Although defendant's letter denying plaintiff's request did not cite this section, plaintiff was notified of the applicability of the privacy exemption in defendant's affirmative defenses. See Residential Ratepayer Consortium v. Pub Service Comm #2, 168 Mich App 476, 480-481; 425 NW2d 98 (1987) (a public body may assert for the first time in the circuit court defenses not originally raised at the administrative level). Section 13(1)(a) of the FOIA provides:
In Residential Ratepayer Consortium v Pub Serv Comm #2, 168 Mich.App. 476, 481; 425 N.W.2d 98 (1987), this Court concluded that the FOIA's "provision for de novo review in circuit court suggests that the [public body] does not waive defenses by failing to raise them at the administrative level."
The provision for de novo review in circuit court suggests that the agency does not waive defenses by failing to raise them at the administrative level. [Residential Ratepayer Consortium v Public Service Comm #2, 168 Mich App 476, 481; 425 NW2d 98 (1987) (emphasis added).] In Stone Street Capital, Inc v Bureau of State Lottery, 263 Mich App 683, 688 n 2; 689 NW2d 541 (2004), the Court cited Residential Ratepayer for the proposition that "a public body may assert for the first time in the circuit court defenses not originally raised at the administrative level."
The appointment of a master also alleviates the concern that the names and addresses on the tapes would be published for any persons who asked for them. The court may properly place restrictions on the manner in which the master reviews the tapes or on the use of information obtained from the tapes. See Residential Ratepayer Consortium v Public Service Comm No 2, 168 Mich. App. 476, 482; 425 N.W.2d 98 (1987). Furthermore, it would be proper for the police department to have a member of the department present while the tapes are being reviewed by the master.
We disagree. In Residential Ratepayer Consortium v. Pub. Serv. Comm. #2 , 168 Mich. App. 476, 481, 425 N.W.2d 98 (1987), this Court concluded that the FOIA's "provision for de novo review in circuit court suggests that the [public body] does not waive defenses by failing to raise them at the administrative level." This proposition was later applied in Stone St. Capital, Inc. v. Bureau of State Lottery , 263 Mich. App. 683, 688 n. 2, 689 N.W.2d 541 (2004).
Defendant Did Not Waive the Affirmative Defense Provided by MCL 15.243(1)(v). Next, plaintiff argues that defendant waived its right to assert MCL 15.243(1)(v) as an affirmative defense by not raising that defense in its administrative response to plaintiff's request. In Residential Ratepayer Consortium v Pub Serv Comm # 2, 168 Mich App 476, 480-481, 425 NW2d 98 (1987), this Court concluded that there is no waiver of a FOIA exemption where the public body fails to raise the exemption in response to a record request, but subsequently asserts the exemption as a defense during litigation. This conclusion was affirmed in Stone St Capital, Inc v Bureau of State Lottery, 263 Mich App 683, 688 n 2; 689 NW2d 541 (2004) where this Court held that "a public body may assert for the first time in the circuit court defenses not originally raised at the administrative level."