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Arabo v. Michigan Gaming Control Bd.

Court of Appeals of Michigan

May 5, 2015

PETER ARABO, Plaintiff-Appellant,
v.
MICHIGAN GAMING CONTROL BOARD, Defendant-Appellee

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[Copyrighted Material Omitted]

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Oakland Circuit Court. LC No. 2013-133668-CZ.

For PETER ARABO, Retained, Plaintiff-Appellant: PHILIP L ELLISON, HEMLOCK MI.

For MICHIGAN GAMING CONTROL BOARD, Attorney General, Defendant-Appellee: JAMES J KELLY, LANSING MI.

Before: BECKERING, P.J., and JANSEN and BOONSTRA, JJ. JANSEN, J. (concurring in part and dissenting in part).

OPINION

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[310 Mich.App. 373] Boonstra, J.

Plaintiff, Peter Arabo, appeals by right the trial court's August 28, 2013 order granting summary disposition in favor of defendant, the Michigan Gaming Control Board (the Board), and dismissing [310 Mich.App. 374] plaintiff's claims under the Freedom of Information Act (FOIA), MCL 15.231 et seq. [1] We affirm in part, reverse in part, and remand for further proceedings.

I. PERTINENT FACTS AND PROCEDURAL HISTORY

This appeal arises out of plaintiff's request to the Board for public records under the FOIA. On February 15, 2013, plaintiff sent a letter by e-mail to the Board's FOIA coordinator, Latasha Cohen, making a formal request for information under the FOIA. Plaintiff's request sought information, writings, documents, or other public records regarding: (1) " [w]hich of the following countermeasures have ever been in effect, or were in effect since 01/01/1996 to 02/15/2013, that authorized or authorizes MGM Grand Detroit, Greektown Casino & Hotel, and the Motorcity Casino to prevent card counters from profiting at the game of blackjack, and that is or was also approved by the Michigan [G]aming Control Board," [2] and (2) " any [310 Mich.App. 375] rule(s) or law(s) by the Michigan Gaming Control Board that allows MGM Grand Detroit, Greektown Casino & Hotel, and the Motorcity Casino to exclude skillful players at the game of blackjack or any other game that has ever been in effect since 01/01/1996 to 02/15/2013." [3] The Board received plaintiff's FOIA request on February 19, 2013.

On February 25, 2013, Cohen responded by letter to plaintiff, stating in relevant part:

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You have requested information you describe as follows:
" . . . [I] request to view/copy, or upon further request receive certified copies of the requested documentation, as prescribed in M.C.L. 15.233 Sections 3(1)(2)(5) of the FOIA.
It is hereby requested that you disclose the following information, writing(s), document(s), or other public record(s), as indicated below according to Title 5 U.S.C. Sections 552(a)(3); M.C.L. 15.232(c)(e), and M.C.L. 15.269:
1. Which of the following countermeasures have ever been in effect, or were in effect since 01/01/1996 to 02/15/2013, that authorized or authorizes MGM Grand Detroit, Greektown Casino & Hotel, and the Motorcity Casino to prevent card counters from profiting at the game of blackjack, and that is or was also approved by the Michigan [G]aming Control Board: . . ."
[The Board] grants your request for existing, non-exempt information in our possession that is relevant to your request.
Section 4(1) of the FOIA permits a public body to charge a fee for the necessary copying of documents and for the cost of search, retrieval, examination, review, and the deletion of exempt information, if any.
[310 Mich.App. 376] Due to the substantial volume of records that may be responsive to your request, the numerous hours required to process this request; and the unreasonably high cost to [the Board] in the absence of charging a fee in this particular instance, [the Board] has determined that it must seek reimbursement.
There are approximately 6,206 pages of information which might be relevant to your request. It will take approximately 103 hours to search, retrieve, examine, review, and redact exempt from non-exempt information from records described in your request. The following is a breakdown of the cost based on the respective hourly rate of the lowest paid [Board] employee capable of performing the tasks necessary to commence the processing of your request:

6,206 pages

103 hours

Department Analyst, Records Section

103 hours @ 41.78=

$4,303.34

TOTAL

$4,303.34

This estimate does not include the actual copying and mailing costs. [The Board] would determine necessary postage fees upon completion of your request.
If you wish to narrow or modify your request, notify us in writing. In the alternative, feel free to contact us by mail or telephone if you wish to discuss the scope of your current request.
Section 4(2) of the FOIA permits a public body to require a good faith deposit at the time a request is made which in this instance is $2,151.67. Payments are submitted in the form of a check or money order . . . .
* * *
Upon completion of processing the request, you will be notified in writing of the balance payable before records are disclosed. Additionally, you will be informed of exempt records, if any, with the specific statutory basis for the exemptions explained at that time.

[310 Mich.App. 377] On March 2, 2013, and in response to the Board's February 25, 2013 letter, plaintiff again sent a letter by e-mail to Cohen, as well as to Richard S. Kalm, the

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executive director of the Board, requesting that the Board waive the fees to process his request. Plaintiff cited numerous reasons for his fee-waiver request, including that disclosure of the information would further the public interest and likely contribute to public understanding, that he planned to make the documents available to the public at the Michigan State University Law Library, that he intended to use the information for litigation, and that he was working on a campaign to ban casinos in Michigan.

On March 18, 2013, Karen Finch, the Board's administrative services manager, notified plaintiff that the Board had denied his request for a waiver of the fees. Finch's letter stated in part:

The FOIA does not require the taxpayers to subsidize a requesting person's FOIA processing costs. The Board recognizes that the purpose of the FOIA is to promote access to government records in the most efficient and economical way possible. The Board's response to the instant FOIA request is entirely consistent with those purposes. The fees included for the processing of your request are the actual costs to the Board. The costs incurred include fees for the search, examination, review and the deletion and separation of exempt from nonexempt material because a member of the Board's staff will be taken away from his/her normal duties for a significant period of time in order to process your request.
Further, section 4(3) of the FOIA, MCL 15.234(3), mandates that " [f]ees shall be uniform and not dependent on the identity of the requesting person." In this instance, we are charging you the same fees we would charge another requestor making the same FOIA request. In the FOIA, the Legislature has balanced the public's important right to be informed about the workings of government [310 Mich.App. 378] with a public body's legitimate need to safeguard the taxpayer's resources it is entrusted to conserve.
Therefore, the Board denies your request for a waiver of the fees. The denial is based upon Section 4(1)(2)(3) of the Michigan Freedom of Information Act, MCL 15.243(1)(2)(3).

Plaintiff did not respond to the Board's written notice denying plaintiff's request for a fee waiver and did not pay the required deposit. According to Cohen's affidavit submitted with the Board's summary disposition motion, the Board " has been and remains ready to complete the processing of [plaintiff's] FOIA request upon receipt of the deposit, as it has been since issuing written notice granting [plaintiff's] FOIA request."

On April 25, 2013, plaintiff filed a two-count complaint, alleging that the Board had violated the FOIA, MCL 15.231 et seq. In Count I, plaintiff claimed that the Board had wrongfully denied his records request. In Count II, plaintiff claimed that the Board had imposed excessive fees to process the request. On May 16, 2013, in lieu of answering plaintiff's complaint, the Board filed a motion for summary disposition under MCR 2.116(C)(8) (failure to state a claim upon which relief can be granted) and (10) (no genuine issue of material fact). The Board argued that summary disposition on Count I was appropriate under MCR 2.116(C)(10) because there was no genuine issue of material fact that the Board had " granted" plaintiff's request; plaintiff, therefore, did not have a cause of action under § 10 of the FOIA, which allows a requester to commence a cause of action to compel disclosure of the requested records upon the public body's final determination denying the request. MCL 15.240(1)(b). The Board also argued that summary disposition on Count II was

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appropriate under MCR 2.116(C)(8). Specifically, the [310 Mich.App. 379] Board contended that § 4 of the FOIA, MCL 15.234, does not authorize a cause of action and that the FOIA's remedial provisions, MCL 15.240, do not apply to a fee dispute brought under § 4.

Following a hearing on plaintiff's motion, the trial court granted summary disposition in favor of the Board, stating:

On April 25th, 2013, Plaintiff filed a two count complaint. Count one is entitled violation of Freedom inf--of Information Act by wrongful denial of request for records under FOIA. Count two's entitled violation of the Freedom of Information Act for imposing cost in excess of FOIA requirements. Defendant moves to dismiss Plaintiff's complaint under MCR 2.116(C)(8), failure to state a claim and MCR 2.116(C)(10), no genuine issue of material fact and for an award of its costs, expenses and attorney fees under MCR [2.114(D)] through [(F)].
The Court concludes that summary disposition as to count one of the complaint is appropriate for the reason there is no genuine issue of material fact that contrary to Plaintiff's arguments, Plaintiff's FOIA was granted. Here Plaintiff's FOIA request was granted as set forth in Defendant's response to Plaintiff's February 15th, 2013, FOIA request in a letter dated February 25, 2013, wherein it granted Plaintiff's request. Plaintiff's arguments cannot overcome this evidence. Moreover, Plaintiff responded to the February 15th, 2013, letter with a March 2nd, 2013, email stating I appreciate you granting my request; under MRE 801[(d)(2)], this email constitutes a party admission. Furthermore, nothing has been presented to refute the affidavit of the Defendant Board's FOIA Coordinator, therefore, count one of Plaintiff's complaint is dismissed.
Furthermore the Court grants summary disposition in favor of Defendant as to count two of the complaint, for the reason that Plaintiff has failed to state a claim. Count two concerns the imposition of fees by Defendant, however FOIA[']s remedial provisions do not apply to a dispute over fees charged under Section Four of FOIA, [310 Mich.App. 380] MCL 15.234, see Detroit Free Press, Inc. v Dep't of Attorney General [,] 271 Mich.App. 418; [722 N.W.2d 277 (2006)], therefore count two of the complaint is dismissed.

The trial court then entered an order granting the Board's motion. This appeal followed.

II. SUMMARY DISPOSITION

A. BACKGROUND OF THE FOIA


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