Michigan Supreme Court Lansing, Michigan

Chief Justice: Justices: Clifford W. Taylor Michael F. Cavanagh Elizabeth A. Weaver Marilyn Kelly 

# Opinion

Maura D. Corrigan Robert P. Young, Jr. Stephen J. Markman

FILED JULY 19, 2006 ANN COBLENTZ, LEE COBLENTZ, JOHN LEWANDOWSKI, and DEBORAH LEWANDOWSKI, Plaintiffs-Appellants,

v No. 127715 CITY OF NOVI, Defendant-Appellee.

BEFORE THE ENTIRE BENCH KELLY, J. This case asks us to determine if the trial court appropriately found requested documents exempt from disclosure under the Freedom of Information Act (FOIA), MCL 15.231 et seq . We address also whet her it was appropriate for defendant to charge fees to plaintiffs for th e work of defendant ’s attorney in retrieving and separating documents plaintiffs sought under the act. This case revolves around an underl ying settlement agreement between defendant and a third party. Plaintiffs filed a FO IA request for documents associated with the agreement. Requested were “site plans” and “global readings”on real property, all exhibits to the agreement, including certain exhibits listed as intentionally deleted, and side agreements or letters related to the agreement. The Court of Appeals affirmed the tria l court’s decision that the requested documents were exempt from disclosure. Coblentz v Novi , 264 Mich App 450; 691 NW2d 22 (2004). We affirm in part and reverse in p art that decision. We conclude that the Court of Appeals appropriately affirmed the grant of summary disposition to defendant on plai ntiffs’ request for “site plans” and “global readings.” But the Court of Appeals erred in affirming summ ary disposition regarding the request for all exhibits to the underlying settlement agreement, including the intentionally deleted exhibits. These exhibits were not exempt from di sclosure and were sufficiently identified in the FOIA request. The Court of Appeals al so erred in affirming summary disposition for defendant on the requested “s ide agreements” to the settlement ag reement. These items were not exempt because defen dant failed to comply with MCL 15.243(1)(f)( iii ). Finally, the Court of Appeals erred in finding appropriate the fees that defendant charged for its attorney ’s work in separati ng documents. The attorney in question was not an employee of defendant. Therefo re, we remand this case to the trial court for entry of a judgment compel ling disclosure consistent with this opinion.
I. R ELEVANT F ACTUAL AND P ROCEDURAL H ISTORY In a separate civil action against defendant, Sandstone Associates Limited Partnership-A (Sandstone) obtained a judgment that totaled tens of millions of

2dollars, including costs, interest, and atto rney fees. Sandstone and defendant then entered into an agreement in which d efendant waived its appellate rights and Sandstone received real property rather th an the money judg ment. The major component of the ag reement called for defendant to turn over 75 “net usable” acres to Sandstone for development. The property had previously been set as ide as parkland. It is adjacent to property owned by plaintiffs. Some of the property carried deed restrictions, including possible recipro cal negative easements. 1 Plaintiffs’ properties contained the same deed restrictions. The settle ment agreement requi red defendant to arrange for the removal of the deed restricti ons on its property and on plaintiffs’ property. It was agreed that, if defe ndant failed, it wo uld convey additional property to Sandstone. In an effort to remove the restr ictions, defendant contacted plaintiffs.

1 This Court has provid ed the following defin ition and example of a reciprocal negative easement: There must have been a common owner of the related parcels of land, and in his various grants of the lots he must have included some restriction, either affirmative or negative, for the benefit of the land retained, evidencing a scheme or intent that the entire tract should be similarly tr eated. Once the plan is effectively put into operation, the burden he has placed upon the land conveyed is by operation of law reciprocally placed upon the land retained. In this way those who have purchased in reliance upon this particular restriction will be assured that the plan will be completely achieved. [ Lanski v Montealegre , 361 Mich 44, 47; 104 NW2d 772 (1960) (emphasis in original).]

3Plaintiffs retained counsel who f iled a FOIA request with defendant, seeking:
1. All exhibits, includ ing but not limited to exhibits G, T, U, V, W, AA, BB, GG, MM, NN, PP, for the Agreement for Entry of Consent Judgment dated June 25, 2002 between Sa ndstone and the City of Novi; 2. Any and all site plans for Sandstone regarding the 75 dedicated acres; and . . . . Defendant’s attorney responded to these requests by writing:
1. Exhibits G, T, U, V, W, AA, BB, GG, MM, NN, PP: I have advised you by phon e and letter that there are no such exhibits. The reference in the index, indicati ng that they were intentionally deleted, is merely to clarify for th e reader that such exhibits have not been lost or detached from the Agreement. These exhibits do not exist, and never existed. 2. Site Plan: I have also ad vised you by phone and letter that a site plan or concept plan for the 75 acres does not exist. It has never existed. I do not know how [to] provide any further explanation. Plaintiffs then informa lly requested all side ag reements to the Sandstone settlement agreement and the “global readings.” Defendant’s attorney responded that he did not know what “global” meant. With regard to the side agreements, he stated that he assumed that this meant the “side letters” to the Sandstone agreement. He indicated that he was a ttempting to learn from Sandstone’s counsel which of the side letters were submitted w ith an understanding of confidentiality. Plaintiffs next filed a second FOIA request. Among the items sought were:
1. Any and all side agreements entered into be tween the City of Novi and Sandstone and/or its attorneys or representatives;

42. Global readings on “ex tra land”; global positioning satellite (GPS) readings on “extra land”; 3. Settlement agreements, releases, copies of drafts in settlement of the insu rance cases relating to this property[.] After plaintiffs’ second FOIA request , defendant began to negotiate with Sandstone for release of the side agreements. Sandstone initially stated that none could be released, but later agreed to releas e five of the seven side letters. In response to this FOIA request, defenda nt told plaintiffs that global or GPS readings did not exist. It also refused to releas e the two remaining side agreements, stating: The request is denied with regard to two documents representing commercial and/or fi nancial information voluntarily submitted to the City of Novi for use in developing governmental policy . . . as contemplated and required under MCL 15.243(g) [sic, (1)(f)]. Plaintiffs filed a complaint in the circuit court seeking production of all intentionally deleted exhibits . Plaintiffs claimed that they had located one of the exhibits, exhibit AA, despite the fact that defenda nt contended that it never existed. They also asked the court to order production of gl obal readings, site plans, and all side agreements. Defendant filed a motion for summary disposition befo re the close of discovery. Attached was an affidavit from its mayor, Richard Clark. Clark stated that, as of the date of the affidavit, Sa ndstone had su bmitted no site plans for the 75 acres. He also affirmed that no “gl obal readings” or GPS readings existed in

5connection with the Sandstone settlement agreement. Plai ntiffs responded, but did not attach any documentary evid ence rebutting Clark’s affidavit. The court granted defendant’s motion in part. Regarding the site plans and global readings, it found, on the basis of Cl ark’s affidavit, that none existed. It concluded that further depos itions of other city offici als on the topic would be duplicative. The circuit court denied d efendant’s request for summary disposition on the fee issue pending further hearing s. It also deferred ruling on the side agreements until it could make an in camera review. With respect to the intentionally deleted exhi bits, it found them irrel evant and granted summary disposition for defendant. Following its review of the side agreem ents that defendant claimed were exempt, the court found that defendant pr operly complied with the requirements of MCL 15.243(1)(f). The side letters, it found, fell with in the governmental policy exemption of FOIA because they helped to facilitate the Sandstone agreement. Thus, it granted summary disposition to defendant. The trial court then turned to the appropriateness of the fees for its attorney that defendant charged to plaintiffs. Defendant co ntended that the fees were appropriate because de fendant’s attorney was the lo west paid employee who could separate the exempt side letters from th e nonexempt letters. The court granted summary disposition to defendant on this i ssue. It found that the attorney was defendant’s employee and concluded that the fees were appropriate under MCL 15.234. In the same order, the court denied plainti ffs’ motion for reconsideration.

6On plaintiffs’ appeal, the Court of Appeals concluded that it was not appropriate for the lower court to gr ant summary dispos ition concerning the intentionally deleted exhib its on the basis of relev ance. But it affirmed the decision on alternative grounds, concluding that the intentionally deleted exhibits were not part of the final se ttlement agreement. It base d its conclusion on the fact that these exhibits were listed in th e agreement with the words “INTENTIONAL DELETION” written next to them. Coblentz , 264 Mich App 453-454. Regarding the global readings and site plans, the Court of Appeals found that summary disposition was appropriate because of Clark’s affidavit and plaintiffs’ failure to offer factua l support for their existence. It al so concluded that summary disposition wa s appropriate despite the fact that discovery had not been concluded. The Court opined that it wa s unlikely that further discovery would provide the factual support necessary. Id . at 454-457. It found that the two side agreem ents were exempt from disclosure. Specifically, it concluded that defendant adequately comp lied with FOIA’s requirement that it place a description of th e exempt material in a central location within a reasonable time. This is despite the fact that defendant did not file the description until after plaintiffs had ma de their FOIA requests and until five months after Sandstone had submitted th e documents. The Court of Appeals found this reasonable because negotiations had continue d between defendant and Sandstone over the de ed restrictions. Id . at 458-459.

7Finally, the Court of Appeals found the fees charged fo r the work of defendant’s attorney appropri ate. It concluded that de fendant’s attorney met the dictionary definition of an employee. And it found that he was the lowest paid employee who could handle the FOIA request. Id . at 460-461. Plaintiffs sought, and we subsequently granted, leav e to appeal. 474 Mich 886 (2005).
II. S TANDARD OF R EVIEW We review questions of statutory int erpretation and the proper application of statutes using a de novo standard. Adams Outdoor Advertisin g, Inc v City of Holland , 463 Mich 675, 681; 625 NW2d 377 (2001). We review rulings on motions for summary disposition using the de novo standard as well. Spiek v Dep’t of Transportation , 456 Mich 331, 337; 572 NW 2d 201 (1998). Summary disposition was granted h ere under MCR 2.116(C)(10). 2 In reviewing a ruling made under this court rule, a court tests the factual support by reviewing the documentary evidence subm itted by the parties. Spiek , 456 Mich 337. We review the evidence and all legitimate inferences in the light most favorable to the

2 MCR 2.116(C)(10) provides: Grounds. The motion may be based on one or more of these grounds, and must specify the grounds on which it is based: * * * (10) Except as to the amount of damages, there is no genuine issue as to any material fact, and the moving party is entitled to judgment or partial judgment as a matter of law.

8nonmoving party. Wilkinson v Lee , 463 Mich 388, 391; 617 NW2d 305 (2000). “Where the proffered evidence fails to establish a ge nuine issue regarding any material fact, the moving p arty is entitled to judgment as a matter of law.” Maiden v Rozwood , 461 Mich 109, 120; 597 NW2d 817 (1999). The standard of review for FOIA cases was clari fied this term in Herald Co, Inc v Eastern Michig an Univ Bd of Regents , ___ Mich ___; ___ NW2d ___ (Docket No. 128263, decided July 19, 2006). The Court stated: We continue to hold that the cl ear error standard of review is appropriate where the parties challenge the factual findings of the trial court. However, where the p arties do not dispute the underlying facts but rather challenge the trial c ourt’s exercise of discretion, we hold that an appellate court must review that determination for an abuse of discretion, which this C ourt now defines as a determination that is outside the principl ed range of outcomes. [ Id ., slip op at 2-3 (emphasis in original).] The determination whether a description of material cl aimed to be exempt under MCL 15.243(1)(f) was recorded in a central location with in a reasonable time after submission is a discretionary one. Th erefore, the trial cour t’s decision on the defendant’s compliance with the requirements of MCL 15.243(1)(f)( iii ) is reviewed for an abuse of discretion.
III. S ITE P LANS AND G LOBAL R EADINGS In response to plaintiffs’ request for site plans and global readings, defendant provided Clark’s affidavit claiming that the doc uments did not exist. If a record does not exist, it can not be produced. Given that defen dant denied the existence of the records and that it pr ovided supporting docu mentation for its

9position, the burden shifted to plaintiffs to produ ce documentation to counter defendant’s affidavit. MCR 2.116(G)(4) provides: A motion under subrule (C)(10) must specifically identify the issues as to which the moving party believes there is no genuine issue as to any material fact. Wh en a motion under subrule (C)(10) is made and supported as provided in this rule, an adverse party may not rest upon the mere allegations or denials of his or her pleading, but must, by affidavits or as otherwis e provided in this rule, set forth specific facts showing that there is a genuine issue for trial. If the adverse party does not so respond, ju dgment, if appropriate, shall be entered against him or her. Under this court rule, a plai ntiff cannot rest solely on its complaint. Affidavits, pleadings, depositions, admissions, or other documentary evidence must be offered to survive summ ary disposition. See Smith v Globe Life Ins Co , 460 Mich 446, 454; 597 NW2d 28 (1999). In this case, plaintiffs faile d to provide such documentary evidence. Regarding the global readi ngs, plaintiffs admit th at they are unsure what they were seeking. They ba se their request on a handwr itten note contained in one of the drafts of the Sandst one agreement. The note is in the margin and merely states “global.” Plaintiffs concede that they were guessing at the meaning of the word. Plaintiffs offer no documentary evidence showing that their guess was well-founded. Therefore, the trial court properly granted summ ary disposition. MCR 2.116(G)(4). The site plans present a similar situ ation. While everyone agrees that, eventually, site plans for the developm ent must be filed with defendant, the

10question is whether they had been filed at the time of plaintiffs’ FOIA request. Again, defendant provided Cl ark’s affidavit to support its contention that site plans had not been filed with the city, and plai ntiffs offered nothing to contradict this point. They did not even demonstrate that a local ordinance required Sandstone to file a site plan by the date of the FOIA request. 3 Without factual support to contradict Clark’s affidavit, the trial c ourt properly granted summary disposition pursuant to MCR 2.116(C)(10). Plaintiffs complain th at summary disposition was premature because discovery had not been comp leted. They assert that they were unable to depose defendant’s employees, incl uding Clark, to obtain the information necessary to counter defendant’s summary disposition mo tion. Such situations are controlled by MCR 2.116(H), which provides: Affidavits Unavailable. (1) A party may show by affidavit that the facts necessary to support the party’s position cannot be presented because the facts are known only to p ersons whose affidavits the party cannot procure. The affidavit must (a) name these persons and st ate why their testimony cannot be procured, and (b) state the nature of the prob able testimony of these persons and the reason for the party’s belief that these persons would testify to those facts.

3 Photographs suggested that Sandst one removed trees an d graded the 75 acres at some point. But this is not evid ence that defendant had site plans in its possession at the time of the FOIA request. Plaintiffs point to nothing to show that site plans were legally required to be f iled before this activity could occur.

11(2) When this kind of affidavit is filed, the court may enter an appropriate order, including an order (a) denying the motion, or (b) allowing additional time to permit the affidavit to be supported by further affidavits, or by depositions, answers to interrogatories, or other discovery. In this case, plaintiffs did not comp ly with MCR 2.116(H). They did not offer the required affidavits of probable testimony to support their contentions. Therefore, they cannot comp lain that discovery wa s prematurely ended. Given that plaintiffs did not counter defendant’s documen tary evidence as required by MCR 2.116(G)(4) or MCR 2. 116(H), the trial court appropriately granted summary disposition to d efendant under MCR 2.116(C)(10). Accordingly, we affirm the Court of App eals decision with reg ard to plaintiffs’ request for global readings and site plans.
IV. T HE I NTENTIONALLY D ELETED E XHIBITS In the final draft of the Sandstone agreement, the table of contents listed and lettered the exhibits. Next to some of the letters, the words “INTENTIONAL DELETION” were inserted. In their FOIA request, plainti ffs asked for all exhibits to the Sandstone agreement, including the intentionally deleted exhibits. Defendant argues that the FO IA request was not sufficien tly clear. Much of this argument is based on defen dant’s contention that there was only one final agreement and that plaintiffs requested the exhibits to that final agreement. MCL 15.233(1) states , in relevant part:

12Except as expressly provided in section 13 [exemptions from disclosure], upon providing a public body’s FOIA coordinator with a written request that describes a public r ecord sufficiently to enable the public body to find the public record , a person has a right to inspect, copy, or receive copies of the requested public record of the public body. [Emphasis added.] Defendant never claimed, and still does not claim, that it does not know what plaintiffs seek. But, focusing on its view of what constituted the final agreement, it concludes that the requested exhibits either do not exist or that defendant is not required to produce them. It claims th at only the final agreement is discoverable and that the requested exhibits were not part of it. Even if the exhibits were not part of the final settlement agreement, defendant had to disclose them. The FO IA request sufficiently identified them. MCL 15.233(1). Defendant does not conte nd that it did not kn ow what documents plaintiffs were requesting. Because plain tiffs’ description was sufficient to enable defendant to identify the documents, MCL 15.233(1) required defendant to produce them regardless of wh ether they were part of the final agreement. Defendant’s restrictive read ing of the FOIA request is not consistent with the language of the act. MC L 15.233(1). All that a request must accomplish is to describe the record “sufficien tly” to enable the public bo dy to identify it. Because defendant acknowledges that the FOIA request did th at much, the request was adequate. The Legislature chose not to requi re an exacting standard in MCL 15.233(1). It could have required a “written request that describes a public record

13precisely or fully.” But, in stead, the Legislature chose to use the lesser standard of “sufficiently.” The words chosen by the Legislature are presumed intentional. We will not speculate that it used one word when it m eant another. Detroit v Redford Twp , 253 Mich 453, 456; 235 NW 217 (1931). Moreover, requiring only a description sufficient to permit identification of the requested items is consistent with the goals and intent of the Legislature in enacting FOIA. It is a prodisclosure act. Swickard v Wayne Co Medical
Examiner , 438 Mich 536, 544; 475 NW2d 304 (1991). All public records are subject to full disclosure un less they are clearly exempt. Id . If a request is “sufficient” to allow the public body to find a nonexempt reco rd, the record must be disclosed. MCL 15.233(1). Plaintiffs’ request satisfies this re quirement. It specifically listed the intentionally deleted exhibits by letter, G, T, U, V, W, AA, BB, GG, MM, NN, and PP. Defendant’s respons e demonstrates that plaintiffs’ description was adequate because it also lis ted these exhibits by letter. It is irrelevant that defendant believed these exhibi ts not to be part of the final agreement. Plaintiffs’ request provided defendant enough in formation for it to understand what documents plaintiffs wished to review. A FOIA request must be fulfilled un less MCL 15.243 lists an applicable specific exemption. MCL 15.233(1). Defendant points to no exemption applicable to the intentionally deleted ex hibits. Therefore, the trial court erred in granting summary disposition to defendant , and the Court of Appeals erred in

14affirming that decision. MC L 15.233(1) required the tria l court to order defendant to turn over the intentionally deleted exhibits.
V. T HE S IDE A GREEMENTS OR S IDE L ETTERS

A

. T HE S IDE L ETTERS ARE NOT E XEMPT FROM D ISCLOSURE The trial court and the Court of App eals found two of the side letters exempt from disclosure pursuant to MCL 15.243(1)(f). That provision reads: A public body may exempt from disclosure as a public record under this act any of the following: * * * (f) Trade secrets or commercia l or financial information voluntarily provided to an ag ency for use in developing governmental policy if: ( i ) The information is subm itted upon a promise of confidentiality by th e public body. ( ii ) The promise of confidentiality is authorized by the chief administrative officer of th e public body or by an elected official at the time the promise is made. ( iii ) A description of the information is recorded by the public body within a reasonable time after it has been submitted, maintained in a central place with in the public body, and made available to a person up on request. This subdivision does not apply to information submitted as requi red by law or as a condition of receiving a governmental contract, license, or other benefit. Because FOIA is a prodisclosure act, 4 the public agency bears the burden of proving that an exemption applies. MCL 15.240(4). In this case, defendant did

4 Swickard , 438 Mich 544.

15not carry that burden. Because it faile d to meet the requirements of MCL 15.243(1)(f)( iii ), the side letters were not exempt.

B

. D EFENDANT O FFERED N O L EGAL J USTIFICATION FOR THE D ELAY IN T HIS C ASE We hold that the trial court abused its discretion in finding that defendant recorded a description of th e side letters within a reas onable time aft er they were submitted to defendant. The proffered reas on for the delay, ongoing negotiations between defendant and Sandst one to secure the public release of the letters, is a consideration irrelevant to the recording requirements of MCL 15.243(1)(f)( iii ). MCL 15.243(1)(f)( iii ) requires a public body to record a description of material claimed to be exempt within a reasonable time after its submission to the body. If it fails to co mply with this requi rement, the material is not exempt. MCL 15.243(1)(f). Whether the time the public body ta kes to record a de scription of the material is reasonable is measured from the da te the material is su bmitted. It is not measured from the date the parties de signate it as confidential. Because reasonableness is a discretionary determinat ion, we review the trial court’s finding for an abuse of discretion. A court abuses its discretion if its determination falls beyond the principled range of outcomes. Herald , ___ Mich ___, slip op at 3. In this case, the side letters were se nt to defendant between June and July 2002. Defendant di d not record a description of them until November 26, 2002, several weeks after plaintiffs’ November 1, 2002, FOIA reque st. The question, then, is whether the trial court abused its discretion when it found that this four- to

16five-month interval was reasonable. Defendant argues that the delay was reasonable because, in the intervening months, defen dant negotiated with Sandstone to determine which of the seven side letters it could publicly release. Defendant contends that, had it immediatel y recorded a description of the letters and asserted a FOIA exem ption, Sandstone would ha ve been discouraged from authorizing the letters’ public disclosure later. It argues that negotiations with Sandstone to disclose the letters would have been rendered futile. We reject the argument that defendant’s negotiations with Sandstone made the delay reasonable and hold that the tr ial court abused its discretion when it found that defendant comp lied with MCL 15.243(1)(f)( iii ). Defendant’s proffered reason cannot justify any delay in meeting the filing requirement. However inconvenient the recording requirement may have b een to defendant and Sandstone, defendant was still required to comply with the provisions of MCL 15.243(1)(f). This exempti on is intended to pr ovide notice to the public that a public body possesses trade secrets, co mmercial information, or financial information submitted to it for use in developing govern mental policy. MCL 15.243(1)(f)( iii ) describes how those documents must be made available for public inspection. Only by the fortuity of plaintiffs’ ongoing negotiations with defendant regarding the removal of deed restrictions from plaintiffs’ property did plai ntiffs become aware of the side letters. Otherwise, plaintiffs would never have known or suspected that th ey existed. Defendant’s

17rationale fails to explain how a requesting party could seek disclosure of a document of which it was unaware. Were we to accept defendant’s rationa le, a public body could knowingly possess such confidential information for extended periods without providing any notice to the public that the information exists. This would defeat the purpose of the recording requirements expressed clearly in MC L 15.243(1)(f). Therefore, whether defendant could la ter secure Sandstone’s perm ission to release the side letters is a consideration not legally relevant to its stat utory obligation to record a description of the letters. It cannot be interpreted as a ba sis for finding that defendant filed a descripti on within a “reasonable time.” Justice Corrigan’s dissent argues th at the unique facts of this case warranted the lengthy delay and that the tr ial court’s discretionary determination fell within the principled ra nge of outcomes. It misses the point that defendant’s justification for the delay is legally i rrelevant. Defendant bears the burden of qualifying the side letters as exem pt under MCL 15.243( 1)(f). Therefore, defendant must prove that the four- to five-month delay in recording was a “reasonable time.” It is true, as Justice Corrigan contends, th at the permissible time period for filing can vary . However, we do not n eed to pinpoint a general rule concerning what length of time would have been reasonable in this appeal because no valid reason was offered for the delay. We conclude simply that defendant’s justification for the four- to five-month delay is le gally irrelevant in view of the notice requirements set forth in MCL 15.243(1)(f)( iii ). Therefore, the

18trial court’s finding that this interval was reasonable falls beyond the principled range of outcomes. Accordingly, we hold that the trial court abused its discretion in finding that the delay was reasonable. Because d efendant failed to comply with MCL 15.243(1)(f)( iii ), the side letters are not exempt. 5
VI. T HE A VAILABILITY OF F EES FOR THE W ORK OF D EFENDANT ’ S A TTORNEY The lower courts erred in allowing defendant to char ge plaintiffs for the work of defendant’s attorn ey in locating the two allegedly exempt letters and separating them from the nonexempt materi al. MCL 15.234(1) provides, in part: A public body may charge a fee for a public record search, the necessary copying of a public record for inspection, or for providing a copy of a public record . Subject to subsections (3) and (4), the fee shall be li mited to actual mailing costs, and to the actual incremental cost of duplication or publication including labor, the cost of search, examination, revie w, and the deletion and separation of exempt from nonexempt information as provided in section 14. MCL 15.234(3) describes how the public body may calculate the cost of producing FOIA documents. It provides, in part: In calculating the cost of labor incurred in duplication and mailing and the cost of examination, review, separation, and deletion under subsection (1), a public body may not charge more than the hourly wage of the lowest paid public body employee capable of retrieving the informati on necessary to comply with a request under this act.

5 We note that plaintiffs raised cha llenges in this case under the other two sections of this exem ption, MCL 15.243(1)(f)( i ) and ( ii ). Because defendant failed to comply with MCL 15.243(1)(f)( iii ), we need not reach t hose claims. Therefore, we take no position on Justice Corrigan’ s discussion of “governmental policy.”

19Pursuant to this statute, the public body may charge the rate of the lowest paid public body employee capable of retrieving the in formation. While the lower courts attempted to apply the language of the statute, they failed to distinguish between an employee and an independent contractor. MCL 15.2 34(3) allows the public body to charg e for an employee’s actions; it does not mentio n independent contractors. Therefore, to properly determine whether charges are appropriate, a court must resolve wheth er the person who examined the records is an employee or an independent contractor. Although we have applie d the economic realities test most often in the workers’ compensation field, we conclude that it is instructive h ere. The test is a useful tool for discerning whether an em ployee-employer relationship exists. See Clark v United Technologies Automotive Inc , 459 Mich 681, 687; 594 NW2d 447 (1999). The test includes but is not limited to the following factors: “First, what liability, if any, does the employer incur in the event of the termination of the relationship at will? “Second, is the work being performed an in tegral part of the employer's business whic h contributes to the accomplishment of a common objective? “Third, is the position or job of such a nature that the employee primarily depends upon th e emolument for payment of his living expenses? “Fourth, does the employee fu rnish his own equipment and materials? “Fifth, does the individual seeking employment hold himself out to the public as one ready and able to perform tasks of a given nature?

20“Sixth, is the work or th e undertaking in question customarily performed by an individual as an independent contractor? “Seventh, control, although abandoned as an exclusive criterion upon which the relationshi p can be determin ed, is a factor to be considered alon g with payment of wages, maintenance of discipline and the right to e ngage or discharge employees. “Eighth, weight should be gi ven to those factors which will most favorably effectuate the obj ectives of the statute.” [ Hoste v Shanty Creek Mgt , Inc , 459 Mich 561, 568 n 6; 592 NW2d 360 (1999), quoting McKissic v Bodine , 42 Mich App 203, 208-209; 201 NW2d 333 (1972); see also Askew v Macomber , 398 Mich 212, 217

- 218; 247 NW2d 288 (1976), and Schulte v American Box Board Co , 358 Mich 21, 32-32; 99 NW2d 367 (1959) (Smith, J., concurring).] No single factor is controlling when applying the test. Clark, 459 Mich 689. In this case, defendant’s attorney did not receive a pa ycheck or other employee benefits from defendant. The record reflects that the attorney was employed by a law firm that defendant ret ained as city attorn ey. The attorney acted as the lead attorney for the firm in th at capacity. His social security and other employment ben efits were paid by his law firm . Defendant did not directly pay the attorney for his services. Rather, defendant paid the law firm, which, in turn, paid the attorney. The law firm provided the material and equipment necessary for the attorney to perform services for defendant. The atto rney did not wo rk exclusively for defendant, but acted as the attorney for other municipalities as well. There was no indication that the attorney was at all dependent on defen dant for his living expenses. It appears that the attorney ’s law firm maintained control over the

21attorney. Finally, defendant had no liability for the attorney in th e event that his association with defend ant was terminated This is the classic example of an i ndependent contractor. The attorney was the employee of the law firm. He an d the law firm acted as independent contractors for defendant. Because MCL 15.234(3) does not me ntion independent contractors, defendant was not entitled to charge for the attorney’s wo rk. FOIA allows public bodies to charge a requesting party only for employees’ labor. MCL 15.234(3). Beca use the attorney who examined and separated the side letters was not defenda nt’s employee, the lo wer courts erred in allowing defendant to charge plaintiffs under MCL 15.234(3) for the attorney’s work.
VII. C ONCLUSION We affirm the part of the Court of App eals decision that he ld that defendant was not required by FOIA to produce documents regardi ng global readings and site plans. Plaintiffs did not, as required by MCR 2. 116(G)(4), counter defendant’s affidavit, and th ey did not demonstrate, pu rsuant to MCR 2.116(H), that further discovery would disclose such do cuments. Therefore, the trial court properly granted summary disposition to defendant on this issue. We reverse the part of the Court of Appeals decisi on regarding the intentionally deleted exhib its. Plaintiffs’ request pr ovided defenda nt sufficient information for defenda nt to know which documents pl aintiffs wished to review.

22Because no exemption from disclosure applied, MCL 15 .233(1) required the trial court to order defendant to turn ov er the intentionally deleted exhibits. We also reverse the part of the Cour t of Appeals decision regarding the two side letters that defendant claimed were ex empt. Defendant failed to comply with MCL 15.243(1)(f)( iii ). It did not place a descripti on of the material in a central location within a reasonable tim e of submission. This fa ilure eliminates the side letters from being exempt. Finally, we reverse the part of the d ecision affirming the allowance of fees for the work of defendant’s attorney. The attorney wa s an independent contractor. The lower courts erred in fa iling to note the legal dist inction between employees and indepe ndent contractors. MC L 15.234(3) allows recovery for the costs associated only with employees. We remand this case to the trial cour t for entry of a judgment compelling disclosure consistent with this opinion. Marilyn Kelly Clifford W. Taylor Elizabeth A. Weaver Robert P. Young, Jr. Stephen J. Markman

23v S T A T E O F M I C H I G A N SUPREME COURT

ANN COBLENTZ, LEE COBLENTZ, JOHN LEWANDOWSKI, and DEBORAH LEWANDOWKSI, Plaintiffs-Appellants,
No. 127715 CITY OF NOVI, Defendant-Appellee.

CAVANAGH, J. ( concurring in part and dissenting in part ). I concur with all parts of the major ity opinion except fo r parts II and VI. While I agree with the result reached by the majority in part VI—that plaintiffs should not have to pay d efendant the requested fee—I be lieve the reason is simply that the failure to charge a fee for searching, examining, and reviewing the side agreements would not result in an unreasonably high co st to defendant. MCL 15.234(3) states, in relevant part: A fee shall not be charged for th e cost of search, examination, review, and the deletion and sep aration of exempt from nonexempt information as provided in sectio n 14 unless failure to charge a fee would result in unreasonabl y high costs to the public body because of the nature of the request in the particular instance, and the public body specifically iden tifies the nature of th ese unreasonably high costs. Defendant charged $150 fo r the city attorney to search, examine, and review materials for the requested side ag reements. But the nature of the requestfor the side agreements was a routine request under th e Freedom of Information Act, MCL 15.231 et seq ., and complying with the reque st would not result in an unreasonably high cost to defendant. Therefore, there was nothing about the nature of the request in this particular instance to warrant ch arging a fee to cover defendant’s costs. Accordi ngly, I concur with all part s of the majority opinion, except for part II and p art VI; with regard to part VI, I concur only w ith the result. Michael F. Cavanagh

2v S T A T E O F M I C H I G A N SUPREME COURT

ANN COBLENTZ, LEE COBLENTZ, JOHN LEWANDOWSKI, and DEBORAH LEWANDOWSKI, Plaintiff-Appellants,
No. 127715 CITY OF NOVI, Defendant-Appellee.

CORRIGAN, J. ( concurring in part and dissenting in part ). I concur with the majority in all respects but one. I dissent from its holding that the Court of Appeals erred in affirm ing summary dispositi on for defendant on plaintiffs’ request for the “side letters” to the settlement agreement. I believe that the letters were properly rule d exempt from disclosure under the “trade secrets or commercial or financial information” ex emption of the Freedom of Information Act (FOIA), MCL 15.243(1)(f). The trial court did not abuse its discretion in holding that defendant recorded a descri ption of the side letters within a reasonable time after they were submitted. Nor did the trial c ourt err in holding that defendant satisfied the remaining requiremen ts of the exemption.I. Facts and Procedural History Sandstone Associates Limited Partners hip-A (Sandstone) sent the two “side letters” at issue to d efendant on June 25, 20 02, and July 23, 2002. 1 When plaintiffs first informally requested the side letters on October 16, 2002, defendant’s attorney resp onded on October 21, 2002, by saying that he was waiting for advice from Sandstone’s lawyer s regarding whether to disclose the side letters because some of them “w ere submitted with an understanding of confidentiality.” Plaintiffs filed a formal FOIA request for the side letters on November 1, 2002, asking d efendant to disclose “[a]ny and all side agreements entered into between the City of Novi and Sandsto ne and/or its attorneys or representatives[.]” On November 26, 2002, after negotiating with Sandstone, defendant produced five side letters, but denied plaintiffs’ request in regard to two documents representing commercial and/or financial information voluntarily submitted to the City of Novi for use in developing governmental policy in connection with the settlement of Oakland County Circuit Court litigation entitled [ Sandstone Associates Limited Partne rship-A v City of Novi , Oakland Circuit Court Docket No. 95-5 01532-CK], as contem plated and required under MCL 15.243[(1)(f)]. On the same day, defendant record ed and filed with the city clerk descriptions of the two side letters that it had refused to disclose. Both of these

1 Defendant and Sandst one entered their agreem ent settling Sandstone’s multimillion dollar judgment against defenda nt on June 25, 2002. Sandstone dated and sent the first draft of the first side letter to defendant ’s attorney on the same day. Sandstone sent a revised versio n of this letter, along with the other side letter at issue, to defendant on July 23, 2002.

4side letters had been writte n by Sandstone and sent to defendant’s attorney and marked as confidential. In one letter, Sandstone named the pr ices it would pay to purchase plaintiffs’ (and others’) propertie s, assuming that the properties were free from deed restrictions (Letter 1). In th e other letter, Sandst one identified which parcels of property (including plaintiffs’) have deed restrictions that give their owners the enforceable right to prohibit commercial use (Letter 2). Following an in camera rev iew of the two side le tters and two affidavits submitted by defendant, the tr ial court determined that the letters were exempt from disclosure under the “trade secrets or commercial or financ ial information” exemption of the FOIA: The court is satisfied that Defen dant complied with each of the three listed requirements of MCL 15.243(1)(f) and thus disclosure of the two side letters wo uld be inappropriate. The court finds that the two letters contain financial or commercial information of Sandstone’s voluntarily provided to Defendant by Sandstone in confidence. Further, the letters fall within the policy-making potential contemplated by the Legisl ature in drafting this exemption to the FOIA. They were intended to fac ilitate the Settlement Agreement and Consent Judgment an d assist Defendant in making the policy decisions with regard to that settlement. The court finds that the content of the letters rela tes to Defendant’s deliberations on the selection of the best gov ernment policy for the potential expenditure of substantial sums of money and the retention of land for public use. The Court of Appeals affirmed, holding that defendant had satisfied all the requirements of the exemption.

5II. Analysis I cannot conclude that the lower courts erred in holding that the two side letters are exempt from disclosure und er the “trade secrets or commercial or financial information” exemption. When reviewing the application of an FOIA exemption, an appellate c ourt reviews legal determin ations de novo, factual findings for clear error, and discretionary determinations for an abuse of discretion. Herald Co, Inc v Eastern Mich igan Univ Bd of Regents , ___ Mich ___, ___; ___ NW2d ___ (Docket No. 128263, deci ded July 19, 2006), slip op at 6-8. The “trade secrets or commercial or financ ial information” ex emption provides: (1) A public body may exempt from disclosure as a public record under this act a ny of the following: * * * (f) Trade secrets or commercial or financial information voluntarily provided to an agency for use in developing governmental policy if: ( i ) The information is submitted upon a promise of confidentiality by the public body. ( ii ) The promise of confidentiality is authorized by the chief administrative officer of the public body or by an elected official at the time the promise is made. ( iii ) A description of the informati on is recorded by the public body within a reasonable time after it has been submitted, maintained in a central place with in the public body, and made available to a person up on request. This subdivision does not apply to information submitted as requi red by law or as a condition of receiving a governmental contract, li cense, or other benefit. [MCL 15.243(1)(f) (empha sis added).]

6The burden is on th e public body to demo nstrate that the reco rd is exempt from disclosure. MCL 15.240(4); Federated Publications, Inc v City of Lansing , 467 Mich 98, 108; 649 NW2d 383 (2002).
A. “A description of the informa tion is recorded by the public body within a reasonable time” What constitutes a “reasonable time” is a discretionary determination, as this Court described in Federated Publications, Inc, supra at 106-107. Thus, the trial court’s determination is subject to review for an abuse of discretion. Herald Co, supra , slip op at 6-8. This Court “canno t disturb the trial court’s decision unless it falls outside the principled range of outcomes.” Id. at 8. The trial court’s decision that defendant recorded a descri ption of the side letters within a reasonable time after their submissi on to defendant, MCL 15.243(1)(f)( iii ), did fall within the principled range of outcomes. Even after defendant a nd Sandstone agreed to settle Sandstone’s multimillion dollar judgment against defendant, they continued to negotiate questions regarding deed restrictions on th e subject property. Sandstone believed that certain of the seven side letters (inc luding the two letters at issue) had been submitted upon defendant’s promise of confidentiality and hence were exempt from disclosure under the FOIA. While defendant agreed that some of the letters had been submitted upon a promise of c onfidentiality, it kept open the possibility that the letters might not be exempt und er the FOIA. Defendant thus negotiated with Sandstone to determine which of th e letters might be voluntarily disclosed

7under the FOIA. These negotiations con tinued until Sandstone eventually agreed to disclose five of the seven letters on November 26, 2002, the same day that defendant recorded the descriptions and f iled them with the city clerk. Defendant did not know whether it was going to ass ert an FOIA exemp tion regarding these side letters until its negotiations with Sa ndstone ended. If d efendant had recorded the information contained in all of these letters and asserted the “trade secrets or commercial or financial information” ex emption earlier than it did, Sandstone might not have agreed to disc lose five of the letters. The majority’s holding th at defendant’s delay in recording descriptions of the side letters was unreasonable is inconsis tent the statutory la nguage. By using the phrase “ reasonable time,” the Legislature made cl ear that the permissible time period can vary. MCL 15.243(1)(f)( iii ) does not define what constitutes a “reasonable time.” But this Court has d efined “reasonable time” as follows: “By reasonable time is to be unders tood such promptitude as th e situation of the parties and the circumstances of the case will allo w. It never means an indulgence in unnecessary delay . . . .” Maley-Thompson & Moffett Co v Thomas Forman Co , 179 Mich 548, 555; 146 NW 95 (1914). Yet the majo rity disregards the word “reasonable” in the statute by holding that the circums tances surrounding defendant’s recording of th e descriptions, including the negotiations between defendant and Sandston e, are “irrelevant,” ante at 16, and by concluding that the delay was unreasonable because, despite the circumstances, “defendant was still required to comply w ith the provisions of MCL 15.243(1)(f),” ante at 17. The

8majority holds that defendant was required to record descri ptions earlier than it did “[h]owever inconvenient the recording requirement may ha ve been to defendant and Sandstone,” ante at 17, and despite “whether de fendant could later secure Sandstone’s permission to release the side letters,” ante at 18. In so holding, the majority consciously shifts the focus aw ay from whether defen dant’s actions were reasonable in this case . To say, as the majority does, that the negotiations between defendant and Sandstone are irrel evant is to say that defendant was required to record the descriptions of the side letters within a certain unspecified time regardless of what time was reasonabl e under the circumsta nces. This is contrary to the text of the statute. The majority holds that the negotiati ons between defendant and Sandstone were irrelevant to the statutor y obligation to record descrip tions of the side letters within a reasonable time because the stat utory exemption’s reco rding requirement is intended to provide notice to the public. In support of this holding, the majority states that plaintiffs would never have discovered the ex istence of the side letters if they had not accidentally happened on a reference to the side letters. 2 The majority’s reasoning appears to be base d on the faulty assumption that defendant never recorded the descriptions of the side letters. Defendant did give plaintiffs notice of the side letters when it recorded the descriptions on November 26, 2002.

2 Plaintiffs learned of the side letters upon examining a nonf inal draft of the agreement that was voluntarily disclosed by defendant.

9Thus, plaintiffs would have received notice within a reasonable time that defendant possessed the side letters even if plaintiffs had not discovered the letters before defendant recorded the descriptions. Further, the statute does not create a race between the requesting party and the pub lic body. That plaintiffs discovered the existence of the side letters before d efendant recorded the de scriptions does not necessarily mean that d efendant did not record the descriptions within a reasonable time. I do not question that the public body must record the descriptions and give no tice to the public in ord er to comply with MCL 15.243(1)(f)( iii ). But the issue is not wheth er defendant gave notice that it possessed the side letters before plaintiffs discovered the side letters, but whether defendant gave notice within a reasonable time that it possessed the side letters. This case does not involve the situation cited by the majority in which the “requesting party [is required to] seek di sclosure of a document of which it was
unaware.” Ante at 18. The majority believes that the fou r-month delay was un reasonable simply because it was too long. The majority effectively holds that whether the public body met the requiremen ts of MCL 15.243(1)(f)( iii ) depends only on the length of time the public body takes to record a description of th e information, rather than whether that amount of time was reasonabl e under the circumstances. If the Legislature had not intended for the time to vary with the ci rcumstances, it would have imposed a definite time limita tion on the public body recording the

10description, rather than stating that th e description must be recorded within a reasonable time. Additionally, after having recited the a ppropriate standard of review, the majority nonetheless engages in a review de novo. Given the unusual situation presented by these facts, in which defendant waited to r ecord the descriptions until negotiations regarding disclosure had conclude d, the trial court accorded leeway in the recording process to d efendant. There is good reason behind the abuse of discretion standard we articulated in Herald Co, supra , slip op at 6-8. The trial court is given the discreti on to determine what amo unt of time is reasonable precisely so that it may ta ke into account the public body’s recording of the description in each case and examine why th e recording took the amount of time it did under the circumstances. Allowing the trial court th e discretion to determine what amount of time is reasonable under the circumstances do es not defeat the purpose of the recording requirements of the statute. Both the trial court and the Court of Appeals held that defendant recorded the descri ption of the side letters within a reasonable time. This reas oned outcome accounts for defendant’s decision to record the descriptions after the conclusion of successful negotiations between defendant and Sandstone. The tria l court’s determination fell within the principled range of outcomes. Id. at 8. The trial did not abuse its discretion in determining that defendant recorded descriptions of the information within a reasonable time after they were submitted.

11B. “Submitted upon a pr omise of confidentiality” In one of the side letters (Letter 1) , Sandstone stated th at “[t]he terms of this letter are confidential under all respect s, not subject to disclosure and would not be covered by any FOIA request.” The other side letter (Letter 2) was submitted with and related to Letter 1. Thus, Sandstone expressly stated that the letters were confidential. But to satisfy the exemption, the information must be submitted upon a promis e of confidentiality by the public body . Defendant satisfied this requirement by offering th e unrebutted affidavit of Ronald Hughes, the Sandstone partner who had signed the side letters. Hughes stated that defendant promised to keep the letters confidential befo re Sandstone sent them to defendant. He averred that the letters “were expressly subm itted and conditioned on their confidentiality contemporaneous w ith their execution . . . .” Plaintiffs failed to offer any evidence in rebuttal. In light of Hughes’s uncontested affidavit, the trial court did not err in fi nding no genuine issue of mate rial fact that the letters were submitted upon defendant’s promise of confidentiality.
C. “Authorized by the chief administrative officer of the public body or by an el ected official” Hughes also stated in his affidavit that “Sandstone understood that the promise of confidentiality was both know n and authorized by the Mayor and City Manager, at the time of the letters[’] execution, and Sandstone would not have submitted the letters absent such a prom ise of confidentiality from the City of Novi.” As noted, plaintiffs failed to rebut this affidavit. Thus, the trial court did

12not err in finding no genuine issue of ma terial fact that the chief administrative officer or an elected official had promised confidentiality.
D. “For use in developi ng governmental policy” Finally, I agree with the lower courts that the two side letters at issue contain financial or commercial inform ation that was “for use in developing governmental policy.” MCL 15.143(1)(f). The FO IA does not define “governmental policy.” Th is Court has never interp reted this phrase in the context of the FOIA. Furth er, courts in other jurisdic tions interpreting their own FOIAs have never defined this phrase. 3 It is thus difficult to form a precise definition of “governmen tal policy.” Government s claim authority and responsibility over large groups of individua ls, and the methods they employ to decide how to carry out their numerous func tions vary widely. Nonetheless, this Court has defined “policy” in the empl oyment contract context as “‘a definite course or method of acti on selected (as by a governme nt, institution, group, or individual) from among alternatives and in the light of given conditions to guide and usu[ally] determine p resent and future decisions; . . . a projected program

3 Other jurisdictions have interpreted their own versions of the “trade secrets or commercial or financial inform ation” exemption. None of these jurisdictions has statutes th at include the “governmental policy” language found in Michigan’s exemption. For example, numerous federal c ourts have interpreted the federal FOIA provision that exempt s from disclosure “trade secrets and commercial or financial information ob tained from a person and privileged or confidential[.]” 5 USC 552(b)( 4). But the federal exemp tion does not require that the information be provid ed “for use in developi ng governmental policy.”

13consisting of desired objec tives and the means to ach ieve them . . . .’” In re Certified Question (Bankey v Storer Broadcasing Co) , 432 Mich 438, 455-456; 443 NW2d 112 (1989), quoting Webster’s Third New Inte rnational Dictionary, Unabridged Edition (1964); see also Silberman, Chevron— The intersection of law & policy , 58 Geo Wash L R 821, 822 (199 0) (offering a similar definition). 4 This definition applies equa lly to the term “policy” in the FOIA exemption at issue, and I would adopt it here. I em phasize that this definition does not encompass every decision reg arding a course of action made by a governmental entity. Obviously, governmental bodies adopt many courses of action that do not guide present or future d ecisions. Such decisions may be categorized as

4 I distinguish the phrase “government al policy” from the phrase “public policy” because these phrases are generally used to convey di fferent meanings. In Terrien v Zwit , 467 Mich 56, 68 n 13; 648 NW2d 602 (2002), this Court declined to define “public policy,” but held that “ public policy is defined by reference to the laws actually enacted into policy by the public and its representatives.” As the Court observed in Skutt v Grand Rapids , 275 Mich 258, 264; 266 NW 344 (1936), quoting Pittsburgh, C, C & St L R Co v Kinney , 95 Ohio St 64; 115 NE 505 (1918): “What is the meaning of ‘public policy?’ A correct definition, at once concise and co mprehensive, of th e words ‘public policy’, has not yet been formulated by our courts. . . . In substance, it may be said to be the co mmunity common sense and common conscience, extended and applied th roughout the State to matters of public morals, public health, public safety, public welfare and the like. It is that general and well -settled public opinion relating to man’s plain, palpable duty to his fellow men, having due regard to all the circumstances of each particular relation and situation.” Thus, “public policy” is used as a basis for governmental decisions, rather than being a “course or method of action” for making present or future decisions.

14“operational” decisions rather than “po licy” decisions. Operational decisions concern routine, everyday matters and do not require evaluation of broad policy factors. See Rogers v State , 51 Hawaii 293, 296-298 ; 459 P2d 378 (1969) (interpreting a “discretionary function” ex ception to governmental immunity). Operational decisions may also be characterized as “t he execution or implementation of previously formulated policy.” Hanson v Vigo Co Bd of
Comm’rs , 659 NE2d 1123, 1126 (Ind Ap p, 1996) (also interpreting a “discretionary function” exceptio n to governmental immunity). 5

5 In interpreting the “discretionary f unction” exception to its governmental immunity statute, the Arizona Court of Appeals offered contrasting examples of operational, as opposed to policy, decisions: By way of illustration, a decisi on by the district board to construct a playground at a scho ol and allocate funds for that purpose would be a policy deci sion protected by immunity. Deciding what specific pieces of equipment to have on the playground would not be a policy d ecision, but rather would be an operational level decision. See, e.g ., Warrington v. Tempe Elementary Sch. Dist. , [187 Ariz 249, 252; 928 P2d 673 (Ariz App, 1996)] (school district’s decisi on regarding placement of bus stop is an operational level decision); Evenstad [ v State ], 178 Ariz. [578] at 582-84, 875 P.2d [811] at 815-17 (A pp. 1993) (issuance of driver’s license by MVD is an operational le vel decision; prescribing rules for issuance is making of policy); Rogers v. State , 51 Haw. 293, 296

- 98, 459 P.2d 378, 381 (Haw. 1969) (operational level acts concern routine, everyday matters, not requi ring evaluation of broad policy factors; operational acts include ki nds of road signs to place and which center line stripes to repaint); Stevenson v. State Dept. of Transp. , 290 Or. 3, 9-12, 619 P.2d 247, 251-52 (Or. 1980) (decision to build a highway rat her than a railroad track is exercise of governmental discretion or polic y judgment entitled to immunity; planning and design of the road do es not involve use of discretion in the sense that a policy decision is required). [ Schabel v Deer Valley (continued...)

15Although the Court of App eals correctly ruled that the side letters were provided to defenda nt for use in developing gov ernmental policy, the panel’s reasoning in reaching this co nclusion was faulty. The panel stated that “[t]he information in the side letters clearly concerned public po licy” because “[i]t related to how defendant intended to se ttle the Sandstone litig ation, a situation with the potential to ba nkrupt defendant an d seriously affect its residents.” Coblentz v Novi, 264 Mich App 450, 458; 691 NW 2d 22 (2004). The agreement was of overarching importance to defendant and the deve lopment of defendant’s policy because it settled the Sandstone judgment agains t defendant, which could have bankrupted defendant and affected its residents by causing budget cuts and tax increases or assessments against each res ident. Nonetheless, because the side letters were sent after defendant entered into the agreement w ith Sandstone, they did not affect whether defenda nt entered into the agreement, and accordingly did

(...continued) Unified School Dist No 97 , 186 Ariz 161, 166; 920 P2d 41 (Ariz App, 1996).] See also Gutbrod v Hennepin Co , 529 NW2d 720, 723 (Minn App, 1995) (citations omitted) (“Planning level decisi ons . . . involve qu estions of public policy and the balancing of competing po licy objectives. . . . [O]perational level decisions relate ‘to the ordinary day-to -day operations of the government’ and involve the exercise of scientific or professional judgment.”). I recognize that the FOIA exemption at issue is worded differently than, and applied differently fro m, the governmental immunity statutes in these cases. Nonetheless, I find persuasive the analyses of “policy” versus “operational” in these cases in interpreting what constitutes “policy” within the meaning of Michigan’s “trade secrets or commercial or financial information” exemption.

16not affect whether defenda nt went bankrupt. The letters did not alter or void the agreement if defendant was unable to clear the deed restrictions or convince plaintiffs to sell their properties. B ecause the agreement ha d already settled the Sandstone judgment when th e side letters were sent, th e danger of this judgment causing defendant to go bankrupt had abated. T hus, the side letters were not provided to defendant for us e in developing its policy to discharge the Sandstone judgment and avoid bankruptcy. Nonetheless, defendant did use the side letters in developing governmental policy. The agreement expre ssly provided that defendant would forfeit additional public land (either 4.8 or 9.6 acres at Sa ndstone’s option) if it failed to purchase plaintiffs’ properties or otherwise clear th e deed restrictions on the properties. Thus, the agreement demonstrates that befo re the side letters were sent, defendant had already made the policy decision that it would agree either to find a way to remove the deed restrictions on plainti ffs’ property or to relinquish additional parkland. But at th e time defendant entered the ag reement, it had not yet decided which of these two alternatives it woul d choose. The agreement itself contained no policy to assist in this decision. Because the d ecision whether to remove the deed restrictions or forfeit additional pa rkland was not a routine decision that merely required application of policy devel oped in the agreement, defendant had a remaining policy decision to make after it entered into the agreement. That defendant had already agreed on the two alternatives b efore the side letters were

17sent did not alter defendant’s need to de velop policy in order to choose between these two alternatives. The side letters confirm the deed res trictions on the properties and the amount Sandstone would pay defendant for plaintiffs’ properties once they were free from restrictions. By o ffering in the letters to adva nce all or part of the money to defendant to purchase plainti ffs’ properties, Sandstone sought to influence defendant’s decision whether to purchase plaintiffs’ properties, pay plaintiffs to waive the right to enforce their d eed restrictions, or forfeit additional public land to Sandstone. Because disc losure of the letters would reveal to plaintiffs the amount Sandstone was willi ng to pay for their properties, it would also affect defendant’s ability to purchase plaintiffs’ properties. Defendant’s decision regarding whether to attempt to purchase plaintiffs’ properties or try to lift the deed restrictions on the propertie s not only directly affected plaintiffs individually, but it also affect ed the residents of the city because it determined whether defendant would be forced to forfeit several acres of property set aside for public use. If defenda nt decided to purchase plai ntiffs’ properties, it would result in large expenditures of public funds, whic h would affect defendant’s budget and its residents. On the other hand, if defen dant was unable to lift the deed restrictions or decided not to pu rchase plaintiffs’ properties, defendant

18would forfeit additional public property to Sandstone. The loss of this additional land would affect all of defendant’s residents. 6 Regardless of defendant’s ultimate deci sion, the information in the side letters was provided for use in guiding defendant’s manage ment of public affairs. The letters affected a budgetary decision concerning allocation and substantial expenditure of public funds to retain pub lic land. Thus, the letters were provided to defendant to develop a course of action that would materially affect the future of its citizens. The letters did not in volve a mere operational decision regarding a routine matter for which a policy was alrea dy in place. Defenda nt’s decision on how to deliver its governmental functions within its budget obviously constituted a policy decision. Thus, the Court of Appe als did not err in holding that that the side letters contained financial or comm ercial information pr ovided to defendant for use in developing governmental policy.
III. Conclusion I dissent from the majority’s conc lusion that plaintiffs were entitled to disclosure of the side letters. In my op inion, the trial court did not abuse its discretion in determining that defendant recorded descrip tions of the side letters within a reasonable time after they were subm itted. Because defendants met all of

6 Thus, this case is distinguishable from Herald Co, Inc v Tax Tribunal , 258 Mich App 78, 85; 669 NW2d 86 2 (2003), in which the Cour t of Appeals held that the “trade secrets or commercial or financia l information” exem ption did not apply because the single individual tax determina tion “lack[ed] the policy-making potential contemplated by the Legislature in drafting this exemp tion to the FOIA.”

19the other requirements of the “trade secrets or commercial or financial information” exemption of the FOIA, the side letters were exempt from disclosure.
Maura D. Corrigan

20