Wayne County Prosecutor v. City of Detroit

460 N.W.2d 298, 185 Mich. App. 265, 1990 Mich. App. LEXIS 311

• Court: Michigan Court of Appeals
• Decided: August 22, 1990
• Docket: Docket No. 126980
• Status: Published

Opinion

Weaver, J.

John D. O’Hair, the prosecuting attorney for Wayne County, attempted to obtain records of assets seized under the drug forfeiture laws by the City of Detroit Police Department, as well as an accounting of how those funds were spent. Plaintiff filed an action under Michigan’s Freedom of Information Act to obtain these records. MCL 15.231 et seq.; MSA 4.1801(1) et seq. After a show cause hearing the circuit court granted plaintiff his requested relief, ordering defendant to produce the records at issue by March 23, 1990. That portion of the judgment was stayed by this Court when we granted defendant leave to appeal. We amend in part and affirm.

i

Defendant’s first assignment of error is that the court erred in ordering defendant to produce and deliver documents to the Wayne County Prosecutor’s Office, a public agency.

Defendant’s argument relies on its construction of the statute, MCL 15.233(1); MSA 4.1801(3X1), which provides:

(1) Upon an oral or written request which describes the public record sufficiently to enable the public body to find the public record, a person has a right to inspect, copy, or receive copies of a public record of a public body, except as otherwise expressly provided by section 13. A person has a right to subscribe to future issuances of public records which are created, issued, or disseminated on a regular basis. A subscription shall be valid for up to 6 months, at the request of the subscriber, and shall be renewable. [Emphasis added.]

MCL 15.232; MSA 4.1801(2) defines a person as "an individual, corporation, partnership, firm, organization, or association.” Defendant contends that under this definition, plaintiff cannot request documents under the foia because plaintiff is a governmental agency.¹

Defendant’s argument rests on the assumption that John O’Hair, when acting as county prosecutor, is transformed into a governmental agency, and is no longer an individual, a person. We reject this premise.

The statute does not specify that the requester must be a private person as opposed to a public person. It simply states "a person.” The county prosecutor is a public official, but remains an individual, a public person, distinct from the agency as a whole. As such he is a person under the foia.

Once defendant’s premise is rejected, its whole argument falls. Accordingly, we find that the circuit court correctly ordered defendant to produce the requested documents in the March 15, 1990, order.

ii

Defendant next contends that plaintiff did not have standing to bring the suit, because he did not first make a formal request for these documents. Only after a formal request for documents and a denial by a public body may a suit to compel disclosure be brought. MCL 15.235; MSA 4.1801(5) and MCL 15.240; MSA 4.1801(10).

Defendant’s position is that John O’Hair, as a private citizen, could not bring suit to compel disclosure of documents under the foia because the only letter requesting the documents was written on the county prosecutor’s stationery and signed by John O’Hair in his capacity as prosecuting attorney.² Defendant contends that this has the effect of one person making the request and another attempting to enforce it.

Our disposition of the first assignment of error renders this complaint irrelevant, since we have held that John O’Hair, when acting in his capacity as prosecutor, is still an individual, a person under the foia.

hi

Defendant’s final argument on appeal is that ordering defendant to produce the requested documents was contrary to the Uniform Budgeting and Accounting Act (ubaa), MCL 141.421 et seq.; MSA 5.3228(21) et seq.

A public body may exempt from disclosure under the foia any records or information specifically described and exempted from disclosure by statute. MCL 15.243; MSA 4.1801(13). Defendant claims such an exemption is set forth by the ubaa. After review of the statute,³ we are unable to find any tenable support for defendant’s argument. Further, the foia itself lists only twenty exemptions. MCL 15.243; MSA 4.1801(13). The ubaa does not appear in any of them.

Accordingly, we affirm the judgment of the circuit court. We amend that portion of the order previously stayed so that defendant must comply with the order within fourteen days from the date this opinion is issued.

We do not retain jurisdiction.

1 In forming its decision the trial court found plaintiff was proceeding in his capacity as a private citizen and noted that a governmental agency could not request records under the foia. We specifically do not reach the issue of whether one government agency can obtain records from another under Michigan’s Freedom of Information Act, which would be a question of first impression in this Court.

2 When filing suit plaintiff styled himself as county prosecutor and as a private citizen. As we have seen, defendant’s thesis was that only as a private citizen could plaintiff receive relief.

3 MCL 141.433, MSA 5.3228(33) reads:

(1) Notwithstanding the confidentiality provisions of any tax laws, any authorized employee of the state treasurer, certified public accountant or firm of certified public accountants conducting an audit under this act shall have access to and authority to examine all books, accounts, reports, vouchers, correspondence files and other records, bank accounts and moneys or other property of any local unit excepting any records which were obtained from the United States internal revenue service under the federal state cooperative exchange agreement.

(2) An officer of a local unit upon demand of persons authorized under this act, shall produce all books, accounts, reports, vouchers, correspondence files and other records, bank accounts and moneys or other property of the local unit under audit or investigation and shall truthfully answer all questions related thereto.

(3) The liabilities and penalties provided by all specific confidentiality statutes for divulging confidential information shall be applicable to all persons authorized to make an audit under this act.