Hopkins v. Duncan Township

812 N.W.2d 27, 294 Mich. App. 401
CourtMichigan Court of Appeals
DecidedOctober 20, 2011
DocketDocket No. 300170
StatusPublished
Cited by15 cases

This text of 812 N.W.2d 27 (Hopkins v. Duncan Township) is published on Counsel Stack Legal Research, covering Michigan Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Hopkins v. Duncan Township, 812 N.W.2d 27, 294 Mich. App. 401 (Mich. Ct. App. 2011).

Opinion

Per Curiam.

Plaintiff appeals as of right an order granting summary disposition in favor of defendant on plaintiffs claim that defendant violated Michigan’s Freedom of Information Act (FOIA), MCL 15.231 et seq. We affirm, holding that handwritten notes of a township board member taken for his personal use, not circulated among other board members, not used in the creation of the minutes of any of the meetings, and retained or destroyed at his sole discretion, are not public records subject to disclosure under FOIA.

I. THE PARTIES’ PLEADINGS

On March 18, 2010, plaintiff filed a complaint alleging a FOIA violation. Plaintiff, a Duncan Township resident, claimed that defendant had failed to produce records plaintiff had requested on September 9, 2009, specifically “Copies of any notes taken by any elected official during any Duncan Township Board or Zoning Board meetings over the past 12 months[.]” Although defendant claimed that no zoning board meetings had been held, it did not address meetings held by the [403]*403Duncan Township Board of Trustees. Plaintiff alleged that a videotape revealed board members taking notes during the meetings.

Defendant filed a motion for summary disposition pursuant to MCR 2.116(0(10). Defendant provided the affidavits of the township board members, which revealed that only one individual — Frank Pentti — took notes at the meeting. Because the notes were strictly for his personal use, kept in his personal journal, not shared with other members of the board, and never placed in defendant’s files, defendant argued that Pentti’s notes did not constitute “public records.” MCL 15.232(e). Pentti specifically averred that “[a]ny notes that I may have taken during Township Meetings were written in my personal diary, which also includes notes of meetings that [I] had with other groups such a [sic] local historical society.”

Plaintiff filed a response to defendant’s motion, arguing that Pentti’s notes were, in fact, public records. Pentti acknowledged that he took notes at the meetings, and video footage from such meetings confirmed that he went back into his notes to advise the board of his recollection of what they had discussed at earlier meetings. Additionally, plaintiff argued, defendant never claimed that the notes were exempt and never specifically denied plaintiffs FOIA request, as was required. Plaintiff asserted that defendant had failed to prove that defendant’s refusal to disclose the notes was correct. Included in plaintiffs response were DVDs of defendant’s meetings for August, September, and October 2009.

At his deposition, Pentti testified that he was a trustee on the Duncan Township Board of Trustees. Pentti was also secretary of the Kenton Historical Society. The township board had two trustees, a super[404]*404visor, a clerk and a treasurer. The clerk conducted her business from her residence and from a store that she owned. The town’s records were held jointly with the clerk and in the treasurer’s office, which consisted of a desk and a chair in the Sidnaw town hall. There was also a building next door to the town hall where other “ancient” records were found, but “certainly, all active township records would be either with the clerk or the treasurer.” Pentti brought his notebook to the deposition, which he referred to as his personal diary. The notebook contained a “mishmash of everything.” Pentti did not use the notes in the performance of his duties as a trustee; rather, “it’s something I started doing in college; and I found out that if I write things down, they stick — things stick with me better.” Pentti did not refer to the notes in the course of participating in township board meetings. He did not believe that he used the notes for any purpose other than the “mnemonic thing. I — seems that if I write it down, it goes in up here.” Pentti saw other members jot down notes on copies of budgets and similar memoranda, but had no idea what the other board members did with their notes. Pentti deposited copies of the budget, agenda, and other notes in the garbage. Pentti did not believe that he ever referred to his notes during a township meeting with other board members, nor had he ever referred to his notes in discussing matters with any citizen. He had never been asked to refer to his notes by the clerk in preparation of the minutes. During direct examination by plaintiffs attorney, Pentti testified:

Q. Okay. The notes that you make at the meetings, you’re making those notes while you’re participating as a trustee for Duncan Township, correct?
A. I would not say they’re an inherent part of my participation; it’s just the way I have existed since college.
[405]*405Q. Okay.
A. I jot things down.
Q. But when you do that, you’re acting as a trustee of the township?
A. At the board meeting, yes.

During cross-examination by defense counsel, Pentti testified:

Q. Mr. Pentti, the preparation of your personal notes that were made during these township board meetings, were they prepared in any way in connection with either your role or responsibilities as a member of the township board.
A. No, I think they’re just personal notes.

At her deposition, Shirley Wittingen testified that she was the township clerk. Wittingen also owned a convenience store. She was responsible for bookkeeping, recordkeeping, taking minutes of the meetings, and running elections. All of the board’s files were kept in Wittingen’s store. Some were in storage in a building next to the town hall. When Wittingen got plaintiffs request for documents, she went into her files to see if anything was there. She also asked the board members whether they had any notes. Pentti “was the only one that said that he had some notes. But they were his personal notes; they were not in the files.” Wittingen had never reviewed Pentti’s notes. Wittingen had not received official training about FOIA, but had a reference book that she consulted. She admitted that she never told plaintiff about Pentti’s notes because she believed that they were not subject to disclosure.

David Johnson provided an affidavit, averring that he had attended several township board meetings, including those that took place in September and Octo[406]*406ber 2009. Johnson witnessed Pentti “making notes in a spiral bound notebook.” Additionally:

5. During one of the meetings I attended Skye Johnson inquired of the Board whether her home was in compliance and to what agencies she had been referred to.
6. At that meeting, I observed Frank Pentti refer to his notebook and turn pages back and he told her the agencies she was referred to.

II. HEARING ON DEFENDANT’S MOTION

At the motion hearing, defense counsel relied on Howell Ed Ass’n MEA/NEA v Howell Bd of Ed, 287 Mich App 228; 789 NW2d 495 (2010), arguing that Pentti’s notes were not public documents because they were not stored or retained by the township in the performance of an official function. Instead, plaintiff sought disclosure of Pentti’s personal journal. Defendant did not argue that the documents were exempt from disclosure, but that they were not public in the first place.

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Cite This Page — Counsel Stack

Bluebook (online)
812 N.W.2d 27, 294 Mich. App. 401, Counsel Stack Legal Research, https://law.counselstack.com/opinion/hopkins-v-duncan-township-michctapp-2011.