Michigan Supreme Court Lansing, Michigan

Robert P. Young, Jr.,
Chief Justice

Michael F. Cavanag h Marilyn Kell y Stephen J. Markma n Diane M. Hathawa y Mary Beth Kell y Brian K. Zahra,

J ustices 

# Order

January 25, 2012

6/December 2011

142841

NANCY ANN PRINS, Plaintiff-Appellee,

v SC: 142841 COA: 293251 Ionia CC: 2009-026799-NZ MICHIGAN STATE POLICE, Defendant-Appellant, and

DAVID FEDEWA, Defendant.

________________ _______________ __________/

On order of the Court, leave to appeal having been granted and the briefs and oral arguments of the parties having been considered by the Court, we VA CATE our order of June 29, 2011. The application for leave to appeal the February 15, 2011 judgment of the Court of Appeals is DENIED, because we ar e no longer persuaded that the questions presented should be revi ewed by this Court.

Y OUNG , C.J. ( dissenting ).

I respectfully dissent from this Court’s or der. MCL 15.240(1) requires a plaintiff suing under the Freedom of Information Act (FOIA), MCL 15.231 et seq., to file her complaint within 180 days of the public body’s “final dete rmination.” Pursuant to MCL 15.235, the complaint must be filed within 180 days of the day on which the notice is

created or within 180 da ys of when the public body fails to respond to the request. In this case, Nancy Prins did not file her complaint w ithin 180 days of the determination by the Michigan State Police (MSP) to deny her re quest for a public reco rd. Accordingly, Prins’s complaint was not timely filed. I wo uld therefore reverse the judgment of the Court of Appeals and reinstate the circu it court’s grant of summary disposition to

defendants.2

On May 4, 2008, Michigan State Police Trooper James Yeager pulled Prins over. The trooper issued Prins’s passenger, Jack Ellio tt, a ticket for not wearing a seat belt. On July 22, 2008, Prins submitted a request to MSP under the FOIA. Prins requested a copy of the video from the traffic stop. On Sa turday July 26, 2008, MSP issued a written notice in response to Prins’s re quest. MSP mistakenly stated in the notice that the video no longer existed. The notice was postmarke d July 29, 2008. On October 28, 2008, Trooper Yeager produced the video from the traffic stop at Elliott’s formal hearing.

Prins filed suit against MSP and M SP Assistant Freedom of Information Coordinator David Fedewa on January 26, 20 09. January 26, 2009, was 184 days after

the date on which MSP denied Prins’s re quest and 181 days after the notice was postmarked. If the statute of limitations appl ies to the date of postmark as the Court of Appeals held, then the last day of the peri od would have been a Sunday. MCR 1.108(1) does not count the last day of the period if it falls on a Sunday. 1 Thus, if the statute of limitations applies to the date of postmark, plaintiff’s compla int was timely. Conversely, if the statute of limitations applies to th e date MSP created the notice, plaintiff’s complaint was untimely.

Defendants moved for summary dispositio n. Defendants argued that Prins’s lawsuit was untimely because Prins filed suit after the applicable period of limitations had expired. The circuit court held that the 180-day limitations period provided in MCL 15.240(1)(b) was triggered by the date the de nial notice was created and had run before the filing of Prins’s complain t. The court accordingly gr anted defendants’ motion for summary disposition. On appeal, the Court of Appeals panel reversed. The Court of Appeals held that Prins’s complaint was timel y because it was filed within 180 days of when the notice of denial was postmarked. The Court of Appeals reasoned that MSP did not “deny” Prins’s request until MSP mailed th e denial on July 29, 2008. The Court of Appeals determined that a public body must “‘send[] out’ or officially circulate[] its denial of a public record request” in orde r to trigger the runnin g of the period of

limitations. 2 We granted MSP’s applic ation for leave to appeal. 3

1 MCR 1.108 provides in pertinent part:

In computing a period of time prescr ibed or allowed by these rules, by court order, or by statute, the following rules apply:

(1) The day of the act, event, or default after which the designated period of time begins to run is not incl uded. The last day of the period is included, unless it is a . . . Sunday . . .; in that event the period runs until the end of the next day that is not a Satu rday, Sunday, legal holiday, or day on which the court is closed pursuant to court order.

2 Prins v Michigan State Police , 291 Mich App 5 86, 591 (2011).

3 Prins v Michigan State Police , 489 Mich 979 (2011).3

The fundamental purpose of statutory interp retation is to ascert ain and give effect to the intent of the Legislature. 4 To achieve this end, a court should consider the plain meaning of a statute’s words and their “pla cement and purpose in the statutory scheme.” 5

The statute at issue here, MCL 15.240( 1), provides in pertinent part:

If a public body makes a final determ ination to deny all or a portion of a request, the requesting person may do 1 of the following at his or her option:

* * *

(b) Commence an action in the circ uit court to compel the public body’s disclosure of the public reco rds within 180 days after a public body’s final determination to deny a request.

MCL 15.240(1)(b) thus allows a person wh ose FOIA request has been denied to

commence an action in circuit court within 180 days after a public body’s “final determination” to deny a request.

The phrase “final determination” is used twice in MCL 15.235. 6 MCL 15.235(3) states that “[f]ailure to respond to a request pursuant to subsection (2) constitutes a public body’s final determination to deny the request.” MCL 15.235( 4) states that “[a] written notice denying a request for a pub lic record in whole or in pa rt is a public body’s final determination to deny the requ est or portion of that request.” Thus, a public body’s failure to respond in complia nce with MCL 15.235( 2) and a public bo dy’s written notice denying a request both constitute a public body’s “final determination.”

4 In re Certified Question , 433 Mich 710, 722 (1989).

5 Sun Valley Foods Co v Ward , 460 Mich 230, 237 (1999) (quotation marks and citation omitted).

6 MCL 15.235 provides in pertinent part:

(2) Unless otherwise agreed to in writing by the person making the request, a public body sha ll respond to a request for a public record within 5 business days after the public bo dy receives the request . . . .
(3) Failure to respond to a re quest pursuant to subsection (2) constitutes a public body’s final determination to deny the request. In a circuit court action to compel a public body’s disclosure of a public record under [MCL 15.240], the circuit court shall assess damages against the public body . . . .
(4) A written notice denying a request for a public record in whole or in part is a public body’s final determination to deny the request or portion of that request. (Emphasis added.)4

In this case, MCL 15.235(3 ) is not applicable for purposes of determining what

constituted MSP’s final determination. MSP re ceived Prins’s request on July 22, 2008. MSP’s written notice denying Pr ins’s request was postmarked on July 29, 2008. Thus, MSP responded within five business days of receiving Prins’s request. Since MSP complied with MCL 15.235(2), MCL 15.235(3) is not relevant for determining the date

of MSP’s final determination.

The “final determination” provision of MCL 15.235(4) is app licable to Prins’s

situation because MSP created a “written no tice denying a request for a public record . . . .” The key question in this case is not whether ther e was a written notice, but when the 180-day period began. MC L 15.240(1) states that suit mu st be filed within 180 days of a public body’s “final determination.” MCL 15.235(4) states th at “[a] written notice denying a request for a public record in wh ole or in part is a public body’s final determination to deny the requ est or portion of that reque st.” Read together, these provisions require a plaintiff to file suit within 180 days of th e public body’s written notice denying a request for a public reco rd. The grammatical structure of MCL 15.235(4) suggests that a public body ma kes a final determination when it creates a written notice denying a request for a public re cord. The subject of the sentence in MCL 15.235(4) is the word “notice.” The word “is” in MCL 15.235(4) is the verb, which indicates a state of being. By stating that a written notice is a public body’s final determination and that a requester must commence suit within 180 days of a final determination, the Legislature intended to li mit requesters to filing within 180 days of

when the notice cam e into existence. 7

The Court of Appeals improperly conflate d the two ways in wh ich a public body

can make a final determinati on for purposes of MCL 15.240(1 )(b). The Court of Appeals

reasoned that the 180-da y period is only triggered when th e public body fulfills all of its statutory duties:

7 This conclusion is limited to situations in which MCL 15.235(3) does not apply. When a public body creates a written no tice denying a request for a public record in whole or in part but fails to issue such a notice “within 5 business days ,” there would effectively be

two final determinations. The written notice would be a final dete rmination under MCL 15.235(4) and the failu re to respond “within 5 busine ss days” would constitute a final determination under MCL 15.235(3). To co mply with MCL 15.240(1)(b), the requestor

would have to file with in 180 days of the crea tion of the written notice or the failure to comply with MCL 15.235(2) because MCL 15.2 40(1)(b) only requires the requester to file suit “within 180 days after a public bo dy’s final determination to deny a request.” However, this is not the situation presente d because MSP responded within 5 business days of receiving Prins’s request.5

These definitions imply that a public body cannot fulfill its statutory obligation to issue a noti ce merely by creating a doc ument denying a record request. Rather, the Legislature intend ed that the public body undertake an affirmative step reasonably calculated to bring the deni al notice to the attention of the requesting party. Thus, a public b ody has not satisfied the statute’s notice requirement until it “sends out” or officially circulates its denial of a public record request. [8]

I agree that a public body does not satisfy its statutory dutie s by merely creating a written notice denying a request for a p ublic record. However, there is no textual support for the Court of Appeals’ conclusion that a public body’s “ful fill[ment of] its statutory obligation” starts the 180-day period. 9 MCL 15.240(1) does not state that a plaintiff must file her complaint within 180 days of th e public body’s fulfillment of its statutory obligations. MCL 15.240(1) states that a comp laint must be filed within 180 days of the public body’s “final determination.” Thus, th e period begins to r un on the day that the

notice is created or when the public body fails to respon d in the manner prescribed by MCL 15.235(2).

The Court of Appeals tried to justify its interpretation of the statute by claiming that its “construction of the FOIA prevents a public body’s inadvertent failure to timely mail a denial letter from unduly shorte ning the 180-day period of limitation.” 10 The Court of Appeals apparently believed that if a public body created a notice and then delayed mailing the letter, potential plaintiffs would lose a significant part of the period in which they could file a suit against that public body. However, the Court of Appeals decision is grounded in an unsubstantiated fear that the appropriate interpretation of the statute will result in a significan t burden to plainti ffs. In short, the Court of Appeals’ interpretation is not necessary to prev ent an undue shortening of the period because MCL 15.235(3) alre ady prevents such a result

.

MCL 15.235(2) requires a public body to respond to a FOIA request within five days of receiving the request. MCL 15.235(3) states that fa ilure to respond to the FOIA request within five days constitutes the public body’s “final determination.” Under MCL 15.240(1), such a “final dete rmination” triggers the plai ntiff’s cause of action and commences the 180-day period. 11 For all practical purposes, the statutory framework

8 Prins , 291 Mich App at 591.

9 Id

.

10 Id

.

11 MCL 15.235(3) also authorizes a circuit court to assess damages against the public body for a failure to comp ly with MCL 15.235(2).I, Corbin R. Davis, Clerk of the Mi chigan Supreme Cour t, certify that the foregoing is a true and complete copy of the order entered at the direction of the Court.

_______________________________________ __ Clerk January 25, 2012

t0118 6

allows, at most, only five da ys to be lost out of the 180 days in which a plaintiff may file a complaint unde r the FOIA.

Examining the worst-case s cenario demonstrates this point. Suppose a public body receives a FOIA request, creates a written notice on the same day, and then does not respond until the fifth business da y after the notice was created. In this situation, the final

determination was made on the day that the notice was create d and the plaintiff loses the five days that the public body held onto the notice. While the plaintiff loses the first five days of the limitations period, th e plaintiff still has nearly six months to file her complaint. Thus, the scheme created by MCL 15.235(2) and MCL 15.235(3) acts as a safeguard to prevent undue shortening of the limitations period w ithout the Court of Appeals’ unsupported construction.

In this case, MSP made its final dete rmination when it created a written notice denying Prins’s request. Such notice was crea ted on July 26, 2008. Since Prins failed to file suit within 180 days of MSP’s final de termination, the circuit court properly granted summary disposition to defendants. Accordingl y, the judgment of the Court of Appeals

should be reversed and su mmary judgment in favor of defendants reinstated.