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
daniel@stock20.com mbogren@plunkettcooney.com lhall@plunkettcooney.com

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)

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 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
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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

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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 daniel@stock20.com

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