Opinion
No. 336742
07-18-2017
PHIL FORNER, Plaintiff-Appellant, v. DEPARTMENT OF LICENSING AND REGULATORY AFFAIRS, Defendant-Appellee, and ATTORNEY GENERAL, Defendant.
UNPUBLISHED Court of Claims
LC No. 16-000192-MZ Before: SAWYER, P.J., and HOEKSTRA and BECKERING, JJ. PER CURIAM.
In this action alleging violations of the Freedom of Information Act (FOIA), MCL 15.231 et seq., plaintiff appeals as of right the Court of Claims opinion and order granting summary disposition in favor of defendant, Department of Licensing and Regulatory Affairs (LARA), and denying plaintiff's motion for declaratory relief. For the reasons explained in this opinion, we affirm in part, reverse in part, and remand for further proceedings.
In 2016, plaintiff made three FOIA requests for information from LARA that are relevant to this case. The first request was made on May 3, 2016 and the second on April 20, 2016. Both requests were granted in part and denied in part. Following appeals to the head of LARA, plaintiff filed the current law suit, challenging LARA's compliance with FOIA in terms of the adequacy of the information disclosed by LARA as well as LARA's imposition of fees in connection with plaintiff's second FOIA request. After the current lawsuit had been filed, plaintiff made a third FOIA request on August 25, 2016, which LARA denied under MCL 15.243(1)(v) based on the assertion that the request was for records related to the current civil action between the parties. Following LARA's denial of plaintiff's third request and an unsuccessful appeal to LARA's director, plaintiff filed an amended complaint in this case, challenging LARA's denial of his third request and asserting that MCL 15.243(1)(v) was inapplicable. The Court of Claims granted LARA's motion for summary disposition and dismissed the case. Plaintiff now appeals as of right.
Chronologically, plaintiff's "first" FOIA request was on April 20, 2016. However, in keeping with the parties' briefing and the Court of Claims' analysis, we will treat his May 3rd request as his first request, and the April 20th request as his second request.
I. STANDARD OF REVIEW
We review a trial court's grant of summary disposition de novo. Arabo v Michigan Gaming Control Bd, 310 Mich App 370, 382; 872 NW2d 223 (2015). While LARA moved for summary disposition under MCR 2.116(C)(8) and (C)(10), the trial court considered evidence outside the pleadings, meaning we will review the grant of summary disposition under MCR 2.116(C)(10). Sisk-Rathburn v Farm Bureau Gen Ins Co of Mich, 279 Mich App 425, 427; 760 NW2d 878 (2008). "When reviewing a motion under MCR 2.116(C)(10), which tests the factual sufficiency of the complaint, this Court considers all the evidence submitted by the parties in the light most favorable to the non-moving party and grants summary disposition only where the evidence fails to establish a genuine issue regarding any material fact." Id.
This Court also reviews de novo a trial court's legal determinations in a FOIA case, and questions of statutory interpretation are reviewed de novo. King v Mich State Police Dep't, 303 Mich App 162, 174; 841 NW2d 914 (2013). A trial court's factual determinations in a FOIA action, if any, are reviewed for clear error, while any discretionary determinations are reviewed for an abuse of discretion. Id. at 174-175.
II. FOIA
"The purpose of FOIA is to provide to the people of Michigan 'full and complete information regarding the affairs of government and the official acts of those who represent them as public officials and public employees,' thereby allowing them to 'fully participate in the democratic process.'" Amberg v City of Dearborn, 497 Mich 28, 30; 859 NW2d 674 (2014), quoting MCL 15.231(2). Under FOIA, unless an exception applies, a person has the right, upon submitting a written request to a public body, "to inspect, copy, or receive copies of the requested public record of the public body." Arabo, 310 Mich App at 380. "By its express terms, the FOIA is a prodisclosure statute;" and "[i]f an FOIA request is denied, the burden is on the public body to justify its decision." Thomas v New Baltimore, 254 Mich App 196, 201, 203; 657 NW2d 530 (2002). Pursuant to MCL 15.234, a public body may charge a fee for processing a FOIA request. Arabo 310 Mich App at 381, 386.
III. PLAINTIFF'S FIRST FOIA REQUEST
As noted, plaintiff submitted his first FOIA request on May 3, 2016. The request indicated that the Bureau of Construction Codes (BCC) website contained a link to a document entitled "2015 Michigan Residential Code Errors and Conflicts" (the 2015 MRC), and that the first paragraph of that document stated that the director of LARA "has delegated the authority to make, and has approved, the following determinations which are binding on all enforcing agencies." Plaintiff requested copies of documents "relating to the identified above sentence/document" involving the following:
1) Where the Director of Department of Licensing and Regulatory Affairs has "delegated authority" as shown above.
2) Where the Director of Department of Licensing and Regulatory Affairs has "approved, the following determinations" as claimed above.
3) Where the legal authority used to state that the delegated determinations "are binding on all enforcing agencies" is identified.
4) Any and all other documents used in the development of the above identified sentence.
5) Any and all documents used to come up with the "following determinations" contained in therein.
LARA granted plaintiff's request in part and denied his request in part. Specifically, LARA provided plaintiff with documents in relation to items one and two. Pertinent to plaintiff's arguments on appeal, in response to item number three, LARA also provided a link to a website where plaintiff could access MCL 125.1505. With respect to items four and five, LARA informed plaintiff that no documents existed for these items. Plaintiff appealed LARA's response, contending that, while MCL 125.1505 might be "a possible authority," this response by LARA was nonetheless inadequate because citation to the statute is not the same as providing actual documents, such as the minutes of the Construction Code Commission, where the legal authority in question was identified. In denying plaintiff's appeal, the deputy director of LARA indicated that the documents requested by plaintiff did not exist and that plaintiff had been "provided all the documentation responsive to [his] request."
On appeal, plaintiff again challenges LARA's provision of a statutory citation, asserting that additional documentation should have been provided. However, this argument is without merit because LARA has repeatedly informed plaintiff that additional documents do not exist. "[N]onexistence of a record is a defense for the failure to produce or allow access to the record." Hartzell v Mayville Cmty Sch Dist, 183 Mich App 782, 787; 455 NW2d 411 (1990). That is, FOIA "only gives a right to access to records in existence." Walloon Lake Water Sys, Inc v Melrose Twp, 163 Mich App 726, 731; 415 NW2d 292 (1987). Generally, FOIA does not require public bodies to record information, id., or to create documents in response to a FOIA request, Bitterman v Vill of Oakley, 309 Mich App 53, 67-68; 868 NW2d 642 (2015). See also MCL 15.233(4), (5). Instead, if a document does not exist, the public body's responsibility is to respond to the request and to inform the requesting party of the document's status. Key v Twp of Paw Paw, 254 Mich App 508, 511; 657 NW2d 546 (2002). See also MCL 15.235(5)(b). Here, LARA endeavored to provide plaintiff with the information he sought by providing citation to MCL 125.1505 as the legal authority in question. Plaintiff apparently also wishes to see some document in which this authority has been identified as the basis for the 2015 MRC's statement that the delegated determinations "are binding on all enforcing agencies." But, LARA has repeatedly stated that it does not possess additional documents relevant to plaintiff's request. Nothing more was required. Cf. Key, 254 Mich App at 511.
On appeal, in relation to his first FOIA request, plaintiff also asserts that LARA violated MCL 15.240(2) by allowing the deputy director to respond to plaintiff's FOIA appeal as opposed to providing a response from "the head of the public body." This argument was not raised or addressed below, meaning that it is unpreserved and need not be considered by this Court. O'Connell v Dir of Elections, 316 Mich App 91, 109; 891 NW2d 240 (2016). If we exercised our discretion to review this unpreserved issue, our review would be for plain error, Kern v Blethen-Coluni, 240 Mich App 333, 336; 612 NW2d 838 (2000); and we are not persuaded that plaintiff has shown plain error affecting his substantial rights given that LARA provided plaintiff with the requested information and informed him that additional records did not exist. Indeed, given that LARA released the existing records to plaintiff, any claim that LARA failed to comply with FOIA would be moot. State News v Mich State Univ, 481 Mich 692, 704 n 25; 753 NW2d 20 (2008) ("[R]elease of the requested public record by the public body would render the FOIA appeal moot because there would no longer be a controversy requiring judicial resolution.").
IV. PLAINTIFF'S SECOND FOIA REQUEST
On April 20, 2016, plaintiff submitted his second FOIA request to LARA, seeking an email "copy of all the documents referenced by Mr. Poke in the 2nd paragraph of his below 4/12/16 email; specifically the hearing report and the department and legislative service bureau ["LSB"] acceptances for the public testimony of the proposed (at that time)" 2015 MRC. The email referenced by plaintiff was from Irvin Poke, the BCC Director. In relevant part, Poke stated: "As is the process all public comments were addressed in the hearing report and the responses were accepted by the department and the [LSB]." On May 4, 2016, LARA informed plaintiff that his request totaled 2,358 pages, that the cost of fulfilling his request was estimated at $459, and that, upon receipt of the fee, LARA would process plaintiff's request in approximately 60 business days. Plaintiff paid the fee amount in full. In July of 2016, LARA sent plaintiff paper copies of records, stating that his request had been granted in part and denied in part. The denial was based on the redaction of certain personal information in the records.
Plaintiff appealed to LARA's director, asserting that he should have been given electronic copies of the materials, that he had not been given the requested hearing report or LSB acceptances, that LARA failed to respond within the statutory timeframe, and that the fees were improper. LARA's director upheld the response in part, and reversed in part. Specifically, in an email response to plaintiff, the director concluded that LARA's May 4th response was timely, that the records were too voluminous to send via email, and that the fees charged for "labor, copying, and postage were appropriate" because the documents could not be sent via email. However, with regard to the hearing report and the LSB acceptances, the director stated that "the [Joint Commission on Administrative Rules ("JCAR")] report and the Certificate of Approval from the [LSB] were located and are attached." On appeal to this Court, plaintiff raises a variety of challenges relating to his second FOIA request.
A. PUBLICATION
First, plaintiff contends that the JCAR report and LSB acceptances should have been published on LARA's website pursuant to MCL 15.241, which would have enabled LARA to simply respond to his FOIA request with an Internet link. However, even assuming that the documents in question are subject to publication under MCL 15.241, plaintiff's claim is without merit. While MCL 15.241 mandates that a state agency "shall publish" certain materials and make those publications "available" to the public, the statute does not specifically require a state agency to publish documents online. Thus, plaintiff has not shown a violation of MCL 15.241 arising from LARA's failure to publish the information on its website.
B. SCOPE OF LARA'S RESPONSE
Second, plaintiff argues that his second FOIA request was for the JCAR report and the LSB acceptances, documents which totaled 21 pages. In view of his request, plaintiff contends that it was improper for LARA to respond with 2,358 pages of documents. In essence, plaintiff maintains that LARA provided too much information. Further, plaintiff asserts that LARA's disclosure of 2,358 pages did not include the JCAR report or LSB acceptances. While the LARA director later emailed these documents to plaintiff, plaintiff contends this disclosure was untimely and did not satisfy LARA's obligations under FOIA. We disagree.
To the extent plaintiff claims that LARA violated FOIA by providing too much information, we find this argument to be without merit. As noted, in his second FOIA request, plaintiff asked for "all the documents" referenced in the second paragraph of Poke's email, and Poke's email in turn referred to public comments, a hearing report, acceptances by the department, and acceptances by the LSB. It is true that plaintiff indicated that he "specifically" wished to see the hearing report and acceptances. But, fairly read, this particularization on the heels of a broad request for "all documents" suggests that plaintiff had a specific interest in a subset of documents but that he also wanted all of the relevant documents. See LaCedra v Executive Office for US Attorneys, 317 F3d 345, 348; 354 US App DC 443 (2003) ("The drafter of a FOIA request might reasonably seek all of a certain set of documents while nonetheless evincing a heightened interest in a specific subset thereof."). Based on plaintiff's request, LARA identified 2,358 pages of documents that met these criteria, meaning that they were required to disclose this information to plaintiff. See Coblentz v Novi, 475 Mich 558, 573; 719 NW2d 73 (2006). And, ultimately the disclosure of this allegedly "extra" information did not prevent plaintiff from obtaining the documents he now claims were his sole aim: namely, the JCAR report and LSB acceptances. In short, we cannot conclude that LARA violated FOIA by providing plaintiff with 2,358 pages in response to his request.
While the federal FOIA is not identical to 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).
With regard to plaintiff's claim that LARA violated FOIA by not initially disclosing the JCAR report and LSB acceptances, given plaintiff's request it would seem these materials should have been part of LARA's release of the 2,358 pages initially given to plaintiff. Indeed, the invoice for the good-faith deposit described the materials to be disclosed as the "hearing report and LSB acceptance for the 2015 [MRC]." However, LARA's failure to include these documents does not entitle plaintiff to relief from this Court because plaintiff undisputedly received those materials from LARA's director in July of 2016. In these circumstances, his FOIA claim relating to these documents, including his assertion that LARA's response was untimely, is moot. See State News, 481 Mich at 704 n 25.
C. ELECTRONIC RECORDS
Third, plaintiff contends that, if the 2,358 pages provided by LARA were responsive to his request, LARA nevertheless violated FOIA by providing the documents to him in paper form as opposed to providing the documents via email as requested by plaintiff. Relevant to plaintiff's argument, MCL 15.234(1)(c) allows a requestor to "stipulate that the public records be provided on nonpaper physical media, electronically mailed, or otherwise electronically provided to him or her in lieu of paper copies." However, this provision does not apply "if a public body lacks the technological capability necessary to provide records on the particular nonpaper physical media stipulated in the particular instance." MCL 15.234(1)(c).
In this case, defendant requested electronic copies via email; but, he was supplied with paper copies. The LARA director concluded, and the Court of Claims agreed, that emailing copies of the documents was beyond LARA's technological capabilities because the number of documents "was too large to send via electronic mail." As argued by plaintiff, this finding is specious given that LARA transmitted the JCAR report and LSB acceptances to plaintiff as attachments to an email, evincing that LARA had the technological capability of sending documents via email. While it may well be true that LARA could not have attached 2,358 pages to one email, there is nothing to indicate that LARA lacked the technological capabilities to send the 2,358 pages in smaller increments spread out over numerous emails. In short, it may have been inconvenient for LARA to send the records via email, but it was clearly erroneous to conclude that LARA lacked the "technological capability" to do so.
Although LARA could have proceeded in this manner, it does not follow as a matter of law that FOIA required LARA to adopt this piecemeal email approach. With regard to FOIA, the caselaw is clear that "electronic copies" constitute "public records," and that "[i]f a writing exists in an electronic format, the plaintiff is entitled to an electronic copy." " Ellison v Dep't of State, ___ Mich App ___, ___; ___ NW2d ___ (2017) (Docket No. 336759); slip op at 3; City of Warren v Detroit, 261 Mich App 165, 172; 680 NW2d 57 (2004); Farrell v Detroit, 209 Mich App 7, 14; 530 NW2d 105 (1995). However, we are not aware of any authority that requires a public body to create an electronic record if the records in question exist only in paper format. To the contrary, the general rule under FOIA is that a public body does not have to create a new public record, MCL 15.233(5); and, as noted, electronic copies constitute "public records," City of Warren, 261 Mich App at 172. Quite simply, generally, FOIA does not mandate the creation of electronic records merely because a requestor would prefer electronic records.
According to plaintiff, the provision of electronic records is required by MCL 15.234(1)(c) because the provision states that a "requestor may stipulate" to receipt of public records via email. However, fairly read, the statute does nothing more than afford a requestor the option of agreeing to receive records electronically. The statute does not provide that a requestor's stipulation is binding on the public body or that the public body shall or must provide the records in the requested format. In other words, nothing in MCL 15.234(1)(c) mandates the creation of electronic records merely because a requestor would prefer electronic records via email. Absent language requiring the public body to provide records in the requestor's chosen email format, such a requirement should not be read into the statute. Cf. Lapeer Co Abstract & Title Co v Lapeer Co Register of Deeds, 264 Mich App 167, 178; 691 NW2d 11 (2004) (concluding that a public body was not required to provide copies in microfilm format).
Plaintiff contends that, even if a requestor cannot simply demand records in a specific format, MCL 15.234 should be read to require that the public body employ, and charge for, the most "economical" means of providing copies, which in this case means providing electronic records. However, we decline to reach this issue at this time because it is not apparent, as a factual matter, that the provision of electronic records would constitute the most economical method for supplying records in this case. Although the 0.10 per sheet charge authorized by MCL 15.234(1)(d) would not be implicated with electronic mail, there could be increased labor charges associated with the task of transferring 2,358 pages of digital records via email. See MCL 15.234(1)(e). We leave this issue for the Court of Claims to consider on remand.
In this case, because the Court of Claims resolved LARA's failure to provide electronic records on the basis of LARA's purported lack of technological capabilities, the Court of Claims did not consider whether the documents existed in electronic format. Further, the format of the existing records is not clear from the information before us. Consequently, we reverse the Court of Claims, and we remand for consideration of this factual issue. If the public records requested by plaintiff exist as electronic records, plaintiff is entitled to electronic copies of those records. See Farrell, 209 Mich App at 14.
Indeed, LARA conceded at oral arguments that the original format of the documents is not clear from the lower court record.
D. FEES
Fourth, plaintiff raises several challenges related to the $459 fee, which he paid for the records in question. We conclude that the invoice provided to plaintiff did not comply with MCL 15.234(4) and that the insufficient record regarding fees does not support the Court of Claims' decision regarding the appropriateness of the fee charged under MCL 15.234(1). In addition, related to the question of electronic records, we also conclude that a fact question remains about the propriety of charging for paper copies. Accordingly, we reverse the Court of Claims and remand for further proceedings consistent with this opinion.
i. GOOD-FAITH DEPOSIT
On May 4, 2016, LARA informed plaintiff that the estimated cost of providing the information was $459.00 and LARA required that plaintiff pay this amount in full before they would process his request for information. We agree with plaintiff's argument that LARA violated MCL 15.234(8). The statute limits the amount of a good-faith deposit to no more than 50% of the total estimated charges, meaning that LARA should have required no more than $229.50 and LARA's demand for $459.00 was excessive. MCL 15.234(8). However, plaintiff's challenge to the deposit is time-barred. Under MCL 15.240a, a "deposit" is a "fee" which may be challenged by appeal to the head of the public body or the commencement of a civil action within 45 days after receiving the notice of the required fee. See MCL 15.240a(1), (8). Plaintiff paid the deposit without challenge. He never appealed the deposit to the LARA director and he did not commence a civil action within 45 days of LARA's request for the deposit. Thus, with respect to the deposit, his claim is time-barred, and he is not entitled to relief. See MCL 15.240a.
ii. FEE REDUCTION UNDER MCL 15.234(9)
Aside from the deposit, plaintiff also contends that he was entitled to a reduction of the final fee under MCL 15.234(9) because defendant failed to respond to plaintiff's FOIA request within the timeframe established by MCL 15.235(2). Plaintiff's argument is premised on the mistaken assertion that LARA failed to provide a timely response. In actuality, LARA abided by MCL 15.235(2) by, within 5 business days, issuing a notice extending the response time by 10 business days. See MCL 15.235(2)(d). Then, within 10 business days, specifically on May 4, 2016, LARA responded to plaintiff's request for information, informing plaintiff of the good-faith deposit and providing him with a 60 business day "best efforts estimate" under MCL 15.234(8). By its plain terms, MCL 15.235(2)(d) requires a public body to "respond to" a FOIA request, it does not require the release of information within 5 or 15 business days. As characterized in MCL 15.234(8), a request for a deposit and the provision of a good-faith time estimate is a "response" by the public body, and we are persuaded that this "response" satisfied MCL 15.235(2). While LARA did not disclose the JCAR report and LSB acceptances within 60 days, the estimate under MCL 15.234(8) is "nonbinding" and it does not entitle plaintiff to a fee reduction under MCL 15.234(9), which is only applicable when a party fails to comply with MCL 15.235(2). Because LARA complied with MCL 15.235(2), plaintiff was not entitled to a fee reduction under MCL 15.234(9).
While plaintiff's challenge to the good-faith deposit is time-barred under MCL 15.240a, plaintiff timely challenged the final invoice by promptly appealing to LARA's director, MCL 15.240a(1)(a); and, within 45 days of the director's decision, plaintiff filed his complaint in the Court of Claims, MCL 15.240a(1)(b). Thus, apart from his challenges to the good-faith deposit, plaintiff's arguments regarding the fee are not time barred under MCL 15.240a.
iii. INVOICE
Next, plaintiff argues that defendant violated MCL 15.234 by failing to provide an invoice showing the actual cost of providing the requested material and failing to specifically address statutory fees components listed in MCL 15.234. We agree.
The FOIA clearly provides a method for determining the charge for records. It is incumbent on a public body, if it chooses to exercise its legislatively granted right to charge a fee for providing a copy of a 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. [Arabo, 310 Mich App at 390 (citation omitted).]
In particular, MCL 15.234 governs the computations of costs for responding to FOIA requests. The statute provides in relevant part as follows:
(1) A public body may charge a fee for a public record search, for the necessary copying of a public record for inspection, or for providing a copy of a public record . . . . Subject to subsections (2), (3), (4), (5), and (9), the fee shall be 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 as provided in section 14. Except as provided otherwise in this act, if the public body estimates or charges a fee in accordance with this act, the total fee shall not exceed the sum of the following components:
(a) That portion of labor costs directly associated with the necessary searching for, locating, and examining of public records in conjunction with receiving and fulfilling a granted written request. The public body shall not charge more than the hourly wage of its lowest-paid employee capable of searching for, locating, and examining the public records in the particular instance regardless of whether that person is available or who actually performs the labor. . . .
(b) That portion of labor costs, including necessary review, if any, directly associated with the separating and deleting of exempt information from nonexempt information . . . .
(c) For public records provided to the requestor on nonpaper physical media, the actual and most reasonably economical cost of the computer discs, computer tapes, or other digital or similar media. . . .
(d) For paper copies of public records provided to the requestor, the actual total incremental cost of necessary duplication or publication, not including labor. The cost of paper shall be calculated as a total cost per sheet of paper and shall be itemized and noted in a manner that expressed both the cost per sheet and the number of sheets provided. The fee shall not exceed 10 cents per sheet of paper . . . .
(e) The cost of labor directly associated with duplication or publication, including making paper copies, making digital copies, or transferring digital public records to be given to the requestor on nonpaper physical media or through the internet or other electronic means stipulated by the requestor. The public body shall not charge more than the hourly wage of its lowest paid employee capable of necessary duplication or publication in the particular instance . . . .
(f) The actual cost of mailing, if any, for sending the public records in a reasonable, economical, and justifiable manner. The public body shall not charge more for expedited shipping or insurance unless specifically requested by the requestor, but may otherwise charge for the least expensive form of postal delivery confirmation when mailing public records.MCL 15.234(2) also allows a public body to "add up to 50% to the applicable labor charge amount to cover or partially cover the cost of fringe benefits if it clearly notes the percentage multiplier used to account for fringe benefits . . . ." In addition, MCL 15.234(4) requires a public body to establish FOIA procedures and guidelines and to implement "the use of a standard form for detailed itemization of any fee amount." Under MCL 15.234(4), the form must "clearly list and explain the allowable charges for each of the 6 fee components" identified in MCL 15.234(1).
In this case, the total fee assessed was $459, which represented $223.20 in "cost of labor" and $235.80 in "copying cost." No charge is listed in a column for "mailing, shipping costs." As noted in plaintiff's complaint, the invoice is not the FOIA itemization form found on LARA's website. More importantly, the form does not include the detailed itemization of the fee required by MCL 15.234(4). Notably, $223.20 is vaguely attributed to "cost of labor" and under a heading of "Misc. Charges & Description" there is a note of "8 Hrs - GOA 5." This is a far cry from detailing the costs of labor in the manner required by MCL 15.234(1) and (4). That is, the invoice does not contain an itemization of the labor costs "to search, locate, and examine," to review documents for exempt materials, and/or to "duplicate or publish," including the hourly wage and multiplier for fringe benefits (if applicable). The sparse information contained in this invoice was insufficient to support the Court of Claims conclusion that the fee imposed by LARA complied with the legislative directives for charging fees under MCL 15.234(1). See Tallman v Cheboygan Area Sch, 183 Mich App 123, 129; 454 NW2d 171 (1990). Consequently, we reverse the Court of Claims with respect to the fee imposed for plaintiff's second FOIA request and remand for further proceedings consistent with this opinion.
On appeal, plaintiff contends that MCL 15.234 prohibits a public body from charging any fee if it fails to follow its published FOIA procedures and guidelines, including the use of a standard form. See MCL 15.234(1), (4). The Court of Claims did not address the issue, and we decline to consider this argument for the first time on appeal. Plaintiff may raise this issue in the Court of Claims.
iv. FEES FOR PAPER COPIES
As discussed, plaintiff's second FOIA request specified that he wished to receive copies of the public records in question via email. Because the record does not disclose whether the requested records existed in electronic form, we have determined that a fact question remains with respect to whether LARA was required to provide plaintiff with electronic copies of the records. If the documents exist in electronic format, plaintiff is entitled to an electronic copy. Ellison; slip op at 3; City of Warren, 261 Mich App at 172; Detroit, 209 Mich App at 14.
As a corollary to this conclusion, it also follows that the Court of Claims should consider the propriety of the $235.80 copying costs in light of whether an electronic record was required. In particular, whether plaintiff receives paper copies or electronic copies, MCL 15.234(3) allows LARA to charge for the labor costs associated with duplicating records. However, when the requestor is provided with "paper copies," MCL 15.234(1)(d) also authorizes a per sheet charge, not to exceed 10 cents per page, to account for the "cost of paper copies." Given that electronic records would not involve costs for paper, MCL 15.234 does not include a similar per sheet provision for transmitting documents electronically. Consequently, if plaintiff is entitled to electronic copies, LARA could not assess $235.80 in copying costs for the cost of paper.
We again note that the invoice in this case is simply insufficient to comply with LARA's obligation to itemize the costs imposed. In particular, with regard to the copying costs, it appears that the $235.80 listed on the invoice represents a charge of 10 cents per page for 2,358 pages. However, the charges are not detailed in the manner required by MCL 15.234. Specifically, MCL 15.234(1)(d) directs that "[t]he cost of paper shall be calculated as a total cost per sheet of paper and shall be itemized and noted in a manner that expressed both the cost per sheet and the number of sheets provided." If it is determined that per page costs for paper copies are appropriate under MCL 15.234(1)(d), it should be determined on remand whether the copying cost on the invoice in fact represents a 10 cent per page charge under MCL 15.234(1)(d).
V. PLAINTIFF'S THIRD FOIA REQUEST
On August 18, 2016, after plaintiff filed this lawsuit in the Court of Claims, plaintiff made another FOIA request, asking for an e-mail copy "of pages 1-8 that are referenced on the Board of Mechanical Rules 8/17/16 Agenda." LARA granted the request on August 24, 2016, and provided plaintiff with a link to the document. On August 25, 2016, plaintiff asked for additional documents as follows:
On the attached LARA provided document titled "Mechanical Matrix Vision 7_25_16 one page.pdf" it states on page 1 under License/Permits:
"Department & the board review & approve exams* (MCL 338.975(2))."
"*Denotes that E.O. No. 1996-2 supersedes this section of the act."
***
Please email me a copy of all documents within LARA that were used to determine that E.O. No. 1996-2 supersedes MCL 338.975(2).
Additionally please email me a copy of all documents within LARA that are not included in the above, that discusses or references the applicability of E.O. 1996-2 to the second sentence of MCL 338.975(2), being: "Before an examination or other test required under this act is administered, the department and the board,
acting jointly, shall review and approve the form and content of the examination or other test."LARA denied the request by e-mail on August 31, 2106, stating that, under MCL 15.243(1)(v), the requested information was "exempt from disclosure because it relates to a civil action in which you and LARA are parties." Plaintiff appealed to LARA's director, who upheld the denial under MCL 15.243(1)(v). The Court of Claims agreed with LARA's director, reasoning that plaintiff's current lawsuit and all his FOIA requests involved information concerning LARA's rulemaking authority. Thus, the Court of Claims concluded that the third FOIA request was related to the civil action and exempt from disclosure under MCL 15.243(1)(v).
On appeal, plaintiff contends that the Court of Claims misapplied MCL 15.243(1)(v). Specifically, plaintiff argues that the provision is not applicable merely because he and LARA are parties to a civil action. Instead, plaintiff asserts there must a showing that his request relates to the "civil action," and in this case the civil action is not about LARA's rule-making authority, rather it involves LARA's failure to comply with FOIA. At a minimum, plaintiff contends that the Court of Claims decision was premature and improper insofar as the Court of Claims failed to place the burden to prove the applicability of MCL 15.243(1)(v) on LARA, failed to examine the requested documents, and failed to make particularized findings. We agree.
Under FOIA, unless an exemption applies, a person has the right "to inspect, copy, or receive copies of the requested public record of the public body." Arabo, 310 Mich App at 380. The exemptions in FOIA must be narrowly construed. Taylor v Lansing Bd of Water & Light, 272 Mich App 200, 204; 725 NW2d 84 (2006). Further, "[b]ecause FOIA is a prodisclosure act, the public agency bears the burden of proving that an exemption applies." Coblentz, 475 Mich at 574. A public body cannot demonstrate the applicability of an exemption by offering mere conclusory statements. Evening News Ass'n v City of Troy, 417 Mich 481, 503; 339 NW2d 421 (1983). When determining whether an exemption applies, the court should: (1) receive a complete particularized justification for the claimed exemption from the public agency, (2) conduct a de novo in camera hearing to determine whether the exemption applies, or (3) consider allowing plaintiff's counsel access to the documents in camera. King, 303 Mich App at 228. While all of these steps are not necessarily required, id., the Court "must make particularized findings of fact indicating why the claimed exemption is appropriate," Messenger v Consumer & Indus Services, 238 Mich App 524, 532; 606 NW2d 38 (1999).
In this case, the particular exemption in question is MCL 15.243(1)(v), which provides that a public body may exempt from disclosure "[r]ecords or information relating to a civil action in which the requesting party and the public body are parties." There can be no dispute that the present case is a "civil action." See MCL 15.240a(1)(b). It is equally clear that plaintiff and LARA are parties to the action. See Taylor, 272 Mich App at 205-206. The question is whether plaintiff's third FOIA request sought "records or information relating to" the "civil action."
The Court of Claims adopted a broad understanding of what it means for information or records to relate to a civil action. Specifically, the Court of Claims reasoned that all three FOIA requests sought information about LARA's rule-making authority and that, because the underlying information sought involved LARA's rule-making authority, the subject of the present FOIA action was also LARA's rule-making authority. Based on this understanding of the lawsuit, the Court of Claims concluded that the third FOIA request related to the current civil action. However, a "civil action" is "[a]n action brought to enforce, redress, or protect a private or civil right; a noncriminal litigation." Black's Law Dictionary (10th ed. 2014). In a civil action under FOIA, the wrong to be redressed is a public agency's noncompliance with FOIA. See, e.g., MCL 15.240; MCL 15.240a; MCL 15.241(5). In other words, contrary to the Court of Claims' description of the present "civil action," the subject of the lawsuit is not LARA's rule-making authority, it is LARA's compliance with FOIA and plaintiff's right to access LARA's public documents.
Thus, in considering whether plaintiff's third FOIA request sought information "relating to" the civil action, the emphasis should have been on whether plaintiff sought records or information relating to LARA's FOIA noncompliance. That is, narrowly construed, the term "relate" means "to show or establish logical or causal connection between" or "to have relationship or connection." Merriam-Webster's Collegiate Dictionary (2014). By exempting documents and information "relating to a civil lawsuit," the Legislature evinced an intent to limit the scope of MCL 15.243(1)(v) to those documents and information with a relationship or causal connection to the lawsuit. In other words, plaintiff could not use FOIA as a pretrial discovery procedure to, for example, find documents and information to establish the basis for his FOIA claim. See Kent Co Deputy Sheriffs' Ass'n v Kent Co Sheriff, 238 Mich App 310, 326 n 6; 605 NW2d 363 (1999) (noting that, in light of civil action exemption, "persons involved in litigation are no longer entitled to use the FOIA as a pretrial discovery procedure"). For instance, he could not seek records generated in his dealings with LARA as a result of his earlier FOIA requests or as a result of his appeals to LARA's director. See Beaty v Ganges Twp, unpublished opinion of the Court of Appeals, issued June 29, 2010 (Docket No. 290437); slip op at 4.
Although unpublished opinions of this Court are nonbinding, MCR 7.215(C)(1), they may be considered as persuasive authority. Roberts v Saffell, 280 Mich App 397, 407; 760 NW2d 715 (2008).
But, we are unaware of any caselaw interpreting MCL 15.243(1)(v) as a bar to prevent a party to a FOIA action from filing additional FOIA requests relating to the same general subject matter as an earlier FOIA request, and such a constrictive reading of MCL 15.243(1)(v) would be at odds with FOIA's prodisclosure purpose. Ultimately, as an exemption, MCL 15.243(1)(v) must be narrowly construed; and unless the public body proves the applicability of the exemption, it remains the general rule that litigation between the parties does not allow the public body to deny disclosure of public records in response to a FOIA request, regardless of how the requestor intends to use that information. Taylor, 272 Mich App at 204-206; Cent Mich Univ Supervisory-Tech Ass'n v Bd of Trustees of Cent Mich Univ, 223 Mich App 727, 730; 567 NW2d 696 (1997).
Indeed, although not decided in the context of MCL 15.243(1)(v), this Court has previously determined that pursuing civil action and resubmitting a FOIA request are not mutually exclusive. See Scharret v Berkley, 249 Mich App 405, 413; 642 NW2d 685 (2002).
On the record before us, we cannot determine whether the documents sought by plaintiff in his third FOIA request constitute records and information relating to a civil action so as to implicate MCL 15.243(1)(v). The Court of Claims made a blanket determination that all the documents were exempt from disclosure because they touched on the same general subject matter as plaintiff's earlier FOIA requests. As we have discussed, such a broad application of MCL 15.243(1)(v) is not in keeping with the rule that FOIA exemptions must be narrowly construed. We therefore reverse the Court of Claims and remand for further proceedings. On remand, it should be remembered that it is LARA's burden to prove the applicability of MCL 15.243(1)(v), and that such a showing requires particularity, not conclusory assertions that all the information sought in plaintiff's third FOIA request relates to the present case. See Evening News Ass'n, 417 Mich at 503. Moreover, the Court of Claims should make more particularized findings and, if necessary, review the documents in question. See King, 303 Mich App at 228.
VI. CONCLUSION
With regard to plaintiff's first FOIA request, no material question of fact remains and the Court of Claims did not err by granting LARA's request for summary disposition. However, summary disposition should not have been granted with respect to plaintiff's second and third FOIA request. In particular, with regard to plaintiff's second request, the Court of Claims clearly erred by concluding that LARA lacked the ability to transmit records via email. Consequently, we remand for consideration of whether plaintiff was entitled to receive the records related to his second FOIA request as electronic records. On remand, regarding plaintiff's second FOIA request, the Court of Claims should also address LARA's noncompliant fee itemization and the propriety of the fees assessed under MCL 15.234, particularly if the court concludes that plaintiff was entitled to electronic records. Finally, with regard to plaintiff's third FOIA request, we reverse the judgment of the Court of Claims and remand for consideration of whether plaintiff's third FOIA request sought records and information relating to a civil action.
On appeal, plaintiff offers the cursory assertions that LARA acted arbitrarily and capriciously and in bad faith, but the argument is undeveloped and we decline to consider the issue. See Peterson Novelties, Inc v City of Berkley, 259 Mich App 1, 14; 672 NW2d 351 (2003). --------
Affirmed in part, reversed in part, and remanded for further proceedings consistent with this opinion. We do not retain jurisdiction. Neither party having prevailed in full, no costs are awarded under MCR 7.219.
/s/ David H. Sawyer
/s/ Joel P. Hoekstra
/s/ Jane M. Beckering