                           STATE OF MICHIGAN

                            COURT OF APPEALS



PETER ARABO,                                                         FOR PUBLICATION
                                                                     May 5, 2015
               Plaintiff-Appellant,

v                                                                    No. 318623
                                                                     Oakland Circuit Court
MICHIGAN GAMING CONTROL BOARD,                                       LC No. 2013-133668-CZ

               Defendant-Appellee.


Before: BECKERING, P.J., and JANSEN and BOONSTRA, JJ.

JANSEN, J. (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 plaintiff’s 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, 303 Mich App 162, 189-191; 841 NW2d 914 (2013). Indeed, I conclude that
the MGCB’s letter to plaintiff operated as a constructive denial of his FOIA request.
Accordingly, the circuit court erred by dismissing plaintiff’s claim on the ground that the MGCB
had granted the request.

        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, MCL 15.234. See Lash v Traverse City, 479 Mich 180, 196; 735
NW2d 628 (2007). As the majority correctly points out, this Court has implicitly recognized
such a claim to challenge a fee under § 4 of FOIA in the past. See Detroit Free Press, Inc v
Dep’t of Attorney Gen, 271 Mich App 418, 423; 722 NW2d 277 (2006).1

        Contrary to the majority, however, I cannot conclude that Count I of plaintiff’s 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


1
 I further concur with the majority regarding the disposition of the discovery issues raised in this
case.


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of the fee by way of a request for injunctive or declaratory relief, but nevertheless concludes that
plaintiff’s 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 plaintiff’s 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 ½ of the total
fee.” The MGCB claims that responding to plaintiff’s 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 one-half of this amount, or $2,151.67.

         Plaintiff requested two sets of information from the MGCB: (1) a list of countermeasures
“approved by the Michigan [G]aming Control Board” that were then or previously in effect
authorizing the casinos to prevent card-counters from profiting at the game of blackjack, and (2)
a list of MGCB rules allowing the casinos to exclude skillful blackjack players or skillful players
of others games. In other words, plaintiff’s FOIA request was limited to present and past MGCB
rules, policies, interpretative statements, meeting minutes, and similar records that should have
been easy to identify, locate, and reproduce. Surely, the MGCB is aware of its own rules,
policies, interpretative statements, meeting minutes, and other similar records. Such documents
are readily available to the agency, and it would take minimal time to review and compile them.

         I am at pains to understand the MGCB’s assertion that plaintiff’s 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 plaintiff’s
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 to be
excessive (as I believe it likely is), the amount of the good-faith deposit permitted by MCL
15.234(2) will necessarily decrease. These are questions for the circuit court on remand.

        I would reverse the circuit court’s dismissal of Count I of plaintiff’s 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 plaintiff’s 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, 306 Mich App 735, 756; 858 NW2d 116
(2014).

                                                             /s/ Kathleen Jansen


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