                           STATE OF MICHIGAN

                            COURT OF APPEALS



MLIVE MEDIA GROUP, doing business as                               FOR PUBLICATION
GRAND RAPIDS PRESS,                                                September 12, 2017
                                                                   9:10 a.m.
                Plaintiff-Appellant,

v                                                                  No. 338332
                                                                   Kent Circuit Court
CITY OF GRAND RAPIDS,                                              LC No. 17-002205-CB

                Defendant-Appellee.


Before: TALBOT, C.J., and O’CONNELL and CAMERON, JJ.

O’CONNELL, J.

       Plaintiff MLive Media Group, doing business as Grand Rapids Press, sent defendant City
of Grand Rapids two requests under the Michigan Freedom of Information Act (FOIA), MCL
15.231 et seq., seeking recordings, copies of recordings, and transcripts of phone calls made by
Grand Rapids police officers to a Grand Rapids police lieutenant regarding the citation of a
former Kent County Assistant Prosecutor. The City denied MLive’s FOIA requests. MLive
filed suit and moved for summary disposition pursuant to MCR 2.116(C)(10), seeking
production of the records. The trial court denied MLive’s motion and dismissed the case without
prejudice. MLive appeals. We reverse and remand.

                     I. FACTUAL AND PROCEDURAL BACKGROUND

        A man drove the wrong way down a one-way street and hit a parked car. Grand Rapids
Police Officer Adam Ickes and Grand Rapids Police Sergeant Thomas Warwick responded to the
scene. Officer Ickes called Grand Rapids Police Lieutenant Matthew Janiskee at a recorded
police department telephone line and informed Lieutenant Janiskee that the driver of the vehicle
was a “hammered” Kent County Assistant Prosecutor. Lieutenant Janiskee told Officer Ickes to
hang up and call back on a different department line, (616) 456-3407, labeled “Non-Recorded
Line 3407.” Officer Ickes then placed three calls to Lieutenant Janiskee on line 3407. Sergeant
Warwick placed two calls to Lieutenant Janiskee on line 3407. Ultimately, Officer Ickes cited
the prosecutor for driving the wrong way down a one-way street, and Sergeant Warwick drove
the prosecutor home.

        The police department then conducted an internal investigation. During the investigation,
the City states that it discovered that the phone calls to line 3407 had been recorded.


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        The City filed a declaratory action in the Federal District Court for the Western District
of Michigan, seeking a determination of its rights and obligations to use and disclose the line
3407 recordings. The City wanted to use the recordings as evidence in officer disciplinary
actions and legal proceedings. The officers asserted that use of the recordings would violate the
Federal Wiretapping Act, 18 USC 2510 et seq., and Michigan eavesdropping statutes, MCL
750.539a et seq. The City denied violating the statutes. Further, the City explained that it
received FOIA requests for the line 3407 recordings. The City alleged that if the recordings were
obtained in violation of the statutes, disclosure of the recordings would violate the statutes.

         Later that month, the City received two FOIA requests from MLive seeking recordings,
copies of recordings, and transcripts of the line 3407 calls. The City denied both requests,
asserting that its “ability to release these records is the subject matter of the pending [federal]
litigation.”

        MLive filed a complaint in the trial court, seeking an order compelling disclosure and a
declaration that the City violated FOIA because the City failed to cite a FOIA exemption for the
denial and no exemption exists. MLive also moved for summary disposition. In response, the
City reiterated its argument that it did not believe that complying with MLive’s FOIA request
would violate the Federal Wiretapping Act or Michigan eavesdropping statutes. Nonetheless, it
argued that it could invoke FOIA exemption MCL 15.243(1)(d) because the federal court had not
yet determined whether complying with the FOIA request would violate the Federal Wiretapping
Act or Michigan eavesdropping statutes. The trial court denied MLive’s motion for summary
disposition and dismissed the case without prejudice, citing the doctrine of comity.

                                        II. JURISDICTION

        The City argues that MLive could not appeal by right because it did not appeal from a
final order. We disagree.

        MCR 7.202(6)(a)(i) defines a final order in a civil case as “the first judgment or order
that disposes of all the claims and adjudicates the rights and liabilities of all the parties.” Parties
cannot create a final order by stipulating to dismiss remaining claims without prejudice after a
trial court enters an order denying a motion for summary disposition addressing only some of the
parties’ claims. See Detroit v Michigan, 262 Mich App 542, 544-545; 686 NW2d 514 (2004).

        In this case, the trial court entered an order denying MLive’s motion for summary
disposition and dismissing MLive’s only claim without prejudice after reviewing both parties’
opposing arguments. Therefore, the order is final, and Detroit is distinguishable.

                                 III. STANDARDS OF REVIEW

        We review de novo whether the trial court properly interpreted and applied FOIA,
including “whether a public record is exempt under FOIA” “when the facts are undisputed and
reasonable minds could not differ,” Rataj v City of Romulus, 306 Mich App 735, 747-748; 858
NW2d 116 (2014). When interpreting a statute, we aim to determine the Legislature’s intent by
first examining the statute’s plain language. Fellows v Mich Comm for the Blind, 305 Mich App
289, 297; 854 NW2d 482 (2014). If a statute is unambiguous, we enforce it as written. Id.


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       We review a trial court’s decision to abstain from a ruling “in favor of an alternative,
foreign forum,” for an abuse of discretion. Hare v Starr Commonwealth Corp, 291 Mich App
206, 214-215; 813 NW2d 752 (2011). “A trial court abuses its discretion when its decision falls
outside the range of principled outcomes.” ESPN, Inc v Mich State Univ, 311 Mich App 662,
664; 876 NW2d 593 (2015).

        A motion for summary disposition pursuant to MCR 2.116(C)(10) tests the factual
sufficiency of a complaint. Maiden v Rozwood, 461 Mich 109, 120; 597 NW2d 817 (1999). The
moving party must specify issues for which there are no genuine issues of material fact and
support the motion. MCR 2.116(G)(4). The nonmoving party then has the burden to provide
evidence of a genuine issue. MCR 2.116(G)(4). The trial court reviews the record in the light
most favorable to the nonmoving party. Maiden, 461 Mich at 120. A trial court must grant the
motion if it finds “no genuine issue as to any material fact” and determines that “the moving
party is entitled to judgment or partial judgment as a matter of law.” MCR 2.116(C)(10). We
review a trial court’s denial of a motion for summary disposition de novo. See Maiden, 461
Mich at 118.

                                          IV. ANALYSIS

      MLive argues that the trial court erred in denying its motion for summary disposition.
We agree.

                                      A. FOIA EXEMPTION

      The trial court erred to the extent that it found that the City met its burden to prove that a
FOIA exemption applied.

        FOIA proclaims that “[i]t is the public policy of this state that all persons . . . are entitled
to full and complete information regarding the affairs of government and the official acts of
those who represent them as public officials and public employees . . . .” MCL 15.231(2).
Further, “[t]he people shall be informed so that they may fully participate in the democratic
process.” MCL 15.231(2). In keeping with this policy, FOIA provides persons “a right to
inspect, copy, or receive copies of [a] requested public record of [a] public body” “upon
providing 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,” “[e]xcept as expressly provided
in [MCL 15.243].” MCL 15.233(1).

        MCL 15.243(1)(d) states that a “public body may exempt from disclosure as a public
record” “[r]ecords or information specifically described and exempted from disclosure by
statute.”1 When a public body invokes this exception, it is necessary to examine the statute


1
  Both parties referenced another exemption, MCL 15.243(1)(a). However, we do not consider
whether the exemption applies because neither identified portions of the recordings covered by
this exemption or cited authority to support an argument that the exemption applied, contrary to
their requirements to do so. See MCR 7.212(C)(7) and (D)(1).


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under which the public body claims disclosure is prohibited. See Detroit News, Inc v Policemen
& Firemen Retirement Sys of the City of Detroit, 252 Mich App 59, 72-75; 651 NW2d 127
(2002). For example, the Federal Wiretapping Act prohibits the intentional interception and
disclosure of an oral or wire communication. 18 USC 2511(1)(a) and (1)(c). Therefore, the
communication would be exempt from disclosure under MCL 15.243(1)(d).

        FOIA requires the public body receiving a FOIA request to interpret FOIA and decide
whether to honor the request. See MCL 15.235. Persons send a FOIA request directly to the
public body, specifically its FOIA coordinator. MCL 15.235(1). FOIA requires the public body
to decide whether to grant or deny the request in whole or in part within five business days of
receipt. MCL 15.235(2). Alternatively, the public body can seek a 10 business day extension to
make a decision. MCL 15.235(2)(d). If the public body denies any portion of the request
because it determined that the content is exempt from disclosure, it must explain the denial under
FOIA or another statute. MCL 15.235(5)(a).

       A court only becomes involved if a public body denies a request and the requester
appeals. MCL 15.240(1)(b). Specifically, the person requesting the public record may
“[c]ommence a civil action in the circuit court . . . to compel the public body’s disclosure of the
public records.” MCL 15.240(1)(b). The public body has the burden to “sustain its denial.”
MCL 15.240(4). The trial court reviews the denial de novo, MCL 15.240(4), and construes
FOIA exemptions narrowly, see Detroit News, Inc, 252 Mich App at 72.

         The City failed to meet its burden to prove that a FOIA exemption applied. The City
argues that it properly invoked exemption MCL 15.243(1)(d) to deny MLive’s FOIA requests
because the Federal Wiretapping Act prohibits the intentional interception and disclosure of an
oral or wire communication, 18 USC 2511(1)(a) and (1)(c), and “the jurisdiction of a federal
district court has already been invoked to make th[e] factual determination[] . . . of whether” the
Federal Wiretapping Act applies. But the City never argued when denying MLive’s FOIA
request, during the trial court proceedings, or on appeal, that it actually violated the Federal
Wiretapping Act. Rather, it made the opposite argument: it accidentally or inadvertently
recorded the phone calls and then refused to disclose the recordings to MLive. The Federal
Wiretapping Act does not prohibit inadvertent interception or disclosure of communication. See
18 USC 2511(1); Thompson v Dulaney, 970 F2d 744, 748 (CA 10, 1992).2 Stated differently,
the City must argue that it violated the Federal Wiretapping Act in order to invoke the MCL
15.243(1)(d) FOIA exemption and deny MLive’s FOIA requests. The City never made this
argument.

       Any argument by the City that it properly invoked exemption MCL 15.243(1)(d) because
Michigan eavesdropping statutes prohibit disclosure of the recordings similarly fails. Michigan
eavesdropping statutes prohibit “willful[]” use of a device to eavesdrop on a private conversation
without all parties’ consent, MCL 750.539c, and “us[ing]” or “divulg[ing]” information that a
person “knows or reasonably should know was obtained” through eavesdropping, MCL


2
 We find this nonbinding case law persuasive. See Holman v Rasak, 281 Mich App 507, 509;
761 NW2d 391 (2008), aff’d 486 Mich 429 (2010).


                                                -4-
750.539e. Accordingly, the City must argue that it violated an eavesdropping statute to invoke
the MCL 15.243(1)(d) FOIA exemption. But the City never made this argument. Instead, it
argued that it accidentally recorded the phone calls.

        Further, FOIA requires the City to determine whether a FOIA exemption exists. See
MCL 15.235(2). The City cited no FOIA provision that allows it to pass this decision to a
federal court. Therefore, the City failed to meet its burden to prove that a FOIA exemption
applied.

                                           B. COMITY

      The trial court abused its discretion in determining that comity prevented it from ruling
on MLive’s FOIA complaint.

        The principle of comity generally states that foreign courts can afford each other’s
judgment mutual respect and recognition. See Gaudreau v Kelly, 298 Mich App 148, 152; 826
NW2d 164 (2012). Accordingly, “principles of comity require” us “to defer to [a] federal court
ruling” when “a federal district court [is] the equivalent of a state circuit court.” Bouwman v
Dep’t of Social Servs, 144 Mich App 744, 748-749; 375 NW2d 806 (1985).3 When a court relies
on the principle of comity to abstain from ruling on an issue in favor of a foreign ruling, it is also
“invoking a doctrine akin to forum non conveniens,” which gives a court discretion “to decline
jurisdiction when convenience of parties and ends of justice would be better served if action
were brought and tried in another forum.” Hare, 291 Mich App at 223-224 (quotations and
citations omitted).4

        The trial court in this case improperly reframed the issue before it to invoke the doctrine
of comity. As explained above, the issue before the trial court was whether the City met its
burden to show that the narrowly construed MCL 15.243(1)(d) FOIA exemption supported its
denial of MLive’s FOIA requests. See MCL 15.235(2) and (5)(a); MCL 15.240(4); Detroit
News, Inc, 252 Mich App at 72. As further explained above, the City failed to do so. The trial
court did not need to consider “whether or not the recordings in this case were intentional” and
did not need to defer to the federal court’s “factual determination” regarding this separate issue.
The City did not argue in this case or in the federal case that it intentionally recorded line 3407,
which could amount to violations of the Federal Wiretapping Act and Michigan eavesdropping
statutes. Because it never raised the argument, exemption MCL 15.243(1)(d) does not apply, and
the City necessarily failed to meet its burden to show that a narrowly construed FOIA exemption
supported its denial of MLive’s FOIA requests.5 Therefore, the trial court’s decision to invoke


3
    We find this nonbinding opinion, see MCR 7.215(J)(1), persuasive.
4
  We do not consider the City’s argument that federalism required the trial court to defer to the
federal court because the City cited no authority to support its argument, contrary to its
requirement to do so. See MCR 7.212(C)(7) and (D)(1).
5
 We reiterate that the public policy articulated by the Legislature in FOIA is that “all persons . . .
are entitled to full and complete information regarding the affairs of government and the official


                                                 -5-
the doctrine of comity was outside the range of principled outcomes, and the trial court erred in
denying MLive’s motion for summary disposition.

                               V. CONCLUSION AND RELIEF

       Because the trial court erred in denying MLive’s motion for summary disposition, we
remand for entry of judgment in MLive’s favor. On remand, the trial court must order the City
“to cease withholding or to produce” the line 3407 recordings. See MCL 15.240(4).
Accordingly, MLive prevailed because the suit “had a substantial causative effect on” and “was
necessary to” “the delivery of or access to” the recordings. See Wilson v Eaton Rapids, 196
Mich App 671, 673; 493 NW2d 433 (1992). Without the suit, the City would not grant MLive’s
FOIA request at this time. Because MLive prevailed, the trial court must award MLive
reasonable attorneys’ fees, costs, and disbursements. See MCL 15.240(6); Rataj, 306 Mich App
at 757. Additionally, the trial court must “determine whether [MLive] is entitled to punitive
damages under MCL 15.240(7).” Rataj, 306 Mich App at 757.

        We reverse and remand. We do not retain jurisdiction. We give our judgment immediate
effect. MCR 7.215(F)(2).

                                                           /s/ Peter D. O’Connell
                                                           /s/ Michael J. Talbot
                                                           /s/ Thomas C. Cameron




acts of those who represent them as public officials and public employees,” MCL 15.231(2),
“[e]xcept as expressly provided in [MCL 15.243],” MCL 15.233(1). MCL 15.243 contains no
exemption to allow a federal court to determine a public body’s compliance with a separate
statute before the public body must answer a FOIA request. We leave any alteration of this
public policy to the Legislature. See Messenger v Dep’t of Consumer & Indus Servs, 238 Mich
App 524, 531, 537; 606 NW2d 38 (1999).


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