Arabo v. Mich. Gaming Control Bd.
Decision Date | 05 May 2015 |
Docket Number | Docket No. 318623. |
Citation | 310 Mich.App. 370,872 N.W.2d 223 |
Parties | ARABO v. MICHIGAN GAMING CONTROL BOARD. |
Court | Court of Appeal of Michigan — District of US |
Outside Legal Counsel PLC, Hemlock (by Philip L. Ellison ), for Peter Arabo.
Bill Schuette, Attorney General, Aaron D. Lindstrom, Solicitor General, Matthew Schneider, Chief Legal Counsel, and James J. Kelly, Assistant Attorney General, for the Michigan Gaming Control Board.
Before: BECKERING, P.J., and JANSEN and BOONSTRA, JJ.
Plaintiff, Peter Arabo, appeals by right the trial court's August 28, 2013 order granting summary disposition in favor of defendant, the Michigan Gaming Control Board (the Board), and dismissing plaintiff's claims under the Freedom of Information Act (FOIA), MCL 15.231 et seq.1 We affirm in part, reverse in part, and remand for further proceedings.
This appeal arises out of plaintiff's request to the Board for public records under the FOIA. On February 15, 2013, plaintiff sent a letter by e-mail to the Board's FOIA coordinator, Latasha Cohen, making a formal request for information under the FOIA. Plaintiff's request sought information, writings, documents, or other public records regarding (1) "[w]hich of the following countermeasures have ever been in effect, or were in effect since 01/01/1996 to 02/15/2013, that authorized or authorizes MGM Grand Detroit, Greektown Casino & Hotel, and the Motorcity Casino to prevent card counters from profiting at the game of blackjack, and that is or was also approved by the Michigan [G]aming Control Board"2 and (2) "any rule(s) or law(s) by the Michigan Gaming Control Board that allows MGM Grand Detroit, Greektown Casino & Hotel, and the Motorcity Casino to exclude skillful players at the game of blackjack or any other game that has ever been in effect since 01/01/1996 to 02/15/2013."3 The Board received plaintiff's FOIA request on February 19, 2013.
On February 25, 2013, Cohen responded by letter to plaintiff, stating in relevant part:
This estimate does not include the actual copying and mailing costs. [The Board] would determine necessary postage fees upon completion of your request.
If you wish to narrow or modify your request, notify us in writing. In the alternative, feel free to contact us by mail or telephone if you wish to discuss the scope of your current request.
Section 4(2) of the FOIA permits a public body to require a good faith deposit at the time a request is made which in this instance is $2,151.67 . Payments are submitted in the form of a check or money order....
On March 2, 2013, and in response to the Board's February 25, 2013 letter, plaintiff again sent a letter by e-mail to Cohen, as well as to Richard S. Kalm, the executive director of the Board, requesting that the Board waive the fees to process his request. Plaintiff cited numerous reasons for his fee-waiver request, including that disclosure of the information would further the public interest and likely contribute to public understanding, that he planned to make the documents available to the public at the Michigan State University Law Library, that he intended to use the information for litigation, and that he was working on a campaign to ban casinos in Michigan.
On March 18, 2013, Karen Finch, the Board's administrative services manager, notified plaintiff that the Board had denied his request for a waiver of the fees. Finch's letter stated in part:
Plaintiff did not respond to the Board's written notice denying plaintiff's request for a fee waiver and did not pay the required deposit. According to Cohen's affidavit submitted with the Board's summary disposition motion, the Board "has been and remains ready to complete the processing of [plaintiff's] FOIA request upon receipt of the deposit, as it has been since issuing written notice granting [plaintiff's] FOIA request."
On April 25, 2013, plaintiff filed a two-count complaint, alleging that the Board had violated the FOIA, MCL 15.231 et seq. In Count I, plaintiff claimed that the Board had wrongfully denied his records request. In Count II, plaintiff claimed that the Board had imposed excessive fees to process the request. On May 16, 2013, in lieu of answering plaintiff's complaint, the Board filed a motion for summary disposition under MCR 2.116(C)(8) ( ) and (10) (no genuine issue of material fact). The Board argued that summary disposition on Count I was appropriate under MCR 2.116(C)(10) because there was no genuine issue of material fact that the Board had "granted" plaintiff's request; plaintiff, therefore, did not have a cause of action under § 10 of the FOIA, which allows a requester to commence a cause of action to compel disclosure of the requested records upon the public body's final determination denying the request. MCL 15.240(1)(b). The Board also argued that summary disposition on Count II was appropriate under MCR 2.116(C)(8). Specifically, the Board contended that § 4 of the FOIA, MCL 15.234, does not authorize a cause of action and that the FOIA's remedial provisions, MCL 15.240, do not apply to a fee dispute brought under § 4.
Following a hearing on plaintiff's motion, the trial court granted summary disposition in favor of the Board, stating:
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