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Michigan Open Carry, Inc. v. Department of State Police

Court of Appeals of Michigan

December 17, 2019

MICHIGAN OPEN CARRY, INC., Plaintiff-Appellant,
v.
DEPARTMENT OF STATE POLICE, Defendant-Appellee.

          Court of Claims LC No. 18-000087-MZ

          Before: Swartzle, P.J., and Markey and Redford, JJ.

          PER CURIAM.

         In this action brought pursuant to the Freedom of Information Act (FOIA), MCL 15.231 et seq., plaintiff Michigan Open Carry, Inc. (MOCI), appeals by right the opinion and order of the Court of Claims denying MOCI's motion for partial summary disposition under MCR 2.116(C)(10) and granting summary disposition in favor of defendant Department of State Police (the Department) under MCR 2.116(I)(2). We affirm.

         I. PERTINENT FACTS

         In October 2017, MOCI submitted a FOIA request to the Department seeking "[r]ecords created by and/or maintained by the Michigan Department of State Police from peace officers and authorized system users compiled pursuant to MCL 28.421b(2)(f)[1] and MCL 28.425e(4)[2] between October 1st, 2016 and September 30th, 2017." MOCI further clarified that it was seeking the "non-confidential separate public records associated with official acts of public officials and public employees in accessing said confidential records in compliance with their statutory duties."

         Following a 10-day extension, the Department responded with a series of numbers and directed MOCI to visit the online website containing the Department's Concealed Pistol Licenses Reports for further elaboration. In response, MOCI filed an administrative, interagency appeal, alleging that the information provided was not responsive to the submitted request and stating that no justification for what essentially amounted to a denial had been given. Thereafter, a FOIA Appeals Officer for the Department issued a letter indicating that the request had not been denied and that the information provided was a summary of the information that was in the Department's possession.

         In May 2018, MOCI filed a complaint in the Court of Claims challenging the appellate decision made by the Department on MOCI's FOIA request. Count I of the complaint alleged that the Department violated the FOIA because MOCI's interagency appeal was not decided by "the head of the public body" and the FOIA does not permit the delegation of appellate decision-making. Count II of the complaint alleged that the Department wrongfully denied the FOIA request and acted arbitrarily and capriciously by failing to disclose records that were responsive to MOCI's FOIA request. Count III of the complaint, which was pleaded as an alternative to Count II, alleged that the Department violated the FOIA by failing to disclose that the information requested did not exist.

         The Department denied any violations of the FOIA and indicated that if the information provided by the Department was not the information sought by MOCI, then MOCI had failed to sufficiently describe the requested information. The Department further asserted that the information MOCI requested, as described in the complaint, was exempt from disclosure under MCL 15.243; however, the Department did not raise the existence of an alleged exemption to disclosure during the administrative appeal.

         Following discovery, MOCI moved for partial summary disposition under MCR 2.116(C)(10). The Department responded and requested that summary disposition be instead granted in its favor under MCR 2.116(I)(2). In a written opinion, the Court of Claims denied MOCI's motion for summary disposition and granted summary disposition in favor of the Department. More specifically, in regard to Count I, the Court of Claims concluded that the head of the public body did not need to personally issue the interagency appellate decision because "another employee drafted a [decision] in which, by all accounts, the Director of the Department of State Police acquiesced." Further, the Court of Claims noted that MOCI, by filing a complaint, had already exercised the remedy allowed by statute when the head of the public body failed to respond to an appeal.

         Additionally, the Court of Claims found that MOCI's description of the information sought in the FOIA request was sufficiently or adequately described and that the Department had misconstrued the request. The Court of Claims determined, however, that the information sought was exempt from disclosure under MCL 15.243(1)(d) because the only way to access the stored records revealing the sought-after information is through the LEIN or a similar system. Consequently, MCL 28.214(5) and MCL 28.425e(4) prohibited the disclosure of the requested information. The Court of Claims ruled that the disclosure exemption was supported by King v Mich. State Police Dep't, 303 Mich.App. 162; 841 N.W.2d 914 (2013). This appeal ensued.

         II. REQUIREMENT THAT THE HEAD OF THE PUBLIC BODY ISSUE DECISIONS ON APPEALS

         MOCI first argues on appeal that the Court of Claims erred by concluding that the Department had not violated the FOIA when it allowed someone other than Colonel Kriste Kibbey Etue, the director and head of the public body, to address and respond to its interagency FOIA appeal. MOCI contends, as it did in the Court of Claims, that the Legislature's use of the word "shall" requires that the duty of responding to an administrative appeal belongs solely to the head of the public body. MOCI further maintains that there is no language in the FOIA authorizing the head of a public body to delegate his or her duty to issue written decisions on an appeal.

         This Court reviews de novo whether the trial court properly interpreted and applied the FOIA. See ESPN, Inc v Mich. State Univ, 311 Mich.App. 662, 664; 876 N.W.2d 593 (2015). We review for clear error the trial court's factual findings underlying its application of the FOIA. King, 303 Mich.App. at 174. A finding is clearly erroneous if, after reviewing the entire record, this Court is left with a definite and firm conviction that a mistake was made. Id. at 174-175. In Wayne Co v AFSME Local 3317, 325 Mich.App. 614, 633-634; 928 N.W.2d 709 (2018), this Court recited the core principles of statutory construction:

The primary task in construing a statute is to discern and give effect to the Legislature's intent, and in doing so, we start with an examination of the language of the statute, which constitutes the most reliable evidence of legislative intent. When the language of a statutory provision is unambiguous, we must conclude that the Legislature intended the meaning that was clearly expressed, requiring enforcement of the statute as written, without any additional judicial construction. Only when an ambiguity in a statute exists may a court go beyond the statute's words to ascertain legislative intent. We must give effect to every word, phrase, and clause in a statute, avoiding a construction that would render any part of the statute nugatory or surplusage. [Citations omitted.]

         MCL 15.240(1)(a) directs those wishing to appeal a denial of a FOIA request to "[s]ubmit to the head of the public body a written appeal that specifically states the word 'appeal' and identifies the reason or reasons for reversal of the denial." MCL 15.240(2) sets forth the next step in the process:

Within 10 business days after receiving a written appeal pursuant to subsection (1)(a), the head of a public body ...

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