If this opinion indicates that it is “FOR PUBLICATION,” it is subject to 

revision until final publication in the Michigan Appeals Reports.

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S T A T E O F M I C H I G A N

C O U R T O F A P P E A L S

PROGRESS MICHIGAN,

Plaintiff-Appellant,

UNPUBLISHED

June 9, 2022

v No. 357610

Wayne Circuit Court

MONICA PALMER and WILLIAM HARTMANN1, LC No. 21-000899-CZ

Defendants-Appellees.

Before: JANSEN, P.J., and CAMERON and RICK, JJ.

PER CURIAM.

In this action to compel disclosure of public records under the Freedom of Information Act 

(FOIA), MCL 15.231 et seq., plaintiff appeals as of right the trial court’s order granting summary 

disposition in favor of defendants. Plaintiff contends on appeal that the trial court erred in 

concluding that the requested communications were not public records subject to FOIA. We 

vacate the trial court’s order and remand for further proceedings consistent with this opinion.

I. BACKGROUND

This case involves a FOIA request to the Wayne County Board of Canvassers (the Board) 

regarding alleged communications between defendants and the public during the certification 

process of the 2020 presidential election results, which was initially submitted to Wayne County 

and subsequently forwarded to the individual board members.

2

 At the time, defendants were

 

1 After this appeal was filed, Defendant William Hartmann died. Therefore, MCR 2.202(A) will 

apply on remand.

2 The complaint did not identify Wayne County as a party to the case. Rather, defendants were 

identified as parties in their “official capacity” as members of the Board. However, defendants 

argued that Wayne County was the relevant “public body” because the Board was “a component 

part of the County.” However, as explained below, the Board is a “public body” within the 

meaning of FOIA.
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members of the Board, which oversees the county’s certification of federal, state, and local 

elections. See MCL 168.24a through MCL 168.24b.

On November 17, 2020, the Board met to review and certify the canvass of votes from the 

November 2020 election. In the initial vote to certify the canvass, defendants voted against 

certification. However, after hours of public comment, the Board ultimately certified the canvass 

in a subsequent vote.

On November 23, 2020, plaintiff filed a FOIA request with Wayne County, seeking the 

following:

All communications since November 1, 2020 between members of the 

Wayne County Board of Canvassers and anyone associated with the Michigan 

Republican Party and its local parties, the Republican National Committee, or 

Trump for President, including but not limited to elected officials, party officials, 

staff, attorneys, and consultants. This request includes any attachments that were 

part of these communications, such as word documents, spreadsheets, PDFs, or 

other types of documents. “Communications” include but are not limited to emails, 

text messages, direct messages, phone messages, and any form of communication 

whether made using a government-provided device, service, or account, or a 

personal device, service, or account.

Plaintiff received an initial response to this request from the Wayne County Department of 

Technology (WCDOT). This response stated that, because “none of the members of the Wayne 

County Board of Canvassers have been provided with a Wayne County email account or a Wayne 

County cell phone,” no records existed within the WCDOT that were responsive to plaintiff’s 

request. This response also provided that plaintiff’s FOIA request was forwarded to the individual 

members of the Board, including defendants, in the event that they possessed public records 

responsive to plaintiff’s request. Plaintiff received a second response to its request specific to 

records sought from the individual board members, which stated, in pertinent part:

Your request was forwarded to the four members of the Wayne County 

Board of canvassers. They were asked to review the request and forward any 

responsive public records to our office. Your request must be denied, because, 

despite our request to the Wayne County Board of Canvassers, we have not 

received any responsive records.

Plaintiff then filed a complaint in the Wayne Circuit Court, alleging that defendants, as 

members of the Board, had committed FOIA violations by refusing to disclose public records that 

were created using their personal devices, services, and accounts. Specifically, plaintiff argued 

that defendants had used personal devices, services, and accounts to communicate about official 

business pursuant to their roles as members of the Board, thus subjecting these communications to 

disclosure under FOIA. Plaintiff requested that the trial court order defendants to disclose the 

public records under FOIA. Plaintiff later amended its complaint.

In lieu of an answer, defendants filed a motion for summary disposition pursuant to

MCR 2.116(C)(8) and (10). In their brief supporting the motion, defendants first argued that 
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plaintiff’s complaint was legally deficient. In particular, defendants asserted that plaintiff failed 

to provide specific factual allegations that, if true, would give rise to FOIA violations; defendants

argued that plaintiff’s allegations were instead based on mere information and belief. And 

defendants argued further that, even assuming plaintiff’s bare allegations were true, they could not 

establish that any of the requested records actually existed and, accordingly, that any FOIA 

violations occurred.

Defendants also argued that, because they were named as parties in their official capacity 

as members of the Board, plaintiff’s claim legally rested with Wayne County, which is the 

appropriate public body in charge of responding to FOIA requests. And defendants stressed that 

the county had no ownership or control over their personal records. Relatedly, defendants argued 

that neither they themselves nor their records were subject to FOIA because they were not public 

bodies as defined by the statute. Lastly, defendants argued that the records being sought were not 

public records subject to disclosure under FOIA, but rather, were limited to private 

communications. Defendants stated that it was not enough for defendants’ private 

communications to merely discuss Board business and that, for FOIA to apply, the 

communications would have needed to be admitted in the record of a public meeting.

In a brief opposing defendants’ motion for summary disposition, plaintiff asserted that each 

of defendants’ alleged grounds for summary disposition were meritless. Plaintiff first argued that, 

as public officers holding positions created by state law, defendants were public bodies subject to 

FOIA’s disclosure requirements. Plaintiff also highlighted specific evidence to support its claim 

that defendants used personal devices, services, and accounts in conducting official business of the 

Board, including defendants’ personal e-mail addresses being advertised on the Board’s website 

and numerous news articles indicating that defendants discussed board business on social media 

and had communications with President Trump concerning board business around the time the 

Board was certifying the county’s 2020 election results.

Specific to the communications being sought, both defendants had allegedly spoken with 

then President Trump after the Board’s vote to certify the 2020 election results and before signing 

affidavits to rescind their votes for certification. These conversations reportedly involved 

President Trump thanking defendants for their support, with him also discussing with one 

defendant threats apparently made against her following the Board’s meeting. Finally, plaintiff 

asserted that its amended complaint was sufficiently well-pleaded to provide notice of its claim, 

especially considering that defendants’ private e-mail addresses were published on the Board’s 

website and defendants’ openness about conducting Board business via personal devices and 

accounts.

A hearing on defendants’ motion for summary disposition took place, with the parties 

largely making the same arguments as presented in their briefs. Plaintiff did elaborate, however, 

that, even though the records sought were technically from private means of communication, they 

should still be considered public records under FOIA because they involved discussions of 

government business. Defendants, though conceding that one of them did receive a text message 

from a Republican official which set up a brief phone call with President Trump, countered that 

these communications occurred outside of—and did not concern—official Board functions.
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The trial court ultimately granted defendants’ motion for summary disposition. Relying 

on Hopkins v Duncan Twp, 294 Mich App 401; 812 NW2d 27 (2011), it reasoned that plaintiff 

had failed to produce evidence that its requested information was ever in the Board’s possession, 

referenced in any board meeting minutes, or otherwise used in the performance of an official 

function.3 This appeal followed. After the appeal was filed, Hartmann died.

II. STANDARD OF REVIEW

This Court reviews a trial court’s decision on a motion for summary disposition de novo. 

El-Khalil v Oakwood Healthcare, Inc, 504 Mich 152, 159; 934 NW2d 665 (2019).

Legal determinations made in the context of a FOIA proceeding are [also] 

reviewed de novo. This Court also reviews de novo questions of statutory 

interpretation. The Court’s primary goal of statutory interpretation is to give effect 

to the Legislature’s intent. If the statute’s language is clear and unambiguous, this 

Court must give the words their plain and ordinary meaning, and judicial 

construction of the statute is not permitted. [Blackwell v Livonia, ___ Mich App 

___; ___ NW2d ___ (2021) (Docket No. 357469); slip op at 3 (citations omitted).]

The most reliable evidence of legislative intent is the plain language of the statute. South Dearborn 

Environmental Improvement Ass’n, Inc v Dep’t of Environmental Quality, 502 Mich 349, 360-

361; 917 NW2d 603 (2018). Additionally, the trial court’s factual findings underlying its 

application of the FOIA are reviewed for clear error. Mich Open Carry, Inc v Dep’t of State Police, 

330 Mich App 614, 621; 950 NW2d 484 (2019). “A finding is clearly erroneous if, after reviewing 

the entire record, this Court is left with a definite and firm conviction that a mistake was made.” 

Id.

III. ANALYSIS

“The purpose of FOIA is to provide to the people of Michigan ‘full and complete 

information regarding the affairs of government and the official acts of those who represent them 

as public officials and public employees,’ thereby allowing them to ‘fully participate in the 

democratic process.’ ” Amberg v Dearborn, 497 Mich 28, 30; 859 NW2d 674 (2014), quoting 

MCL 15.231(2).

The Legislature codified the FOIA to facilitate disclosure to the public of 

public records held by public bodies. To that end, the FOIA must be broadly 

interpreted to allow public access to the records held by public bodies. Relatedly, 

the statutory exemptions must be narrowly construed to serve the policy of open 

 

3 At oral argument in the instant matter, defendants’ counsel conceded that in fact they had received 

records from one of the canvassers, but they did not share the information with plaintiff counsel, 

create a privilege log, seek a protective order or in camera review of same, nor did they correct 

that factual error made by the trial court.
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access to public records. [Mich Open Carry, Inc, 330 Mich App at 625 (quotation 

marks and citations omitted).]

“As a result, except under certain specifically delineated exceptions, see MCL 15.243, a person 

who ‘provid[es] a public body’s FOIA coordinator with a written request that describes a public 

record sufficiently to enable the public body to find the public record’ is entitled ‘to inspect, copy, 

or receive copies of the requested public record of the public body.’ ” Amberg, 497 Mich at 30, 

quoting MCL 15.233(1) (alteration in original).

“Under FOIA, a public body must disclose all public records that are not specifically 

exempt under the act.” Hopkins v Duncan Twp, 294 Mich App 401, 409; 812 NW2d 27 (2011). 

FOIA defines “public record” as “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.” 

MCL 15.232(i) (emphasis added). “A writing can become a public record after its creation if 

possessed by a public body in the performance of an official function, or if used by a public body, 

regardless of who prepared it.” Hopkins, 294 Mich App at 409. MCL 15.235(5)(b) requires the 

public body to certify that the record does not exist when non-existence of the record is “the reason 

for denying the request or a portion of the request.” See Detroit Free Press, Inc v Southfield, 269 

Mich App 275, 281; 713 NW2d 28 (2005). “In court, the burden is on the public body to justify 

its denial.” Id.

In this case, the FOIA request sought: (1) “[a]ll communications since November 1, 2020,” 

(2) that were “between members of the Wayne County Board of Canvassers and anyone associated 

with the Michigan Republican Party and its local parties, the Republican National Committee, or 

Trump for President, including but not limited to elected officials, party officials, staff, attorneys, 

and consultants.” “Communications” included “emails, text messages, direct messages, phone 

messages, and any form of communication whether made using a government-provided device, 

service, or account, or a personal device, service, or account.”

In response to this request, Wayne County indicated that it had “not received any 

responsive records.” Plaintiff then filed the instant suit, alleging that “Palmer and Hartmann’s 

refusal to disclose public records created using personal devices, services, and/or accounts violates 

FOIA.” In response, defendants moved for summary disposition, arguing in relevant part that the 

allegations in the amended complaint amounted to speculation that defendants had created writings

that were subject to disclosure under FOIA. For the reasons already discussed, the trial court 

granted summary disposition in favor of defendants, which then led to the instant appeal.

At oral argument before this Court, defendants disclosed that one of the defendants had 

turned over “documents” in response to the FOIA request, which were deemed by Wayne County 

to be unresponsive to the request. Counsel for plaintiff asserted that plaintiff was informed that 

“there were no responsive records.” Thus, plaintiff was informed for the first time at oral argument 

that certain documents were provided to Wayne County in relation to the FOIA request. Plaintiff 

requested that the matter be remanded to the trial court so that the documents could be reviewed.

A “court, on its own motion, may view the public record in controversy in private before 

reaching a decision.” MCL 15.240(4). As already stated, “ ‘[p]ublic record’ means a writing 

prepared, owned, used, in the possession of, or retained by a public body in the performance of an 
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official function, from the time it is created.” MCL 15.232(i). “Public record[s]” include records 

that are “exempt from disclosure,” and records “that are subject to disclosure. . . .” 

MCL 15.232(i)(i)-(ii).

In this case, there is no dispute that Wayne County is a public body and that it possessed 

the “documents” at one point. Importantly, however, the FOIA request was directed at the Board, 

which is also a public body under FOIA. The legislature created the boards of county canvassers 

under MCL 168.24a. Therefore, regardless if the Board is under the control of Wayne County, 

MCL 5.232(h)(iii), or a body created by state authority, MCL 15.232(h)(iv), the Board itself is a 

“public body” within the meaning of FOIA. See MCL 15.232(h)(iii) and (iv).4 Nonetheless, 

because defendants failed to disclose that certain documents existed until oral argument, it is 

unclear whether the documents fall under Plaintiff’s FOIA request and relate to “the performance 

of an official function . . . .” We conclude that this issue needs to be considered by the trial court 

on remand.

We also conclude that the fact that defendants may have used personal devices, services, 

and accounts in conducting official business of the Board is inconsequential to the issue of whether 

the writings are subject to FOIA. In Hopkins, this Court evaluated whether private notes of an 

elected official during a public meeting were public records within the meaning of FOIA. Hopkins, 

294 Mich App at 414. In making its determination, the Hopkins Court discussed this Court’s 

previous decision Walloon Lake Water Sys, Inc v Melrose Twp, 163 Mich App 726; 415 NW2d 

292 (1987). Hopkins, 294 Mich App at 410-411. “In Walloon Lake, the plaintiff sought disclosure 

of a personal letter that had been read into the record at a township meeting.” Id. “This Court 

concluded that because the letter was read into the record at a public meeting and its contents were 

considered by the township board, it became a public record subject to disclosure under FOIA.” 

Id. In Hopkins, we recognized that in deciding that the letter had been “used” for purposes of the 

FOIA, the Walloon Court explained:

To be fully aware of the affairs of government, interested 

citizens are entitled to know not only the basis for various decisions 

to act, but also for decisions not to act. To further this purpose, we 

must construe the FOIA in such a manner as to require disclosure of 

records of public bodies used or possessed in their decisions to act, 

as well as of similar records pertaining to decisions of the body not 

to act. Under this holding, not every communication received by a 

public body will be subject to disclosure. But where, as here, the 

 

4 We note that MCL 15.236(1) requires a public body under the control of a county to designate a 

FOIA coordinator. However, “[f]or all other public bodies, the chief administrative officer of the 

respective public body is designated the public body's FOIA coordinator,” unless another 

individual is otherwise designated. See MCL 15.236(2) and (3). Although defendants asserted 

that Wayne County was the entity responsible for responding to FOIA requests directed to the 

Board, based on the record, it is unclear whether the WCDOT was the Board’s FOIA coordinator. 

Nonetheless, it is undisputed that WCDOT forwarded plaintiff’s FOIA request to the individual 

board members and that the Board received the request.
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content of a document is made part of the minutes of the body’s 

meeting where it conducts its official affairs and the content of the 

document served as the basis for a decision to refrain from taking 

official affirmative action, that document must be considered a 

“public record,” as defined by the FOIA. [Hopkins, 294 Mich App 

at 411, quoting Walloon Lake Water Sys, Inc, 163 Mich App at 730-

731.]

The Hopkins Court determined that the handwritten notes “were never in the township’s 

possession, nor were they used in the performance of an official function.” Hopkins, 294 Mich 

App at 416. This Court emphasized that the notes “were not for substantive decision-making or 

recordkeeping,” id., and concluded that “individual notes taken by a decision-maker on a 

governmental issue are only a public record when the notes are taken in furtherance of an official 

function,” id. at 417 (emphasis added).

The instant case is distinguishable from Hopkins. This case does not concern private notes 

kept by the individual board members. Rather, it concerns potential communications between 

board members and others regarding the Board’s official function of certifying the election. This 

case is further distinguishable in light of the fact that the county did not provide board members 

with official communication accounts and the Board website listed the personal e-mail addresses 

of defendants. As recognized in Hopkins, 294 Mich App at 411, quoting Walloon Lake, 163 Mich 

App at 730, “we must construe the FOIA in such a manner as to require disclosure of records of 

public bodies used or possessed in their decisions to act, as well as of similar records pertaining to 

decisions of the body not to act.” Although the personal communications were not read into the 

Board’s official meeting minutes, we are persuaded that if the contents of those communications 

“served as the basis for a decision to refrain from taking official affirmative action,” those 

communications must be considered a “public record,” as defined by the FOIA. Hopkins, 294 

Mich App at 411, quoting Walloon Lake, 163 Mich App at 731. Furthermore, Wayne County 

asserted that it did in fact receive some records from at least one of the defendants, but that it 

determined that such records were not responsive to the FOIA request. However, no exemptions 

were asserted and no judicial review was held to determine whether or not these records were 

subject to FOIA. See Evening News Ass’n v Troy, 417 Mich 481, 515-516; 339 NW2d 421 (1983) 

(holding that in determining whether information is exempt for disclosure under FOIA, the court 

should: (1) receive a complete particularized justification for the exemption; (2) conduct a hearing 

in camera to determine whether justification exists; or (3) consider allowing the plaintiff’s counsel 

access to the information in camera under a special agreement whenever possible.).

It would be contrary to the purposes of FOIA for this Court to conclude that 

communications of individual board members concerning the Board’s official function of 

certifying the canvass of votes for elections are not subject to FOIA simply because the county did 

not provide the individual board members with county e-mail accounts or separate communication 

devices. Our conclusion is bolstered by the fact that the Board’s official website advertised the 

personal e-mail accounts of board members, suggesting that the board members may have used 

their own personal e-mail accounts to communicate as members of the Board and with the public 

concerning the official functions of the Board.
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Plaintiff also claims that Blackwell, which is cited on appeal by defendants, is 

distinguishable from the instant case. Specifically, plaintiff stresses that the records requested in 

Blackwell involved the mayor’s political campaign, not city business, while in the instant case 

defendants are believed to have used personal devices, services, and accounts to conduct board 

business. We agree that Blackwell is distinguishable from the instant case.

The Blackwell Court, in holding that certain requested records were not public records 

subject to FOIA, stated that “unofficial private writings belonging solely to an individual should 

not be subject to public disclosure merely because that individual is a state employee[, and] . . . the 

same is true for all public body employees.” Blackwell, ___ Mich App at ___; slip op at 7 (citation 

omitted; alterations in original). The Court then reasoned that

private direct messages sent or received by [the defendant] through an unofficial 

Facebook profile are not subject to public disclosure merely because [the 

defendant] is an administrative officer for the city of Livonia. Instead, such direct 

messages would be subject to disclosure under FOIA only if such messages were 

utilized by the city of Livonia mayor’s office in the performance of an official 

function. See MCL 15.232(i).

Contrary to [the] plaintiff’s assertions, none of the evidence submitted by 

him demonstrated that [the defendant] used the Facebook profile to communicate 

with individual constituents regarding official business. On the contrary, [the 

defendant’s] comment instructing a constituent to call her office directly showed 

that [the defendant] did not use the Facebook profile to communicate with 

individual constituents regarding official business. Instead, she directed the 

constituent to communicate with her office through official channels by calling her 

office directly. Indeed, [a witness] attested in his affidavit that [the defendant’s] 

Facebook profile had never been available for official use by the city of Livonia 

mayor’s office. [Id. at ___; slip op at 7.]

The Court concluded, therefore, that withholding of the requested records was proper 

because “the record evidence indicates that the direct messages were not owned, used, in the 

possession of, or retained by the city of Livonia mayor’s office in the performance of an official 

function.” Id. Unlike in Blackwell, the trial court has not reviewed the documents submitted by 

one of the defendants. Additionally, plaintiff has submitted evidence that defendants’ personal 

devices, services, and accounts were used to communicate about board business. Specifically, 

defendants’ personal e-mail addresses were advertised on the Board’s website.

Additionally, public records are not insulated from FOIA by their location or the fact that 

a private entity created them originally for its own use.5 See, e.g., Amberg, 497 Mich at 32-33 

 

5 Below, defendants also argued that the FOIA request was overly broad because plaintiff’s FOIA 

request “did not differentiate between public records and private records.” However, as already 

stated, FOIA requests concern only public records. While it would have been prudent for the 

county to provide the board members with separate accounts to conduct and communicate about 

Board business, that is not what occurred in this case.
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(concluding that copies of video surveillance recordings created by third parties and received by 

the defendants in a pending misdemeanor criminal matter were public records under FOIA despite 

the fact that the defendants did not receive the recordings until after an issuance of a criminal 

misdemeanor citation because, “even if the recordings did not factor into [the] defendants’ decision 

to issue a citation, they were nevertheless collected as evidence by defendants to support that 

decision.”). To reiterate, FOIA “does not require that the record be created by the public body, or 

even created at its behest. Rather, it is ownership, use, possession, or retention in the performance 

of an official function that is determinative.” Detroit News, Inc v Detroit, 204 Mich App 720, 724; 

516 NW2d 151 (1994). In other words, if the board members communicated about the Board’s 

official function before or after they voted to certify the 2020 election and the board members 

considered the communications to support their decision to initially deny certification of the 2020 

election, subsequently certify the election, or attempt to withdraw the certification, those 

communications are public records within the meaning of FOIA. See id.; Amberg, 497 Mich at

32-33.

In sum, we vacate the order granting summary disposition and remand the matter to the 

trial court so that it can determine whether the Board, as the relevant public body, complied with 

its obligation to certify that the records did not exist as the basis for the denial under 

MCL 15.235(5)(b),6and whether it is appropriate to review the documents received by Wayne 

County in response to plaintiff’s FOIA request in camera. Additionally, the trial court should 

consider whether discovery is warranted. In the event that the trial court finds that it is appropriate 

to review the documents, the trial court shall determine whether the documents fall under the FOIA 

request. If an exemption is asserted, the trial court shall comply with the procedure outlined in 

Evening News Ass’n, 417 Mich at 515-516.

We decline to consider the issue of whether defendants fall under the definition of “public 

body” at this time. Indeed, that issue could become moot in the event that the trial court determines 

that the documents do not fit within the FOIA request. The issue could also become moot with 

respect to Hartmann in the event that he is dismissed as a defendant under MCR 2.202(A).

Vacated and remanded for further proceedings consistent with this opinion. We do not 

retain jurisdiction.

/s/ Kathleen Jansen 

/s/ Thomas C. Cameron 

/s/ Michelle M. Rick 

 

6 As indicated above, it is unclear whether the WCDOT was the Board’s FOIA coordinator 

responsible for responding to FOIA requests directed to the Board. See note 5 of this opinion.