950 N.W.2d 484
Mich. Ct. App.2019Background
- In Oct 2017 Michigan Open Carry, Inc. (MOCI) submitted a FOIA request seeking records showing access to concealed pistol license (CPL) firearms records (records compiled under MCL 28.421b(2)(f) and MCL 28.425e(4)) for a specified year.
- The Department of State Police responded with summary numbers and directed MOCI to online CPL reports; MOCI filed an interagency appeal claiming an effective denial and that the appeal decision was improperly issued by someone other than the head of the public body.
- A FOIA Appeals Officer (Lori Hinkley) issued a written decision on Department letterhead listing the Director (Colonel Kibbey Etue); MOCI then sued in the Court of Claims alleging (1) the head must personally decide appeals, (2) wrongful denial/arbitrary withholding of records, and (3) alternatively, failure to disclose that records did not exist.
- The Department argued MOCI’s request was either insufficiently described or the requested records were exempt from disclosure under statute (MCL 15.243(1)(d) as tied to LEIN/CPL access rules). The Department did not invoke that statutory exemption in its administrative decision.
- The Court of Claims denied MOCI’s motion and granted judgment for the Department: (a) the head of a public body need not personally issue appeal decisions (agents may act under authority); (b) MOCI’s request was adequately described; and (c) the requested information was exempt from FOIA disclosure because it could only be accessed via LEIN/CPL systems and is therefore protected by MCL 28.214(5) (invoked through MCL 15.243(1)(d)). The Court of Appeals affirmed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the FOIA requires the head of the public body personally to issue written decisions on administrative FOIA appeals | The statute’s use of “shall” means only the head may decide appeals; delegation is not permitted | The head may employ authorized agents to act and decide appeals; rules permit reasonable procedures and prevent undue interference with duties | Head need not personally issue decisions; authorized agents may act on the head’s behalf |
| Whether the Department waived the right to assert statutory exemptions by not raising them in its administrative decision | Department waived any exemption defense by failing to assert it on appeal within the agency | A public body may raise defenses/exemptions for the first time in court because FOIA permits de novo judicial review | Department did not waive the exemption; longstanding precedent allows raising new defenses in court |
| Whether the requested CPL/LEIN-accessible information is exempt from FOIA under MCL 15.243(1)(d) because of LEIN/CPL statutes | FOIA itself authorizes disclosure and is a pro-disclosure law; requested data is not necessarily LEIN and is therefore disclosable | Statutes (MCL 28.214(5), MCL 28.425e, MCL 28.421b) bar disclosure of LEIN/related criminal-justice system data; FOIA’s exemption for records exempted by statute applies | Information is exempt: LEIN/CPL access rules and firearms-record confidentiality statutes prohibit disclosure; FOIA exemption applies |
Key Cases Cited
- King v. Michigan State Police Dep’t, 303 Mich. App. 162 (similar statutory non‑disclosure under FOIA where another statute barred release)
- Residential Ratepayer Consortium v. Pub. Serv. Comm’n #2, 168 Mich. App. 476 (de novo review permits new defenses in court)
- Stone St. Capital, Inc. v. Bureau of State Lottery, 263 Mich. App. 683 (public body may assert defenses in court despite not raising them administratively)
- Bitterman v. Village of Oakley, 309 Mich. App. 53 (rejecting estoppel argument; reaffirming that new defenses may be raised in court)
- Wayne County v. AFSCME Local 3317, 325 Mich. App. 614 (statutory-construction principles governing interpretation of mandatory language)
- Herald Co., Inc. v. Eastern Mich. Univ. Bd. of Regents, 475 Mich. 463 (FOIA interpreted broadly for disclosure and exemptions narrowly)
- MLive Media Group v. Grand Rapids, 321 Mich. App. 263 (when FOIA exemption cites another statute, that statute must be examined)
- Rataj v. City of Romulus, 306 Mich. App. 735 (burden on public body to prove an exemption applies)