Arabo v. Michigan Gaming Control Board

STATE OF MICHIGAN
COURT OF APPEALS
PETER ARABO, FOR PUBLICATION
May 5, 2015
Plaintiff-Appellant, 9:05 a.m.
v No. 318623
Oakland Circuit Court
MICHIGAN GAMING CONTROL BOARD, LC No. 2013-133668-CZ
Defendant-Appellee.
Before: BECKERING, P.J., and JANSEN and BOONSTRA, JJ.
BOONSTRA, J.
Plaintiff appeals by right the trial court’s August 28, 2013 order granting summary
disposition to defendant Michigan Gaming Control Board (“the Board”), and dismissing
plaintiff’s claims under the Freedom of Information Act (“FOIA”), MCL 15.231 et seq.1 We
affirm in part, reverse in part, and remand for further proceedings.
I. PERTINENT FACTS AND PROCEDURAL HISTORY
This appeal arises out of plaintiff’s request to the Board for public records under the
FOIA. On February 15, 2013, plaintiff sent a letter by email to the Board’s FOIA Coordinator,
1
The FOIA was recently amended. See 2015 PA 563. The amendment adds a procedure for
challenging fees under § 10 and provides for monetary damages and punitive damages, under
certain situations, to be paid both to the public treasury and the requestor. The act takes effect
July 1, 2015. Nothing about the amendatory act leads us to believe the Legislature intended the
amendment to operate retroactively. We presume a statute operates prospectively unless the
Legislature clearly intended retroactive application; this is “especially true if retroactive
application of a statute would . . . attach a disability with respect to past transactions.” Frank W
Lynch & Co v Flex Technologies, Inc, 463 Mich. 578, 583; 624 NW2d 180 (2001). We therefore
consider plaintiff’s appeal under the previous (and in fact, still in effect) version of the FOIA. Id.
Further, the enactment of this amendment does not alter our conclusion that a cause of action
exists for declaratory and injunctive relief, but not monetary damages, for violation of § 4 of the
FOIA as it existed prior to the amendment, as discussed later in this opinion in Part II(C).
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Latasha Cohen, making a formal request for information under the FOIA. Plaintiff’s request
sought information, writings, documents, or other public records regarding: (1) “which
countermeasures have ever been in effect, or were in effect since 01/01/1996 to 02/15/2013, that
authorized or authorizes MGM Grand Detroit, Greektown Casino & Hotel, and the Motorcity
Casino to prevent card counters from profiting at the game of blackjack, and that is or was also
approved by the Michigan [G]aming Control Board,” and (2) “any rule(s) or law(s) by the
Michigan Gaming Control Board that allows MGM Grand Detroit, Greektown Casino & Hotel,
and the Motorcity Casino to exclude skillful players at the game of blackjack or any other game
that has ever been in effect since 01/01/1996 to 02/15/2013.” The Board received plaintiff’s
FOIA request on February 19, 2013.
On February 25, 2013, Cohen, the FOIA Coordinator, responded by letter to plaintiff,
stating in relevant part:
You have requested information you describe as follows:
“. . . [I] request to view/copy, or upon further request receive certified
copies of the requested documentation, as prescribed in M.C.L. 15.233
Sections 3(1)(2)(5) of the FOIA.
It is hereby requested that you disclose the following information,
writing(s), document(s), or other public record(s), as indicated below
according to Title 5 U.S.C. Sections 552(a)(3); M.C.L. 15.232(c)(e), and
M.C.L. 15.269:
1. Which of the following countermeasures have ever been in effect, or
were in effect since 01/01/1996 to 02/15/2013, that authorized or
authorizes MGM Grand Detroit, Greektown Casino & Hotel, and the
Motorcity Casino to prevent card counters from profiting at the game of
blackjack, and that is or was also approved by the Michigan [G]aming
Control Board. . . .”
MGCB grants your request for existing, non-exempt information in our
possession that is relevant to your request.
Section 4(1) of the FOIA permits a public body to charge a fee for the necessary
copying of documents and for the cost, search, retrieval, examination, review, and
the deletion of exempt information, if any.
Due to the substantial volume of records that may be responsive to your request,
the numerous hours required to process this request; and the unreasonably high
cost to MGCB in the absence of charging a fee in this particular instance, MGCB
has determined that it must seek reimbursement.
There are approximately 6,206 pages of information which might be relevant to
your request. It will take approximately 103 hours to search, retrieve, examine,
review, and redact exempt from non-exempt information from records described
in your request. The following is a breakdown of the cost based on the respective
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hourly rate of the lowest paid MGCB employee capable of performing the tasks
necessary to commence the processing of your request:
6,206 pages 103 hours
Department Analyst, Records Section 103 hours @ 41.78 $4,303.34
TOTAL $4,303.34
This estimate does not include the actual copying and mailing costs. MGCB
would determine necessary postage fees upon completion of your request.
If you wish to narrow or modify your request, notify us in writing. In the
alternative, feel free to contact us by mail or telephone if you wish to discuss the
scope of your current request.
Section 4(2) of the FOIA permits a public body to require a good faith deposit at
the time a request is made which in this instance is $2,151.67. Payments are
submitted in the form of a check or money order. . . .
* * *
Upon completion of processing the request, you will be notified in writing of the
balance payable before records are disclosed. Additionally, you will be informed
of exempt records, if any, with the specific statutory basis for the exemptions
explained at that time.
On March 2, 2013, and in response to the Board’s February 25, 2013 letter, plaintiff
again sent a letter by email to Cohen, as well as to Richard S. Kalm, the Executive Director of
the Board, requesting that the Board waive the fees to process his request. Plaintiff cited
numerous reasons for his fee waiver request, including that the disclosure of the information
would further the public interest and likely contribute to public understanding, that he planned to
make the documents available to the public at the Michigan State University Law Library, that
he intended to use the information for litigation, and that he was working on a campaign to ban
casinos in Michigan.
On March 18, 2013, Karen Finch, the Board’s Administrative Services Manager, notified
plaintiff that the Board had denied his request for a waiver of the fees. Finch’s letter stated in
part:
The FOIA does not require the taxpayers to subsidize a requesting person’s FOIA
processing costs. The Board recognizes that the purpose of the FOIA is to
promote access to government records in the most efficient and economical way
possible. The Board’s response to the instant FOIA request is entirely consistent
with those purposes. The fees included for the processing of your request are the
actual costs to the Board. The costs incurred include fees for the search,
examination, review and the deletion and separation of exempt from nonexempt
material because a member of the Board’s staff will be taken away from his/her
normal duties for a significant period of time in order to process your request.
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Further, section 4(3) of the FOIA, MCL 15.234(3), mandates that “[f]ees shall be
uniform and not dependent on the identity of the requesting person.” In this
instance, we are charging you the same fees we would charge another requestor
making the same FOIA request. In the FOIA, the Legislature has balanced the
public’s important right to be informed about the workings of government with a
public body’s legitimate need to safeguard the taxpayer’s resources it is entrusted
to conserve.
Therefore, the Board denies your request for a waiver of the fees. The denial is
based upon Section 4(1)(2)(3) of the Michigan Freedom of Information Act,
MCL 15.243(1)(2)(3).
Plaintiff did not respond to the Board’s written notice denying plaintiff’s request for a fee
waiver and did not pay the required deposit. According to Cohen’s affidavit submitted with the
Board’s summary disposition motion, the Board “has been and remains ready to complete the
processing of [plaintiff’s] FOIA request upon receipt of the deposit, as it has been since issuing
written notice granting [plaintiff’s] FOIA request.”
On April 25, 2013, plaintiff filed a two-count complaint, alleging that the Board had
violated the FOIA, MCL 15.231 et seq. In Count I, plaintiff claimed that the Board had
wrongfully denied his records request. In Count II, plaintiff claimed that the Board had imposed
excessive fees to process the request. On May 16, 2013, in lieu of answering plaintiff’s
complaint, the Board filed a motion for summary disposition pursuant to MCR 2.116(C)(8)
(failure to state a claim upon which relief can be granted) and (C)(10) (no genuine issue of
material fact). The Board argued that summary disposition on Count I was appropriate under
MCR 2.116(C)(10) because there was no genuine issue of material fact that the Board had
“granted” plaintiff’s request; plaintiff thus did not have a cause of action under § 10 of the FOIA,
which allows a requestor to commence a cause of action to compel disclosure of the requested
records upon the public body’s final determination denying the request, MCL 15.240(1)(b). The
Board also argued that summary disposition on Count II was appropriate under
MCR 2.116(C)(8). Specifically, the Board contended that § 4 of the FOIA does not recognize a
cause of action and that the FOIA’s remedial provisions, MCL 15.240, do not apply to a fee
dispute brought under § 4.
Following a hearing on plaintiff’s motion, the trial court granted summary disposition to
the Board, stating:
On April 25th, 2013, Plaintiff filed a two count complaint. Count one is
entitled violation of Freedom inf—of Information Act by wrongful denial of
request for records under FOIA. Count two’s entitled violation of the Freedom of
Information Act for imposing cost in excess of FOIA requirements. Defendant
moves to dismiss Plaintiff’s complaint under MCR 2.116C8, failure to state a
claim and MCR 2.116C10, no genuine issue of material fact and for an award of
its costs, expenses and attorney fees under MCR 2.114D through F.
The Court concludes that summary disposition as to count one of the
complaint is appropriate for the reason there is no genuine issue of material fact
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that contrary to Plaintiff’s arguments, Plaintiff’s FOIA was granted. Here
Plaintiff’s FOIA request was granted as set forth in Defendant’s response to
Plaintiff’s February 15th, 2013, FOIA request in a letter dated February 25, 2013,
wherein it granted Plaintiff’s request. Plaintiff’s arguments cannot overcome this
evidence. Moreover, Plaintiff responded to the February 15th, 2013, letter with a
March 2nd, 2013, email stating I appreciate you granting my request; under
MRE 801 section D2A, this email constitutes a party admission. Furthermore,
nothing has been presented to refute the affidavit of the Defendant Board’s FOIA
Coordinator, therefore, count one of Plaintiff’s complaint is dismissed.
Furthermore the Court grants summary disposition in favor of Defendant
as to count two of the complaint, for the reason that Plaintiff has failed to state a
claim. Count two concerns the imposition of fees by Defendant, however
FOIA[’]s remedial provisions do not apply to a dispute over fees charged under
Section Four of FOIA, MCL 15.234, see Detroit Free Press v Attorney General[,]
271 Mich. App. 418; [722 NW2d 277 (2006)], therefore count two of the complaint
is dismissed.
The trial court then entered an order granting the Board’s motion. This appeal followed.
II. SUMMARY DISPOSITION
A. BACKGROUND OF THE FOIA
“The Freedom of Information Act declares that it is the public policy of this state to
entitle all persons to complete information regarding governmental affairs so that they may
participate fully in the democratic process.” Grebner v Clinton Charter Twp, 216 Mich. App.
736, 740; 550 NW2d 265 (1996); see also Bitterman v Village of Oakley, ___ Mich App ___;
___ NW2d ___ (2015) (Docket No. 320984), slip op at 3-4. “[A] public body must disclose all
public records that are not specifically exempt under the act.” King v Michigan State Police
Dep’t, 303 Mich. App. 162, 176; 841 NW2d 914 (2013) (citations and quotation marks omitted);
MCL 15.233(1). “ ‘The FOIA provides that “a person” has a right to inspect, copy, or receive
the public records upon providing a written request to the FOIA coordinator of the public
body.’ ” King, 303 Mich. App. at 175-176, quoting Detroit Free Press, Inc v City of Southfield,
269 Mich. App. 275, 290; 713 NW2d 28 (2005); MCL 15.233(1); MCL 15.235(1). “[O]nce a
request under the FOIA has been made, a public body has a duty to provide access to the records
sought or to release copies of those records unless the records are exempted from disclosure.”
Pennington v Washtenaw Co Sheriff, 125 Mich. App. 556, 564; 336 NW2d 828 (1983), citing
MCL 15.233(2). Under § 5(2) of the FOIA, MCL 15.235(2), “a public body must respond to a
request for a public record within five business days” by either granting the request, issuing a
written notice to the requesting person denying the request, granting the request in part and
issuing a written notice denying the request in part, or issuing a notice extending the response
time by 10 days. MCL 15.235(2); King, 303 Mich. App. at 188. “A public body’s failure to
timely respond to a request under the FOIA constitutes a final determination to deny the
request.” King, 303 Mich. App. at 188-189, citing MCL 15.235(3); Scharret, 249 Mich. App. at
412.
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Section 4 of the FOIA, MCL 15.234, grants the public body the authority to charge a fee
to the requestor for a public record search, for the necessary copying of a public record for
inspection, or for providing a copy of a public record, which fee is limited to “actual mailing
costs, and to the actual incremental cost of duplication or publication including labor, the cost of
search, examination, review, and the deletion and separation of exempt from nonexempt
information. . . .”. MCL 15.234(1). A public body may also require a deposit at the time a FOIA
request is made equal to one-half of the total fee. MCL 15.234(2).
If a public body makes a final determination to deny a FOIA request, a party may
commence an action in circuit court to compel disclosure under § 10 of the FOIA.
MCL 15.235(7); MCL 15.240(1)(b). A public body’s failure to timely respond to a FOIA
request constitutes a final determination to deny the request. MCL 15.235(3); King, 303 Mich
App at 188-189.
B. SECTION 10 CLAIM
Plaintiff argues that the trial court erred in granting summary disposition to the Board on
Count I, plaintiff’s claim to compel disclosure of the requested records under § 10 of the FOIA.
In light of recent caselaw decided after the trial court’s grant of summary disposition in this case,
we agree with plaintiff that the trial court erred in basing its ruling on the Board having granted
plaintiff’s FOIA request. However, summary disposition on this claim was nonetheless proper in
light of uncontroverted evidence that plaintiff had not tendered the requested deposit, as a result
of which the Board’s obligation to make a final determination concerning plaintiff’s request was
not triggered.
This Court’s review of a trial court’s grant or denial of summary
disposition is de novo in order to determine whether the moving party was
entitled to judgment as a matter of law. In reviewing an MCR 2.116(C)(10)
motion, we are to consider all the documentary evidence in the light most
favorable to the nonmoving party. A motion for summary disposition under
MCR 2.116(C)(10) may properly be granted if there is no genuine issue of
material fact and the moving party is entitled to judgment as a matter of law.
[Scharret v City of Berkley, 249 Mich. App. 405, 410; 642 NW2d 685 (2002)
(citations omitted).]
Further, statutory interpretation of the FOIA presents a question of law that is subject to de novo
review. Thomas v City of New Baltimore, 254 Mich. App. 196, 200; 657 NW2d 530 (2002).
In this case, the Board received plaintiff’s FOIA request on February 19, 2013, requesting
disclosure of information related to (1) which “countermeasures have ever been in effect, or were
in effect since 01/01/1996 to 02/15/2013, that authorized or authorizes MGM Grand Detroit,
Greektown Casino & Hotel, and the Motorcity Casino to prevent card counters from profiting at
the game of blackjack, and that is or was also approved by the Michigan [G]aming Control
Board,” (which plaintiff refers to as his “countermeasures request”), and (2) “any rule(s) or
law(s) by the Michigan Gaming Control Board that allows MGM Grand Detroit, Greektown
Casino & Hotel, and the Motorcity Casino to exclude skillful players at the game of blackjack or
any other game that has ever been in effect since 01/01/1996 to 02/15/2013” (which plaintiff
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refers to as his “rules request”). The Board responded within five business days, as required by
the FOIA, stating that it “grants plaintiff’s request for existing, non-exempt information relevant
to his request.” The Board also indicated that it was assessing a fee to process the request under
the FOIA, and was requiring that plaintiff pay a deposit equal to one-half of the assessed fee, as
authorized by MCL 15.234(2).
Plaintiff argues that the Board failed to respond to what he terms the “rules request”
portion of his request. We disagree. There is no requirement under the FOIA that the public
body, in responding to a request, must restate the request, in whole or in part, or specify the
information sought by the requestor. Our review of the Board’s response convinces us that it
related to the entirety of plaintiff’s request, and was not limited to the “countermeasures request”
portion of his request. Although plaintiff posits on appeal that he made two “requests,” plaintiff
in fact denominated his “request,” although comprised of two parts, in the singular, and the
Board similarly responded in that fashion. Further, while the Board’s response opted to quote, in
part, plaintiff’s request in describing the information sought, its use of ellipses within the quote is
appropriately interpreted as inclusive of the entirety of plaintiff’s request, including both its
“countermeasures request” and “rules request” portions. Finally, the unrefuted affidavit of the
Cohen indicated that she granted plaintiff’s request, which she generally described “as all records
regarding certain policies that are or have been in effect at the three casinos in the City of Detroit
over the last 17 years regarding card counters and players skillful at the game of blackjack, as to
existing, nonexempt records in its possession falling within the scope of the request.”
Consequently, the Board did not fail to timely respond to the “rules request” portion of plaintiff’s
request.
However, in light of this Court’s recent decision in King, 303 Mich. App. at 189-191, we
agree with plaintiff’s argument on appeal that the trial court erred in dismissing plaintiff’s claim
on the basis that the Board had “granted” plaintiff’s FOIA request. In King, the plaintiff
submitted a FOIA request to the Michigan State Police (MSP). Id. at 167. The MSP responded
using language almost identical to that of the Board’s response in the instant case, including
language indicating that the request was granted as to “existing non-exempt records” and
assessing a fee and deposit based in part on estimated labor costs for “separating exempt and
nonexempt material.” Id. at 167-168, 189-190. This Court found, contrary to the MSP’s
position, that the response effectively constituted a partial denial of the plaintiff’s request,
stating:
Defendant contends that it granted plaintiffs’ FOIA requests and that this
lawsuit was thus filed prematurely because a circuit court action may not be filed
on the basis of a public body’s grant of a FOIA request. We disagree with
defendant’s premise that it granted the FOIA requests in their entirety. A party’s
choice of labels is not binding on this Court. See, generally, Norris v Lincoln
Park Police Officers, 292 Mich. App. 574, 582; 808 NW2d 578 (2011). In
responding to Barry King’s January 6, 2010, FOIA request, defendant’s response
letter stated: “Your request is granted as to existing, non-exempt records in the
possession of the Michigan State Police that fall within the scope of the request.”
(Emphasis added.) The letter also requested a deposit based in part on estimated
labor costs for “separating exempt and nonexempt material.” The letter further
indicated that upon receipt of the requested deposit, defendant would process the
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request and notify Barry King [the requestor] of the statutory basis for the
exemption of any records or portions of records. Defendant included similar
language in its letter responding to Christopher King’s FOIA request. Thus,
although defendant contends that it granted the requests, its response letters reflect
that the requests were effectively granted in part and denied in part, as the letters
contemplated the separation of exempt material and thereby implicitly denied the
requests with respect to such material.
It could be argued that defendant’s responses did not expressly deny any
portion of the requests but merely asserted the possibility that an exemption
would later be asserted. In that event, however, defendant must be deemed to
have failed to timely respond to the FOIA requests in their entirety by granting,
denying, or granting in part and denying in part the requests. In other words,
defendant granted the requests in part but failed to respond with respect to all the
requested documents because the response suggested some material might be
withheld as exempt but failed to state conclusively whether the response was
granted or denied with respect to those potentially exempt items. A public body’s
failure to timely respond to a request as required by the FOIA constitutes a final
determination to deny the request. MCL 15.235(3); Scharret, 249 Mich. App. at
412.
In either event, then, defendant’s responses are deemed to reflect a partial
denial of the FOIA requests. Therefore, plaintiffs’ FOIA claims did not rest on
contingent future events. Huntington Woods, 279 Mich. App. at 615-616.
[Huntington Woods v Detroit, 279 Mich. App. 603, 615-616; 761 NW2d 127
(2008).] Rather, the claims were filed after defendant had effectively denied the
FOIA requests with respect to potentially exempt materials. Thus, plaintiffs did
not file this action prematurely.
Pursuant to King, the Board’s response in this case similarly did not constitute a “grant”
of plaintiff’s FOIA request, but rather is indicative, at least preliminarily, of a partial grant and
partial denial. However, we hold that the dismissal of plaintiff’s claim was nonetheless proper,
because the Board was not then required to make a final determination to deny all or part of
plaintiff’s request.
Section 4 of the FOIA, MCL 15.234, authorizes a public body to charge a fee for
processing a FOIA request and delineates the nature of that authority, including that the public
body may require, at the time a request is made, a good faith deposit equal to one-half of the
authorized fee. Grebner, 216 Mich. App. at 740; MCL 15.234. Section 4 does not explicitly
address the public body’s obligations to respond under the FOIA where a requestor, as in this
case, makes a request for which the public body requires a deposit before processing the request.
And, read in isolation, the language of § 5(2) of the FOIA, MCL 15.235(2) states, without
addressing the impact of any deposits paid or owing, that the public body must grant, deny, or
grant or deny in part a FOIA request within five days of receiving it.
However, this Court “must construe the FOIA as a whole, harmonizing its provisions.”
Prins v Michigan State Police, 291 Mich. App. 586, 590; 805 NW2d 619 (2011). The plain and
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unambiguous language of § 4(2) of the FOIA, MCL 15.234(2), provides that “[a] public body
may require at the time a request is made a good faith deposit” from the requestor equal to one-
half of the total fee authorized under § 4. MCL 15.234(2) (emphasis added). Obviously, a
request must be made before the public body can issue a response to the request in accordance
within § (5)(2), MCL 15.235(2). It logically follows that the public body’s obligation to respond
pursuant to MCL 15.235(2) would only arise once the requestor had paid the deposit required.
This would enable the public body to recover a portion of its costs before processing the request,
as is clearly contemplated by the language of § 4(2) of the FOIA.
Thus, the legislature’s authorization of a public body to require a deposit, i.e., a down
payment, equal to one-half of the authorized fee, “at the time a request is made” pursuant to
§ 4(2) of the FOIA, MCL 15.234(2), clearly contemplates that the public body recover part of
these costs up front before processing the request. The deposit required “at the time the request
is made” must therefore be made before the public body becomes obligated to process the
request to enable it to formally respond with a final determination.2 Accordingly, reading
sections 4 and 5 of the FOIA together to produce a “harmonious and consistent enactment as a
whole,” Prins, 291 Mich. App. at 590, the statutory scheme can be reasonably construed so as to
obligate the public body to respond with its final determination in accordance with § 5(2) & (4)
of the FOIA, MCL 15.235, once the requestor has paid the required deposit authorized under
§ 4(2) of the FOIA of the fee for labor to search, examine, review, and separate and delete
exempt from nonexempt information. Any other interpretation would effectively render
nugatory the language “at the time the request is made” contained in § 4(2) of the FOIA,
MCL 15.234(2). We must avoid such a construction. See Badeen v Par, Inc, 496 Mich. 75, 81;
853 NW2d 303 (2014).3
Accordingly, we hold that a final determination by the Board is a prerequisite to
plaintiff’s commencement of a cause of action to compel disclosure of the requested records (and
2
As defendant points out on appeal, practically speaking, a public body could not make a final
determination regarding a FOIA request, as required under MCL 15.235(2) & (4), before
incurring the costs for which it is statutorily authorized to require a deposit, i.e., searching,
examining, reviewing, and deleting and separating exempt from nonexempt information.
3
We note that the federal FOIA, 5 USC 552 et seq., also authorizes agencies to collect
processing fees “to offset the cost of fulfilling document requests.” Coleman v Drug
Enforcement Administration, 714 F3d 816, 819 (CA 4, 2013), citing 5 USC 552(a)(4). The
federal fee provisions allow an agency to require advance payment of the fee before beginning to
process a request if the agency determines that the fee will exceed $250. Coleman, 714 F3d at
819, citing 5 USC 552(a)(4)(A)(v). Notably, if the requestor refuses to prepay the fees, “ ‘the
request shall not be considered received and further work will not be done on it until the required
payment is received.’ ” Coleman, 714 F 3d at 819, quoting 28 CFR 16.11(1)(4). Although the
federal fee provisions differ from the fee provisions of Michigan’s FOIA, “federal law is
generally instructive in FOIA cases.” Mager v Dep’t of State Police, 460 Mich. 134, 144; 595
NW2d 142 (1999).
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to recover attorney fees and punitive damages) under § 10 of the FOIA, MCL 15.240(1)(b), (6),
(7), but is not required until plaintiff has paid the deposit required by the Board.
King does not compel a different result. In King, the plaintiff brought his cause of action
after he paid the deposit required by the MSP, and after the MSP then failed to timely respond to
his request. Once the requestor in King paid the required deposit, the public body was clearly
obligated under the statutory scheme to process and respond to his request as provided under the
FOIA, and thus, the failure to do so would constitute an actionable claim. King, 303 Mich. App.
at 190; MCL 15.235(3); MCL 15.240(1)(b). Because the plaintiff in King paid the deposit
required as authorized by § (4)(2) of the FOIA, the plaintiff’s claim in King seeking a response to
the FOIA request did not rest on a “contingent future event,” i.e., the payment of the required
deposit. Id. at 191. In this case, by contrast, plaintiff never paid the deposit and the Board’s
obligation to make a final determination never arose; plaintiff’s claim accordingly rested on a
contingent future event. It is undisputed that the Board stood ready to process plaintiff’s request
upon payment of the required deposit authorized under § 4(2). We therefore find, albeit for
different reasons, that the trial court correctly granted summary disposition to the Board on
Count I of plaintiff’s complaint. See Messenger v Ingham Co Prosecutor, 232 Mich. App. 633,
643; 591 NW2d 393 (1998). (“When this Court concludes that a trial court has reached the
correct result, this Court will affirm even if it does so under alternative reasoning.”)4
C. SECTION 4 CLAIM
Plaintiff further argues that the trial court erred in summarily dismissing Count II of his
complaint, challenging the Board’s assessment of fees to process his FOIA request as excessive.
We agree in part.
This Court reviews de novo the trial court’s ruling on a motion for summary disposition.
Maiden v Rozwood, 461 Mich. 109, 118; 597 NW2d 817 (1999). “A motion under
MCR 2.116(C)(8) tests the legal sufficiency of the complaint.” Id. at 119. In deciding a motion
under MCR 2.116(C)(8), a trial court may only consider the pleadings and “[a]ll well-pleaded
factual allegations are accepted as true and construed in a light most favorable to the
nonmovant.” Id. Summary disposition is appropriate if the claims are “so clearly unenforceable
as a matter of law that no factual development could possibly justify recovery.” Wade v Dep’t of
Corrections, 439 Mich. 158, 163; 483 NW2d 26 (1992). Further, interpretation of the FOIA is a
question of law that is also subject to de novo review. Thomas, 254 Mich. App. at 200.
4
Plaintiff further argues for the first time in his reply brief that the Board could not charge
plaintiff costs to fulfill his request because the Board has not established and published
procedures and guidelines to implement the FOIA’s cost provision as required pursuant to § 4(3),
MCL 15.234(3). This argument was not raised before the trial court, and the record lacks
sufficient factual development for this Court to disregard the preservation guidelines; we
therefore decline to address it. Fast Air, Inc v Knight, 235 Mich. App. 541, 549; 599 NW2d 489
(1999); see also Walters v Nadell, 481 Mich. 377, 387; 751 NW2d 431 (2008).
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“The FOIA provides that ‘a person’ has a right to inspect, copy, or receive the public
records upon providing a written request to the FOIA coordinator of the public body” and “a
public body must disclose all public records that are not specifically exempt under the act.”
King, 303 Mich. App. at 175-176 (citation and quotations omitted); MCL 15.233(1). As
previously discussed, the public body may charge the requestor a fee for this service as set forth
in § 4 of the FOIA, MCL 15.234. Grebner, 216 Mich. App. at 740. “The FOIA clearly provides a
method for determining the charge for records. It is incumbent on a public body, if it chooses to
exercise the legislatively granted right to charge a fee for providing a copy of the public record,
to comply with the legislative directive on how to charge. The statute contemplates only a
reimbursement to the public body for the cost incurred in honoring a given request—nothing
more, nothing less.” Tallman, 183 Mich. App. at 130. “A public body is not at liberty to simply
‘choose’ how much it will charge for records.” Tallman, 183 Mich. App. at 130.
In this case, the Board exercised its statutory right under § 4 of the FOIA and assessed a
fee to process plaintiff’s FOIA request. In Count II of his complaint, plaintiff alleged a claim
under § 4 of the FOIA, specifically that the Board’s method of reviewing and examining more
than 6,000 pages of records violates the cost provisions of § 4, MCL 15.234(3), in that “the
reviewing procedure of examining more than 6,000 pages of records was utilized to needlessly
increase the cost of fulfillment of the FOIA request,” the procedure “was explicitly or implicitly
designed to block or otherwise prevent the disclosure of simple responsive documents that would
fulfill Plaintiff’s request through the imposition of unlawful and unreasonable charges and
costs,” the request could be fulfilled by a simpler and more effective method, and the
examination of 6,000 plus pages of documents is not required to fulfill the request. Plaintiff also
requested that the court require the Board to fulfill his FOIA request “with simple responsive
documents without the time and expense of reviewing more than 6,000 pages of irrelevant
documents” and to award reasonable attorney fees, costs, and disbursements and punitive
damages.
The Board moved for summary disposition of this claim under MCR 2.116(C)(8) (failure
to state a claim upon which relief can be granted), arguing that the FOIA’s remedial provisions
under § 10, MCL 15.240, do not apply to a dispute over fees charged under § 4 of the FOIA,
MCL 15.234, and thus, § 4 does not provide plaintiff with a cause of action. To support its
argument, the Board relied on this Court’s decision in Detroit Free Press, 271 Mich. App. at 423.
The trial court, also in reliance on Detroit Free Press, agreed and summarily dismissed
plaintiff’s § 4 claim, concluding that the “FOIA[’]s remedial provisions do not apply to a dispute
over fees charged under Section Four of FOIA.”
Contrary to the Board’s argument on appeal, Detroit Free Press did not hold that a
requestor cannot prevail in a claim brought under § 4, MCL 15.234. Instead, Detroit Free Press
implicitly recognized that a requestor may prevail on a claim brought under § 4, MCL 15.234
(and that the plaintiff in that case had in fact done so). But, in reversing an award of attorney fee
and costs, the Court held that a requestor can only recover such an award where the requestor
had prevailed on a claim brought under § 10 of the FOIA, MCL 15.240(1)(b), (6), (7). Detroit
Free Press, 271 Mich. App. at 423. The question squarely before us in this case is initially one
assumed in Detroit Free Press to be answerable in the affirmative, i.e., whether a FOIA
requestor may prevail on a claim under § 4, MCL 15.234, and then, in that event, what relief
might be obtained, even if other than an award of attorney’s fees and costs.
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The statutory language of § 4 of the FOIA, MCL 15.234, does not explicitly provide for a
private right of action. However, as noted, this Court has implicitly recognized a cause of action
under § 4 challenging the fee assessed by the public body to process a FOIA request. See
Detroit Free Press, 271 Mich. App. at 423; Grebner, 216 Mich. App. at 736. In Grebner, the
plaintiff brought a cause of action challenging the manner in which the public body had
calculated the fee charged to produce the records, allegedly in violation of § 4’s cost provisions.
Id. at 738-739. The plaintiff claimed, pursuant to the FOIA, that the public body could charge
only the incremental cost of producing copies of public records. Id. at 739. The trial court
granted summary disposition in favor of the plaintiff, ordered the public body to refund the
excess fee charged, and issued a permanent injunction forbidding the defendants from charging
more than incremental costs in the future. Id. This Court affirmed, holding that the public body
was in violation of the FOIA, and remanded to determine the amount of the refund, which
“would turn on [the] defendants’ incremental cost in complying with [the] plaintiff[’]s
requests. . . .” Id. at 745.
Although § 4 of the FOIA, MCL 15.234, does not explicitly recognize a right of action,
and although this Court in deciding Grebner and Detroit Free Press does not appear to have
been directly presented with the issue of whether a cause of action under § 4 exists, we cannot
ignore the fact that we are not writing on a blank slate. Clearly, Grebner and Detroit Free Press
implicitly recognized such a right of action, and we are therefore not inclined to hold otherwise.
See Dana Corp v Dep’t of Treasury, 267 Mich. App. 690, 698; 706 NW2d 204 (2005). However,
in following those cases, we emphasize the limited nature of the right of action that they
implicitly recognized.
This Court may not “speculate regarding the intent [of the Legislature] beyond those
words expressed in the statute.” Lash v Traverse City, 479 Mich. 180, 194; 735 NW2d 628
(2007). “[T]he relief that plaintiff seeks must be provided by the Legislature.” Id. at 197. The
Legislature explicitly permitted a cause of action under § 10 of the FOIA for damages, i.e.,
attorney fees and costs, as well as punitive damages, for refusing or delaying disclosure of a
public record under the act, MCL 15.240(1)(b), (6), (7). Yet the Legislature provided for no
such cause of action under § 4 of the FOIA, MCL 15.234. This distinction provides “persuasive
evidence that the Legislature did not intend to create a private cause of action” for damages for
violations of § 4 of the FOIA, MCL 15.234. Lash, 479 Mich. at 196 n 35. We thus hold that
because the FOIA does not explicitly provide for money damages or confer a remedy based on a
violation of its fee provisions under § 4, as contrasted with § 10, plaintiff does not have a valid
cause of action under § 4 for damages. Id. at 196-197; see also Myers v City of Portage, 304
Mich. App. 637, 643; 848 NW2d 200 (2014) (“Michigan caselaw holds that no cause of action
can be inferred against a governmental defendant.”).5
5
By definition, the Michigan Gaming Control Board is a “governmental agency.”
MCL 432.240(1) states that “[t]he Michigan gaming control board is created within the
department of treasury.” A “governmental agency” is defined as “this state or a political
subdivision.” MCL 691.1401(a). “State” is defined as “this state and its agencies, departments,
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However, although a cause of action cannot be inferred against a governmental defendant
where a statute, like FOIA, does not explicitly provide for a cause of action for money damages
or confer a remedy based on a statutory violation, injunctive or declaratory relief may still be
available. Lash, 479 Mich. at 196.
MCR 2.605(A)(1) allows the court to grant declaratory relief, and provides:
In a case of actual controversy within its jurisdiction, a Michigan court of
record may declare the rights and other legal relations of an interested party
seeking a declaratory judgment, whether or not other relief is or could be sought
or granted.
MCR 3.310(A) allows for the grant of a preliminary injunction “where [a] plaintiff can make a
particularized showing of irreparable harm that will occur before the merits of the claim are
considered.” See Lash, 479 Mich. at 196.
In this case, plaintiff did not expressly request entry of an injunction or a declaratory
order. However, plaintiff did challenge the amount of the fee charged and the process of
document evaluation by which the fee was computed. Plaintiff claimed that the Board’s fees
were excessive given the nature of his request, and that the Board’s determination that the scope
and nature of his request required the identification of a substantial number (6000+) of
potentially relevant documents in need of retrieval was erroneous. Thus, plaintiff essentially
challenged the reasonableness of the Board’s assessed fee in light of the nature of his request,
which he claims should not encompass 6,000 plus documents and could be fulfilled by a simpler
and more effective method. Plaintiff requested in part that the trial court order defendant to
fulfill plaintiff’s request “with simple responsive documents without the time and expense of
reviewing more than 6,000 pages of irrelevant documents.” Plaintiff further requested “all other
relief that Court [sic] deems equitable and just.” We deem this sufficient to constitute a request,
though not explicit, for injunctive or declaratory relief. See Mettler Walloon, LLC v Melrose
Twp, 281 Mich. App. 184, 221; 761 NW2d 293 (2008) (declaratory relief is an equitable remedy,
not a claim); Michigan AFSCME Council 25 v Woodhaven-Brownstown Sch Dist, 293 Mich. App.
143, 145; 809 NW2d 444 (2011) (injunctive relief is an equitable remedy); see also
MCR 2.601(A) (trial court may grant relief other than that explicitly demanded in pleadings).
Accepting plaintiff’s allegations as true and construing them in the light most favorable
to plaintiff, Maiden, 461 Mich. at 119, we thus find that plaintiff alleged a viable claim for
declaratory or injunctive relief, effectively seeking a declaration that the fees assessed violated
§ 4 of the FOIA, and an injunctive order prohibiting such a fee assessment. Plaintiff set forth an
actual controversy challenging the assessment of fees by the Board to process his request in
violation of § 4 of the FOIA. Lash, 479 Mich. at 196 (“an ‘actual controversy’ exists for the
purposes of a declaratory judgment where a plaintiff pleads and proves facts demonstrating an
adverse interest necessitating a judgment to preserve the plaintiff’s legal rights.”). Plaintiff’s
claim for declaratory or injunctive relief thus is not “so clearly unenforceable as a matter of law
commissions, courts, boards, councils, and statutorily created task forces.” MCL 691.1401(g).
Thus, the Board is a governmental entity.
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that no factual development could possibly justify a right of recovery.” Wade, 439 Mich. at 163.
The trial court’s award of summary disposition to defendant, under MCR 2.116(C)(8), on Count
II of plaintiff’s complaint was therefore erroneous.
III. ENTRY OF PROTECTIVE ORDER
After commencing this case, plaintiff made three discovery requests that are at issue on
appeal. First, plaintiff requested that the Board provide an index of records. Second, plaintiff
requested, pursuant to MCR 2.310, to inspect “the process undertaken by [the Board’s] staff to
have identified these +6,000 records or alternatively conduct an inspection of the +6,000 records
described in the response to the FOIA request. . . .” Third, plaintiff requested to depose the
Board’s “staffer” who determined that the 6,000 plus pages of records fell within the scope of his
FOIA request and needed to be searched to fulfill the request.
The Board filed a motion for a protective order pursuant to MCR 2.302(C), asserting that
such discovery should be precluded. The Board generally asserted that plaintiff was using
discovery to evade paying the fee authorized and assessed under § 4 of the FOIA, MCL 15.234,
to process his FOIA request, and also that the requested discovery was unnecessary and unduly
burdensome because plaintiff did not have viable cause of action. Plaintiff argued in response
that a claim under § 4 of the FOIA challenging the assessment of fees to the requestor is a
recognized cause of action and that the requested discovery was necessary to ascertain how the
Board identified the 6,000 plus records that needed to be searched to fulfill plaintiff’s FOIA
request and what those documents were. According to plaintiff, the Board’s refusal to create an
index, to permit inspection, or to permit a deposition of the custodian of the records, effectively
precluded plaintiff from obtaining information needed to prosecute his § 4 claim challenging the
fees assessed by the Board. After conducting a hearing, the trial court granted the Board’s
protective order, finding that allowing the requested discovery would be “circumventing the
FOIA act.” The court therefore ordered that the Board was not required to respond to plaintiff’s
request to create an index of records, that the Board was not required to respond to plaintiff’s
request for an inspection of records, unless plaintiff were to pay the fee for processing his FOIA
request, and that plaintiff was not allowed take the requested deposition. Plaintiff moved for
reconsideration, seeking to allow plaintiff’s counsel access to the documents in accordance with
Evening News Ass’n v City of Troy, 417 Mich. 481; 339 NW2d 421 (1983). The trial court
denied the motion for reconsideration.
Plaintiff argues that the trial court abused its discretion in precluding the requested
discovery. We agree to the extent that the trial court precluded the requested deposition, but
disagree in all other respects.
“ ‘This Court reviews a trial court’s decision to grant or deny discovery for an abuse of
discretion.’ ” King, 303 Mich. App. at 175, quoting Shinkle v Shinkle (On Rehearing), 255 Mich
App 221, 224; 663 NW2d 481 (2003). Further, this Court reviews for an abuse of discretion a
trial court’s decision on a motion for a protective order. Alberto v Toyota Motor Corp, 289 Mich
App 328, 340; 796 NW2d 490 (2010). “A trial court abuses its discretion when its decision falls
outside the range of principled outcomes.” King, 303 Mich. App. at 175. The interpretation and
application of court rules is a question of law reviewed de novo on appeal. Kernen v Homestead
Development Co, 252 Mich. App. 689, 692; 653 NW2d 634 (2002).
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“Michigan has a broad discovery policy that permits the discovery of any matter that is
not privileged and that is relevant to the pending case.” Alberto, 289 Mich. App. at 336 (citations
omitted). MCR 2.302 provides, in relevant part:
(B) Scope of Discovery.
(1) In General. Parties may obtain discovery regarding any matter, not
privileged, which is relevant to the subject matter involved in the pending action,
whether it relates to the claim or defense of the party seeking discovery or to the
claim or defense of another party, including the existence, description, nature,
custody, condition, and location of books, documents, other tangible things, or
electronically stored information and the identity and location of persons having
knowledge of a discoverable matter. It is not ground for objection that the
information sought will be inadmissible at trial if the information sought appears
reasonably calculated to lead to the discovery of admissible evidence.
“However, Michigan’s court rules acknowledge the wisdom of placing reasonable limits on
discovery.” Alberto, 289 Mich. App. at 336. To that end, the court rules allow the party opposing
discovery requests to move for a protective order. See MCR 2.302(C). The moving party must
demonstrate good cause for the issuance of a protective order. Id. We address each of plaintiff’s
three discovery requests in turn.
A. INDEX OF RECORDS
Plaintiff first requested that the Board compile an index to identify the nature of the over
6,000 pages of records the Board claims it must search to fulfill his FOIA request. We conclude
that good cause existed to preclude this request. MCR 2.302(C). Section 3(1) of the FOIA
provides that a person has a right to inspect, copy, or receive copies of the requested public
record upon providing a written request sufficiently describing the record to enable the public
body to find the public record. MCL 15.233(1). However, the FOIA plainly “does not require a
public body to create a new public record” in order to satisfy a disclosure request, except “to the
extent required by this act for the furnishing or copies, or edited copies . . . of an already existing
public record.” MCL 15.233(5). Thus, pursuant to § 3(5) of the FOIA, “[i]n response to an
FOIA request, . . .the public body is not generally required to make a compilation, summary, or
report of information, nor is it generally required to create a new public record.” City of
Southfield, 269 Mich. App. at 281.
In this case, plaintiff’s discovery request to create an index of the records identified to be
searched to fulfill his FOIA request would effectively require the Board to make a compilation or
summary or effectively create a new public record. Further, the Board explained that the
creation of an index would require an extensive amount of time and labor because the Board’s
FOIA coordinator would need to retrieve all the records, review them, assign descriptive titles,
summarize their contents, and identify and separate exempt information. Essentially, in seeking
an index of all responsive documents, plaintiff would cause the Board to conduct the very
document review for which the Board was entitled to require an up-front deposit, without
plaintiff first making that required payment. This would effectively render nugatory the
requirement under FOIA that a requestor must make such a deposit, as well as our holding that a
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public body is not required to make a final determination regarding a FOIA request until such
time as a required deposit is paid. See Aspey v Memorial Hosp, 477 Mich. 120, 127, 131; 730
NW2d 695 (2007). For these reasons, and because the FOIA does not obligate the Board to
compile or summarize or make a new public record to fulfill a FOIA request, MCL 15.233(5);
City of Southfield, 269 Mich. App. at 281, the creation of an index would cause an undue burden
and expense on the Board. MCR 2.302(C). Accordingly, the trial court’s decision precluding
the Board from creating an index of records fell within the range of principled outcomes, and the
trial court did not abuse its discretion in precluding such discovery. King, 303 Mich. App. at 175.
B. INSPECTION OF RECORDS/INSPECTION OF PROCESS USED TO IDENTIFY
RECORDS
Plaintiff also made a discovery request under MCR 2.310 to inspect the process by which
the Board identified the 6000+ records it identified as responsive to his FOIA request or, in the
alternative, to inspect the records themselves. The Board asserted in its motion for a protective
order that such an inspection would place an unnecessary and undue burden and expense on the
Board because it again would effectively require the Board to review the responsive records and
redact material exempt from public disclosure without requiring the plaintiff to pay the
processing fee authorized under § 4 of the FOIA, MCL 15.234. As part of its protective order,
the trial court limited the requested discovery via inspection by ordering that the Board was not
required to respond to plaintiff’s request for an inspection of records, unless plaintiff paid the fee
for processing the request for his records.
The trial court did not specifically respond to plaintiff’s request “to inspect the process”
utilized by the Board. Nor did plaintiff explain what it would mean to “inspect the process.”
However, we read the protective order’s conditioning of a right to inspect the records on the
payment of the required fee to also apply to plaintiff’s request to “inspect the process.” Further,
we find that the trial court did not err in so limiting plaintiff’s request.
MCR 2.310 allows a party to request another party to “permit entry on land.”
MCR 2.310(B)(1)(b). “Entry on land” is defined by court rule as “entry upon designated land or
other property in the possession or control of the person on whom the request is served for the
purpose of inspecting, measuring, surveying, photographing, testing, or sampling the property or
a designated object or operation on the property, within the scope of MCR 2.302(B).”
MCR 2.310(A)(2). Thus, under MCR 2.310, plaintiff could request to “inspect” an “operation
on the property” and arguably seek to inspect the process of identifying the pages of records
potentially responsive to its FOIA request to ascertain how the Board identified records needing
to be searched. Even assuming this to be the nature of plaintiff’s request, however, to fulfill this
request, the Board would be required to review the responsive records and redact material
exempt from public disclosure without requiring plaintiff to pay the processing fee authorized
under §4 of the FOIA. Accordingly, it is not outside of the range of principled outcomes to
preclude plaintiff from seeking to inspect the process utilized by the Board to identify the records
without first requiring payment of the required deposit authorized under § 4(2) of the FOIA, and
the trial court did not err in granting the Board’s request for a protective order limiting discovery.
Plaintiff’s alternative discovery request to inspect the records would likely lead to the
discovery of evidence relevant to plaintiff’s claim under § 4 of the FOIA (challenging the
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amount of the fees assessed by the Board to process his FOIA request as resulting from an
excessive number of documents identified by the Board as needing to be searched to fulfill that
request). Alberto, 289 Mich. App. at 336. Under MCR 2.310(B)(1)(a)(i), a party may request that
an opposing party produce and permit the requesting party, or someone acting for the requesting
party, to inspect designated documents. Further, MCR 2.310(C)(6) provides, “[u]nless otherwise
ordered by the court for good cause, the party producing the items for inspection shall bear the
cost of assembling them and the party requesting the items shall bear any copying costs.”
There was good cause, however, to limit plaintiff’s request to inspect the 6000+
identified records by requiring plaintiff to pay for the cost of processing the discovery request.
MCR 2.310(C)(6). In the first instance, merely granting a right to inspect all of the records
would carry the risk of divulging exempt materials and thus circumvent the very aim of FOIA to
balance the public’s right to disclosure of public records with the right to shield some “affairs of
the government from public view.” King, 303 Mich. App. 162, 175-176, quoting Herald Co, Inc v
Eastern Mich Univ Bd of Regents, 475 Mich. 463, 472-473; 719 NW2d 19 (2006).
This risk could be obviated if the Board first searched the records and redacted exempt
information. However, as stated above, FOIA allows the Board to charge the costs of these
services to a requestor and to require a good-faith deposit. MCL 15.234. If plaintiff were not
required to pay the fee assessed under § 4 of the FOIA to process plaintiff’s FOIA request, the
Board would experience “undue burden or expense” by plaintiff’s inspection of the records
identified as responsive to his FOIA request because the Board would effectively be required to
process the FOIA request, i.e., search, retrieve, examine, review, and separate exempt from
nonexempt information, without reimbursement of the cost from the requestor as statutorily
authorized under the FOIA. MCR 2.302(C). Therefore, to protect the Board from undue burden
and expense, justice requires the court’s limitation on discovery making the inspection
contingent on the payment of fees assessed by the Board as authorized under § 4 of the FOIA.
See MCR 2.302(C)(2) (the court may order “that the discovery may be had only on specified
terms and conditions”); Alberto, 289 Mich. App. at 336. Accordingly, under these circumstances,
the trial court acted within its discretion in issuing an order making plaintiff’s request to inspect
the records contingent on the payment of the assessed fee. King, 303 Mich. App. at 175.
C. DEPOSITION OF FOIA COORDINATOR
Finally, plaintiff sought to depose the “staffer” who determined the “global document
set” that the Board indicated it needs review to fulfill plaintiff’s FOIA request. The Board
argued that a request for deposition of the FOIA Coordinator, who processed plaintiff’s request,
places an unnecessary and undue burden and expense on the Board because there is no dispute
that plaintiff does not have a claim upon which relief can be granted. The trial court ordered that
plaintiff not be allowed to take the requested deposition.
As noted in part III of this opinion, however, plaintiff has an actionable claim for
declaratory or injunctive relief under § 4 of the FOIA, MCL 15.234, challenging the Board’s
assessment of fees to process his request as excessive due to the scope of records identified by
the Board as needing to be searched. Accordingly, conducting a deposition, pursuant to
MCR 2.306, of the person who made the determination in question, about the
process/methodology used to determine the document set responsive to plaintiff’s FOIA request,
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would likely lead to the discovery of admissible evidence on a matter that is relevant to
plaintiff’s § 4 claim. MCR 2.302(B)(1). Further, a deposition would provide a limited means of
ascertaining how the Board identified the 6,000+ responsive records, and in general what
comprised those records, without causing the Board to incur the undue burden associated with
effectively having to process plaintiff’s FOIA request without reimbursement of the processing
costs. It cannot be said that the deposition alone would place an undue burden or expense on the
Board. MCR 2.032(C). Under these circumstances, the trial court abused its discretion in
precluding plaintiff from deposing the FOIA Coordinator or staffer who identified the scope of
the records that need to be searched to fulfill plaintiff’s FOIA request. King, 303 Mich. App. at
175.
D. IN CAMERA REVIEW
In his motion for reconsideration of the trial court’s protective order precluding
discovery, plaintiff requested that his counsel be allowed to inspect the requested records in
camera in accordance with Evening News. This issue is not properly preserved for review. King
v Oakland Co Prosecutor, 303 Mich. App. 222, 239; 842 NW2d 403 (2013) (quotations and
citation omitted) (“Where an issue is first presented in a motion for reconsideration, it is not
properly preserved.”). Regardless, we do not find an in camera inspection by plaintiff’s counsel
to be warranted.
Evening News is not applicable to this case. Evening News concerned the assertion of a
FOIA exemption and the resulting “procedural difficulties that inhere in determining whether a
FOIA exemption applies in light of the asserted confidentiality of the information contained in
the requested documents.” King, 303 Mich. App. at 228, citing Evening News, 417 Mich. at 514.
By contrast, the issue in this case concerns the scope of the records that the Board identified as
responsive, which identification resulted in allegedly excessive fees to process plaintiff’s FOIA
request. Thus, the procedure set forth in Evening News, of allowing the plaintiff’s counsel to
view information in camera in order to challenge the assertion of an exemption, is not applicable
here. Moreover, allowing plaintiff’s counsel to view the responsive documents in camera would
again require the Board to effectively process plaintiff’s FOIA request, i.e., by searching and
retrieving the information, without receipt of the required fee assessed under § 4 of the FOIA
(which as previously discussed would result in undue burden and expense for the Board), and
would either cause exempt materials to be divulged or cause the Board to incur the additional
expense of ascertaining and redacting exempt materials without the required payment.
V. APPELLATE ATTORNEY FEES
Finally, plaintiff argues that he is entitled to recover appellate attorney fees under § 10(6)
of the FOIA, MCL 15.240(6), if he prevails on remand and that this Court should order the trial
court award all attorney fees and costs incurred in this appeal in that event. We disagree. The
proper interpretation of the FOIA is a question of law that is subject to de novo review. Thomas,
254 Mich. App. at 200.
In support of his argument, plaintiff cites Rataj v City of Romulus, ___ Mich App ___,
___; ___ NW2d ___ (2014) (Docket No. 315669); slip op at 9. In Rataj, this Court determined
that the public body had wrongfully denied the plaintiff’s FOIA request, in part, and held that the
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trial court had erred in declining to order the disclosure of certain requested records. Id.
Concluding that the legal action, and particularly the appeal to this Court, was necessary in that
case to compel disclosure of the requested information, and that the plaintiff had prevailed in
part, this Court held that the plaintiff was entitled to reasonable attorney fees, costs, and
disbursements incurred by the plaintiff, “including the attorney fees necessitated by [the]
appeal.” Id. at 10. Thus, as plaintiff argues on appeal in this case, a requestor potentially could
recover attorney fees related to an appeal if he prevails in an action commenced under § 10 of the
FOIA, MCL 15.240(6). Id.
In this case, however, plaintiff did not prevail on his claim under § 10 of the FOIA,
because the trial court’s dismissal of Count I of his complaint was appropriate due to his failure
to pay the required deposit authorized under § 4(2) of the FOIA. In light of plaintiff’s
nonpayment, a lawsuit was not reasonably necessary to compel the disclosure of the required
documents, and thus, plaintiff could not maintain an action for damages under § 10 of the FOIA.
Accordingly, and consistent with Rataj, we decline to award attorney fees pursuant to § 10(6) of
the FOIA.
VI. CONCLUSION
We affirm the trial court’s dismissal of Count I of plaintiff’s complaint, but reverse the
dismissal of Count II of plaintiff’s complaint insofar as it seeks declaratory or injunctive relief.
We reverse that portion of the trial court’s protective order that pertains to the requested
deposition, and otherwise affirm that order. We decline to order the trial court to award appellate
attorney fees if plaintiff is successful on remand, and remand for further proceedings consistent
with this opinion. We do not retain jurisdiction.
/s/ Mark T. Boonstra
/s/ Jane M. Beckering
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