FINAL REVISED DRAFT Citizens United Motion for Writ of Mandamus and Declaratory Judgment to Compel...
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Transcript of FINAL REVISED DRAFT Citizens United Motion for Writ of Mandamus and Declaratory Judgment to Compel...
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STATE OF MICHIGAN
IN THE 3rd
JUDICIAL CIRCUIT COURT
FOR THE COUNTY OF WAYNE CITIZENS UNITED AGAINST CORRUPT GOVERNMENT,
a Michigan Nonprofit Corporation, Case No. 13-008649-AW
PLAINTIFF, Hon. Maria L. Oxholm
-v-
MICHIGAN DEPARTMENT OF TREASURY, and
CARLA ROBERT, in her official capacity as FOIA Coordinator for the Michigan
Department of Treasury,
DEFENDANTS.
________________________________________________________________________/
ANDREW A. PATERSON (P18690) MICHELLE M. BRYA (P66861)
Attorney for Plaintiff HEATHER MEINGAST (P55439)
46350 Grand River Ave., Suite C JOSHUA BOOTH (P53847)
Novi, MI 48374 Assistant Attorneys General
(248) 568-9712 State Operations Division,
Attorneys for Defendants,
525 W. Ottawa Street, 2nd
Floor
P.O. Box 30754
Lansing, MI 48909
(517) 373-1162
________________________________________________________________________/
Plaintiff’s Motion and Brief In Support of Motion for Writ of Mandamus
and Declaratory Judgment To Compel Disclosure of “Unredacted” Public
Documents Pursuant to the Freedom of Information Act (FOIA) and
Order to Show Cause
PLAINTIFF, CITIZENS UNITED AGAINST CORRUPT GOVERNMENT, by and
through its attorney, ANDREW A. PATERSON, for Motion and Brief in Support of Motion
for Writ of Mandamus and Declaratory Judgment To Compel Disclosure of “Unredacted”
Public Documents Pursuant to the Freedom of Information Act (FOIA) and Order to Show
Cause under MCR 3.305(C), states and alleges the following:
NATURE OF THE ACTION
Page 2 of 22
Plaintiff Citizens United has filed this civil action pursuant to MCL 15.235(7)(b) and
MCL 15.240(1)(b) of the FOIA, seeking a writ of mandamus to compel Defendants to
disclose the public documents described in Plaintiff’s FOIA Request. Plaintiff does have the
burden of establishing entitlement to the extraordinary remedy of a writ of mandamus.
Lansing Sch Ed Ass’n v Lansing Bd of Ed (On Remand), 293 Mich App 506, 519; 810 NW2d
95 (2011).
“Mandamus is a writ issued by a court of superior jurisdiction to compel a public
body or public officer to perform a clear legal duty.” Lee v Macomb Co Bd of Comm’rs, 235
Mich App 323, 331; 597 NW2d 545 (1999), rev’d on other rounds 464 Mich 726 (2001). A
writ of mandamus is an extraordinary remedy. Coalition for a Safer Detroit v Detroit City
Clerk, 295 Mich App 362, 366-367; ____ NW2d ____ (2012). Plaintiffs must show that (1)
the plaintiffs have a clear legal right to the performance of the duty sought to be compelled,
(2) the defendants have a clear legal duty to perform the requested act, (3) the act is
ministerial, and (4) no other remedy exists that might achieve the same result. Id. See also
White-Bey v Dep’t of Corrections, 239 Mich App 221, 223-224; 608 NW2d 833 (1999). An
act is ministerial if it is “prescribed and defined by law with such precision and certainty as
to leave nothing to the exercise of discretion or judgment.” Citizens Protection Michigan’s
Constitution, 280 Mich App 273, 286; 761 NW2d 210, aff’d in part 482 Mich 960 (2008),
quoting Carter v Ann Arbor City Attorney, 271 Mich App 425, 439; 722 NW2d 243 (2006).
“The Freedom of Information Act, MCL 15.231 et seq.; MSA 4.1801(1) et seq.,
protects a citizen’s right to examine and to participate in the political process. It requires
public disclosure of information regarding formal acts of public officials and employees.”
Booth v U of M Bd of Regents, 444 Mich 211, at 231; 507 NW2d 422 (1993). “All public
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records are subject to full disclosure unless they are clearly exempt… A FOIA request must
be fulfilled unless MCL 15.243 lists an applicable specific exemption. MCL 15.233(1).”
Coblentz v Novi, 475 Mich 558, at 573 (2006). (Emphasis supplied) (citation omitted).
Plaintiff’s Complaint meets all of these requirements for this Court to issue its writ of
mandamus against the Defendants to disclose the public documents Plaintiff has requested.
Plaintiff has a clear legal right to the performance by the Defendants sought to be compelled
hereby; Defendants have a clear legal duty under FOIA to perform the requested act of
disclosing the public documents Plaintiff has requested; the act sought to compelled is
ministerial in nature in that it is “prescribed and defined by law with such precision and
certainty as to leave nothing to the exercise of discretion or judgment.”; and, there is no other
adequate remedy at law to so compel Defendants to disclose the public documents Plaintiff
has requested.
In addition, pursuant to MCL 15.235(3) and MCL 15.240(7) of the FOIA, Plaintiff
seeks the Court to declare that Defendants have violated the FOIA by their arbitrary and
capricious refusal, and by impermissible delay in disclosing, or providing copies of, the
public records sought by the Plaintiff as so requested in their FOIA Request. Accordingly,
pursuant to the FOIA, the Court must award Plaintiff, any actual or compensatory damages
proven, and punitive damages in the amount of $500.00.
An actual controversy exists by reason of the Defendants’ refusal to fulfill and
respond to Plaintiff’s FOIA Request, which is a violation of the FOIA, and Plaintiff, as the
person making the FOIA Request, is the proper party to litigate same. Pursuant to MCL
15.240(5) of the FOIA, Plaintiff respectfully requests the Court to assign for hearing and
Page 4 of 22
argument at the earliest practicable date and to otherwise expedite the action in accordance
with MCR 3.301(D).
WRIT OF MANDAMUS SHALL BE ISSUED AGAINST DEFENDANTS TO
COMPEL THEM TO DISCLOSE AND PROVIDE PLAINTIFF WITH THE
PUBLIC DOCUMENTS REQUESTED IN ITS MAY 15, 2013 FOIA REQUEST
On May 15, 2013, Plaintiff Citizens United’s Director sent, on behalf of the Plaintiff
Citizens United, via email, a written request to Defendant FOIA Coordinator and other high-
ranking state officials within the Defendant Department of Treasury, a written request
requesting:
A copy of any and all written communications, including emails, notes, faxes,
letters, memorandums, sent by or received by Andy Dillon, Brom Stibitz,
and Richard Baird from any state and/or local officer, employee, elected
official or any employee and/or representative and/or associate from the Jones
Day Law Firm and/or City of Detroit regarding the appointment, interviewing
process, and/or interviews/conference calls conducted with any candidate for
the selection and/or appointment of an emergency financial manager for the
City of Detroit under Public Act 72 of 1990, and regarding and pertaining to
the March 14, 2013 special meeting of the Emergency Financial Assistance
Loan Board. (See Plaintiff’s May 15, 2013 FOIA Request attached to
Plaintiff’s Complaint as Exhibit B).
As of July 1, 2013, and as of the date of the filing of the Complaint in this matter,
Plaintiff Citizen United’s Director did NOT receive any written communication from the
Defendants in response to Plaintiff Citizens United’s May 15, 2013 FOIA Request. (See
Plaintiff’s Director’s Affidavit attached to Plaintiff’s Complaint as Exhibit A). “The
FOIA commands that a public body respond to a request for public records either by granting
it, or by “[i]ssuing a written notice to the requesting person denying the request.” Prins v
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Michigan State Police, 291 Mich App 586, at 590; 805 NW2d 619 (2011). (Emphasis in
original). “All public records are subject to full disclosure unless they are clearly exempt…
A FOIA request must be fulfilled unless MCL 15.243 lists an applicable specific
exemption. MCL 15.233(1).” Coblentz v Novi, 475 Mich 558, at 573 (2006). (Emphasis
supplied) (citation omitted). Plaintiff Citizens United asserts that the documents requested
from the Defendants, including emails, are not exempt under any exemption listed in MCL
15.243.
Under the FOIA, Defendants are not permitted to deny Plaintiff Citizens United the
information sought by its FOIA Request. Plaintiff Citizens United has a clear legal right to
receive copies of such public documents and Defendants have a clear legal duty to provide
the Plaintiff Citizens United copies of such public documents. “Defendant’s denial of
plaintiff’s FOIA request constituted a final decision to deny the request. MCL 15.235(4).
Plaintiff had the right, therefore, to institute his litigation, MCL 15.240(1)(b), and, at the
conclusion of this litigation, the circuit court ordered production of the tape……. The instant
litigation was reasonably necessary to determine that all of defendant’s claimed exemptions
lacked merit.” Meredith Corp v Flint, 256 Mich App 703, at 713-714; 671 NW2d 101
(2003). A complete or partial denial of a request must contain the reason for the denial: an
explanation of the basis for the exemption from disclosure, a description of the deleted
material, or a certificate that the record does not exist. MCL 15.235(4); Federated
Publications, Inc. v City of Lansing, 467 Mich 98, 102; 649 NW2d 383(2002); Detroit Free
Press v Southfield, 269 Mich App 275, 281; 713 NW2d 28 (2005). The circuit court is to
determine by de novo review whether disclosure should be compelled. MCL 15.240(4);
Schroeder v Detroit, 221 Mich App 364, 365; 561 NW2d 497 (1997). (Emphasis supplied).
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Pursuant to the FOIA, a person has the right to receive, upon proper request, copies of
any public records that are not subject to an exemption from disclosure. Booth Newspapers,
Inc. v Univ. of Michigan Board of Regents, 192 Mich App 574; 481 NW2d 778; appeal
granted 441 Mich 881; 491 NW2d 825; affirmed in part, reversed in part 444 Mich 211; 507
NW2d 422 (1992). A public body has a duty under FOIA, to provide access to nonexempt
records sought or to deliver copies of such records. Mackenzie v Wales Tp., 247 Mich App
124; 635 NW2d 335 (2001). Under the FOIA, a public body must disclose all public records
that are not specifically exempt. Larry S Baker, PC v Westland, 245 Mich App 90, 94; 627
NW2d 27 (2001). (Emphasis supplied). See also MCL 15.231. “The [FOIA] statute does not
require that the record be created by the public body, or even created at its behest. Rather, it
is ownership, use, possession, or retention in the performance of an official function that is
determinative.” Detroit News v Detroit, 204 Mich App 720, at 724-725; 516 NW2d 151
(1994).
Under the FOIA, Defendants cannot choose to restrict and deny Plaintiff Citizens
United from receiving the information and public documents requested in its FOIA Request
and Plaintiff Citizens Untied has the legal right to receive copies of such public documents so
requested and Defendants have a clear legal duty to provide the Plaintiff Citizens United
copies of such public documents. Any FOIA exemption claims must be narrowly construed.
“Courts narrowly construe any claimed exemption and place the burden of proving its
applicability on the public body asserting it.” Detroit Free Press v Southfield, 269 Mich App
275, 281; 713 NW2d 28; appeal denied 475 Mich 860; 713 NW2d 775; appeal denied 475
Mich 860; 713 NW2d 776 (2005). “The burden of proving [a] need for an exemption rests on
the public body asserting its application. To meet this burden, the public body claiming an
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exemption should provide complete particularized justification, rather than simply repeat
statutory language.” Detroit Free Press v Warren, 250 Mich App 164, at 167 (2002).
The Michigan Court of Appeals, in State News v MSU (274 Mich App 558; 735
NW2d 649, affirmed in part and reversed in part, on other grounds, 481 Mich 692; 753
NW2d 20 (2007)), established the test by which courts must analyze and determine a claim
of exemption under FOIA. The State News’ Court held:
“In Evening News Ass’n v City of Troy, the Michigan Supreme Court set forth
the following rules that should be used in analyzing a claim of exemption from
disclosure under FOIA:
1. The burden of proof is on the party claiming exemption from disclosure.
2. Exemptions must be interpreted narrowly.
3. “[The] public body shall separate the exempt and nonexempt material and
make the nonexempt material available for examination and copying.”
4. “[D]etailed affidavits describing the matters withheld” must be supplied
by the agency.
5. Justification of exemption must be more than “conclusory”, i.e., simple
repetition of statutory language. A bill of particulars is in order.
Justification must indicate factually how a particular document, or
category of documents, interferes with law enforcement proceedings.
6. The mere showing of a direct relationship between records sought and an
investigation is inadequate.” [State News v MSU, 274 Mich App 558,
570-571; 735 NW2d 649 (2007).]
As the Court of Appeals further noted in State News, supra:
“Although these rules were primarily directed to the Evening News Court’s
analysis of the law-enforcement-purposes exemption, with the exception of rule
6, we find them generally applicable to any claim of exemption from
disclosure under FOIA.” [State News v MSU, 274 Mich App 558, 571 fn16; 735
NW2d 649 (2007), (Emphasis supplied).]
Page 8 of 22
Thus, the emails and other written documentation requested by Plaintiff Citizens
United pertains to actions of public officials within the Defendant Department of Treasury
while they were acting in their official capacities during the process of selecting Kevyn Orr
as the Emergency Financial Manager for the City of Detroit under the now-former Public Act
72 of 1990. The documents, including emails, of public officials of the Defendant
Department of Treasury are not exempt under the FOIA. Emails of public officials
transmitted in performance of an official function are “public records” subject to disclosure
under the FOIA. As the Michigan Court of Appeals explained in Howell Ed Ass’n v Howell
Bd of Ed, 287 Mich App 228, at 247, n 10; 789 NW2d 495 (2010): “Although the question is
not before us, we note that an e-mail transmitted in performance of an official function
would appear to be a public record under FOIA.” (Emphasis supplied).
It is undisputed that the emails Plaintiff Citizens United seeks from the Defendants
were transmitted in the performance of an official function of certain public state officials
who were involved in the process of selecting Kevyn Orr as the new Emergency Financial
Manager for the City of Detroit under the now-former Public Act 72 of 1990. Defendants
cannot satisfy their burden of justifying the denial of the FOIA Request with a nonexistent
exemption. However, the Defendants have raised some frivolous arguments asserting certain
exemptions under the FOIA, which simply do not apply. Thus, Plaintiff Citizens United
provides the following legal analysis for the Court addressing Defendants’ exemption claims.
1. Litigation Exemption Does Not Apply
MCL 15.243(1)(v) of the FOIA provides an exemption of “records or information
relating to a civil action in which the requesting party and the public body are parties.”
(Emphasis supplied). As this Court is keenly aware, Plaintiff Citizens United’s Director,
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Robert Davis (“Davis”), in his individual capacity as a citizen, is currently involved in a
separate Open Meetings Act (“OMA”) litigation in Ingham County Circuit Court (Davis v
Emergency Financial Assistance Loan Board, et al., Case No. 13-281-NZ, Judge William E.
Collette) against the Emergency Financial Assistance Loan Board, Governor Rick Snyder
and State Treasurer Andy Dillon in which Davis alleges that the members of the Emergency
Financial Assistance Loan Board and Governor Snyder violated many provisions of the
OMA in their secretive selection of Kevyn Orr as the Emergency Financial Manager for the
City of Detroit. Davis is the only plaintiff in the OMA case currently pending in Ingham
County Circuit Court. Plaintiff Citizens United IS NOT a party plaintiff in the OMA case
currently pending in Ingham County Circuit Court. Additionally, none of the named
Defendants in the instant matter are party defendants in the OMA case currently pending in
Ingham County Circuit Court.
As noted above, Plaintiff Citizens United nor any of the named Defendants in the
instant case are “parties” in the OMA case currently pending in Ingham County Circuit
Court. Although Plaintiff Citizens United’s Director is the party plaintiff in the OMA case
currently pending in Ingham County Circuit Court, Plaintiff Citizens Untied is not and what
its Director does in his individual capacity has no legal bearing on Plaintiff Citizens United’s
legal rights to receive public documents under the FOIA. As the Michigan Court of Appeals
explained in Detroit Free Press v Southfield, 269 Mich App 275, at 290-291; 713 NW2d 28
(2005):
“The city argues that plaintiff did not have standing to sue because only
Christoff, himself, may be considered a requesting person” under the FOIA. We
disagree. 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
Page 10 of 22
of the public body. MCL 15.233(1), 15.235(1). The statute then grants “the
requesting person” standing to commence an action in a circuit court to compel
disclosure of records which the public body has refused to disclose. MCL
15.235(7)(b), 15.240(1)(b). Under the FOIA, “ ‘[p]erson’ means an individual
corporation,… or other legal entity.” MCL 15.232(c). A corporation acts
through its individual agents as a matter of course. Here, Christoff’s request
was written on “Detroit Free Press” letterhead, and Christoff identified himself as
the “Lansing Bureau Chief.” He also stated that he was a journalist for plaintiff
and that he intended to use the requested information for an article in “our
newspaper.” Therefore, plaintiff [Detroit Free Press] issued the request and had
standing to pursue its claim.” (Emphasis supplied).
Like the reporter in Detroit Free Press v Southfield, supra, Plaintiff Citizens United’s
Director sent Defendants its FOIA Request on Plaintiff Citizens United’s letterhead and its
Director, Robert Davis, specifically stated therein that the FOIA Request was sent on behalf
of Plaintiff Citizens United and not on his behalf. (See Plaintiff Citizens United’s May 15,
2013 FOIA Request attached to Plaintiff’s Complaint as Exhibit B). Additionally, our
Court of Appeals in Taylor v Lansing Bd of Water and Light, 272 Mich App 200, 205-206;
725 NW2d 84 (2006) determined that if both parties to a FOIA case are not parties in a
pending litigation, then the pending litigation exemption does not apply. The Court of
Appeals in Taylor held:
“Thus, the public body asserting the exemption in MCL 15.243(1)(v) must
prove that it is a party to a civil action involving the requesting part.
Otherwise, this Court’s ruling in Central Michigan Univ Supervisory-Technical
Ass’n v Central Michigan Univ Bd of Trustees, 223 Mich App 727, 730; 567
NW2d 696 (1997) (holding that FOIA does not conflict with the court rules
governing discovery, nor does it supplement or displace them), is applicable, and
Page 11 of 22
the public body is afforded no exemption from disclosure based solely on the
status of one of the parties as litigants.
“A plain reading of MCL 15.243(1)(v) would require a conclusion that the
trial court correctly ruled the requested documents were not exempt. The plain
language of the exemption cited by defendant applies only to information relating
to a civil action in which both the requesting party and the public body are parties.
“Party” is not defined in the statute itself, but is defined in Black’s Law
Dictionary (6th
ed) as “those by or against whom a legal suit is brought….”
Plaintiff in this matter is the admitted best friend of Ms. Cluley, a party involved
in a lawsuit against defendant. However, there is no dispute that plaintiff was not
and is not a party to the Cluley action. MCL 15.243(1)(v) thus serves as no basis
for exempting the records requested by plaintiff.” [Taylor v Lansing Board of
Water and Light, 272 Mich App at 205-206.] (Emphasis in original and Emphasis
supplied).
As noted, neither Plaintiff Citizens United nor any of the named Defendants to the
instant action are “parties” to the OMA case currently pending in Ingham County Circuit
Court. Thus, the FOIA’s “pending litigation” exemption afforded under MCL 15.243(1)(v)
cannot be applied in this case.
2. Frank Communications/Deliberative Process Exemption Does Not Apply
Defendants have raised the so-called common law “Deliberative Process Privilege”
and the “Frank Communications Privilege” as a basis for exempting documents under the
Freedom of Information Act (“FOIA”). Specifically, Defendants list 4 emails in their
document entitled “Privilege Log for Citizens United Against Corrupt Government FOIA
Request Dated May 15, 2013” that they believe are exempt from disclosure pursuant to the
Frank Communications/Deliberative Process Exemption. (See Emails Defendants failed to
disclose listed in Defendants’ Privilege Log attached hereto as Exhibit A). The
“deliberative process privilege” is codified in § 13(1)(m) of the FOIA (MCL 15.243(1)(m)).
Page 12 of 22
However, Defendants fail to explain to and inform the Court of the proper application of the
“deliberative process privilege”. Doing so, of course, would demonstrate its inapplicability to
shielding the production of the documents requested.
The frank communication exemption, MCL 15.243(1)(m) of the FOIA, states in
relevant part:
(1) A public body may exempt from disclosure as a public record under
this act any of the following:
***
(m) Communications and notes within a public body or between public bodies
of an advisory nature to the extent that they cover other than purely factual
materials and are preliminary to a final agency determination of policy or action.
This exemption does not apply unless the public body shows that tin the
particular instance the public interest in encouraging frank communication
between officials and employees of public bodies clearly outweighs the public
interest in disclosure…. (Emphasis supplied).
In order for the frank communication exemption under the FOIA to be applied to this
case, Defendants have a huge burden to prove in accordance with the test established by our
Michigan Supreme Court in Herald Co v Eastern Michigan Univ Bd of Regents, 475 Mich
463, 475; 719 NW2d 19 (2006). In Bukowksi v City of Detroit, 478 Mich 268, at 274-275
(2007), our Michigan Supreme Court thoroughly analyzed the test it established in Herlad Co
that must be applied by this Court in order for the frank communication exemption to apply:
“In Herald Co, this Court examined the frank communication exemption.
Drawing from the text of this provision and other portions of the FOIA, we set
forth a framework for courts to apply the frank communication exemption. First,
the public body seeking to withhold the document bears the burden of establishing
the exemption. Second, the public record sought to be withheld from disclosure
must meet the three-part statutory definition of a “frank communication”: (1) it is
Page 13 of 22
a communication or note of an advisory nature made within a public body or
between public bodies, (2) it covers other than purely factual material, and (3) it is
preliminary to a final agency determination of policy or action. Third, if the
public record qualifies as a “frank communication,” the trial court must engage in
the balancing test and determine of the public interest in encouraging frank
communication clearly outweighs the public interest in disclosure. Finally, if the
trial court determines that the frank communication should not be disclosed,
the FOIA still requires the trial court to redact the exempt material and
disclose the purely factual material within the document.” (Emphasis
supplied).
As our Supreme Court explained in Herald Co v EMU Bd of Regents, 475 Mich 463,
at 473:
“The frank communication exemption ultimately calls for the application of a
weighted balancing test where the circuit court must weigh the public interest in
disclosure versus the public interest in encouraging frank communication. Under
the plain language of the provision, these competing interest are not equally
situated, and the Legislature intended the balancing test to favor disclosure.
The Legislature’s requirement that the public interest in disclosure must be
clearly outweighed demonstrates the importance it has attached to disclosing
frank communications absent significant, countervailing reasons to withhold
the document.” (Emphasis supplied).
Defendants must meet ALL of the threshold qualifications set forth by our Michigan
Supreme Court in Herald Co., supra. “If in the trial court’s judgment, the document fails
any one of these threshold qualifications, then the frank communication exemption
simply does not apply.” Herald Co. v EMU Bd of Regents, 475 Mich 463, at 475 (2006).
(Emphasis supplied). Moreover, “if the document is composed entirely of purely factual
materials, it is not a frank communication, and the public body must disclose the
document to the requesting party unless it has asserted an alternate, valid basis for
Page 14 of 22
nondisclosure.” Herald Co. v EMU Bd of Regents, 475 Mich 463, at 475 (2006). (Emphasis
supplied).
Thus, the balancing test set forth by our Michigan Supreme Court in Herald Co.,
supra, and Bukowksi, supra, clearly favors disclosure. Accordingly, Defendants cannot
demonstrate why the public interest in disclosure is outweighed by the interest in
encouraging frank communication between officials and employees of public bodies.
Additionally, the Michigan Department of Treasury is not the “public body” that took
“action” appointing the emergency manager – that public body was the Local Emergency
Financial Assistance Loan Board, acting under Public Act 72 of 1990. The Department of
Treasury documentation sought is not information or documentation “preliminary to a final
agency determination of policy or action” by the Department of Treasury. The privilege does
not apply. It has already been exposed by the media that the Governor and members of the
Emergency Financial Assistance Loan Board, which includes the State Treasurer, had
already predetermined that an emergency financial manager was going to be appointed even
prior to a financial emergency being declared by the Governor. (See Media reports
attached to Plaintiff’s Complaint as Exhibit C). “The Legislature’s stated purpose in
enacting the FOIA is to entitle all persons except prisoners to complete information regarding
the affairs of the government and the official acts of those who represent them as public
officials and public employees so that they may fully participate in the democratic process.”
Scharret v Berkley, 249 Mich App 405, at 411 (2002).
More importantly, what Defendants fail to realize is that the names of candidates for
the State’s public office of emergency financial manager for the City of Detroit, that may
have considered, vetted, and/or interviewed, are clearly and simply not privileged. It is well-
Page 15 of 22
settled that when someone is a candidate for public office, he deliberately places his
character and conduct before the public for their discussion and consideration. Robbins v
Evening News Assn, 373 Mich 589, 591; 130 NW2d 404 (1964). In fact, the identity and
resumes of the candidates are plainly subject to disclosure under the FOIA. The applications
and resumes submitted by the candidates seeking the position of emergency financial
manager for the City of Detroit are not exempt under the FOIA. The Michigan Court of
Appeals and the Michigan Supreme Court have addressed the very issue of applications and
resumes of candidates for public offices. The courts have unsurprisingly found them not to
be exempt from disclosure under the FOIA. Indeed, this was the very holding of the
Michigan Court of Appeals in Booth Newspapers, Inc. v U of M Board of Regents, 192 Mich
App 574; 481 NW2d 778 (1992); affirmed in part and reversed in part on other grounds, 444
Mich 211; 507 NW2d 422 (1993).
The Court of Appeals opinion in Booth Newspapers v U of M Board of Regents,
supra, identified what discussions and deliberations could take place in a closed session
under §8(f) of OMA. The Court of Appeals held:
The phrase “specific contents of an application for employment” is clear and
unambiguous, and it cannot be read to include, as the trial court held, all
investigation and consideration of the applicants. The purpose of this exception
is not the protection of the applicants’ identity, inasmuch as all interviews
are required to be open to the public. The exception applies only to the
review of the specific contents of the candidates’ application for employment.
The exception allows the public body to deliberate on the specific contents of
the application, but does not disguise the fact that an application has been
made. [Booth v U of M Board of Regents, 192 Mich App 574, at 584. (Emphasis
supplied).]
The Supreme Court affirmed this reasoning and they said and held:
Page 16 of 22
In the instant case, the Court of Appeals construed the “specific contents”
exemption narrowly and held that the OMA permitted closed sessions only to
review personal matters contained in a candidate’s application. We agree.
Considering the OMA’s prodisclosure nature, the requirement to strictly
construe exemptions and the mandate for open candidate interviews, it is
reasonable to assume that the Legislature intended this exemption to be a
limited compromise, allowing privacy rights to dictate in instances where
boards were not engaged in decision-making activities. Here we agree with
the panel that the board went beyond this limitation and made reduction
decisions under the guise of this exemption. Clearly, however, the OMA
requires that “all decisions of a public body” be made in public. Consequently,
the act mandates that the Presidential Selection Committee made any
reduction decisions in public. [Booth v U of M Bd of Regents, 444 Mich 211,
230-231. (Emphasis supplied).]
In Herald Co v Bay City, 463 Mich 11, 125; 614 NW2d 873 (2000), our Supreme
Court again decided that the applications and resumes of applicants for a public job are
subject to disclosure under the FOIA. They held:
[W]e conclude that the fact of application for a public job, or the typical
background information one may disclose with such an application, is simply
not “personal” within the contemplation of this exemption. Given the public
nature of the position at issue, we think it difficult to conclude that the
“customs,” “mores,” and “views” of the community contemplate that an
application for such a position could be made without expectation of
considerable public scrutiny. Certainly, defendants have failed to establish
on his record why any of the information requested by plaintiff is the kind of
intimate or embarrassing information that this FOIA exception protects.
Importantly, even if the requested information was contained in public
documents that also referenced embarrassing or intimate personal
information (for example, medical data), the FOIA imposes on the city a duty
to “separate the exempt and nonexempt material and make the nonexempt
Page 17 of 22
material available for examination and copying.” MCL 15.244(1); MSA
4.1801(14)(1); see also Evening News Ass’n v City of Troy, 417 Mich 481, 503;
339 NW2d 421 (1983). (Emphasis supplied).
The Supreme Court in Herald Co, supra, further said:
[W]e conclude that disclosure of the information concerning the final
candidates for fire chief in the instant case would serve the policy underlying
the FOIA because disclosure would facilitate the public’s access to
information regarding the affairs of their city government. It can hardly be
challenged that the citizens of Bay City had a valid interest in knowing the
identities of the final candidates considered in contention for this high-level
public position. Keeping in mind that defendants bear the burden of proof that
an exemption applies, and balancing the public interest against the relatively
circumscribed privacy interest protected by the FOIA exemption, we cannot
conclude that the disclosure sought might result in a “clearly unwarranted
invasion of an individual’s privacy.” [Herald Co, supra, 463 Mich at 127.
(Emphasis in original and supplied).]
Defendants cannot satisfy their burden of justifying their refusal to produce
“unredacted” copies of the documents listed and attached as Exhibits A and B of Plaintiff’s
instant motion. Attached hereto as Exhibit B are the “redacted” emails that Plaintiff
believes should also be disclosed in an “unredacted” form because the information that has
been redacted (i.e. names and resumes of the candidates who were interviewed and/or vetted
to be appointed the emergency financial manager for the City of Detroit) does not fit any of
the exemptions codified under the FOIA that would prevent their disclosure. (See emails
Plaintiff is requesting to be disclosed in an “unredacted” form attached hereto as
Exhibit B). Accordingly, this Court, upon a de novo and in camera review of the
documents in question, should order Defendants to produce the “unredacted” documents,
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including the resumes of the candidates, attached and listed as Exhibits A and B of this
instant motion, to the Plaintiff as requested, on the date of the show cause hearing.
COUNT III
PLAINTIFF MUST BE AWARDED COMPENSATORY AND PUNITIVE DAMAGES
OF $500 UNDER FOIA
As a result of Defendants failure to respond to Plaintiff Citizens United’s FOIA
Request within 5 business days, this Court is obligated and required to assess damages
against the Defendants pursuant to MCL 15.235(3). MCL 15.235(3) of the FOIA states in
pertinent part:
(3)Failure to respond to a request pursuant to subsection (2) constitutes a public
body’s final determination to deny the request. In a circuit court action to compel
a public body’s disclosure of a public record under section 10, the circuit court
shall assess damages against the public body pursuant to section 10(7) of the
circuit court has done both of the following:
(a) Determined that the public body has not complied with subsection (2).
(b) Ordered the public body to disclose or provide copies of all or a portion of
the public record. (Emphasis supplied).
It is undisputed that the Defendants failed to respond to Plaintiff Citizen United’s
FOIA Request within the statutory timeframe as required under MCL 15.235(2). Thus, if
this Court orders the Defendants to disclose all or a portion of the public records Plaintiff
Citizens United requested, then this Court must assess damages against the Defendants as a
result of their failure to timely respond to Plaintiff Citizens United’s FOIA Request.
Additionally, the Defendants have arbitrarily and capriciously violated FOIA by the
refusal and delay in disclosing and/or providing copies of, the public records sought by
Plaintiff’s FOIA Request. Accordingly, pursuant to MCL 15.240(7), the Court shall award,
in addition to any actual or compensatory damages, punitive damages in the amount of
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$500.00 to the Plaintiff. The Legislature did not define the terms “arbitrarily and
capriciously” in FOIA. However, when reviewing a statute, all non-technical words and
phrases shall be construed and understood according to the common and approved usage of
the language, and if a term is not defined in the statute, a Court may consult a dictionary to
aid it in this goal; a court should consider the plain meaning of a statute’s words and their
placement and purpose in the statutory scheme. McCormick v Carrier, 487 Mich 180 (2010).
“Arbitrary means fixed or arrived at through an exercise of will or by caprice, without
consideration or adjustment with reference to principles, circumstances, or significance.
Capricious means apt to change suddenly, freakish, or whimsical.” Binsfeld v Dep’t of
Natural Resources, 173 Mich App 779, 786; 434 NW2d 245 (1988).
Defendants conduct in denying Plaintiff Citizen United the right to receive copies of
the public documents requested was both arbitrary and capricious. Evidence of the
capricious nature of the denial is that the Defendants totally ignored Plaintiff Citizens
United’s FOIA Request and failed to provide Plaintiff Citizens United with a response to its
FOIA Request as they are statutorily required to do.
COUNT IV
PLAINTIFF SHALL BE AWARDED COURT COSTS AND ATTORNEY FEES
PURSUANT TO THE FOIA
Plaintiff is entitled to court costs and attorney fees upon the Court declaring and
determining Defendants violated FOIA by denying Plaintiff’s FOIA Request, and/or upon the
Court compelling delivery and disclosure of such public documents. MCL 15.240(6) sates in
pertinent part:
(6) If a person asserting the right to inspect, copy, or receive a copy of all or a
portion of a public record prevails in an action commenced under this section, the
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court shall award reasonable attorneys’ fees, costs, and disbursements….
(Emphasis supplied.)
“Attorney fees are available under [MCL 15.240] if a public body, in a final
determination, denies an information request and the court orders production of the
documents.” Detroit Free Press, Inc v Dep’t of Attorney Gen, 271 Mich App 418, 420; 722
NW2d 277 (2006). “[A]ttorney fees and costs must be awarded under the first sentence of
MCL 15.240(6) only when a party prevails completely.” The Local Area Watch v Grand
Rapids, 262 Mich App 136, 150; 683 NW2d 745 (2004). If a plaintiff prevails completely in
an action to compel disclosure under the FOIA, the circuit court must award costs and
reasonable attorney fees to the plaintiff. Prins v Michigan State Police, ___ Mich App ___;
____ NW2d___ (2013) (Docket No. 309803), Issued March 5, 2013, slip op at pp 3-4. If a
Plaintiff prevails in an action to compel disclosure under FOIA, the circuit court must award
reasonable attorney fees, costs, and disbursements to the Plaintiff. Thomas v City of New
Baltimore, 254 Mich App 196; 657 NW2d 530 (2002). “[A]s long as an action for disclosure
of public records is initiated pursuant to the FOIA, the prevailing party’s entitlement to an
award of reasonable attorney fees, costs, and disbursements includes all such fees, costs, and
disbursements related to achieving production of the public records….The language of MCL
15.240(6) does not permit the circuit court to limit the prevailing party’s request for attorney
fees to those incurred only when the defendant’s refusal to disclose the public records is
unreasonable. Instead, the statute provides without qualification that the circuit court must
award the prevailing party reasonable attorney fees, costs and disbursements.” Meredith
Corp v Flint, 256 Mich App 703, at 715-716; 671 NW2d 101 (2003). (Emphasis supplied.)
It is undisputed that Plaintiff Citizens United had to commence this action in order to
cause the Defendants to produce the documents sought in Plaintiff Citizens United’s FOIA
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Request. Therefore, the award of attorney fees and court costs is warranted and required
under the FOIA because “the instant litigation was reasonably necessary to determine that all
of defendant’s claimed exemptions lacked merit.” Meredith Corp v Flint, 256 Mich App
703, 713-714; 671 NW2d 101 (2003). Moreover, even if Defendants disclose the requested
documents after the commencement of this instant litigation, Defendants would still be
obligated to pay Plaintiff’s attorney fees and court costs. A plaintiff prevails in an action
even if the defendant voluntarily discloses the requested information so long as the voluntary
disclosure is after commencement of the circuit court action. Thomas, 254 Mich at 202-204.
PRAYER FOR RELIEF
WHEREFORE, for the foregoing reasons, Plaintiff prays and respectfully requests
that the Court grant relief as follows:
A. ISSUE a Writ of Mandamus compelling Defendants to IMMEDIATELY disclose
“unredacted” copies of all of the documents and emails listed and attached as
Exhibits A and B attached to this motion.
B. ISSUE an Order to Show Cause, pursuant to MCR 3.305(C), against the
Defendants to show cause as to why a writ of mandamus should not be issued
compelling them to IMMEIDATELY disclose “unredacted” copies of all of the
documents attached and listed in Exhibits A and B of this motion.
C. ISSUE its ORDER that Defendants pay the Plaintiff’s court costs and attorney
fees pursuant to MCL 15.240(6).
D. ISSUE its ORDER that Defendants pay punitive damages to the Plaintiff in the
amount of $500, pursuant to MCL 15.235(3) and MCL 15.240(7).
Respectfully submitted,
/S/ ANDREW A. PATERSON
ANDREW A. PATERSON (P18690)