Lead Opinion
Plaintiff, Peter Arabo, appeals by right the trial court’s August 28, 2013 order granting summary disposition in favor of defendant, the Michigan Gaming Control Board (the Board), and dismissing
I. PERTINENT FACTS AND PROCEDURAL HISTORY
This appeal arises out of plaintiffs request to the Board for public records under the FOIA. On February 15, 2013, plaintiff sent a letter by e-mail to the Board’s FOIA coordinator, Latasha Cohen, making a formal request for information under the FOIA. Plaintiffs request sought information, writings, documents, or other public records regarding (1) “[w]hich 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, Greek-town 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”
On February 25, 2013, Cohen 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:...”
[The Board] grants your request for existing, nonexempt 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 of search, retrieval, examination, review, and the deletion of exempt information, if any.
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 hourly rate of the lowest paid [Board] employee capable of performing the tasks necessary to commence the processing of your request:
6,206 pages 103 hours
Department Analyst, 103 hours @ 41.78
Records Section = $4.303.34
TOTAL $4,303.34
This estimate does not include the actual copying and mailing costs. [The Board] 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 axe 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 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.
Further, section 4(3) of the FOIA, MCL 15.234(3), mandates that “[flees 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*378 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(1X2X3).
Plaintiff did not respond to the Board’s written notice denying plaintiffs 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 [plaintiffs] FOIA request upon receipt of the deposit, as it has been since issuing written notice granting [plaintiffs] 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 plaintiffs complaint, the Board filed a motion for summary disposition under MCR 2.116(C)(8) (failure to state a claim upon which relief can be granted) and (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” plaintifPs request; plaintiff, therefore, did not have a cause of action under § 10 of the FOIA, which allows a requester 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(l)(b). The Board also argued that summary disposition on Count II was appropriate under MCR 2.116(C)(8). Specifically, the
Following a hearing on plaintiffs motion, the trial court granted summary disposition in favor of 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 Plaintiffs complaint under MCR [2.116(C)(8)], failure to state a claim and MCR [2.116(0(10)], no genuine issue of material fact and for an award of its costs, expenses and attorney fees under MCR [2.114(D)] 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 that contrary to Plaintiffs arguments, Plaintiffs FOIA was granted. Here Plaintiffs FOIA request was granted as set forth in Defendant’s response to Plaintiffs February 15th, 2013, FOIA request in a letter dated February 25,2013, wherein it granted Plaintiffs request. Plaintiffs 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 [(d)(2)], 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 Plaintiffs 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,*380 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,
Section 4 of the FOIA, MCL 15.234, grants the public body the authority to charge a fee to the requester 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 V2 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(l)(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,
B. PLAINTIFF’S CLAIM TO COMPEL DISCLOSURE UNDER MCL 15.240
Plaintiff argues that the trial court erred by granting summary disposition in favor of the Board on Count I, plaintiffs claim to compel disclosure of the
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(0(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(0(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,249 Mich App at 410 (citations omitted).]
Further, statutory interpretation of the FOIA presents a question of law that is subject to review de novo. Thomas v New Baltimore,
In this case, the Board received plaintiffs FOIA request on February 19, 2013. The request sought 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
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 requester. Our review of the Board’s response convinces us that it related to the entirety of plaintiffs request, including the “rules request,” and was not limited to the “countermeasures 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 responded in the same fashion. Further, while the Board’s response opted to quote, in part, plaintiffs request in describing the information sought, its use of ellipses within the quotation indicates that the response was referring to the entirety of plaintiffs request, including both the “countermeasures request” and the “rules request.” Finally, Cohen’s unrefuted affidavit indicated that she granted plain
However, in light of this Court’s recent decision in King,
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*385 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 request and notify Barry King [the requester] 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 411-412 .
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 [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. [King,303 Mich App at 189-191 .]
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. See Grebner,
However, this Court “must construe the FOIA as a whole, harmonizing its provisions.” Prins v Mich State Police,
Thus, the Legislature’s authorization for a public body to require a deposit, i.e., a down payment, equal to V2 of the authorized fee, “at the time a request is made” under § 4(2) of the FOIA, MCL 15.234(2), clearly contemplates that the public body may recover part of its 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.
King does not compel a different result. In King, one of the plaintiffs 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 requester 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 the failure to do so constituted an actionable claim. King,
C. PLAINTIFF’S CLAIM THAT THE FEE CHARGED BY THE BOARD UNDER MCL 15.234 WAS EXCESSIVE
Plaintiff further argues that the trial court erred by 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,
“The FOIA provides that ‘a person’ has a right to inspect, copy, or receive 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,
In this case, the Board exercised its statutory right under § 4 of the FOIA and assessed a fee to process plaintiffs FOIA request. In Count II of his complaint, plaintiff alleged that the Board’s response to his request violated § 4(3), MCL 15.234(3), of the FOIA. Specifically, he claimed that the Board’s proposed “reviewing procedure of examining more than 6,000 pages
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. To support its argument, the Board relied on this Court’s decision in Detroit Free Press,
Contrary to the Board’s argument on appeal, Detroit Free Press did not hold that a requester cannot prevail in a claim brought under § 4, MCL 15.234. Instead, Detroit Free Press implicitly recognized that a requester 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
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 to permit challenges to the fee assessed by the public body to process a FOIA request. See Detroit Free Press,
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;
However, although a cause of action cannot be inferred against a governmental defendant when a statute, like the 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,
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.” Lash,
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
Accepting plaintiffs allegations as true and construing them in the light most favorable to plaintiff, Maiden,
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, under MCR 2.310, to inspect “the process which identified these records or alternatively an inspection these +6,000 records.” Third, plaintiff requested to depose the Board’s “staffer” who determined that more than 6,000 pages of records fell within the scope of his FOIA request and needed to be examined to fulfill the request.
The Board filed a motion for a protective order under MCR 2.302(C), asserting that the 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 requester is a recognized cause of action and that the requested discovery was necessary to ascertain how
Plaintiff argues that the trial court abused its discretion by 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,
“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,
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,
A. INDEX OF RECORDS
Plaintiff first requested that the Board compile an index to identify the nature of the more than 6,000
In this case, plaintiffs request that the Board create an index of the records it identified as requiring examination in order to fulfill plaintiffs 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 FOIA provision that permits a public body to require that a
B. INSPECTION OF RECORDS OR THE 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 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 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 plaintiffs request for an inspection of records, unless plaintiff paid the fee for processing his record 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). Accordingly, 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 his FOIA request to ascertain how the Board identified records needing to be searched. Even assuming this to be the nature of plaintiffs request, however, to fiilfill 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 used 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 by granting the Board’s request for a protective order limiting discovery.
There was good cause, however, to limit plaintiffs request to inspect the identified records by requiring plaintiff to pay for the cost of processing the discovery request. See 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 the FOIA to balance the public’s right to disclosure of public records with the right to shield some “ ‘affairs of government from public view.’ ” King,
This risk could be obviated if the Board first searched the records and redacted exempt information. However, as previously stated, the FOIA allows the Board to charge the costs of these services to a requester and to require a good-faith deposit. MCL 15.234. If plaintiff were not required to pay the fee
C. DEPOSITION OF FOIA COORDINATOR
Finally, plaintiff sought to depose the “staffer” who determined the “global document set” that the Board indicated it needs to review to fulfill plaintiffs FOIA request. The Board argued that a request for deposition of the FOIA coordinator, who processed plaintiffs 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.
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. See King v Oakland Co Prosecutor,
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,
IV. APPELLATE ATTORNEY FEES
Finally, plaintiff argues that he is entitled to recover appellate attorney fees under § 10(6) of the
In support of his argument, plaintiff cites Rataj v Romulus,
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 given his failure to pay the required deposit authorized under § 4(2) of the FOIA. In light of plaintiffs nonpayment, a lawsuit was not reasonably necessary to compel the disclosure of the required documents, and, therefore, plaintiff could not maintain an action for damages under § 10 of the FOIA. Accordingly, and
V. CONCLUSION
We affirm the trial court’s dismissal of Count I of plaintiffs complaint, but reverse the dismissal of Count II of plaintiffs 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.
Notes
The FOIA was recently amended. See 2014 PA563. The amended act provides a procedure for challenging the fees charged by a public body responding to a FOIA request and provides for monetary damages and punitive damages, in certain situations, to be paid both to the public treasury and the requester. See MCL 15.240a. The amendatory act will take effect on July 1, 2015. Nothing about the amendatory act leads us to believe the Legislature intended the amendments 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,
Emphasis omitted.
Emphasis omitted.
Emphasis omitted.
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) and (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.
We note that the federal FOIA, 5 USC 552, also authorizes agencies to collect processing fees to “offset the cost of fulfilling document
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 by § 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. See Fast Air, Inc v Knight,
By definition, the Board is a “governmental agency.” MCL 432.204(1) states that “[t]he Michigan gaming control board is created within the department of treasury.” A “governmental agency” is defined, for purposes of the government tort liability act (GTLA), MCL 691.1401 et seq., as “this state or a political subdivision.” MCL 691.1401(a). “State” is defined in the GTLA as “this state and its agencies, departments, commissions, courts, boards, councils, and statutorily created task forces.” MCL 691.1401(g). Thus, the Board is a governmental entity for purposes of the GTLA.
Concurrence Opinion
(concurring in part and dissenting in part). I concur with the majority’s determination that defendant Michigan Gaming Control Board (MGCB) did not actually grant plaintiffs request under the Freedom of Information Act (FOIA), MCL 15.231 et seq., when it informed plaintiff that it was “grant[ing] your request for existing, non-exempt information in our possession that is relevant to your request.” See King v Mich State Police Dep’t,
I also concur with the majority that plaintiff sufficiently pleaded a claim for injunctive or declaratory relief with respect to whether the fees charged by the MGCB were excessive and violative of § 4 of FOIA,
Contrary to the majority, however, I cannot conclude that Count I of plaintiffs complaint was properly dismissed for the alternative reason that plaintiff failed to pay the requested deposit under MCL 15.234(2). Plaintiff challenged the fee charged by the MGCB, including the amount of the requested deposit. The majority reasons that plaintiff had a right to challenge the amount of the fee by way of a request for injunctive or declaratory relief, but nevertheless concludes that plaintiffs claim was properly dismissed because he did not pay the challenged deposit. In my opinion, this reasoning is illogical. Until the circuit court rules on plaintiffs claim challenging the overall fee under § 4, how can it possibly be said that plaintiff was required to pay the requested deposit of $2,151.67?
MCL 15.234(2) provides that “[a] public body may require at the time a request is made a good faith deposit from the person requesting the public record or series of public records, if the fee authorized under this section exceeds $50.00. The deposit shall not exceed V2 of the total fee.” The MGCB claims that responding to plaintiffs FOIA request would require it to pay an employee $41.78 per hour, for an estimated 103 hours, or a total of $4,303.34. The MGCB requested that plaintiff pay a deposit of V2 of this amount, or $2,151.67.
I am at pains to understand the MGCB’s assertion that plaintiffs straightforward FOIA request would require 103 hours of labor at an hourly rate of $41.78. Nor do I understand why the MGCB would be required to review 6,206 pages of documents to comply with plaintiffs request. The MGCB’s letter informing plaintiff that he was required to pay for 103 hours of labor at a rate of $41.78 per hour, and make a good-faith deposit of $2,151.67, was clearly designed to discourage plaintiff and frustrate his attempt to obtain disclosable public records. Such deceptive action by a public agency violates the purpose and spirit of FOIA, undermines faith in our state government, and cannot be tolerated.
Until it is determined whether the MGCB charged a proper fee under MCL 15.234(1) and (3), this Court cannot possibly determine whether plaintiff was required to pay the requested deposit of $2,151.67 under MCL 15.234(2). If the overall fee of $4,303.34 is found
I would reverse the circuit court’s dismissal of Count I of plaintiffs complaint and remand for a determination of a reasonable deposit under MCL 15.234(2). Only after making such a determination can the circuit court reach the merits of plaintiffs claim under § 10 of FOIA, MCL 15.240. I would also grant reasonable appellate attorney fees and costs under MCL 15.240(6) and the reasoning of Rataj v Romulus,
I further concur with the majority regarding the disposition of the discovery issues raised in this case.