Michigan Supreme Court Holds Third-Party Police Videos Subject To FOIA

On December 16th, 2014, the Michigan Supreme Court held in a civil case that surveillance videos created by a business and later turned over to the police in a criminal investigation are subject to Michigan's Freedom of Information Act (FOIA). As a result, law enforcement must disclose the videos, and counsel for plaintiff is entitled to fees, costs, and disbursements as a result of his efforts to obtain the videos.

In Amberg v. City of Dearborn, Docket No. 149242, the Michigan Supreme Court addressed the issue of whether video surveillance tapes created by a private business and later disclosed to the police in the course of an investigation are public records under FOIA.

From the opinion's syllabus:

James Amberg brought an action in the Wayne Circuit Court against the city of Dearborn and the Dearborn Police Department, seeking copies of video surveillance recordings created by private entities, Tim Hortons, Inc., and The Wendy’s Company, under the Freedom of Information Act (FOIA), MCL 15.231 et seq. Plaintiff, an attorney, sought the recordings in relation to pending misdemeanor criminal proceedings against a client. Defendants initially refused to turn over the recordings, asserting that they were not subject to FOIA because the recordings were not public records. After plaintiff brought suit, defendants produced the recordings and moved for summary disposition. The court, Daniel P. Ryan, J., granted summary disposition in favor of defendants. Plaintiff appealed. The Court of Appeals, STEPHENS and RIORDAN, JJ. (BECKERING, P.J., concurring), affirmed in an unpublished opinion per curiam, issued March 25, 2014 (Docket No. 311722). Plaintiff sought leave to appeal.

In a memorandum opinion signed by Chief Justice YOUNG and Justices CAVANAGH, MARKMAN, KELLY, ZAHRA, MCCORMACK, and VIVIANO, the Supreme Court, in lieu of granting leave to appeal and without hearing oral argument, held:

Except under certain specifically delineated exceptions, a person who provides 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. A public record is a writing prepared, owned, used, in the possession of, or retained by a public body in the performance of an official function from the time it is created. The word “writing” is defined in FOIA as any means of recording, including pictures, sounds, or combinations thereof. In this case, the parties did not dispute that the recordings were writings within the meaning of FOIA and that the recordings were retained by or in the possession of defendants, who are public bodies. Rather, the parties disputed whether the recordings were possessed or retained by defendants in the performance of an official function from the time they were created. The phrase “from the time it is created” in the definition of a public record under FOIA was included to make clear that FOIA applied to records created before FOIA took effect. And the fact that the documents were created by private entities does not insulate them from FOIA. Defendants collected the recordings as evidence to support their decision to issue a citation. Accordingly, the recordings were public records because they were in the possession of or retained by defendants in the performance of an official function, and the circuit court erred by granting defendants’ motion for summary disposition. The fact that plaintiff’s substantive claim was rendered moot by disclosure of the records after plaintiff commenced the circuit court action was not determinative of plaintiff’s entitlement to fees and costs under MCL 15.240(6). Contrary to the conclusion of the Court of Appeals, plaintiff did not abandon his claim for fees and costs. On remand, plaintiff’s action can proceed in the circuit court for consideration, on a proper motion, of whether he is entitled to costs and fees under MCL 15.240(6).

Reversed and remanded for entry of an order denying defendants’ motion for summary disposition and for further proceedings. Leave to appeal denied in all other respects.