of Claims LC No. 16-000183-MZ
Before: Swartzle, P.J., and Saad and O'Connell, JJ.
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.
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.
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.
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.
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.
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)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.
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
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.
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 ...