            If this opinion indicates that it is “FOR PUBLICATION,” it is subject to
                 revision until final publication in the Michigan Appeals Reports.




                          STATE OF MICHIGAN

                           COURT OF APPEALS



HASSAN M. AHMAD,                                                    UNPUBLISHED
                                                                    June 20, 2019
               Plaintiff-Appellant,

v                                                                   No. 341299
                                                                    Court of Claims
UNIVERSITY OF MICHIGAN,                                             LC No. 17-000170-MZ

               Defendant-Appellee.


Before: CAMERON, P.J., and RONAYNE KRAUSE and TUKEL, JJ.

PER CURIAM.

        In this action brought under the Freedom of Information Act (FOIA), MCL 15.231 et
seq., plaintiff, Hassan M. Ahmad, appeals as of right the November 20, 2017 order of the Court
of Claims granting summary disposition in favor of defendant, the University of Michigan (“the
University”), pursuant to MCR 2.116(C)(8) (failure to state a claim). Because plaintiff alleged
sufficient facts to establish a prima facie claim under the FOIA, we reverse the judgment of the
Court of Claims and remand.

                                        I. BASIC FACTS

       Plaintiff challenges the University’s denial of his FOIA request. Dr. John Tanton—“an
ophthalmologist and conservationist,” according to the University, and “a figure widely regarded
as the grandfather of the anti-immigration movements,” according to plaintiff—donated his
personal writings, correspondence, and research (collectively, “the Tanton papers”) to the
Bentley Library’s collection. His donation included 25 boxes of papers, but boxes 15-25 were to
remain closed for 25 years from the date of accession, i.e., until April 2035, purportedly in
accordance with the terms of the gift.1



1
  The University indicates that the restriction is memorialized in a charitable gift agreement, but
that agreement is not contained in the lower court record. Regardless, plaintiff in his complaint
has referenced the existence of the agreement and has acknowledged that the records were



                                               -1-
        Plaintiff filed a FOIA request with the University, seeking all of the Tanton papers,
including those found in boxes 15-25 and marked as “closed.” The University eventually denied
plaintiff’s request, asserting that the Tanton papers were closed to research until April 2035 and
were therefore not “public records” subject to FOIA disclosure because they were not “utilized,
possessed, or retained in the performance of any official University function.”

       Following plaintiff’s unsuccessful administrative appeal, he filed suit in the Court of
Claims. The Court of Claims granted the University’s motion for summary disposition,
concluding that the Tanton papers are not “public records.” This appeal followed.

                                 II. STANDARD OF REVIEW

        A trial court’s ruling on a motion for summary disposition is reviewed de novo on appeal.
Maiden v Rozwood, 461 Mich 109, 118; 597 NW2d 817 (1999). Summary disposition under
MCR 2.116(C)(8) is appropriately granted if the plaintiff has failed to state a claim on which
relief can be granted. “A motion under MCR 2.116(C)(8) tests the legal sufficiency of the
complaint. . . . A motion under MCR 2.116(C)(8) may be granted only where the claims are so
clearly unenforceable as a matter of law that no factual development could possibly justify
recovery.” Maiden, 461 Mich at 119 (quotations marks and citations omitted). In reviewing the
sufficiency of a complaint, a court accepts as true and construes in a light most favorable to the
nonmovant all well-pleaded factual allegations. Id. And when deciding a motion brought under
this subrule, a court considers only the pleadings. Id. at 119-120.

       The interpretation and application of a statute is a question of law that this Court reviews
de novo. Whitman v City of Burton, 493 Mich 303, 311; 831 NW2d 223 (2013).

       When interpreting a statute, we follow the established rules of statutory
       construction, the foremost of which is to discern and give effect to the intent of
       the Legislature. To do so, we begin by examining the most reliable evidence of
       that intent, the language of the statute itself. If the language of a statute is clear
       and unambiguous, the statute must be enforced as written and no judicial
       construction is permitted. Effect should be given to every phrase, clause, and
       word in the statute and, whenever possible, no word should be treated as
       surplusage or rendered nugatory. [Id. at 311-312 (citations omitted).]

Finally, we also review legal determinations under the FOIA de novo. Herald Co, Inc v Eastern
Mich Univ Bd of Regents, 475 Mich 463, 471-472; 719 NW2d 19 (2006).

           III. WHAT CONSTITUTES A “PUBLIC RECORD” UNDER THE FOIA




“marked ‘closed for 25 years from the date of accession, or until April 6, 2035.’ ” Further,
attachments to plaintiff’s complaint show that the records were “closed to research until April
2035.”


                                                -2-
       Unless an exception applies, a person who provides a proper written request for a public
record is entitled to “ ‘inspect, copy, or receive copies of the requested public record of the
public body.’ ” Amberg v Dearborn, 497 Mich 28, 30; 859 NW2d 674 (2014), quoting MCL
15.233(1). Defendant argues that the Tanton papers are not subject to disclosure under the FOIA
because under the terms of the gift agreement, they never became public records, and only public
records are subject to FOIA disclosure. See MCL 15.233(1).

        Under the FOIA, a “ ‘[p]ublic record’ means 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).2 Thus, the sole issue before us is whether plaintiff alleged
facts sufficient to show that the Tanton papers constitute a public record under the FOIA. Here,
there is no doubt that plaintiff adequately alleged that the University had “possession of” or
“retained” the documents at issue. Accordingly, the only question remaining is whether said
possession or retention was alleged to have been done “in the performance of an official
function.”

        While the FOIA defines what constitutes a “public record,” it does not define what
constitutes an “official function.” When a statute does not define a term, we are to give the term
its plain and ordinary meaning. Williams v Kennedy, 316 Mich App 612, 616; 891 NW2d 907
(2016); see also Kestenbaum v Mich State Univ, 414 Mich 510, 538; 327 NW2d 783 (1982)
(opinion by RYAN, J.) (noting that because “official function” is not defined in the FOIA, “the
term must be construed according to its commonly accepted and generally understood
meaning”). We may consult a dictionary in ascertaining plain meanings. Williams, 316 Mich
App at 616. “Official” is defined, in pertinent part, as “AUTHORITATIVE, AUTHORIZED.”
Merriam-Webster’s Collegiate Dictionary (11th ed). And “function” is defined as “the acts or
operations expected of a person or thing.” Id. Thus, an “official function” of the Bentley
Library, as intended under the FOIA, includes those authorized acts or operations that are
expected of the Library as it relates to its position as a public library. In order to help determine
whether any given act or operation is authorized, we turn to the University’s bylaws.

       The University’s bylaws provide that the Bentley Library’s historical collection is
“maintained for the purpose of collecting, preserving, and making available to students
manuscripts and other materials pertaining to the state, its institutions, and its social, economic,
and intellectual development.”3 Bylaws, § 12.04 (emphasis added). The University does not



2
  The definition for “public record” can now be found in MCL 15.232(i), but the definition was
located at MCL 15.232(e) prior to the June 17, 2018 effective date of 2018 PA 68.
3
  The bylaws of the Board of Regents comprise the rules concerning the more important matters
of general University organization and policy rather than administrative details and specific
technical requirements of the several fields of instruction. The bylaws are adopted directly by
the Board of Regents in the exercise of the Board’s legislative powers and thus are binding
authority on the University. See University of Michigan Board of Regents, Bylaws Preface
<http://regents.umich.edu/bylaws/bylaws_pref.html> (accessed June 4, 2019). Chapter XII of
the Bylaws pertains the University’s libraries, with § 12.04 pertaining specifically to the Bentley


                                                -3-
dispute that it had collected and possessed the Tanton papers but instead argues that because the
papers had never been made available to anyone, let alone students, then the papers cannot
constitute a public record. In making this argument, the University says that in order to qualify
as a “public record” for FOIA purposes, all three aspects of the bylaws’ stated purpose are
required to have been accomplished. The University primarily relies on the conjunctive “and” in
the list, “collecting, preserving, and making available to students.” (Emphasis added.)
However, we believe that the University is reading the conjunctive “and” in this context
incorrectly.

        We agree with the University that the purpose for the Library’s existence is defined as
having three distinct aspects, which are indeed provided for in the conjunctive, i.e., collecting,
preserving, and making available to students the Library’s materials. We generally are to read
the conjunctive word “and” as a true conjunctive, see Coalition Protecting Auto No-Fault v Mich
Catastrophic Claims Ass’n (On Remand), 317 Mich App 1, 14; 894 NW2d 758 (2016); People v
Comella, 296 Mich App 643, 649; 823 NW2d 138 (2012) (both cases explaining that the words
“and” and “or” are not interchangeable and their strict meanings, including the conjunctive
meaning of “and,” should be followed unless legislative intent shows otherwise); OfficeMax, Inc
v United States, 428 F3d 583, 589 (CA 6, 2005) (“[T]he Supreme Court has said that ‘and’
presumptively should be read in its ‘ordinary’ conjunctive sense unless the ‘context’ in which the
term is used or ‘other provisions of the statute’ dictate a contrary interpretation.”). However, as
the cases above show, the meaning of “and” and “or” may be flexible depending on context.
Heckathorn v Heckathorn, 284 Mich 677, 681-682; 280 NW 79 (1938). We do not read this list
as requiring all three aspects to have been completed in order for the Library to have been acting
in furtherance of its purpose, as described in the bylaws.

         Because the Tanton papers have never been made available to students, if the
University’s construction of the statute were correct, then none of what it has done to date with
respect to the papers has been in the performance of an official function. The flaw with the
University’s argument is that while all three aspects of the Library’s purpose are relevant to the
Library’s purpose and mission, they do not each have to have been completed in order for the
Library’s acts to have been in furtherance of its purpose. Instead, from the context of the bylaws,
all that is required is that the Library’s actions were done with the intention that all three aspects
of its stated purpose were to be fulfilled. This interpretation gives the conjunction “and” in the
bylaws its proper meaning. For example, the act of presently collecting and acquiring papers
that the Library intends to preserve and make available to students at a future date would be in
the performance of its official function. But the act of acquiring writings or documents that the
University has no intention of ever making available to students would not be in the performance
of its official function. Therefore, the Library doing any act in furtherance of any single aspect




Library. University of Michigan Board of Regents, Chapter XII. The University Libraries
<http://regents.umich.edu/bylaws/bylaws12.html> (accessed June 4, 2019).


                                                 -4-
of its stated purpose, while intending to accomplish the other aspects, is doing the act “in the
performance of an official function.”4

        Here, plaintiff sufficiently pled that defendant was storing and maintaining the Tanton
papers, which is consistent with the stated purposes of the Library’s official functions. The fact
that those materials were not subject to disclosure to students or research does not detract from
the fact that the act of keeping those materials is part of the Library’s purpose. Importantly,
plaintiff’s complaint can be read to allege that the Tanton papers were “closed” to research until
April 2035. The clear implication is that the University was holding the papers with the intent to
open them to research (and students) at that later time. Thus, the University’s acts of collecting
and preserving the papers were in furtherance of its official purpose. Accordingly, we read the
complaint as alleging that defendant “maintained the records” in the performance of an official
function, which, under FOIA’s definitions, renders them “public records.” Therefore, contrary to
the ruling of the Court of Claims, the complaint states a valid claim that the papers are public
records.

        Further, the Michigan Community Foundation Act (MCFA), MCL 123.901 et seq., and
its predecessor act, 1921 PA 136, support our conclusion that the Library’s act of holding onto
the Tanton papers was an official or “authorized” function. MCL 123.905(3) of the MCFA
states:

              A public library may receive and accept gifts and donations of real,
       personal, or intangible personal property, for the library, and shall hold, use, and


4
   To the extent the University argues that disclosure “would likely dissuade other similarly
situated individuals from donating private papers of historical significance to public institutions,”
or more generally frustrate public policy, we note that any such public policy consideration is for
the Legislature to make. We do no more here than construe the public policy choice which the
Legislature has enshrined in current law; it remains free to change that public policy as it sees fit,
although we are not free to make such public policy choices. See Robinson v Detroit, 462 Mich
439, 474; 613 NW2d 307 (2000) (CORRIGAN, J., concurring) (“[A] Court exceeds the limit of its
constitutional authority when it substitutes its policy choice for that of the Legislature.”).
Indeed, the Legislature appears to have provided a method that protects such donors through its
enactment of MCL 397.381, 1921 PA 136, and, more recently, the Michigan Community
Foundation Act (MCFA), MCL 123.901 et seq. See discussion, infra, in this opinion.
        In addition to any protections afforded by the Legislature through its passage of acts such
as the MCFA, future donors could ensure the privacy of their papers during their lifetimes, as Dr.
Tanton apparently sought to do, by donating them to a public university through a will. Dr.
Tanton donated his papers during his lifetime, transferring the title and the copyright at that time.
Had he instead maintained ownership and control during his lifetime and only left the papers to
the University by way of a will, the papers could not have become public records during his
lifetime, as they would not have been “prepared, owned, used, in the possession of, or retained
by a public body in the performance of an official function,” MCL 15.232(i), until after his
death.


                                                 -5-
       apply the property received for the purposes, in accordance with the provisions,
       and subject to the conditions and limitations, if any, set forth in the instrument of
       gift.[5]

        Thus, a public library receiving a gift is authorized by statute to “hold, use, and apply”
the gift for the purposes set forth in the donor’s agreement, subject to any conditions or
limitations expressly made. Therefore, the Bentley Library carries out an “official function” as it
relates to its gifts and donations when it holds onto such gifts and donations in accordance with
the donation agreement.6

        Reversed and remanded for proceedings not inconsistent with this opinion. We do not
retain jurisdiction.

                                                             /s/ Thomas C. Cameron
                                                             /s/ Amy Ronayne Krause
                                                             /s/ Jonathan Tukel




5
 We note that at the time plaintiff made his FOIA request to the University, MCL 397.381(1)
was in effect and was substantively the same as the later-enacted MCFA, which became effective
before the Court of Claims issued its ruling and which also repealed MCL 397.381(1). See 2017
PA 38.
6
  We had asked the parties to file supplemental briefing in regard to the applicability of the MCL
123.905(3) and how its application may support granting defendant’s motion for summary
disposition under MCR 2.116(C)(8). However, after reviewing the briefing, we have determined
that the University cannot rely on MCL 123.905(3), or its predecessor, MCL 397.381(1), to
dismiss plaintiff’s action under MCR 2.116(C)(8). That is because, assuming the University is
required to not disclose the Tanton papers under the terms of the gift instrument, this fact relates
to an affirmative defense the University may raise. See MCL 15.243(d); Messenger v Consumer
& Ind Serv, 238 Mich App 524, 536; 606 NW2d 38 (1999); Detroit News, Inc v Detroit, 185
Mich App 296, 300; 460 NW2d 312 (1990). And affirmative defenses generally are not
implicated in a motion brought under MCR 2.116(C)(8). See Booth Newspapers, Inc v Regents
of the Univ of Mich, 93 Mich App 100, 109; 286 NW2d 55 (1979). We offer no opinion on how
either MCL 123.905(3) or its predecessor, MCL 397.381(1), might affect an analysis under MCR
2.116(C)(10) or at trial.


                                                -6-
