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Ellison v. Department of State

Court of Appeals of Michigan

June 13, 2017

TERRY LEE ELLISON, Plaintiff-Appellant,
DEPARTMENT OF STATE, Defendant-Appellee.

         Court of Claims LC No. 16-000183-MZ

          Before: Swartzle, P.J., and Saad and O'Connell, JJ.

          O'Connell, J.

         Plaintiff, Terry Lee Ellison, appeals by right the January 26, 2017 order of the Court of Claims granting summary disposition under MCR 2.116(I)(2) (opposing party entitled to judgment) to defendant, Michigan Department of State, on plaintiff's claims under the Freedom of Information Act (FOIA), MCL 15.231 et seq. The Court of Claims erred by concluding that a computerized database was not a public record, but because plaintiff did not pay the appropriate fee for the records he sought, we affirm.


         Plaintiff's allegations included that on March 31, 2016, defendant notified plaintiff that it was canceling his license plate and registration because it was unable to verify his insurance. Plaintiff submitted appeal paperwork, but his license plate was forfeited. After calling defendant's insurance fraud unit and speaking with numerous workers, defendant reversed its forfeiture decision and reinstated plaintiff's license plate.

         On July 6, 2016, plaintiff sent defendant a FOIA request that included two distinct requests. First, plaintiff requested "any and all" information related to the full name, address, vehicle plate or registration number, vehicle ID number, insurance audit date, date of most recent vehicle renewal, and fee category for all vehicle registrants that defendant notified about an inability to verify proof of insurance at renewal. Second, in the alternative, plaintiff requested that defendant provide paper copies of the letters it sent resulting from the same circumstances.

         Defendant denied plaintiff's first request under MCL 15.233 and MCL 15.235(4)(b) on the basis that it did not possess a responsive record and was "not required to make a compilation, summary, report of information, or create a new public record." Defendant denied plaintiff's second request because he had not completed a record lookup request form and paid a fee for each record. At her deposition, defendant's FOIA coordinator Michelle Halm testified that she denied plaintiff's FOIA request because the computerized system did not provide an electronic output, there was no way to create an output, and defendant was not required to create one.

         Joe Rodriguez testified at his deposition that he is the assistant administrator of defendant's Office of Customer Services. He was familiar with the insurance database, which included some of the information-such as registration, VIN numbers, and customer information-that plaintiff sought. Rodriguez testified that it was not possible to simply copy the database because it had a front end and a back end, and the front end was shared between all the users on the staff. However, it would be possible to copy the database's back-end tables onto a jump drive.

         On August 2, 2016, plaintiff filed his complaint in this action, seeking an order compelling FOIA disclosure, a fine, punitive damages, and costs. Plaintiff alleged that defendant improperly denied his first FOIA request because it maintained an electronic database with the information he sought, and improperly denied his second FOIA request because he was entitled to the records through FOIA rather than through the Michigan Vehicle Code (MVC)[1]commercial lookup service. Plaintiff moved for summary disposition under MCR 2.116(C)(10) (no genuine issue of material fact), asserting that defendant violated FOIA by requiring him to use the MVC service and by not providing a copy of its electronic database in response to his FOIA request.

         Defendant responded by moving for summary disposition under MCR 2.116(I)(2), arguing that plaintiff had requested personal information that was exempt from disclosure and that the records plaintiff sought did not exist, and defendant was not required to create a new record that would be responsive to plaintiff's request. Additionally, the MVC required defendant to charge a person a fee for each record contained in a computerized file, and plaintiff did not submit his request in the proper format because he failed to submit the proper fees.

         The Court of Claims granted summary disposition to defendant on plaintiff's first request on the basis that the record did not exist in the form sought by plaintiff. It reasoned that the database contained "some or most of the information, " but it was not a public record because "there was no routinely generated report containing this information." It additionally reasoned that defendant was not required to compile or summarize the database or create a new record.

         Regarding plaintiff's second request, the Court of Claims refused to consider defendant's personal information exemption request because defendant did not cite the exemption when denying plaintiff's request, nor did defendant make any argument before the court on the balancing test employed in evaluating the exemption. However, the Court of Claims determined that defendant properly denied ...

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