The following opinion is presented on-line for informational use only and does not replace the official version. (Mich Dept of Attorney General Web Site - www.ag.state.mi.us) STATE OF MICHIGAN
FRANK J. KELLEY, ATTORNEY GENERAL
FREEDOM OF INFORMATION:
OPEN MEETINGS ACT:
SUMMER RESORT AND ASSEMBLY ASSOCIATIONS:
Application of Freedom of Information Act and Open Meetings Act to unincorporated property owners association and to summer resort owners corporation
A private, voluntary unincorporated association of lake property owners is not a "public body" subject to the Freedom of Information Act, MCL 15.231 et seq; MSA 4.1801(1) et seq, and the Open Meetings Act, MCL 15.261 et seq; MSA 4.1800(11) et seq.
A corporation formed under the summer resort owners corporation act, 1929 PA 137, MCL 455.201 et seq; MSA 21.751 et seq, is a "public body" subject to the Freedom of Information Act and to the Open Meetings Act.
Opinion No. 6942
July 3, 1997
Honorable Mike Rogers
Lansing, MI 48933
You have asked two questions regarding application of the Freedom of Information Act and the Open Meetings Act, to summer resort associations. Addressing your second question first, you ask whether a private, voluntary, unincorporated association of lake property owners is a "public body" subject to the Freedom of Information Act, 1976 PA 442, MCL 15.231 et seq; MSA 4.1801(1) et seq, and the Open Meetings Act, 1996 PA 267, MCL 15.261 et seq; MSA 4.1800(11) et seq.
The Freedom of Information Act (FOIA) entitles members of the public to access certain public records of public bodies. The purpose and scope of the FOIA are delineated in the public policy statement set forth in MCL 15.231(2); MSA 4.1801(1)(2).
[A]ll 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 . . . so that they may fully participate in the democratic process.
The FOIA defines the term "public body" to include municipal corporations and "[a]ny other body which is created by state or local authority or which is primarily funded by or through state or local authority." Section 2(d)(iv). Under this definition, private nongovernmental bodies are not subject to the FOIA. For example, in Perlongo v Iron River Cooperative TV Antenna Corp, 122 Mich App 433, 435; 332 NW2d 502 (1983), the court held that a private nonprofit cable television corporation was not a "public body" under the FOIA since it was formed by four private persons and was not "created" by state or local authority even though the city regulated the corporation, granted a non-exclusive franchise to it and some city commissioners served as members of its board of directors.
The Open Meetings Act (OMA) requires a "public body" to open its meetings to the public, subject only to limited exceptions. OAG, 1981-1982, No 6053, p 616 (April 13, 1982). Its purpose is "to promote a new era in governmental accountability . . . [and to foster] openness in government as a means of promoting responsible decision making." Booth Newspaper, Inc v University of Michigan Bd of Regents, 444 Mich 211, 222-223; 507 NW2d 422 (1993). The OMA defines a "[p]ublic body" for purposes of that act as "a board . . . which is empowered by state constitution, statute, charter, ordinance, resolution, or rule to exercise governmental or proprietary authority or perform a governmental or proprietary function." Section 2(a). Only bodies empowered by law to exercise governmental or proprietary authority are included within this definition. OAG, 1997-1998, No 6935, p (April 2, 1997). Since a purely private voluntary association possesses no such authority, it is not a "public body" subject to the act. See, OAG 1989-1990, No 6563, p 27, 33-35 (January 26, 1989)
It is my opinion, therefore, in answer to your second question, that a private, voluntary, unincorporated association of lake property owners is not a "public body" subject to the Freedom of Information Act and the Open Meetings Act.
You also ask whether a corporation formed under the summer resort owners corporation act, 1929 PA 137, MCL 455.201; MSA 21.751 et seq, is a "public body" subject to the Freedom of Information Act, 1976 PA 442, MCL 15.231 et seq; MSA 4.1801(1) et seq, and to the Open Meetings Act, 1976 PA 267, MCL 15.261 et seq; MSA 4.1800(11) et seq.
The summer resort owners corporation act provides for the formation of a corporation by summer resort owners. Not fewer than ten persons may act to establish a summer resort owners corporation. Section 1. The act further provides that "the persons so associating . . . shall become and be a body politic and corporate, under the name assumed in their articles of association and shall have and possess all the general powers and privileges and be subject to all of the liabilities of a municipal corporation and become the local governing body." (Emphasis added.) Section 4.
While owners of land eligible for membership in the resort owners corporation cannot initially be made subject to the corporation's jurisdiction, an election may be called after the corporation has continued to function for a period of two years, to determine whether the entire territory comprising the subdivisions or part of subdivisions affected should become incorporated. (Emphasis added.) Section 6. As a consequence of this section, it is possible that at least some property owners may be involuntarily compelled to submit to the corporation's jurisdiction.
The authority conferred by statute upon resort corporations is, in some respects, distinctly limited. The corporation does not control its streets and roads to the exclusion of township and county highway authorities. Baker v Roscommon County Road Comm, 329 Mich 671, 676; 46 NW2d 579 (1951). It has no right of taxation. OAG, 1943-1944, No. 0-1795, p 634 (February 2, 1944). The corporation has no zoning powers. OAG, 1975-1976, No 5065, p 731 (December 17, 1976). Its property is not exempt from ad valorem property taxation, even though the corporation possesses "some of the attributes of municipal corporations." OAG, 1951-1952, No 1391, p 229 (May 7, 1951). The corporation is subject to state plat laws. OAG, 1981-1982, No 5899, p 180 (May 12, 1981). The Michigan Supreme Court has characterized as "quasi-governmental" the grant by 1929 PA 137 of "certain police powers over the lands owned by said corporation and within its jurisdiction, and to provide penalties for the violation of the bylaws established under police powers." Baldwin v North Shore Estates Ass'n, 384 Mich 42, 52; 179 NW2d 398 (1970).
Notwithstanding the above limitations, however, the corporation is authorized to assess annual dues and special assessments against its members for purposes of carrying into effect its enumerated powers. Section 19. Additionally, the resort owners corporation is granted certain police powers on the lands of its members, including the regulation of sanitary conditions, preservation of water quality, prevention of disorderly assemblies, and the regulation of billiard pool rooms, bowling alleys, dance halls, meat markets and butcher shops. Section 12. The corporation is further authorized to provide "a water system for its members and occupants, a sewage system, fire protection and electric light service." Section 17. The corporation's board of trustees is authorized to enact bylaws, subject to repeal or modification by the members. Section 12. Any person who shall violate the corporation's bylaws "shall be deemed guilty of a misdemeanor" and, upon conviction, shall be punished by a fine of up to $25.00 or imprisonment in the county jail for up to 30 days. Section 14. To assure enforcement of this authority, the corporation's board of trustees is authorized to appoint a marshal "whose duties shall be to enforce the by-laws" and who "shall have the authority of a deputy sheriff in maintaining peace and order and the enforcement of law on the lands under the jurisdiction of the corporation." (Emphasis added.) Section 15.
In light of the foregoing, I am constrained to conclude that the summer resort owners corporation act does confer upon summer resort corporations substantial authority which is governmental in character and which clearly may affect the rights of the public. Coupled with the fact that section 4 of the summer resort owners corporation act defines the corporation as a "municipal corporation" and a "local governing body," it must be concluded that a summer resort corporation constitutes a "public body" for purposes of both the Freedom of Information Act and the Open Meetings Act.
It is my opinion, therefore, in answer to your first question, that a corporation formed under the summer resort owners corporation act, 1929 PA 137, MCL 455.201 et seq; MSA 21.751 et seq, is a "public body" subject to the Freedom of Information Act and to the Open Meetings Act.
FRANK J. KELLEY
STATE OF MICHIGAN