Hubka v. Pennfield Township , 197 Mich. App. 117 ( 1992 )

197 Mich. App. 117 (1992) 494 N.W.2d 800

HUBKA
v.
PENNFIELD TOWNSHIP

Docket No. 137685.

Michigan Court of Appeals.

Decided November 18, 1992, at 9:20 A.M.

George Hubka, in propria persona.

John H. Macfarlane, for the defendant.

Before: HOOD, P.J., and WAHLS and McDONALD, JJ.

PER CURIAM.

This is a suit under the Michigan Freedom of Information Act (FOIA), MCL 15.231 et seq.; MSA 4.1801(1) et seq. Plaintiff, an uninvolved third party who was not a target of defendant's investigation, seeks disclosure of the minutes of a closed meeting held to hear allegations by a police officer that she had been the victim of harassment and discrimination. He also seeks disclosure of four letters written by defendant's attorney detailing his investigation into the charges.

Plaintiff appeals as of right from the trial court's granting of defendant's motion for summary disposition under MCR 2.116(C)(8) and (10). We affirm in part, reverse in part, and remand.

Plaintiff first argues that, with respect to certain documents that were disclosed, defendant erred in providing him with copies as opposed to providing him with an opportunity to inspect the originals. This argument was not addressed by the trial court and, therefore, is unpreserved. Further, plaintiff failed to allege that the procedure prejudiced him in any way, such as by being charged for the copies instead of being allowed a free inspection. See Cashel v Regents of the University of Michigan, 141 Mich. App. 541, 546; 367 NW2d 841 (1985).

Secondly, plaintiff argues that the trial court erred in relying on two defective affidavits. We agree that the two affidavits violated the court rules — one because it failed to state that the affiant was competent to testify, see MCR 2.119(B)(1) (c), and the other because it was produced on the day of the hearing, see MCR 2.119(C)(1)(b). We also agree with plaintiff's assertion that defense counsel should be embarrassed by having to be instructed concerning the rules of civil procedure by a plaintiff acting in propria persona. However, plaintiff has again failed to show any resulting prejudice. The first affidavit showed from its contents that the affiant indeed had firsthand knowledge of the alleged facts, and plaintiff was provided ample time to respond to the second affidavit but failed to do so. See West v Farm Bureau Mutual Ins Co of Michigan, 63 Mich. App. 279, 283-284; 234 NW2d 485 (1975), rev'd on other grounds 402 Mich. 67; 259 NW2d 556 (1977).

Plaintiff's third argument is that the trial court erred in relying on the attorney-client privilege as a basis to refuse to order disclosure of letters written by defendant's attorney detailing the results of his investigation into the officer's charges. Plaintiff argues that these letters are "reports" and that they are subject to disclosure to the extent that they merely recite facts uncovered by the attorney and "other tangential nonlegal matters."

One of the letters contains detailed accounts of the facts gathered by defendant's attorney after extensive interviews and also contains the attorney's conclusions and recommendations. The remaining letters are progress reports regarding the resolution of the investigation and include both facts and legal analysis of such facts. One letter has attached to it a copy of a letter sent to the person who was the target of the investigation.

The Michigan FOIA explicitly exempts from disclosure "[i]nformation or records subject to the attorney-client privilege." MCL 15.243(1)(h); MSA 4.1801(13)(1)(h). However, the FOIA also imposes a duty to segregate, "to the extent practicable," exempt material from disclosable nonexempt material. MCL 15.244; MSA 4.1801(14). There are no Michigan cases interpreting the interplay between these two sections. We will therefore examine precedent interpreting the federal FOIA.

Under the federal FOIA, attorney-client communications are exempt from disclosure under a section covering "interagency or intra-agency memorandums or letters which would not be made available to a party other than an agency in litigation with the agency." 5 USC 552(b)(5); see Schlefer v United States, 226 US App DC 254, 258; 702 F2d 233 (1983); Brinton v Dep't of State, 204 US App DC 328, 332; 636 F2d 600 (1980); Mead Data Central, Inc v United States Dep't of the Air Force, 184 US App DC 350, 360; 566 F2d 242 (1977).

The attorney-client privilege normally "protects communications from attorney to client to avoid the risk of inadvertent, indirect disclosure of the client's confidences." Schlefer, supra at 266. However, it "does not allow the withholding of documents simply because they are the product of an attorney-client relationship." Mead, supra at 361.

"[I]t is clear that when an attorney conveys to his client facts acquired from other persons or sources, those facts are not privileged." Brinton, supra at 332; see also Schlefer, supra at 266. "To allow the contrary rule would permit agencies to insulate facts from FOIA disclosure by simply routing them through lawyers in the agency and invoking the attorney-client privilege." Brinton, supra at 332. Thus, at first blush, it would appear that the facts contained in the disputed letters are subject to disclosure.

However, where the attorney's "client is an organization, the privilege extends to those communications between attorneys and all agents or employees of the organization who are authorized to act or speak for the organization in relation to the subject matter of the communication." Mead, supra at 361, n 24 (emphasis added). That is, facts confidentially disclosed to an attorney by employees of the client are covered by the attorney-client privilege. See Murphy v Tennessee Valley Authority, 571 F Supp 502, 506-507 (D DC, 1983); see also Mead, supra at 361, n 24 (circulation of letter covered by attorney-client privilege among employees of client did not destroy its confidentiality).

In this case, defendant's attorney obtained the information related in the letters from defendant's employees under compulsion^[1] and under promises of confidentiality. Because of their source, those facts, therefore, are protected from disclosure by the attorney-client privilege. Likewise, opinions, conclusions, and recommendations based on those facts are protected because they are at the core of what is covered by the privilege.

The letter sent by the attorney to the target of the investigation is not cloaked with the same privilege, because it is not a letter directed to a client or the client's agent that renders advice or offers an opinion on the basis of confidential facts gathered from the client or the client's agent. See Schlefer, supra at 266; Brinton, supra at 332; Mead, supra at 363; see also Murphy, supra at 506. Instead, it was written by the attorney on behalf of the client after, and in reliance upon, confidential attorney-client discussions. However, on remand, the trial court should consider whether the letter is protected from disclosure by the subsection that exempts "personnel records of law enforcement agencies" "[u]nless the public interest in disclosure outweighs the public interest in nondisclosure." MCL 15.243(1)(t)(ix); MSA 4.1801(13)(1)(t) (ix).

Plaintiff's last argument is that the trial court erred in denying his request for the minutes of the closed meeting held by defendant with the complaining officer. The trial court held that the minutes were protected by the Open Meetings Act (OMA), MCL 15.261; et seq.; MSA 4.1800[11] et seq., because plaintiff had failed to file suit under the OMA to invalidate the decision to hold a closed meeting within the required sixty days. See MCL 15.270(3)(a); MSA 4.1800(20)(3)(a). We disagree. Defendant does not cross appeal from the trial court's finding that the meeting was closed in violation of the OMA.

It is true that the OMA provides that a "circuit court shall not have jurisdiction to invalidate a decision of a public body for a violation of this act unless an action is commenced ... [w]ithin 60 days after the approved minutes are made available to the public...." MCL 15.270(3)(a); MSA 4.1800(20)(3)(a). However, a careful reading of this section discloses that the "decision" referred to is a decision made during the course of a meeting held in violation of the act rather than a decision to hold a closed meeting in the first instance. See MCL 15.270(1) and (2); MSA 4.1800(20)(1) and (2).

"The statutory limitations period [discussed above] does not apply [where a] plaintiff did not seek to invalidate the actions" taken at the closed meeting. Detroit News, Inc v Detroit, 185 Mich. App. 296, 301; 460 NW2d 312 (1990). Rather, where "meetings were held in violation of the OMA ... the minutes of those meetings were public records subject to disclosure" under the FOIA. Id. at 303-304. Therefore, the minutes should be disclosed.

Affirmed in part, reversed in part, and remanded for further proceedings consistent with this opinion.

NOTES

[1] See Garrity v New Jersey, 385 U.S. 493; 87 S. Ct. 616; 17 L. Ed. 2d 562 (1967); see also In re Jenkins, 437 Mich. 15, 25-27; 465 NW2d 317 (1991). The question whether, under Garrity, public employees who are not themselves the target of an investigation may be compelled to answer questions under penalty of discharge is not an issue raised by the parties in this case.