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    4/20/18 Rudd Requests Index of Records Withheld

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    danielrudd
    Rudd argued that the City had not fulfilled its obligation to identify materials withheld from disclosure (per the statute) OR described the actual records withheld in the affidavits submitted. Rudd sought a record index to allow some basis for meaningful discussion of the balancing test in the upcoming bench trial.

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    4/20/18 Rudd Requests Index of Records Withheld

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    danielrudd
    92 views4 pages
    Rudd argued that the City had not fulfilled its obligation to identify materials withheld from disclosure (per the statute) OR described the actual records withheld in the affidavits submitted. Rudd sought a record index to allow some basis for meaningful discussion of the balancing test in the upcoming bench trial.

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    Rudd argued that the City had not fulfilled its obligation to identify materials withheld from disclosure (per the statute) OR described the actual records withheld in the affidavits submitted. Rudd sought a record index to allow some basis for meaningful discussion of the balancing test in the upcoming bench trial.

    Copyright:

    Public Domain
    Download as PDF, TXT or read online from Scribd
    Download as pdf or txt
    92 views4 pages

    4/20/18 Rudd Requests Index of Records Withheld

    Uploaded by

    danielrudd
    Rudd argued that the City had not fulfilled its obligation to identify materials withheld from disclosure (per the statute) OR described the actual records withheld in the affidavits submitted. Rudd sought a record index to allow some basis for meaningful discussion of the balancing test in the upcoming bench trial.

    Copyright:

    Public Domain
    Download as PDF, TXT or read online from Scribd
    Download as pdf or txt
    of 4

    IN THE STATE OF MICHIGAN

    TH
    IN THE 14 CIRCUIT COURT FOR THE COUNTY OF MUSKEGON

    DANIEL W. RUDD,
    Plaintiff, File No. 2017-004334-CZ
    Honorable Timothy G. Hicks
    v.
    Plaintiff’s Motion & Brief In Support of
    CITY OF NORTON SHORES, Request For A Records Index
    Defendant.

    Daniel W. Rudd Michael S. Bogren & Lisa A. Hall (Grand Rapids)


    Plaintiff, Pro Se PLUNKETT COONEY, P.C. for Defendant
    201 S Lake Ave 950 Trade Centre Way, Suite 310
    Spring Lake, MI 49456 Kalamazoo, Michigan 49002
    (231) 557-2532 (269) 226-8822 & (616)752-4615
    [email protected] [email protected] [email protected]

    PLAINTIFF’S MOTION & BRIEF REQUESTING AN ORDER COMPELLING


    DEFENDANT TO FILE AND SERVE AN INDEX OF RECORDS WITHHELD

    As discussed in Plaintiff’s 2/28/18 Brief, and in Plaintiff’s arguments during the


    2/22/17 and 4/2/18 hearings before this court, it is imperative that a governing body
    provide a detailed description of the records which they have deemed exempt from
    disclosure. Plaintiff has diligently raised this issue and made numerous efforts to obtain
    this information by agreement and by deposition. Now, Plaintiff asks this court to issue
    an order requiring Defendant to at least provide a numerical accounting for the various
    types of records which are in dispute. Plaintiff respectfully submits the attached brief
    for this court’s consideration (see page 2).
    Dated: 4/20/18: ___________________________________
    Daniel W. Rudd, Plaintiff (Pro Se)

    PROOF OF SERVICE: The undersigned certifies that a copy of this motion, brief, and the proposed
    order were served on counsel for Defendant by (1) email attachment to the addresses noted in the
    caption, & (2) Via U.S. mail to the address noted in the caption above, with postage fully prepaid,

    Served on__________ by _________________________________ Daniel W. Rudd, Plaintiff (Pro Se)

    Page 1 of 4
    PLAINTIFF’S BRIEF IN SUPPORT OF REQUEST FOR A RECORDS INDEX

    Plaintiff’s 12/15/17 brief set forth extensive case law articulating the need for
    particularized justifications to support non-disclosure of each individual records or
    distinct “class” of records (see pages 7-10). The brief further defines the appropriate
    form of documentary evidence (detailed affidavits) which would allow a trial court to
    make determinations as the law requires. Plaintiff’s 2/28/18 brief elaborates further on
    the importance of this step in properly resolving a FOIA dispute.
    During the 12/22/17 and 4/2/18 hearings, this Court spent substantial time
    discussing the numerous distinctions between the various records which are being
    withheld from disclosure by Defendant (see pp. 10-17, 39 for a few examples). Each of
    these records require a unique justification for exemptions under the FOIA. During this
    same hearing, Plaintiff asserted that Defendant needed to produce more information so
    that a meaningful analysis could occur (12/22/17, pg 30, emphasis added):
    MR. DANIEL RUDD: …And the case law indicates that someone in my position is
    really limited on their ability to say, well, here's exactly what they -- what I want,
    because that whole process is kind of shrouded in secrecy, which isn't great for the
    public's confidence in it, but it also creates a limitation of me being very specific
    about what those records I want are and why I want them.

    During the 4/2/18 hearing, this same issue was discussed in the context of Evening
    News Ass'n v. City of Troy, 417 Mich. 481, 503, 339 N.W.2d 421 (1983). In that case, the
    Michigan Supreme Court addressed the problem which arises when only the public body
    has knowledge of the particular nature of the records which were being withheld:
    Where one party is cognizant of the subject matter of litigation and the other is not,
    the normal common-law tradition of adversarial resolution of matters is decidedly
    hampered, if not brought to a complete impasse. If one adds to this the natural
    tendency of bureaucracies to protect themselves by revealing no more information
    than they absolutely have to, it is clear that disclosure becomes neither automatic nor
    functionally obtainable through traditional methods Id. at 515. (emphasis added)

    To overcome this difficulty, the Supreme Court set forth a multi-part process for
    resolving the dispute. These rules were primarily directed to the law-enforcement-
    purposes exemption, but subsequent rulings have applied these standards to claims of
    Page 2 of 4
    exemption from disclosure on other grounds as well. See State News v. MSU, 735
    N.W.2d 649, 274 Mich. App. 558, 481 Mich. 692 (Ct. App. 2007), overturned on other
    grounds by State News v. Michigan State University, 753 N.W.2d 20, 481 Mich. 692
    (2008). The process is succinctly described in State News v. MSU (Ct. App. 2007):
    To meet its burden when claiming an exemption, the public body "should provide
    complete particularized justification, rather than simply repeat statutory language."
    In Evening News Ass'n v. City of Troy, the Michigan Supreme Court set forth the
    following rules that should be used in analyzing a claim of exemption from
    disclosure under FOIA:
    1. The burden of proof is on the party claiming exemption from disclosure.
    2. Exemptions must be interpreted narrowly.
    3. "[The] public body shall separate the exempt and nonexempt material and make
    the nonexempt material available for examination and copying."
    4. "[D]etailed affidavits describing the matters withheld" must be supplied by the
    agency.
    5. Justification of exemption must be more than "conclusory", i.e., simple repetition
    of statutory language. A bill of particulars is in order. Justification must indicate
    factually how a particular document, or category of documents, interferes with law
    enforcement proceedings.
    6. The mere showing of a direct relationship between records sought and an
    investigation is inadequate.

    These provisions exist to discourage “the natural tendency of bureaucracies to protect


    themselves by revealing no more information than they absolutely have to.” See Evening
    News Supra. at 515. Although defendant continues to suggest otherwise, the burden is
    on the public body to prove that EACH record (or portion of a record) withheld, is
    adequately supported by a particularized justification under the applicable balancing
    test. See Landry v City of Dearborn, 259 Mich App 416, 420; 674 NW2d 697 (2003).
    Otherwise, “a public body must disclose all public records that are not specifically
    exempt.” See King v Mich State Police Dep’t, 303 Mich App 162, 176; 841 NW2d 914
    (2013) (emphasis added).

    Thus far, Plaintiff has only been afforded the opportunity to assert generalized
    arguments regarding the public’s interest in transparency as it pertains to the

    Page 3 of 4
    investigation and disposition of complaints against a police department. Without more
    information on the specific records which had been withheld, it is impossible for Plaintiff
    to develop or prepare specific arguments for disclosure. Defendant has not provided the
    most basic description of the type and quantity of records withheld. At a minimum,
    some type of index or description must be provided for a meaningful hearing to occur.
    This is the standard procedure which is clearly established in the case law. Plaintiff’s
    2/28/18 brief specifically noted that:
    Although required by CALEA standards, no such numbers have been produced for
    2015 and 2016. However, Chief Gale estimated that there were between 10-20
    citizen complaints in 2016 (Deposition, pg. 9). A reasonable extrapolation would
    suggest that between 30-50 citizen complaints were submitted to the department in
    some form during the period of time identified by Plaintiff’s FOIA request (1/1/2014
    through 1/27/2017). According to the department, disposition reports and
    correspondence with the complainant are generated for each and every citizen
    complaint.
    It stands to reason that 90-150 individual public records are being withheld by the
    City of Norton Shores under a singular and conclusory blanket justification.

    Defendant has not even defined the type, quantity, or categories of records which
    have been withheld. The failure to provide a description of the records withheld has not
    just “hampered” resolution of this dispute, but has effectively brought that resolution “to
    a complete impasse.” See Evening News, as quoted above.
    Wherefore, Plaintiff asks this court to issue an order requiring Defendant to file and
    serve an affidavit which provides a basic description of the nature and quantity of
    records withheld.

    Respectfully Submitted on 4/20/2018: ___________________________________


    Daniel W. Rudd, Plaintiff (Pro Se)
    201 S LAKE AVE, SPRING LAKE, MI 49456
    (231) 557-2532 [email protected]

    Page 4 of 4

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