                          STATE OF MICHIGAN

                           COURT OF APPEALS



RODD MONTS,                                                        UNPUBLISHED
                                                                   January 5, 2016
               Plaintiff-Appellant,

v                                                                  No. 321790
                                                                   Wayne Circuit Court
DETROIT PUBLIC SCHOOL DISTRICT,                                    LC No. 13-011037-CZ

               Defendant-Appellee.


Before: RONAYNE KRAUSE, P.J., and GLEICHER and STEPHENS, JJ.

RONAYNE KRAUSE, J. (dissenting)

        I respectfully dissent. I disagree that the Detroit Public School District (DPS) undertook
an improperly “rigid, mechanical approach” to plaintiff’s request under the Michigan Freedom of
Information Act (FOIA), MCL 15.231 et seq. A public body, in response to a FOIA request,
should disregard technicalities, forego pettifoggery, and generally exercise basic common sense
in determining the gravamen of what information the requesting party seeks. However, I believe
that public bodies are entitled to presume that the requesting party has actually articulated and
actually understands what information is being sought; perhaps clumsily but fairly accurately and
minimally competently. I believe that public bodies need not disregard basic English and guess
at anything a person who makes a request might conceivably have meant. I appreciate that
DPS’s terse initial denial was extremely unhelpful and was a shoddy practice, but I cannot accept
the majority’s conclusion that DPS’s reading of plaintiff’s FOIA request was “hyper-technical”
or otherwise improper. I would affirm.

        As the majority sets forth, plaintiff Rodd Monts, on behalf of the American Civil
Liberties Union of Michigan (ACLU), sent a written FOIA request to defendant Detroit Public
School District (DPS). In relevant part, plaintiff included requests for “records retained in DPS
forms 4549, Forms A-N and all other locations” detailing “student discipline matters” that had
been “referred by school officials” to law enforcement agencies, “categorized by: school, grade,
incident date, race or ethnicity of the student, and incident type.” After several delays that the




                                               -1-
majority sets forth in more detail but are not at issue in the instant appeal,1 defendant sent
documents regarding some requests not at issue in this appeal and denied the two requests that
are at issue, stating “the requested information did not exist.2” Plaintiff pursued an
administrative appeal of the partial denial, in response to which defendant maintained that the
requested information did not exist.

         Plaintiff commenced the instant litigation, after which defendant provided plaintiff with a
list, obtained from the Department of Public Safety, enumerating alleged offenses that occurred
within the 2010/2011, 2011/2012, and 2012/2013 school years. Defendant contended that the
document of alleged offenses “contain[s] the name of the school where the alleged offense
occurred, the date and type of the alleged offense, and the suspect’s race and age.” The letter
describing this document specifically stated that the alleged offenses did not necessarily mean
that the student was disciplined. Defendant continued to maintain that the information plaintiff
requested regarding student discipline matters that have been referred to a police department did
not exist because defendant did not refer student disciplinary matters to any law enforcement
agency and vice versa. Plaintiff contended that the list was the information he had been seeking
from the outset, and because defendant only provided it in response to commencing litigation, he
was entitled to attorney costs, fees, awards, and punitive damages.

        The trial court determined that plaintiff’s FOIA request was ambiguous, and thus, the
defendant complied the best way possible. The trial court found that the information defendant
provided was not what plaintiff had requested, but instead defendant went above and beyond.
The trial court granted defendant’s motion for summary disposition and denied plaintiff’s motion
for summary disposition and attorney fees. This appeal followed.

         A grant or denial of summary disposition is reviewed de novo on the basis of the entire
record to determine if the moving party is entitled to judgement as a matter of law. Herald Co v
City of Bay City, 463 Mich 111, 117, 614 NW2d 873 (2000). A motion brought under MCL
15.231 should be granted when the request “describe[s] the public record sufficiently to enable
the public body to find the public record.” MCL 15.233(1); Coblentz v Novi, 475 Mich 558,
572-573; 719 NW2d 73 (2006). The description provided in such a request should not be read
restrictively, and it need only identify “the information itself,” not necessarily specific
documents. Herald Co, 463 Mich at 117. In sum, a requesting party need not request or identify
any of the records to be disclosed, but rather need only request information “sufficiently” to give


1
  Plaintiff suggests in his brief that defendant’s responses were untimely, however, he fails to
assert any entitlement to relief on that basis, so any such possible argument is abandoned. See
Yee v Shiawassee Co Bd of Comm’rs, 251 Mich App 379, 406; 651 NW2d 756 (2002).
2
  As noted, I strongly disapprove of the use of such an unhelpful response, and I fully appreciate
plaintiff’s and the majority’s frustration with DPS. Furthermore, the instant litigation likely
could have been avoided if defendant had simply contacted plaintiff and requested clarification
of the request, as plaintiff’s request explicitly invited DPS to do. Indeed, much litigation could
likely be avoided if the parties chose not to treat each other from the outset as enemies.
Nonetheless, I do not believe that defendant was legally obligated to do more than it did.


                                                -2-
the public body the ability to find the records. See Coblentz, 475 Mich at 573. The fundamental
concern in this matter is whether plaintiff’s description was, in fact, “sufficient.”

       The relevant paragraphs of plaintiff’s FOIA request paragraphs specifically read as
follows:

          Please provide the following records retained in DPS Forms 4549, Forms A-N,
          and all other locations:

                                                * * *

          2. The total number of student discipline matters that have been referred by school
          officials to DPS Police Department officials during the past three academic years,
          categorized by: school, grade incident date, race or ethnicity of the student, and
          incident type.

          3. The total number of student discipline matters that have been referred by school
          officials to the Detroit Police Department or other law enforcement agencies
          during the past three academic years, categorized by school, grade, incident date,
          race or ethnicity of the student, and incident type.

As discussed, defendant initially and on administrative appeal contended that the requested
information did not exist. Defendant continues to maintain that the requested information does
not exist; the parties disagree as to whether the list of alleged offenses defendant provided
provides the requested information. A public body, in response to a FOIA request, should
disregard technicalities, forego pettifoggery, and generally exercise basic common sense in
determining the gravamen of what information the requesting party seeks. However, I maintain
that the public body is not required to engage in guesswork that might produce what the
requesting party seeks, but might also produce a considerable amount of unresponsive noise.3

        As an initial matter, I agree with plaintiff to the extent that Herald Co clearly and
unambiguously requires public bodies to infer that a request for “records” may mean a request
for “information,” and vice versa. Clearly, requesting parties will not necessarily have any
knowledge of what discrete documents a public body possesses, and FOIA is intended to be
convenient for members of the public at, if necessary, the cost of convenience for public bodies.
However, what the majority dismisses as “hyper technicality,” I regard as a reasonable
expectation that the requesting party is using language in the manner uniformly agreed upon as
reflected by, say, an ordinary dictionary. If a public body cannot rely on words meaning what
they mean, there would seem to me to be no principled way to determine whether a description is
“sufficient.”

       I agree with plaintiff that the referenced forms contain check boxes to indicate whether
police were involved in an incident; however, I do not believe that “involvement” necessarily


3
    Again, the sensible response to an unclear request would be to request clarification.


                                                  -3-
constitutes a “referral,” and I disagree with the majority’s extrapolation to that effect. In the
absence of any statutorily-mandated definitions of which I am aware, involvement would mean
that the police participated in an incident in some way, whereas referral would mean that the
matter was transferred from the school’s jurisdiction to the police’s jurisdiction. See Merriam-
Webster’s Collegiate Dictionary (11th ed). Involvement could, of course, encompass referral, but
there is no way to know from the forms whether a referral occurred, and I have not been made
aware of any evidence that defendant tracked referrals in any other way. It therefore appears that
defendant simply would not have in its possession logs of student discipline matters referred to
law enforcement entities. 4

        Significantly, plaintiff’s requests call for specifically categorized information. Plaintiff
contends, now, that he does not truly care about how, or even whether, the information was
organized; he contended at oral argument that he would have been perfectly fine with defendant
simply handing over all of its retained forms and letting plaintiff sort out any correlative data
therein. However, there is absolutely no way defendant could have guessed that from the face of
the request, nor should it have been expected to do so.5 Put another way, defendant would have
had no way to know whether the categorization part of the request was severable and disposable,
or whether it was the categorization itself that was paramount to the request. The evidence
indicates that defendant simply does not keep the kinds of correlative records plaintiff
specifically and explicitly requested. A plain reading of plaintiff’s requests would lead to the
conclusion that those requests were monolithic, and as such, defendant would not have had any
records containing the information plaintiff sought. As plaintiff properly concedes, FOIA does
not require a public body to create records in response to a request.6




4
  The majority denies engaging in extrapolation because “[t]he District was well aware that some
disciplinary actions wound up as police referrals” and “Monts sought the forms reflecting which
disciplinary matters were reported to the police” so “no guesswork was required.” I disagree: as
I note, “referral” has a well-established and in no way obscure dictionary definition, and this
Court usually defers to dictionaries to establish what constitutes “common-sense, everyday
parlance.” Expanding that definition to cover matters beyond what one would expect from
reading a dictionary inherently means resorting to guesswork. Consequently, whatever Monts
now explains he would have been satisfied to receive from the District, the District would have
had no way to know that until now unless it just happens to have coincidentally decided to abuse
otherwise agreed-upon definitions of words in the same “somewhat imprecise” way that Monts
did.
5
    Although, again, defendant could have simply contacted plaintiff and asked.
6
  Of course, a public body might be under some other statutory or regulatory obligation to keep
certain records. If the public body fails to do so, however, it would be in violation of those
statutes or regulations. If the records truly were not kept, even if they were illegally not kept and
they should exist, it is not a violation of FOIA to fail to disclose something that does not actually
exist.


                                                 -4-
        As discussed, I certainly find defendant’s responses to plaintiff’s requests as frustratingly
unhelpful as plaintiff and the majority do. However, no matter what the better practice would
have been, I am unaware of any legal requirement for a public body to do more than “issue a
written notice to the requesting person denying the request.” See MCL 15.235(2)(b). I conclude
that, in the absence of a requirement that defendant affirmatively seek clarification, defendant
otherwise acted in good faith and in compliance with the applicable law on the basis of plaintiff’s
requests as they were actually articulated and any reasonable extrapolations and inferences that
could be drawn from the request. Again, I recognize plaintiff’s assertion that the list of alleged
offenses provided by defendant was what he was looking for all along, but as discussed above,
that was not apparent from the face of the request. I therefore conclude that litigation did not
have a causative effect on the delivery of any information that was sought in plaintiff’s request.
Thomas v City of New Baltimore, 254 Mich App 196, 202; 657 NW2d 530 (2002). The trial
court therefore properly granted summary disposition in favor of defendant and denied plaintiff
attorney fees and costs. MCL 15.240(6).

       I would affirm.



                                                              /s/ Amy Ronayne Krause




                                                -5-
