Court of Appeals Reaffirms Public Bodies are Under No Obligation to Monitor FOIA Requests Once Denied

In Whittaker v Oakland County Sherriff, unpublished decision of the Court of Appeals dated Nov. 22, 2016 (Docket No. 329545), plaintiff filed suit alleging violation of the Freedom of Information Act (FOIA). On July 27, 2014, officers suspected plaintiff was driving under the influence and pulled him over. On August 20, 2014, prior to charges being filed, plaintiff submitted a FOIA request to defendant seeking all reports, audiotapes, videotapes, laboratory information and other information relating to the incident. On the same day, the District Court issued a warrant and complaint against plaintiff. On August 22, 2014, defendant denied the request because the information sought was part of a pending investigation or court action, citing MCL 15.243(1)(b)(i).

In February 2015, plaintiff filed suit arguing that defendant violated FOIA when it denied his initial request. While the suit was pending, defendant informed plaintiff that the exemption cited in the initial denial had expired and defendant would comply with a resubmitted request.

By July 2015, defendant had provided all of the documentation sought and moved for summary disposition. Plaintiff insisted he was still entitled to attorney fees, costs and punitive damages because defendant wrongfully denied his initial request, making it necessary for him to file suit. Defendant responded that because it would have complied with a resubmitted request after the expiration of the exemption cited, the suit was not necessary to gain disclosure of the documents. The trial court granted summary disposition and the Michigan Court of Appeals affirmed.

In affirming the trial court’s grant of summary disposition, the Court of Appeals noted that plaintiff had reason to know the circumstances surrounding the initial denial had changed and the exemption initially cited no longer applied. As the Michigan Supreme Court has held, “FOIA does not prevent a party that unsuccessfully requested a public record from submitting another FOIA request for that public record if it believes that, because of changed circumstances, the record can no longer be withheld from disclosure.” State News v Mich State Univ, 481 Mich 692, 704-705; 753 NW2d 20 (2008). The Supreme Court has also held that “[t]here is no language in…FOIA that requires a public body to continue to monitor FOIA requests once they have been denied.” Id. at 704.

The Court of Appeals concluded that defendant was under no duty to continue monitoring plaintiff’s request and the onus was on plaintiff to resubmit his FOIA request once the circumstances had changed rendering the previously cited exemption inapplicable. Because plaintiff had another option to obtain disclosure, filing suit was not necessary to obtain the documents and thus plaintiff was not entitled to attorney fees, costs and punitive damages.

Matt Cross is an attorney in our Traverse City office where he focuses his practice on insurance defense, law enforcement defense and litigation, and municipal law. He may be reached at (231) 922-1888 or mcross@cmda-law.com.