Michigan Supreme Court affirms public's right to know

The Detroit News

Michigan's Supreme Court took a firm stand for the public's right to public information by unanimously affirming that video surveillance tapes obtained by police are fair game under the Freedom of Information Act.

In a memorandum signed by all seven justices, the court clarified FOIA's reach includes "pictures, sounds, or combinations thereof."

The action was brought by James Amberg, an attorney who was seeking copies of surveillance tapes made by private businesses but held by the Dearborn Police Department.

Amberg believed the tapes would aid the case of his client, who faced misdemeanor criminal proceedings. Dearborn police had collected the tapes as evidence to justify issuing a citation.

Dearborn initially refused the request, claiming recordings are not public records and thus not subject to FOIA. It later argued that because the tapes were made by private businesses, and not the police, they did not belong to the public.

A Wayne Circuit Court judge agreed and the state Court of Appeals upheld that decision.

The state's high court, however, was unambiguous in declaring that recordings are public records, the same as printed documents.

"A public record is a writing prepared, owned, used, in the possession of, or retained by a public body in the performance of an official function," the justices wrote. "The word 'writing' is defined in FOIA as any means of recording."

The strong statement by the court should discourage public bodies from trying to shield any form of public record from FOIA. The justices wrote that "except under certain specifically delineated exceptions," if a written FOIA request describes a public record in enough detail that it can be found, the record should be produced for review.

In other words, unless the law specifically excludes a record from FOIA, public bodies should assume that record is covered by the act.

In the case, Dearborn seized on the words "from the time they were created" that appear in Freedom of Information Act. Since the tapes were made by private businesses and later turned over to police, they weren't in the city's possession until after they were created.

The justices memo blew that argument apart, declaring the phrase "from the time they were created" was included to make it clear FOIA applied to records created only after the act took effect, and not just to records created by a public body.

That's also an important clarification of the law.

Since the recordings were held by the department as part of its official duties, the justices wrote, they were public records and should be released.

This is not a decision that will get a lot of attention. But it is an important affirmation of the public's right to know.

Increasingly, public entities are forgetting they work for the people, and that the product of their work belongs to the people.

Rulings such as this one serve to bring them back to that reality.