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### STATE OF MICHIGAN

COURT OF APPEALS

MARC EDWARDS,

Plaintiff-Appellant, UNPUBLISHED March 19, 2015

v No. 320133
Oakland Circuit Court OAKLAND TOWNSHIP, and OAKLAND TOWNSHIP TRUSTEE BOARD, LC No. 2013-135134-CZ

Defendants-Appellees.

Before: M ARKEY

, P.J., and M URRAY and B ORRELLO , JJ.

P ER C URIAM

.

Plaintiff appeals by right the trial court’s January 17, 2014, opinion and order denying plaintiff’s motion for summary disposition under MCR 2.116(C)(1 0) and granting defendants summary disposition under MCR 2. 116(I)(2) regarding plaintiff’s claims that defendants violated Michigan’s Freedom of Information Act (FOIA), MCL 15.231 et seq ., and the Open Meetings Act (OMA), MCL 15.261 et seq . We affirm.

I. PERTINENT FACTS AND PROCEEDINGS

This case arises out of political turmoil in Oakland Township involving two issues: (1)

the removal in 2011 of adam that directed water to operate a cider mill at historic to wnship property known as Paint Creek Cider Mill and (2) the approval by the tow nship board of a request to rezone certain property to permit a controversial real estate developm ent known as Blossom Ridge. The township board is comprised of seven members: a supervisor, a c lerk, a treasurer, and four trustees. During the election cycle of 2012, five of seven board members were replaced. Plaintiff Marc Edwards, a twenty-two year veteran trustee, was among those the voters removed from office. The new board of trustees assumed office on November 20, 2012. The prior board’s rezoning action was ultimately annulled by a referendum petition and citizen vote i n August, 2013. 1

One issue facing the newly elected township board was whether to renew a lease of space at the Cider Mill to a concessionaire, Paint Creek Cider Mill (PCC M), LLC, which would expire May

1 See <http://www.theoaklandpress.com/general-news/20130806/oakl and-township-votersreject-blossom-ridge-senior-dev elopment> accessed February 16, 2015.-2- 31, 2013. At its meeting of December 11, 2012, the board of tr ustees rejected a request to extend the lease/concession agreement for two years. Also, the board, by unanimous vote, adopted the following resolution to create a three-member subcommittee to s tudy use of the cider mill property:

“ Moved by Keyes, seconded by Reilly, to appoint Treasurer Langlo is, Trustee Bailey and Trustee McKay to a subcommittee for the purpose of studying the Paint Creek Cider Mill and its

future use relative to the request to extend the Concessionaire Agreement.” The meeti ngs of this

subcommittee in the months follo wing its creation are the subje ct of plaintiff’s OMA complaint. In proceedings in the trial court on the parties’ motions for s ummary disposition, all three subcommittee members and the township supervisor submitted affi davits. All four of the affidavits averred that after the subcommittee was created, “ov er the next several months, the

three subcommittee members coll ected data and discussed the future use of the Paint Creek Cider Mill relative to the Concessionaire Agreement. At no time did the subcommittee have authority to reach any decision regarding th e Concessionaire Agreement.” Each affidavit also stated:

9. At no time did four members or a quorum of the Board of Trus tees meet outside of an open and public meeting to deliberate or discuss any action regarding the Concessionaire Agreement.

10. At no time did four members or ' a quorum of the Board o f Trustees outside of an open public meeting deliberate or decide the duration of the Concessionaire Agreement.

All four affiants further averred that the issue of the concess ionaire agreement was discussed at the board’s regularly scheduled open meeting of April 9, 2013, and ultimately the matter was decided at an open special mee ting of the board on April 15, 20 13.

The board’s April 15, 2013, reso lution approving the existing concessionaire’s proposal provides in pertinent part: “M oved by Bailey, seconded by Langl ois to direct the Township Manager [James Creech] and the Township attorney to negotiate a new Concessionaire Agreement with PCCM, LLC, Mr. Grange, based upon the terms and conditions outlined in his proposal as well as the expiring Concessionaire Agreement . . . .” On April 18, 2013, Trustee Bailey sent an email to Creech that discussed the duration of the lease agreement, “Terry Gonser [the township supervisor] and th e committee agree that the new contract should have an 18 month duration not 2 years.” Fi ve hours later, Bailey sent a f ollow-up email to Creech that read:

“I wish to retract the last sent ence in the first paragraph of my email below because this is not something that the committee has discussed. It is only my recommendation that the wording of the lease agreement be set up to be 18 months not 2 years.” Ba iley also addressed the April 18 email in his affidavit, stating:

11. My April 18, 2013, email to Trustees was an assumption and was not intended to indicate, nor did it occur, that four members or qu orum of the Board of Trustees met, deliberated or otherwise violated the O pen Meetings Act. Rather, the email was solely my recommendation to Manager Creech and no t a result of four members or a quorum of the Board of Trustees deliberating and/or agreeing outside of an open meeting.-3- Ultimately, the township entered a new concessionaire agreement with PCCM covering 18 months: June 1, 2013 through December 31, 2014.

Plaintiff submitted his FOIA request by letter dated April 10, 2013, directed to the township’s FOIA coordinator. T he letter requested, pursuant to FOIA, “copies of all electronic communications, emails or text messages sent by or to members o f the Board of Trustees for the Charter Township of Oakland, which in any way relate to matters of business or action taken or considered by the Board of Tr ustees since November 20, 2012.” The letter also stated:

. . . The subject matter of thi s request should be broadly int erpreted and covers any communications with members of the Board of Trustees, inclu ding issues that were or may be matters considered during closed sessions permitted under the Open Meetings Act. . . . This request includes any writing, as defined by MCL 15.232(h) whether maintained in paper or electronic format. Wr itings responsive to this request include, but ar e not limited to, communications between members

of the Board of Trustees and any of the following:

A. Other members of the Board of Trustees;

B. Any staff members at the C harter Township of Oakland;

C. Members of the Planning Commission;

D. Members of the public;

E. Any individual having business before or having issues or ma tters considered by the Chart er Township of Oakland;

F. Communications with any c onsultants or attorneys.

Each string or response to an email or text message shall be i ncluded, along with the identification of each and every individual who received a copy or blind copy of the writing. It is preferred that these writings be produced in electronic form if possible. . . .

This request encompasses writings sent from Township email acc ounts as well as private email accounts of members of the Board of Trust ees used to communicate regarding Townshi p business or affairs [April 10, 2 013, letter.]

The township responded to this request by letter dated May 1, 2013, from the executive assistant to the township manager. It noted that in response t o plaintiff’s April 10 FOIA-request letter, plaintiff could pick up 8,918 pages of documents at the township office during regular business hours and that the charge for the material was $1,583. 50. Apparently, this fee represented “the actual incremental cost of duplication or publ ication including labor, the cost of search, examination, review, and the deletion and separation of exempt from nonexempt information . . . .” MCL 15.234(1). The letter described the fee as being comprised of 9.5 hours labor at $15.75 an hour, 4.5 hours labor at $23.32 an hour, $0. 25 for each page copied ($2,229.50), less plaintiff’s deposit of $781.90 and a 5% disco unt.-4- The township’s May 1, 2013, letter also described certain docu ments the township withheld. The township withhe ld 263 pages pertaining to four d ifferent attorneys or law firms on the basis of attorney-client p rivilege, MCL 15.243(1)(g). The township also withheld 117 pages based on various exemptions, incl uding “frank communications,” MCL 15.243(1)(m). These materials were categorized as discussions involving union negot iations (80 pages), the Blossom Ridge development (22 pages), th e Parks & Recreation Commission (5 pages), DEQ permitting (1 page), closed session minutes (3 pages), and policy (Gap) an alysis (6 pages). Plaintiff’s attorney asserted an appeal of the township’s response to the F OIA request in a May 7, 2013 letter to township supervisor Gonser. The letter claimed that the township’s response was deficient for not having provided electronic copies of the docu ments, for failing to sufficiently describe the exempted material, and for failing to advise plain tiff of his right to appeal. But the letter only sought production of 3 2 pages of the material claim ed to be exempt: 22 pages regarding Blossom Ridge, 5 pages regarding the Parks & Recreati on Commission, 1 page regarding DEQ permitting, and 6 pages involving policy (Gap) an alysis.

As the result of a special township board meeting held on May 20, 2013, the township decided to release copies of 20 of the 34 documents it had prev iously withheld. The released documents included 10 pages regarding Blossom Ridge, 3 pages re garding the Parks & Recreation Commission, and all do cuments regarding DEQ permitti ng and policy (Gap ) analysis. In a six-page letter of May 22, 2013 to plaintiff’s attorney, t he township’s attorney described the exempted documents, as well as the basis for asserting the fran k communications exemption, and provided copies of the released documents. Three additional do cuments were released with partial redactions of an identical paragraph in each document that was claimed exempt on the

basis of frank communications under MCL 15.243(1)(m) “and/or co nfidential attorney client privilege as incorporated if MCL 15.243(1)(g).” Regarding the “frank communications” exemption as to the withheld documents, the township asserted “ that each email involved an Advisory Communication betweenpublic officials, involved matte rs other than purely factual, and involved a discussion preliminary to a final determination of policy or action.” Further, the letter stated the township applied the balancing test of MCL 15 .243(1)(m), and that “the public’s

interest in disclosure was out weighed by a valid public interes t for officials of a public body to communicate candidly when consider ing an issue that is prelimin ary to a final policy or action.”

On July 17, 2013, plaintiff filed his complaint asserting that defendants violated the FOIA, MCL 15.231 et seq ., and the OMA, MCL 15.261 et seq. The complaint asserted that the circuit court had jurisdiction of the OMA claim under MCL 15.27 1, and the FOIA claim under MCL 15.240(1). 2 In his OMA claim, plaintiff a sserted the township board subco mmittee,

2 MCL 15.240(1) provides:

(1) If a public body makes a final determination to deny all or a portion of a request, the requesting person m ay do 1 of the following at his or her option:

(a) Submit to the head of the public body a written appeal tha t specifically states the word “appeal” and identifies the reason or reasons f or reversal of the

denial.-5- created on December 11, 2012, “was empowered to select the winn ing proposal for the Cider Mill is a public body and thus is subject to the requirements o f the OMA.” The complaint also

asserted that various email exch anges and other communication a mong the subcommittee

members were “deliberations” not conducted at an open meeting a s required by the OMA. Although noting the OMA permits “a civil action to compel compl iance or to enjoin further noncompliance with this act,” MCL 15.271(1), the only relief pl aintiff requested was a declaration that the township trustees had violated the OMA, at torney fees under MCL 15.271(4), and “s u c h o th er a nd further relief a s [the trial court] deem s ju s t a nd e quitable.”

With respect to his FOIA complaint, plaintiff alleged that the material the township withheld did not come within the frank communication exemption, MCL 15.243(1)(m), that paper copies of the requested email were not “ the most economical means available for making copies of public records,” MCL 15.234(3), and, that by pr oviding paper rather than electr onic copies, defendants did not provide the requested public records , MCL 15.233(1). Again, with respect to his FOIA claim, plaintiff only requested declaratoryrelief, attorney fees and costs, MCL 15.240(6), and “s u c h o th er a nd further relief a s [the trial court] deem s ju s t a nd e quitable.”

The parties’ motions for summary disposition first came before the trial court for hearing on November 13, 2013. Defendant ’s attorney announced that the township was willing to provide the withheld and redacted documents to plaintiff’s coun sel under a protective order. The record suggests the possibility of settlement once plaintiff’s counsel reviewed t he material.

At the next motion hearing on January 8, 2014, plaintiff’s counsel acknowledged that the attorneys had spent many hours attempting to resolve the case. Plaintiff’s counsel argued that plaintiff should have been provi ded electronic copies of the em ail and that the fee the township charged was unjustified. Plainti ff’s counsel also stated he ha d reviewed the withheld material under a protective order, and “there are no smoking guns . . . that would preclude disclosure.” Counsel also denied that plainti ff’s complaint was “an act of p olitical retribution . . . .”

Defense counsel argued that there “does appear to be a lot of politics involved here.” Counsel also argued that plaintiff’s FOIA request was a “gunsho t approach” with no specific subject, and the township went to great lengths to comply with the request; the township could not just push a button to generat e an electronic copy of the re quested email. On this basis, defense counsel argued, the cas e law on which plaintiff relied was distinguishable. Furthermore, defense counsel noted, the request in this case covered both ex empt and nonexempt material necessitating review by counsel of the email that could only be accomplished by printing them. Defense counsel also argued that the township did not possess 9 0% of the documents produced,

and all of the withheld documents in electronic format because they resided on the personal or business computers or networks of the individual township offic ials. Counsel further noted that

(b) Commence an action in the circuit court to compel the publ ic body’s disclosure of the public records within 180 days after a public body’s final determination to deny a request.

Because plaintiff chose the option provided in subsection (1)(a ), we question, but do not decide, whether plaintiff properly invoke d subsection (1)(b) with respe ct to his FOIA complaint.-6- most of documents withheld under the frank communications exemp tion dealt with the Blossom Ridge development. But that issue, counsel observed, was no lo nger pending. On December 10, 2013, the township had denied the developer’s request to approv e a special accommodation use. Consequently, counsel argued, if the FOIA request for the Bloss om Ridge documents had been filed after the December 10 board action, it would have been gr anted. But failing settlement, the

trial court had to review the documents to determine if the cla imed exemptions were properly invoked at the time the FOIA request was denied.

Defense counsel also argued plai ntiff’s action was not timely. First, plaintiff did not allege an intentional violation of the OMA by an individual off icial, so the 180-day limitation period of MCL 15.273(2) did not apply. Further, defense counse l argued, plaintiff filed his OMA complaint outside the 30- or 60-day limitations period of M CL 15.270(3). Finally, defense counsel argued that the OMA complaint was without merit because as long as a subcommittee of a governmental body is advisory only, the OMA d oes not apply. The subcommittee at issue was advisory only and all actions regardi ng the concessionaire agreement were deliberated on and decided by the township board at meetin gs held in compliance with the OMA. Counsel pointed out that board member Bailey’s comments i n an April 18 email that suggested that there might have been action by a quorum of the board not at an open meeting, were corrected by Bailey in an email sent hours later on the sa me day. Bailey’s affidavit also confirmed no quorum of the board had met outside the requiremen ts of the OMA and that his email of April 18 was poorly draf ted and intended to express on ly his own position.

Plaintiff’s counsel responded th at defendants’ affidavits were not timely filed. Plaintiff’s counsel also suggested that withrespect to electronic copies, an information technology consultant could copy the hard d rives of all the pertinent offi cials’ computers and then define search parameters to retrieve all email in electronic format. Counsel also argued that electronic copies of the email were necessary because the printed versions might have altered content.

After the parties’ arguments, the trial court observed that it might take a while to review everything submitted, which included copies of the withheld and redacted material. The court issued its opinion and order on January 17, 2014, denying plaintiff’s motion for summary dispos ition under MCR 2.116(C)(10), and granting defendants summary disposi tion under MCR 2.116(I)(2).

The trial court ruled as follows:

The Court finds that there was no violation of the OMA because the Subcommittee was not subject to t he Act. The evidence clearly shows that the subcommittee was merely advisory and only capable of making rec ommendations concerning the exercise of govern mental authority. There is no evidence that there was deliberation and/or a final determination made by the Subcommittee. Defendant retained the authority t o reject the Subcommittee's r ecommendations.

As to the FOIA, the Court finds that the Frank Communications exception was properly asserted. The documents withheld are communications of an advisory nature made within a public body or between public bod ies that cover other than purely factual materi al and are preliminary to a fin al agency determination of policy or acti on. Defendant properly weighed the interests when making its determination. The reasoning and rationale was full y set forth in the-7- written decision of May 22, 2013. The Court finds that Defendant has sustained the burden of proving that the public interest in disclosure is outweighed by the public interest in encouraging frank communication. With regar d to the redacted documents, the Court finds that each of the redacted materials clearly fall within a statutory exception in that theyinvolve the exempted discussio n of legal opinions, unionization of employees, personnel matters and/or frank commu nications of a pending issue before the Board. The Court finds that Defendant properly invoked the attorney-client privilege on the withheld emails. The Cour t finds that

Defendant did not violate FOIA by providing Plaintiff the docum ents in paper format. Plaintiff has failed to produce any evidence that his “preferred” method of receiving documents in electronic form was possible. Becaus e the emails had to be reviewed and Defendant does not have the capability to re dact documents in electronic format, producing them in that format was not feasible. The Court finds that Defendant has shown that the manner in which the copies we re provided to Plaintiff was the most economical. Finally, the Court finds th at Plaintiff is not entitled to an award of attorney fees for any technical violati ons of FOIA because if there were violations they did not impact Plaintiff's ability t o receive the disputed records and Defendant made a good-faith effort to respond to Pl aintiff's request.

Plaintiff appeals by right the trial court’s January 17, 2014, opinion and order.

II. STANDARD OF REVIEW

We review the trial court’s grant or denial of summary disposi tion de novo. Herald Co v Bay City , 463 Mich 111, 117; 614 NW2d 873 (2000). “Summary disposition under MCR 2.116(C)(10) is appropriate only when the moving party can demo nstrate there are no genuine issues of material fact and the moving party is entitled to jud gment as a matter of law.” Hopkins v Duncan Twp , 294 Mich App 401, 408; 812 NW2d 27 (2011). The moving party must specifically identify the matters that are not factually disput ed and has the initial burden of supporting its position by affidavits, depositions, admissions, or other documentary evidence. MCR 2.116(G)(3)(b); Coblentz v Novi , 475 Mich 558, 569; 719 NW2d 73 (2006). The party opposing the motion then has the burden to show with evidentiary materials that a genuine issue of disputed fact exists, MCR 2.116(G)(4), or agree that there a re no disputed material facts and it, rather than the moving party, is entitled to judgment as a matter of law. MCR 2.116(I)(2); AFP Specialties, Inc v Vereyken , 303 Mich App 497, 513; 844 NW2d 470 (2014).

When deciding the motions, the trial court must consider all s ubstantively admissible evidence submitted by the parties in the light most favorable t o the opposing party. MCR 2.116(G)(6); Maiden v Rozwood , 461 Mich 109, 120; 597 NW2d 817 (1999). “A genuine issue

of material fact exists when the record, giving the benefit of reasonable doubt to the opposing party, leaves open an issue on which reasonable minds could dif fer.” AFP Specialties , 303 Mich App at 504 (citation omitted).

Whether the OMA applies is a que stion of law that is reviewed de novo. In re Jude , 228 Mich App 667, 670; 578 NW2d 704 (1998). This Court also review s questions of statutory construction regarding the applic ation of the OMA and FOIA de n ovo. Herald Co , 463 Mich at 117; Davis v Detroit Fin Review Team , 296 Mich App 568, 584; 821 NW2d 896 (2012). “It is-8- axiomatic that statutory language expresses legislative intent. . . . Where the statute unambiguously conveys the Legislature’s intent, the proper role of a court is simply to apply the terms of the statute to the circumstances in a particular case. ” King v Mich State Police Dep’t

, 303 Mich App 162, 175; 841 NW2d 914 (2013) (c itation omitted); see also Herald Co , 463 Mich at 117-118. When a statutory provision is ambiguous, this Court must effectuate the Legislature’s intent through a reasonable construction, in ligh t of the statute’s purpose. Davis

, 296 Mich App at 585.

Our review is for clear error to the extent a party challenges on appeal the trial court’s

factual determinations t hat support its decision. Herald Co, Inc v Eastern Mich Univ Bd of Regents , 475 Mich 463, 472; 719 NW2d 19 (2005). We must defer to the trial court’s factual

determinations unless we are lef t with a definite and firm conv iction that the trial court has made

a mistake. Id . at 471-472; King , 303 Mich App at 174-175. Where FOIA requires the trial court to balance competing interests, such as the balancing test foun d in the frank communications exemption, MCL 15.243(1)(m), we review the trial court’s decisi on for an abuse of discretion.

Herald Co , 475 Mich at 470-472; King , 303 Mich App at 175. We cannot disturb the trial court’s discretionary determina tion unless it falls outside the range of principled outcomes.

Herald Co , 475 Mich at 472; King , 303 Mich App at 175.

III. ANALYSIS

A. PLAINTIFF’S OMA CLAIM

The trial court did not err by granting defendants summary dis position regarding plaintiff’s OMA claim because plaintiff failed to present any e vidence to substantiate his claim that the subcommittee formed to study the Paint Creek Cider Mil l and its future use with respect to a concessionaire agreement was anything other than a purely advisory group. Because the

subcommittee in this instance was not a “legislative or governi ng body,” nor “empowered by . . . charter, ordinance, resolution, or rule to exercise governmenta l or proprietary authority or perform a governmental or proprietary function,” MCL 15.262(a), it was not a “public body” as defined by the OMA. See Davis , 296 Mich App at 584-608. Plaintiff misplaces reliance on Booth Newspapers, Inc v Univ of Mich Bd of Regents , 444 Mich 211; 507 NW2d 422 (1993) and Morrison v East Lansing , 255 Mich App 505; 660 NW2d 395 (2003), overruled in part on o ther grounds Speicher v Columbia Twp Trustees Bd , ___ Mich ___; ___ NW2d ___ (Docket No. 148617, Dec 22, 2014). Both Booth and Morrison are distinguishable b ecause the public body in each case delegated its governmental or proprietary authority t o a sub-quorum group. See Booth Newspapers , 444 Mich at 225-226; Morrison , 255 Mich App at 520. Consequently, the trial court correctly ruled that the “subcommittee was merely advisor y and only capable of making recommendations concerning the exercise of governmental authori ty,” and therefore, not subject to OMA requirements.

In general, the OMA, MCL 15.261 et seq ., requires that all meetings of a “public body” at which a quorum is present to deliberate toward or render a “ decision” by which the public body effectuates or formulates public policy must be open to th e public. MCL 15.262; MCL 15.263; Davis , 296 Mich App at 576. “[T]he purpose of the OMA is to promote governmental accountability by facilitating public access to official decisi on making and to provide a means through which the general public may better understand issues and decisions of public concern.”-9- Kitchen v Ferndale City Council , 253 Mich App 115, 125; 654 NW2d 918 (2002), overruled in part on other grounds Speicher , ___ Mich at ___. In determining whether the OMA applies, the threshold query is whether an entity is a “public body” as defi ned by the act. Herald Co , 463 Mich at 129. The OMA provides a multifaceted definition of “pu blic body” as follows:

“Public body” means any state or local legislative or governing body

, including a board, commission, committee, subcommittee, authori ty, or council,

that is empowered by state constitution, statute, charter, ordinance, resolution, or rule to exercise governmental or proprietary authority or perform a governmental or proprietary function ; a lessee of such a body perf orming an essential public purpose and function pursuant to the lease agreement; or the bo ard of a nonprofit corporation formed by a city under section 4o of the home rule city act, 1909 PA 279, MCL 117.4 o . [MCL 15.262(a) (emphasis added).]

First, a “public body” must be a state or local “legislative o r governing body.” Id .; Herald Co , 463 Mich at 129; Davis , 296 Mich App at 591. This Court in Davis explored the meaning of the terms “legislative body” and “governing body” as used in the OMA. In reviewing these undefined terms, the Court noted it must use th eir “common and approved usage” and plain meaning and could consult dictionary definitio ns for this purpose. Id . at 592- 594. After consulting several dic tionary definitions the Court determined a “legislative body” is an entity that possessed “the power to make or enact law, to br ing something into or out of existence by making law, or to attempt to bring about or contro l by legislation.” Id . at 593. Plaintiff points to no evidence that would support a finding th at the subcommittee in this case had the power to make or enact l aw, or that the township delega ted any of its legislative authority to the subcommittee. At best, the subcommittee could make reco mmendations to the full board, but could not act independently to make or adopt legislation. Id . at 603-604 (holding that “a recommendation for action by another entity, group, or individual, by its very nature, cannot constitute ‘governing’ ”)(emphasi s in the original). Consequen tly, the subcommittee in this case was not a “legislative body” under the OMA.

With respect to the meaning of “governing body,” the Davis Court looked to both dictionary definitions and other statutory definitions. Id . at 593-594. As to the latter, the Legislature has else where defined the te rm to mean “a body thathas some specific authority over a political subdivision: a board of commissioners for a county , a city or village council, a township board, a body with legislative powers, or any body tha t has general governing or policymaking authority over a political subdivision.” Id. at 594 (citations omitted). Furthermore, as required by MCL 15.262(a), a “governing body” must be empowered to “exercise governmental or proprie tary authority or perform a go vernmental or proprietary function[.]” Id .; Davis , 296 Mich App at 594. The focus of the inquiry is the authori ty that has been delegated to an entity, not the authority the entity actua lly exercised. Id . Thus, a “governing body” is one that is self-governing and independent; that is, an entity that makes or administers public policy for a political unit or exercises ind ependent authority. Id . at 597. A “governing body’ must also have the power to make “decisions,” defined in the OMA as “a determination, action, vote, or disposition upon a motion, prop osal, recommendation, resolution, order, ordinance, bill or measure on which a vote by members of a public body is required and by which a public body effectuates or formulates public policy. ” MCL 15.262(d).-10- In this case, the subcommitt ee was not a “governing body” because it did not independently exercise, nor was it delegated any authority to “ exercise governmental or proprietary authority or perform a governmental or proprietary function[.]” MCL 15.262(a);

Davis , 296 Mich App at 584, 597. The subcommittee was not a “govern ing body” because it could not “exercise independent governmental or proprietary authority or . . . perform an independent governmental or proprietary function . . . either o ne of which results in independent decision-making that effectuate s or formulates public policy.” Id . at 584; MCL 15.262(a), (d).

The fact that the OMA’s definition of “public body” lists “sub committee” as a possible example of a “public body” is not dispositive of whether a subc ommittee is actually a “legislative or governing body” under MCL 15.262(a). Because t he subcommittee in this case was only empowered to make recommendations to the creating publ ic body, the township board, it was, as discussed already, ne ither a “legislative body” nor a “governing body.” Hence, the subcommittee was not a “public body” as defined in the OMA. Davis , 296 Mich App at 599, 601 n 98, 605-606, 608. Indeed, because the subcommittee posse ssed no independent governmental or proprietary authority, and there is no evidence that the township delegated any of its governmental or proprietary authority to the subcommitte e, the cases of Booth Newspapers

, 444 Mich 211, and Morrison , 255 Mich App 505, are clearly distinguishable. In Booth , “the University of Michigan Board of Regents attempted to evade the requirements of the Open Meetings Act.” Davis , 296 Mich App at 588-589. The Boa rd of Regents, as a body sub ject to the OMA, “effectively sought to delegate its authority . . . to various bodies of its own creation that it believed were not subject to the OMA, for the express p urpose of avoiding the requirements of the OMA.” Herald Co , 463 Mich at 134. The Booth decision “precluded an attempt by a public body to evade the OMA . . . by delegating i ts authority.” Id . at 135. Similarly, in Morrison , “[t]he city council effectively authorized the [the subcommit tee in that case] to perform a governmental function.” Morrison , 255 Mich App at 520.

There is no evidence the townsh ip delegated any of its governm ental or proprietary authority to the subcommittee, other than a speculative inferen ce from a single email that was almost immediately retracted. Plaintiff has produced no eviden ce to counter the affidavits filed in this case by the pertinent o fficials that the subcommittee w as not delegated any of the township board’s governmental o r proprietary authority. Plaint iff could not rest on allegations as the party opposing defendants’ mo tion for summary disposition a nd had the burden of showing with evidentiary materials that a genuine issue of disputed mat erial fact existed. MCR 2.116(G)(4); Coblentz , 475 Mich at 569. Plaintiff failed to do so.

Plaintiff also argues that the subcommittee was covered by the OMA even if it could only make recommendations with the final authority resting with the full board, as the definition of “decision” in MCL 15.262(d) inclu des “recommendation” and “[a]l l decisions of a public body shall be made at a meeting open to the public.” MCL 15.263(2). Plaintiff’s argument fails because he does not read the statutory provision as a whole. M CL 15.262(d) provides (emphasis added): “ ‘Decision’ means a determination, action, vote, or di sposition upon a motion, proposal,

recommendation , resolution, order, ordinance, bill, or measure on which a vot e by members of a public body is required and by which a public body effectuates or formulates public policy.” For purposes of illustrating the fa llacy of plaintiff’s argument, t his definition provides that a “recommendation” is a “decision” only when (1) members of a public body , (2) vote or act upon , (3) a recommendation, (4) to effectuate or formulate public pol icy. As discussed already, an-11- advisory subcommittee is neither a legislative nor a governing body; it cannot therefore be a “public body.” MCL 15.262(a). Thus, a recommendation is not a“decision,” but rather a “decision” occurs when the public body, the township board, act s or votes on the recommendation to effectuate or formulate public policy. See Davis , 296 Mich App at 600.

Because the subcommittee in this case was not a “legislative o r governing body,” or “empowered by . . . charter, ordinance, resolution, or rule to exercise governmental or proprietary authority or perform a governmental or proprietary function,” MCL 15.262(a), it was not a “public body” under the OMA. Consequently, the subcommit tee was not subject to the requirements of the OMA. Plaintiff has failed produce any evid ence that the township board delegated any of its “governmental or proprietary authority” or “governmental or proprietary function” to the subcommittee or that the township board was pu rposefully attempting to evade the OMA. Consequently, the trial properly granted defendants s ummary disposition.

B. PLAINTIFF’S FOIA CLAIM

Plaintiff presents four arguments that the trial court erred r egarding his FOIA claim: (1) by accepting the township’s invoc ation of the frank communicati ons exemption; (2) by accepting the township’s invocation of the exemption for attorney-client privilege; (3) by not ordering the township to provide electronic copies of the email it released; and (4) by not awa rding plaintiff attorney fees under MCL 15.235(3) and MCL 15.240(6) because he obtained additional documents as a result of appeali ng the township’s initial decis ion to the township board. 3

We briefly address this last argument first. Again, we questi on plaintiff’s right to proceed under MCL 15.240(1)(b) after having chosen to pursue hi s right to appeal to the township board under MCL 15.240(1)(a). Second, to obtain attor ney fees under MCL 15.240(6), a party must prevail, at least in part. See also MCL 15.235(3) (providing that to assess damages under FOIA, the circuit must (a) d etermine the defendant has no t complied with the act, and (b) have ordered disclosure, at least in part, of the public record s sought). Third, a plain reading of MCL 15.240(6) limits an award of attorney fees to when a party has prevailed at least in part “in an action commenced under this section . . . .” With respect t o the two options of MCL 15.240(1), only subsection (1)(b) refers to commencement of “an action in the circuit court . . . .” Consequently, based on the plain language of FOIA, attorney fee s are not available with respect to an appeal of an agency decision under MCL 15.240(1)(a). Further, to justify an attorney fee

award for an action commenced under MCL 15.240(1)(b), the partymust prevail at least in part by obtaining disclosure of items s ought. Plaintiff’s claim for attorney fees is without merit.

We decline to separately address plaintiff’s arguments regardi ng the attorney-client privilege exemption under MCL 15.243(g). Plaintiff chose not t o appeal or bring a circuit court action regarding all documents that defendants specifically ide ntified as exempt only under this exemption. Defendants released copies to plaintiff of 8,918 pa ges of email messages. Of the 34

3 Plaintiff also asserts a claim to attorney fees regarding his OMA claim that is meritless. See Speicher , ___ Mich at ___, holding “a person cannot recover court costs and actual attorney fees under MCL 15.271(4) unless he or she succeeds in obtaining injunctive relief in the action.”-12- pages of email messages defendant s withheld that plaintiff cont ested, defendants released an additional 20 pages after plain tiff’s appeal under MCL 15.240(1 )(a). With respect to the 14 pages email messages at issue in this case, defendants primaril y asserted the frank communications exemption under MCL 15.243(1)(m). Only a handfu l of the withheld or partial redacted email were also claimed to be exempt as frank communic ations about attorney-client privileged communications. Thus, if the trial court properly u pheld the frank communication exemption, the issue of attorne y client privilege need not be r eached.

1. FRANK COMMUNICATIONS EXEMPTION

The freedom of information act announces the public policy of this state is that “all persons, except those persons incarcerated in state or local co rrectional facilities, are entitled to full and complete information regarding the affairs of governme nt and the official acts of those who represent them as public officials and public employees[.]” MCL 15.231(2). Consistent with this purpose, persons not i ncarcerated have a right to ins pect, copy, or receive copies of requested public records that are sufficiently described to ena ble a public body to locate them unless specifically exempt under the act. MCL 15.232(e); MCL 1 5.233(1); Hopkins , 294 Mich App at 409. A “public body” under FOIA includes “[a] county, c ity, township, village, intercounty, intercity, or regio nal governing body, council, sc hool district, special district, or municipal corporation, or a boa rd, department, commission, coun cil, or agency thereof.” MCL 15.243(d)( iii ). 4 A “public record” is 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. Public record does not include computer software.” MCL 15.232( e) (emphasis added).

“Writing” means handwriting, type writing, printing, photostati ng, photographing, photocopying, and every other means of recording , and includes letters, words, pictures, sounds , or symbols, or combinations t hereof, and papers, maps, magnetic or paper tapes, photographic films or prints, mi crofilm, microfiche, magnetic or punched cards, discs, drums, or other m eans of recording or retaining meaningful content. [MCL 15.232(h).]

The FOIA definition of “writing” is broad enough to include el ectronic recording of meaningful content, including email. But for email to be a “pu blic record” it must be (1) “prepared, owned, used, in the possession of, or retained,” (2) “by a public body,” (3) “in the performance of an official function.” MCL 15.232(e). See Howell Ed Assoc MEA/NEA v Howell Bd of Ed , 287 Mich App 228, 235-237; 789 NW2d 495 (2010) (teachers’ ema il residing or “captured” on “public body” school system’s computers were n ot “public records” because the email, were not used or retained “in the performance of an official function”); Hopkins , 294 Mich App at 417 (individual note s of township trustee “on a gov ernmental issue are only a public record when the notes are taken in furtherance of an off icial function”). Here, according

4 The FOIA defines “public body” to encompass a “state officer” or “employee” “but does not include the governor or lieutenant governor, the executive offi ce of the governor or lieutenant governor, or employees thereof.” MCL 15.232(d)( i ). Curiously, however, the definition of “public body” does not include t ownship or other local governme nt employees or officials.-13- to the argument in the trial court, 90% of the email messages d isclosed and all of the email messages at issue in this case were not “prepared, owned, used, in the possession of, or retained by a public body,” in this case, t he township. Rather, the ema il at issue resided on the personal or business computers or networks of the individual township of ficials. Although, we question whether such email messages are public records, we nevertheless address the merits of plaintiff’s appeal by assuming that that the e mail messages in this case ar e public records.

The FOIA exemption for “frank c ommunication” provides in relev ant part:

Communications and notes within a public body or between publi c bodies of an advisory nature to the ext ent that they cover other than purely factual materials and are preliminary to a final agency determination o f policy or action. This exemption does not apply unless the public body shows thatin the particular instance the public interest in encouraging frank communication between officials and employees of public bodies cle arly outweighs the public int erest in disclosure. [MCL 15.243(1)(m).]

The public body bears the burden of establishing the applicabi lity of the exemption.

Bukowski v Detroit , 478 Mich 268, 274; 732 NW2d 75 (2007); see also MCL 15.240(4) . A public body may withhold a public record as a “frank communicat ion” if it “(1) is a communication or note of an advisory nature made within a publi c body or between public bodies, (2) covers other than purely factual material, and (3) is preliminary to a final agency determination of policy or action.” Herald Co , 475 Mich at 475. If these conditions are satisfied, the public body must show that “in the particular in stance,” the public interest in encouraging frank communication “clearly outweighs” the public interest in disclosure of the records. MCL 15.243(1)(m); Herald Co , 475 Mich at 475-476, 480-481. Here, the circuit court heard the parties’ arguments, received evidence submitted on mo tions for summary disposition, reviewed in camera the messages that were withheld or redacted, MCL 15.240(4), and ruled that

defendants had satisfied their bur den regarding this exemption.

Plaintiff first asserts that the township failed to adequatelyexplain the public interest in asserting the frank communication exemption. This claim is wit hout merit. The statute itself identifies that there is a public interest in f rank communicati on among officials and employees of public bodies. “[T]he Legislatur e has made a policy determinat ion that full disclosure of certain public records could prove harmful to the proper functioning of the public body.” Herald Co

, 475 Mich at 473. Both this Court and our Supreme Court have re cognized that in particular instances the public interest is served when public officials h ave “more than cold and dry data” and are able to receive and gi ve “unvarnished candid opinion[s] ” to make sensitive policy judgments. Id . at 479 (citation omitt ed). Plaintiff also argues that certai n exempted email strings contained purely factual matters but points to no evidence by w hich this Court could form a

definite and firm conviction that the trial court made a mistak e in determining otherwise from its

review of the documents in camera. Id . at 472. Plaintiff argues that email related to the Parks & Recreation Board does not appear to be preliminary to a final a gency determination of policy or action. Defendants assert the communications related to pendin g budget and millage issues. Again, we discern no basis to reach a definite and firm convict ion that the trial court made a mistake in determining the frank communication exemption applie d. Id . at 472.-14- Plaintiff’s primary argument on appeal is that the trial court abused its discretion by finding that defendants satisfi ed the balancing test of § 13(1) (m). See Herald Co , 475 Mich at 472. Plaintiff argues that defendants asserted only conclusorystatements to show that “the public interest in encouraging frank communication between offi cials and employees of public

bodies clearly outweighs the public interest in disclosure.” MCL 15.243(1)(m). As note d already, the statute itself recognizes a public interest in fra nk communications. And the circuit court must “remain cognizant of the special consideration that the Legislature has accorded an exemptible class of records.” Herald Co , 475 Mich at 473 (citation omitted). Also, the FOIA clearly creates a presumption in favor of disclosure of public records unless the public body establishes than an exemption to disclosure applies. MCL 15.23 3(1); MCL 15.240(4); King , 303 Mich App at 176. But this presumption in favor of disclosure i s not irrefutable or “an insurmountable obstacle to the public body’s seeking to withhol d a frank communication from

disclosure.” Herald Co , 475 Mich at 480-481. Moreover, the balancing test must be ap plied to the “particular instan ce” involved, and plaintiff has asserted no specific public interest in disclosure of the particular f rank communicatio ns at issue. Id . at 474 (“the parties and the courts must consider how the unique circumstances of the ‘particular i nstance’ affect the public interest in disclosure versus the public i nterest in encouraging frank c ommunication”). In light of the vast amounts of email messages defendants released, plaintiff’s failure to assert a public interest in disclosure in this “particular instance,” couns el for plaint iff conceding below that based on his review of the withheld material under a protective order that t hey contained “no smoking guns,”

we cannot conclude that the trial court abused its discretion. Herald Co , 475 Mich at 472, 481- 482. Stated otherwise, the trial court’s determination after i ts in camera review of the withheld

material that defendants satisfi ed the balancing test of MCL 15 .243(1)(m) was within the range of principled outcomes. King , 303 Mich App at 175.

2. PAPER COPIES

Plaintiff argues that the trial court erred by not ordering th e township to provide the vast amount of email messages he requested in electronic format. Hi s argument takes two prongs: (1) paper copies are not the actual electronic records he requested under MCL 15.233(1) (“a person has a right to inspect, copy, or receive copies of the requeste d public record of the public body”), and (2) providing paper copies of email messages was not the mo st economical method of complying with his request under MCL 15.234(3) (“A public body shall utilize the most economical means available for making copies of public records. ”). Plaintiff cites in support of his argument Kestenbaum v Mich State Univ , 414 Mich 510, 558; 327 NW2d 783 (1982), 5 and Oakland Co Treas v Title Office, Inc , 245 Mich App 196; 627 NW2d 317 (2001), overruled by Title Office, Inc v Van Buren Co Treas , 469 Mich 516; 676 NW2d 207 (2004). 6 Although these opinions are not binding precedent, there is some authority tha t supports plaintiff’s first

5 Kestenbaum contained two opinions, each sign by only three justices. Plu rality opinions are not binding precedent because they did not have a majority of t he Court. See Frankenmuth Mut

Ins Co v Masters , 460 Mich 105, 115 n 7; 595 NW2d 832 (1999).

6 Overruled opinions are not binding precedent. See Sumner v Gen Motors Corp (On Remand), 245 Mich App 653, 665; 633 NW2d 1 (2001).-15- contention. See Farrell v Detroit , 209 Mich App 7, 14; 530 NW2d 105 (1995) (A public body “is required to provide the ‘public record’ [a person] request[ s], not just the information contained therein.”). Nevertheless, we agree with defendants and the trial court that providing paper copies of the requested e mail messages in this case did n ot violate the FOIA.

First, in his April 10, 2013 letter, plaintiff stated that he “preferred that these [requested email messages] be produced in electronic form if possible . . . .” Second, plaintiff did not dispute that the vast majority of the email messages, at the ti me that plaintiff requested them, were not “owned, used, in the possession of, or retained” by th e township. Rather, the vast majority of the email messages were possessed and resided in el ectronic format in seven or more different personal or private bus iness computers or networks. It appears, and plaintiff did not present evidence otherwise, the re simply was no single data bas e of email owned or possessed by the township that could be readily copied and provided to plain tiff. The FOIA “does not require a public body to make a compilation, summary, or report of info rmation,” MCL 15.233(4), or “create a new public record,” MCL 15.233(5), except in circumst ances not present in this case. Third, plaintiff included in his request for copies of records items that were patently exempt, such as matters the township considered in closed session and c ommunications with attorneys. Thus, plaintiff’s FOIA request n ecessitated a review by townshi p officials, and possibly counsel, for the purposes of separation of exempt from nonexempt materia l. MCL 15.244(1). There was

no evidence to rebut an affidav it of the township FOIA coordina tor that such a review could not be conducted regarding the requested email messages that reside d on several different disparate private computers and networks unless the messages were printed on paper.

Finally, plaintiff does not cont est that the township in asses sing a fee for the copies of email messages complied with MCL 15.234(1), which limits a fee for copies to “the actual incremental cost of duplication or publication including labor, the cost of search, examination, review, and the deletion and separation of exempt from nonexemp t information as provided in [MCL 15.244].” Indeed, plaintiff did not produce any evidence to contest the affidavit of the township’s FOIA coordinator that providing paper copies of the email messages was “the most economical means” of complying with plaintiff’s FOIA request. Consequently, we agree with the trial court that plaintiff did not violate MCL 15.234(3) by providing paper copies of the requested email messages.

For all of the foregoing reasons, the trial court properly gra nted defendants summary disposition regarding pla intiff’s FOIA claims.

We affirm. No taxable costs awarded pursuant to MCR 7.219 as this involved a question of public policy.

/s/ Jane E. Markey /s/ Christopher M. Murray /s/ Stephen L. Borrello