upon the clear language of the MCL 15.231 (“FOIA” or “the

Statute”) statute, an alleged agent is not a “public body” as defined in the Statute and records

merely in an alleged agent’s possession are not “public records”.2 Therefore, they are not subject

to FOIA.

Bisio argues that this Court should judicially expand the reach of the FOIA by adding

common law agency rules to the carefully crafted language of the Statute, effectively altering the

Statute’s codified definitions of “public body” and “public record”. MCL 15.232(d) and (e).

Bisio further asserts that Michigan’s application of FOIA should be changed to include not only

1 The version of MCL 15.232 referred to throughout this brief was the version in effect at the time of the FOIA request and the rulings of the trial court and the Court of Appeals. Effective June 17, 2018 a new version has been enacted. However, the new version does not change the definition of “public body” or “public record”. 2 The FOIA statute, MCL 15.232(e) refers to “public records”, not “documents”. The nouns “record” and “document” are similar, but not identical. See Merriam-Webster.com. Merriam-Webster, n.d. Web. 31 July 2017. The former includes an official document that records the acts of a public body or officer, but the latter does not.

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those public bodies and public records actually identified in the Act’s definitions, but to anyone

who acted (or allegedly acted) for the public body. Bisio’s argument is based totally upon a

logical fallacy and Bisio asks this Court to ignore all accepted rules of statutory interpretation

and all prior interpretations of the Statute. This Court should reject Bisio’s arguments.

It is important to remember that this case does not involve any document that was

prepared, owned, used or ever in the possession of, a public body. Bisio does not claim that

anyone, including any public body, attempted to hide documents. She does not claim that the

documents sought were written for, or by, a public body. Nor does she claim that the documents

were used by the public body. Thus, applying the language of the Statute, the documents are not

“public records” subject to FOIA.

Bisio asks this Court to massively expand the reach of Michigan’s FOIA beyond the

language of the text. The “agent” whose records are sought here is an attorney. However, a

public body’s “agents” could include not only attorneys, but also, engineers, accountants,

auditors, construction managers, billing/collection companies, real estate brokers and agents,

health insurance companies, builders, tree trimmers, road repair contractors, or even trash

collectors - all of whom act for the City. If this Court were to adopt Bisio’s interpretation, the

reach of the 1976 FOIA Statute would, for the first time, be expanded exponentially in a way not

previously applied by any other court, and not intended, or even implied, by FOIA. It would

mean that any records of an entity hired by the City to do work would be deemed a “public

body” and all of their records “public records”. There is no reason to do so. There is no

evidence that the Statute was ever intended to apply to private records. “public body” and

“public record” are defined in the Statute. Further, while at common law there was a right to

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access government records, there is no evidence that, at common law, records of an alleged agent

were subject to disclosure to the public, thus, Bisio’s common law argument is meritless.

The trial court and Court of Appeals properly ruled that the documents Bisio demanded

from the City of the Village of Clarkston (“city”) were not subject to FOIA. Amici curiae the

Michigan Municipal League and the Michigan Townships Association (“Municipal amici”)

request this Court affirm the Court of Appeals.

B. Documents not prepared, owned, used or ever in the possession of a public body are not within FOIA’s definition of a public record

1. What is a “Public Body”?

FOIA provides that, upon proper request, public records of a public body must be

produced to the requestor. MCL 15.233(1); Breighner v Michigan High Sch Athletic Ass’n, Inc,

471 Mich 217, 225; 683 NW2d 639, 644 (2004). However, FOIA does not require production of

documents by anything other than a “public body” and does not require production of anything

other than “public records”, as those two things are defined in the Statute.

Public body is defined in different subparts of MCL 15.232(d). Each subpart pertains to

different levels of government. While only one subpart applies to municipalities and local

governments, such as the City, it is useful to review another subpart to appreciate how the Statute

was carefully drawn to apply differently to State government than to municipal or local

governmental entities. The Statute first describes the applicability of the Statute to State

government:

(i) A state officer, employee, agency, department, division, bureau, board, commission, council, authority, or other body in the executive branch of the state government, but does not include the governor or lieutenant governor, the executive office of the governor or lieutenant governor, or employees thereof.

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(emphasis added). Per this section of the FOIA, certain officers and employees of State

government are subject to FOIA, however, the portion of the Statute applicable to cities is very

different:

(iii) A county, city, township, village, intercounty, intercity, or regional governing body, council, school district, special district, or municipal corporation, or a board, department, commission, council, or agency thereof.

Id. at iii.

Subsection i applies FOIA broadly to State officers and employees, but subsection iii, applicable

to local governmental entities, is much more limited. State officers and employees are subject to

FOIA, but officers and employees of municipal and local units of government are not. Since

officers and employees of municipal and local units of government are not subject to FOIA, why

would it be appropriate to read into the statute Legislative intent to make it applicable to

municipal and local governments’ agents? Indeed, even Bisio admits that, under FOIA, “A city

attorney is not within the definition of ‘public body’ in MCL 15.232(d). (Bisio Brief at p. 7).

Bisio’s claim fails because she cannot show that Ryan meets the definition of a “public body”3.

2. What is a “Public Record”?

Bisio admits that Ryan is not a “public body” as defined in the statute. (Bisio Brief at p.

7.) Since Bisio does not dispute that Ryan is not a public body, the inquiry should end there,

since the first element of the definition of entities subject to FOIA is not met. But Bisio asserts it

is irrelevant that Ryan is not a public body subject to FOIA and attempts to end-run the “public

body” statutory requirement by arguing that the Ryan documents can still be documents of a

“public body”, if the court expands the clear language of the Statute. Id. This Court should not

do so.

3 The Court of Appeals ruled that the definition of “public body” does not include individual agents of public bodies. (Bisio’s Appendix pp 55a-64a, COA Opinion p. 5).

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A public record is defined 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....” MCL 15.232(e). Only such records are subject to FOIA, literally, by definition.

There is no dispute that the City did not prepare, own, use, possess or retain the documents.

They were never in the City’s possession. Thus, the Ryan documents do not meet the statutory

definition of a public record.

C. Bisio’s claims are based on a logical fallacy

Bisio argues “The city, as an artificial legal entity, can act only through its agents”.

(Bisio Brief p. 4). Bisio then concludes since Ryan may act for the City as its agent, any records

he has “are the City’s records” (Plaintiff-Appellant’s Brief to Michigan Supreme Court at p. 7).

Bisio continues her circular argument, stating “[i]f Ryan [the attorney] is not acting as the city’s

agent, how can he be an attorney at all”? (Bisio Brief at p. 16). This is an odd question on many

levels. Obviously, a person can be an attorney without acting for anyone, or as anyone’s agent.

If Bisio meant to say that Ryan could not be the City’s attorney if he were not acting as the city’s

agent, the assertion is still odd. Not everything an attorney does is as an “agent” of one particular

client.

Bisio has committed the “logical fallacy of circular reasoning”. See generally Ruggero,

J. Aldisert, “Logic for Lawyers: A Guide to Clear Legal Thinking”, 201-07 (1989); Roberts v.

Legacy Meridian Park Hosp., Inc., 97 F Supp 3d 1245, 1252 (D Or 2015) (explaining the logical

fallacy of circular reasoning); See Ross Dress for Less, Inc. v. Makarios-Oregon, LLC, 210 F.

Supp. 3d 1259, 1269–70 (D. Or. 2016). “The fallacy of “begging the question” or “circular

argument,” more formally known as the fallacy of petitio principii (literally, assuming the initial

point), results from assuming in the premises that which is sought to be proven in the conclusion.

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Id. Paul Bosanac, Litigation Logic: A Practical Guide to Effective Argument (2009) explains

circular arguments like Bisio’s:

One way to recognize this argument is to focus on the proof for the asserted conclusion. Has independent evidence sufficient to establish the conclusion been demonstrated? Or, has there merely been a reassertion or restatement of the conclusion, using other words, presumed to be true, to describe the conclusion? …. see generally Ruggero J. Aldisert, Logic for Lawyers: A Guide to Clear Legal Thinking, 201–207 (1989).

Id. at 1270-1271. Here Bisio is guilty of focusing on her “proof” of the conclusion. That is, she

argues that an agent at common law could act for a principal, therefore all persons acting for a

city are subject to FOIA. She merely asserts her conclusion that public agents are agents as proof

of her conclusion. This is classic circular reasoning, and is, obviously, without any basis in law

or fact. While a City may act through its agents, employees or officers, that does not mean that

the reverse is true. Just because an agent may act for the City, does not mean that all of his acts

are acts of the City. And just because an agent has records, does not mean that they are public

records of a public body. Bisio’s basic argument is based upon a logical fallacy which was

rejected by the trial court and the Court of Appeals. This Court should reject it as well.

D. The Common Law Would not Allow Access to Bisio’s Requested Records

Although one of the two issues this Court ordered the parties to brief was “whether the

defendant city’s charter-appointed attorney was an agent of the city such that his correspondence

with third parties, which were never shared with the city or in the city’s possession, were public

records subject to the FOIA”, Bisio does not discuss that issue until page 26 of her brief. (Bisio

Brief at p. 26) Then, she argues that common law continued in effect after the adoption of

FOIA, and, therefore, that the common law must be superimposed over the FOIA statutory

scheme. Interestingly, however, she does not argue that, at common law, she would have had a

right to access records of an alleged government agent. Rather, she argues that general common

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law rules should apply to the statute, without showing that at common law she would have had

access to the Ryan records. It is true that Michigan and federal law have long recognized a

citizen’s common law right of access to certain public records. See Nixon v. Warner Commc'ns,

Inc., 435 U.S. 589, 597, 98 S. Ct. 1306, 1312, 55 L Ed 2d 570 (1978) (“It is clear that the courts

of this country recognize a general right to inspect and copy public records and documents,

including judicial records and documents” [footnote omitted]; Burton v. Tuite, 78 Mich. 363, 44

NW 282 (1889). However, at common law, the right is not absolute, and many exceptions apply.

See Nixon, supra, at p 599; see also Brown, Gary Elson, “The Right to Inspect Public Records in

Ohio”, 37 OHIO ST. L. J. 51 8, 51 8–1 9 (1976). Indeed, an examination of pre-FOIA cases

involving of common law access to records discloses no Michigan case decided under common

law which allowed access to “agents” records and Bisio has not cited any common law case that

stands for the proposition that an “agent’s” records were subject to disclosure at common law.

A very old Michigan case involving the issue of common law right to inspection of

government records is a Nowack v. Fuller, 243 Mich 200, 203, 219 NW 749, 750 (1928) which

stands for the proposition that, absent statutory grant of access to government records “the

question … must be determined by a consideration of the general common-law principles

relative to the right of citizens to inspect public documents and records”. Thus, if there were a

common law right to access the Ryan records which had not been abrogated by statute, Bisio

could have argued the terms of the common law. But, here the common law has been abrogated

by statute. If it had not been abrogated and if Bisio’s position had any merit, she could have cited

cases which, at common law, provided that “agents” records were government records subject to

disclosure. However, Bisio does not argue that at common law she would have had a right to the

Ryan records. Rather, she argues that the common law principals of agent-principal should be

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superimposed over the FOIA statutory scheme. This is not the law. When a statute, such as

Michigan’s FOIA statute, changes the common law, such a statute must be strictly construed and

may not be extended by implication. See Walters v Leech, 279 Mich App 707; 761 NW2d 143

(2008); Motyka v. Detroit, GH & M Ry Co, 260 Mich. 396, 398; 244 NW 897 (1932).

Moreover, Bisio cannot have it both ways, that is, she cannot assert that common law

applies without showing that under common law, the Ryan records would have been accessible

to the general public. She has not, and cannot, do so.

E. The rules of statutory interpretation do not support Bisio’s claims

1. Application of Michigan law on statutory interpretation

Here, in affirming the trial court, the Court of Appeals held that the FOIA statute cannot

be read to equate “agents” with the definition of “public body”. Bisio v. City of Vill. of

Clarkston, No. 335422, 2018 WL 3244117, at *4 (Mich App July 3, 2018), appeal granted, 933

NW2d 36. The Court of Appeals applied long-established rules of statutory interpretation,

finding no ambiguity in the Statute, and that the plain language of the Statute does not support

Bisio’s claims. Id. at p 6. The Court of Appeals was correct in its interpretation of the Statute.

The primary goal of statutory interpretation is to give effect to the intent of the

Legislature.” Briggs Tax Serv, LLC v Detroit Pub Sch, 485 Mich 69, 76; 780 NW2d 753 (2010);

Ford Motor Co v City of Woodhaven, 475 Mich 425, 438-439; 716 NW2d 247 (2006). “The

words of a governing text are of paramount concern, and what they convey, in their context, is

what the text means.” Antonin Scalia and Bryan Garner Reading Law: The Interpretation of

Legal Texts p. 56 (First Edition 2012).

The Legislature’s words each have a purpose. (“When parsing a statute, [courts] presume

every word is used for a purpose. As far as possible, [courts] give effect to every clause and

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sentence”) Robinson v. Detroit, 462 Mich 439, 459, 613 NW2d 307 (2000). Here, the words

defining “public body” and “public record” are clear and unambiguous and have a specific,

defined meaning. Moreover, courts must apply the language of a statute as enacted, without

addition, subtraction, or modification. Robinson supra at 459. Thus, this Court should not

insert the word “agents” into the statute.

Bisio does not allege that the Statute is ambiguous, but, rather asserts that the Statute

must be read broadly to include things that it does not say. She does not argue rules of statutory

interpretations, but rather argues, generally, that any statute must be interpreted in its entirety.

(Bisio Brief at p. 30.) In any event, when, as here, there is no ambiguity in a statute, courts

“presume that the Legislature intended the meaning clearly expressed—no further judicial

construction is required or permitted, and the statute must be enforced as written.” DiBenedetto

v. West Shore Hospital, 461 Mich 394 at 402, 605 NW2d 300 (2009). A court may not speculate

about an unstated statutory purpose where the unambiguous text plainly reflects the intent of the

Legislature. See Lansing v. Lansing Twp., 356 Mich 641, 649–650, 97 NW2d 804 (1959). “Only

where the statutory language is ambiguous may a court properly go beyond the words of the

statute to ascertain legislative intent.” Sun Valley Foods Co. v. Ward, 460 Mich. 230, 236, 596

NW2d 119 (1999); Frame v. Nehls, 452 Mich. 171, 176, 550 NW2d 739 (1996)(“An ambiguity

of statutory language does not exist merely because a reviewing court questions whether the

Legislature intended the consequences of the language under review. An ambiguity can be found

only where the language of a statute, as used in its particular context, has more than one common

and accepted meaning. Thus, where common words used in their ordinary fashion lead to a

single reasonable interpretation, the statute is not ambiguous"); Kraft v. Detroit Entm't, L.L.C.,

261 Mich App 534, 546, 683 NW2d 200, 207 (2004).

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Undoubtedly, the Legislature was aware of common law principles of agency when the

FOIA statute was enacted in 1976. It could have extended the FOIA statute to officers,

employees and agents of municipal and local units of government. But it did not. Bisio asks this

Court to ignore the rule of statutory interpretation that prohibits a court from speculating

regarding the intent of the Legislature beyond the words expressed in the statute. See Lash v.

Travers City, 479 Mich 180, 194, 735 NW2d 628 (2007). This Court should not speculate on

Legislative intent beyond the words of the Statute

A statute can preempt common law. Jackson v. PKM Com., 430 Mich 262, 422 NW2d

262 (2016). Whether it does is a question of Legislative intent. Jones v. Rath Packing, 430 US

519, 97 S Ct 1305, 5 L Ed 604 (1997). This Statute carefully and clearly defines public records

and public body. It applies the Statute to employees of the State government, but not to

employees of a local governmental agency, let alone generalized “agents”. Bisio would have this

Court read into the statute an additional group of people and entities not mentioned in the

Statute. This is not proper statutory interpretation. The Latin expression Expressio unius est

exclusion alterius (the expression of one thing is the exclusion of another) is known to every law

student. It is a doctrine of statutory interpretation that “characterizes the general practice that

when people say one thing they do not mean something else.” Detroit City Council v. Mayor of

Detroit, 283 Mich App at 442, 456 (2009). Applying this doctrine, it is clear that the Legislature

specifically identified those persons to whom the Statute applied. The expression of the persons

and entities to which the statute does apply means that this Court cannot read the statute as

“forgetting” to add “agents” to the definition. Indeed, courts must assume that the Legislature

intentionally excluded agents and employees of local governments from FOIA. See Houghton

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Lake Area Tourism & Convention Bureau v Wood, 255 Mich App 127, 135; 662 NW2d 758

(2003).

FOIA has never been read as expansively as Bisio demands, nor has any similarly

worded statute been so interpreted.

2. Federal interpretation of FOIA laws applies the same standards

The Federal FOIA is similar in many ways to Michigan’s FOIA, and the United States

Supreme Court has interpreted the federal FOIA narrowly. See, e.g., U.S. Dep’t of Justice v. Tax

Analysts, 492 US 136, 145–46, 109 S Ct 2841, 2848, 106 L Ed 2d 112 (1989)(the federal agency

must be in control of the requested materials at the time the FOIA request is made. “By control

we mean that the materials have come into the agency’s possession in the legitimate conduct of

its official duties.”); Kissinger v. Reporters Comm. for Freedom of the Press, 445 US 136, 100 S

Ct 960, 63 L Ed 2d 267 (1980)(documents consisting of notes of telephone conversations of

Secretary of State concerning information which threatened internal secrecy of White House

policymaking constituted documents of Secretary of State while acting in capacity as presidential

advisor so that such documents were not federal “agency records” within meaning of FOIA ).4

Further, in a very recent FOIA case, Food Mktg. Inst. v. Argus Leader Media, --U.S. --,

139 S Ct 2356, 204 L Ed 2d 742 (2019), the United States Supreme Court noted that a court’s

job is to examine the language of the statue itself:

In statutory interpretation disputes, a court’s proper starting point lies in a careful examination of the ordinary meaning and structure of the law itself. Schindler Elevator Corp. v. United States ex rel. Kirk, 563 U.S. 401, 407, 131 S.Ct. 1885, 179 L.Ed.2d 825 (2011). Where, as here, that examination yields a clear answer, judges must stop. Hughes Aircraft Co. v. Jacobson, 525 U.S. 432, 438, 119 S.Ct. 755, 142 L.Ed.2d 881 (1999). … Indeed, this Court has repeatedly refused to alter FOIA’s plain terms on the strength only of arguments from legislative history. See, e.g., Landano, 508 U.S. at 178, 113 S.Ct.

4 The “agency” referred to here refers to the government agency, and not to the legal concept of “agency”.

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2014 (refusing to expand the plain meaning of Exemption 7(D) based on legislative history); Weber Aircraft, 465 U.S. at 800–803, 104 S.Ct. 1488 (refusing to restrict Exemption 5 based on legislative history).

Id. at 2364.

Applying these basic rules of statutory interpretation, as applied by the United States Supreme

Court to the similar federal FOIA statute, this Court must apply the Statute as written, and not

add words to the Statute that were not included by the Legislature. The Court of Appeals should

be affirmed.

F. FOIA could have been amended by the Legislature if it agreed with Bisio’s Argument

The FOIA statute was enacted in 1976, FOIA and amended several times. The

Legislature could have amended the Statute to add the word “agents” to the definition of entities

to which FOIA applied. It did not do so. Indeed, the statutory definitions of public body or

public record MCL 15.232 were unchanged when FOIA was amended in 2018, only three weeks

before the Court of Appeals issued its opinion in this matter.

Under these circumstances, asking this Court to amend the Statute judicially, as Bisio

does, would make it applicable to a new, wide group of private non-public individuals. This

would amount to judicial legislation. This would be inappropriate. “The role of the judiciary is

not to engage in legislation.” Lesner v Liquid Disposal, Inc, 466 Mich 95, 101–02; 643 NW2d

553, 556 (2002); In re AJR, 496 Mich 346, 352–53; 852 NW2d 760, 763 (2014); See Detroit

Edison Co v Celadon Trucking Co, 248 Mich App 118, 121; 638 NW2d 169, 172 (2001) quoting

Antonin Scalia, A Matter of Interpretation: Federal Courts and the Law (New Jersey: Princeton

University Press 1997).

This judicial duty to avoid legislating is not changed by Bisio’s assertion she is seeking to

uphold the “policy of FOIA”. (Bisio brief at p. 18). Judicial power is always to be used for the

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purpose of giving effect to the will of the Legislature, or, in other words, to the will of the law.

Osborn v Bank of the U.S., 22 US 738, 866; 6 L Ed 204 (1824) (per Marshall, C. J.) “It is a well-

known principle that the Legislature is presumed to be aware of, and thus to have considered the

effect on, all existing statutes when enacting new laws.”) Walen v. Dep’t of Corrections, 443

Mich 240, 248, 505 NW2d 519 (1993). “The Legislature is presumed to act with knowledge of

judicial statutory interpretations”. Gordon Sel–Way, Inc. v. Spence Bros., Inc., 438 Mich 488,

505–506, 475 NW2d 704 (1991).

Thus. the Legislature is presumed to understand the meaning of the language it enacts

into law, so statutory analysis must begin with the wording of the statute itself. Carr v. General

Motors Corp., 425 Mich 313, 317, 389 NW2d 686 (1986); Robinson v City of Detroit, 462

Mich 439, 459; 613 NW2d 307, 317–18 (2000). The Legislature did not make FOIA applicable

to alleged agents; this Court should not now do so.

G. Michigan Case Law does not Support a Claim that a Municipal or Local Governmental “agent” or his Documents, are Subject to FOIA.

In Hoffman v Bay City Sch Dist, 137 Mich App 333; 357 NW2d 686 (1984), a case very

close factually to the instant case, the Court of Appeals held records of a school board attorney’s

investigation, not in the public body’s possession, but paid for by a public body, were not subject

to FOIA. Bisio admits Hoffman supports the City. (Plaintiff-Appellant’s Brief to Supreme Court

at pages 44-45). However, Bisio argues since this case is pre-1990 it is not controlling. It is true

MCR 7.215(J)(1) states a panel of the Court of Appeals “must follow the rule of law established

by a prior published decision of the Court of Appeals issued on or after November 1, 1990, that

has not been reversed or modified by the Supreme Court, or by a special panel of the Court of

Appeals as provided in this rule”. While this Court Rule says Court of Appeals cases post-1990

must be followed it does not say cases prior to 1990 may not be followed. The applicable

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question is whether anything since Hoffman has required a change in the law. It has not. Hoffman

was cited with approval in a Michigan Supreme Court case, House Speaker v Governor, 443

Mich 560, 594; 506 NW2d 190, 209 (1993), which is, of course, post 1990, and is a Supreme

Court case, not a Court of Appeals case. Moreover, Hoffman was based on a review of federal

law (since the federal FOIA statute was so similar). Hoffman is, thus, still controlling.

Further, MacKenzie v Wales Twp, 247 Mich App 124, 130–31; 635 NW2d 335, 339

(2001) specifically reviewed Hoffman, and rather than disagreeing with or overruling its holding,

carefully distinguished the cases. MacKenzie noted the records at issue there were subject to

FOIA, unlike the records in Hoffman. The court noted that the tapes at issue in MacKenzie

contained information the public body used, owned or controlled, and so were subject to FOIA,

while in Hoffman the public body was not in possession of the attorney’s investigation, and had

not used, owned or controlled it.

Another case supporting the City is Breighner v Michigan High School Athletic Ass’n,

471 Mich 217, 683 NW2d 639 (2004), in which the Michigan Supreme Court held the FOIA

statute’s use of the word “agency” is not to be read as meaning the statute applies to “agents”.

The Court applied the accepted rules of statutory construction, noting:

The Court of Appeals majority and the parties [in the court below] appear to have assumed that § 232(d)(iii) includes “agents” of enumerated governmental entities in the definition of “public body.” We disagree and believe that there is a fundamental difference between the terms “agent” and “agency” as the latter term is used in the statute.

As we have noted on many occasions, a statutory term cannot be viewed in isolation, but must be construed in accordance with the surrounding text and the statutory scheme.

Id. at 232.

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This case is important for two reasons. First, it prevents Bisio from arguing that an

“agent’s” efforts creates “agency”. Secondly, it specifically applies standard rules of statutory

interpretation to the analysis of the Statute.

Another case on point is completely omitted from Bisio’s brief. Hopkins v Duncan Twp,

294 Mich App 401, 410; 812 NW2d 27, 32 (2011), appeal denied, 491 Mich 908, 810 NW 2d

582, 583 (2012), holds that notes taken by a township official at a board meeting were not

subject to FOIA. The court made its ruling, in part, on the rules of statutory construction, noting:

The goal in interpreting a statute is to ascertain the Legislature’s intent. Shinholster v. Annapolis Hosp., 471 Mich 540, 548–549, 685 NW2d 275 (2004). The first step in doing so is looking to the language used. Id. at 549, 685 275. Effect must be given to each word, reading provisions as a whole, and in the context of the entire statute. Green v. Ziegelman, 282 Mich App 292, 301–302, 767 660 (2009). If the language is clear and unambiguous, the statute must be applied as written. Id. at 302, 767 NW2d 660. In such instances, judicial construction is neither necessary nor permitted.

Thus, contrary to Bisio’s assertion, Michigan cases with similar facts to the instant case have

consistently ruled there is no reason to expand the statute, and no reason to apply FOIA to

“agents” to torture it to get the result Bisio requires.

H. None of Bisio’s authority supports the broadened interpretation of FOIA she Requests

1. Bisio misquotes Detroit News v. Detroit

Bisio “quotes” Detroit News, Inc. v Detroit, 204 Mich App 720, 723, 516 NW2d 151

(1994)(Bisio Brief at p. 12), for the asserted proposition that “‘record’ includes ‘records of public

officials and employees’”. This is a gross misstatement of what that case says, accomplished by

leaving out key words and phrases that precede the quote. In actuality, Detroit News held only

that expense reports were public records. The entire quotation states:

Under the FOIA, a public record includes any writing that is owned, used, retained, or possessed by a public body in the performance of an official function, from the time the

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writing is created. M.C.L. § 15.232(c); While the term “public record” does not include records neither created nor obtained by a public body, Hoffman v. Bay City School Dist., 137 Mich App 333, 339, 357 NW2d 686 (1984); see also OAG, 1979–1980, No. 5500, p. 255 (July 23, 1979), it does include expense records of public officials and employees. See 724 Booth v. Univ. of Michigan Bd. of Regents, 444 Mich. 211, 231–232, 507 NW2d 422 (1993). [footnotes omitted].

Detroit News at p. 723-724 (emphasis added). Bisio’s selective and misleading use of case

language to support an assertion contrary to what the case actually says is more than

disingenuous or sloppy. This type of practice should not be tolerated by this Court.

2. None of Bisio’s authority supports her claim that the Ryan documents are “public records”

Bisio’s argument for statutory expansion does not seek an interpretation of FOIA’s

definition of “public body” or “public record”. Rather, Bisio bases her “agency” argument on

general principal-agent common law cases decided in 1938 and 1948 which had nothing to do

with statuary interpretation. Fletcher v Board of Ed, 323 Mich 343, 348; 35 NW2d 177 (1948);

Garey v Kelvinator Corp, 279 Mich 174, 190; 271 NW 723 (1937) Detroit v Whittemore, 27 Mich

281, 286 (1873).

Bisio makes a circular argument in an attempt to evade the statutory definition of “public

records”. She admits that “public body”, as defined in MCL 15.232(d), does not include an

attorney of municipal or local units of government. She argues, nonetheless, the requirements

applicable to a public body under FOIA are applicable to Ryan because he acts as the “agent” of

the City (Bisio brief at pp 14). Bisio then asserts Ryan’s documents are the City’s because Ryan

acted as its agent, and therefore, the records are public records. Bisio’s entire argument is based

on the circular assertion MCL 15.232(d) applies to Ryan, while at the same time admitting he

does not meet the definition of a public body. See section VI(C) This fallacy should not be the

basis for any statutory interpretation.

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Bisio cites two Michigan cases allegedly in support of her position that the Ryan

documents are public records. However, neither case supports the broad extension of FOIA she

demands. First, Bisio cites Walloon Lake Water System v Melrose Twp, 163 Mich App 726, 415

NW2d 292 (1987)(Bisio’s Brief at p. 31) Contrary to her assertion, this case does not support

her. In Walloon, a letter which was written to a township supervisor and which was read aloud at

a township meeting and then offered to the administrator of the township’s water system, was

held to be a “public record” Id at 729-730. This is very different from this case. In this case,

there was no evidence the Ryan documents were written to a government official, or they were

read at a City meeting or that they were offered to the City.

The second case Bisio cites for her principal-agent argument is MacKenzie v Wales Twp,

247 Mich App 124, 623 NW2d 223 (2001). (Bisio’s Brief at p. 11, 14, 27, 28, 43). Again, the

case does not support her. In MacKenzie the public body used the computer tapes in performing

its official function of property tax billing. Thus, the tapes were subject to disclosure under the

FOIA. Here, however, there is no evidence the Ryan documents were ever used by the City in

any way, shape or form. At most MacKenzie stands for the proposition that something cannot be

“unmade” as a public document by giving it to someone else. There is no allegation any such

conduct occurred in this case. See also MEA/NEA v Howell Bd of Ed, 287 Mich App 228; 789

NW2d 495 (2010). (public body’s possession and retention of electronic data in a public school

e-mail systems did not render teachers’ private e-mails “public records” subject to disclosure).

3. Bisio’s foreign case law is inapplicable

Bisio relies on case law from a variety of foreign jurisdictions (North Dakota, Wisconsin,

Washington, Indiana, Tennessee and Ohio) which interpreted those states’ statutes, the language

of which is quite different from Michigan’s. Case law from foreign jurisdictions is of limited, if

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any, precedential value, especially when statutory interpretation is at issue. See People v.

Bartlett, 231 Mich App 139, 146, 506 NW2d 190 (1998) (“Notably, the interpretations that other

jurisdictions give to similar or identical language is of limited value in determining what the

Michigan Legislature intended...”). Sharp v City of Benton Harbor, 292 Mich App 351, 357; 806

NW2d 760, 764 (2011).

The Court of Appeals, in its opinion, properly reviewed all of the foreign authority and

found no merit in Bisio’s claims, noting “Plaintiff’s foreign cases support her proposition that

public records held remotely are subject to disclosure under FOIA. But they are not instructive

on the issue of whether records prepared, used, and obtained by a city attorney during the course

of negotiating issues relevant to the city’s environmental concerns but not submitted to the city,

and with no evidence of the city having acted on them, are public records under MCL 15.232(e)”

Bisio v. City of Vill. Of Clarkston, No. 335422, 2018 WL 3244117, at *6 (Mich App July 3,

2018).

VII. CONCLUSION

Michigan’s FOIA statute was enacted in 1976. Since then no court has interpreted it as

applying to “agents” of a municipal or local government body. If the Legislature wished to

include such “agents”, it could have. If an expansion of FOIA is to be undertaken to add such

“agents” it should be undertaken by the Legislature, not this Court.

VIII. RELIEF REQUESTED

These Amici Curiae respectfully request that the decision of the Court of Appeals be

affirmed.

Respectfully submitted,

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MILLER, CANFIELD, PADDOCK AND STONE, P.L.C.

By: /s/ Irene Bruce Hathaway Irene Bruce Hathaway (P32198) Steven D. Mann (P67785) 150 West Jefferson, Suite 2500 Detroit, Michigan 48226 (313) 963-6420 hathawayi@millercanfield.com mann@millercanfield.com Attorneys for Amicus Curiae the Michigan Municipal League and the Michigan Townships Association

Dated: January 30, 2020

35062772.6\107546-00029

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