King v. Mich. State Police Dep't

• Decision Date: 12 November 2013
• Docket Number: Docket No. 305474.
• Citation: 841 N.W.2d 914,303 Mich. App. 162
• Parties: KING v. MICHIGAN STATE POLICE DEPARTMENT.
• Court: Court of Appeal of Michigan — District of US

303 Mich.App. 162

841 N.W.2d 914

KING

v.MICHIGAN STATE POLICE DEPARTMENT.

Docket No. 305474.

Court of Appeals of Michigan.

Submitted Feb. 13, 2013, at Detroit.

Decided Nov. 12, 2013, at 9:10 a.m.

Barry L. King, Troy, in propria persona and for Christopher K. King.

Bill Schuette, Attorney General, John J. Bursch, Solicitor General, Richard A. Bandstra, Chief Legal Counsel, and Kathleen L. Cavanaugh, Assistant Attorney General, for the Michigan State Police Department.

Before: MURRAY, P.J., and WILDER and OWENS, JJ.

Wilder, J.

Plaintiffs appeal as of right an order awarding attorney fees to plaintiffs and closing the case.Defendant cross-appeals as of right the same order.We affirm in part, vacate in part, reverse in part, and remand for further proceedings consistent with this opinion.

This case arises out of requests under the Freedom of Information Act (FOIA),MCL 15.231 et seq., submitted in 2010 to defendant, the Michigan State Police Department, for documents regarding Christopher Busch's possible involvement in the abductions and killings of four children in Oakland County in 1976 and 1977, a series of crimes known as the Oakland County Child Killings(OCCK or OCCKs).Plaintiffs, Barry L. King and Christopher K. King, are, respectively, the father and the brother of Timothy King, the fourth and final victim of the OCCKs.In January and February 1977, after three of the children had been killed, Busch was briefly considered a suspect in the murder of the first OCCK victim, but he was allegedly cleared by law-enforcement officials following a polygraph examination.Then, in March 1977, Timothy King was abducted and killed.In November 1978, Busch died in an apparent suicide.The OCCKs remain unsolved to this day, but numerous persons other than Busch have been considered as possible suspects over the last 35 years.

On January 6, 2010, attorney William H. Horton of the law firm Giarmarco, Mullins & Horton, P.C., submitted a cover letter and FOIA request to defendant for documents regarding Busch and another deceased suspect in the OCCKs, Gregory Green.The cover letter did not indicate that Horton was making the request for plaintiffs in a representative capacity.However, attached to the cover letter was defendant's standardFOIA request form that had been completed for the purpose of making the FOIA request.In a space designated as “Your client or insured,” the name “Barry King” was listed.

In response, defendant granted the request with respect to “existing, non-exempt records in the possession of the Michigan State Police that fall within the scope of the request.”Defendant provided an estimated total fee of $11,525.49 to locate and provide the requested documents.Defendant further stated that it would proceed upon receipt of a deposit of half of the estimate, which was $5,762.74.

On April 22, 2010, David Binkley, an attorney in the same law firm as Horton, sent a letter to defendant stating that

the King family does not believe that any of the Michigan State Police(“MSP”) files are exempt under the Freedom of Information Act(“FOIA”).The King family does not want access to all of the OCCK files, it only wants a determination as to whether Christopher Busch participated in the murder of Timothy King.

Binkley's letter stated that he was enclosing

my client's check for $5,762.74.You have authority to cash this check when you agree to make the entire MSP file on Christopher Busch available to my client.If you claim there are exempt portions of the file, please identify the documents which we understand to be your responsibility pursuant to FOIA.We will then take the matter up with the Oakland County Circuit Court and you may cash the check when the appeal period has expired on any order from the trial court.

On April 27, 2010, Barry King filed a complaint alleging that defendant had not identified the materials claimed to be exempt and demanded that defendant identify any purportedly exempt materials beforeproceeding further.On May 25, 2010, defendant filed an answer and affirmative defenses.Defendant's answer asserted, in part, that the January 6, 2010, FOIA request submitted by Giarmarco, Mullins & Horton, P.C. was not made in a representative capacity and did not identify Barry King as the FOIA requester.Defendant denied that the trial court had jurisdiction and denied that Barry King was entitled to any relief because he had not made the FOIA request.

On June 8, 2010, Barry King requested defendant to admit that

1.The attached January 6, 2010 letter ... from Giarmarco, Mullins & Horton, P.C. specifically identifies Barry L. King as its client on the accompanying Michigan State Police Request for Public Records, Michigan Freedom of Information Act Form in Item 9[and] is a true copy.

2.The request was filed by the law firm in a representative capacity for Barry L. King as its client.

On September 1, 2010, the circuit court permitted Christopher King, who had previously made similar FOIA requests to defendant and received the same response, to be added as a plaintiff.

On December 15, 2010, plaintiffs paid the balance of the fees owed for the FOIA request, and defendant then produced what it deemed to be nonexempt records in its possession that fell within the scope of the request.In a December 22, 2010, letter, defendant stated that the FOIA request was granted in part and denied in part.Regarding the portion of the materials that were considered exempt from disclosure, the letter stated, in relevant part:

Under section 13(1)(d) of the FOIA,MCL 15.243(1)(d), those portions of records composed of information specifically described and exempted from disclosure by statute likewise are withheld from public disclosure under the FOIA.In this particular instance, information obtained from or through, or contained in, DNA profiles; the Law Enforcement Information Network (LEIN); the Sex Motivated Crimes Report (DD–79); investigative subpoena; and polygraphs is withheld, respectively, under MCL 28.176;MCL 28.214(3);MCL 28.247;MCL 767A.8;andMCL 338.1728.In addition, documents presently known to, and protected from disclosure under the seal of, the 48^th District Court, the Hon. Kimberly F. Small, cannot be disclosed publicly without further court order directing otherwise.

On January 11, 2011, defendant filed a motion for summary disposition pursuant to MCR 2.116(C)(8) and (10).Defendant argued that plaintiffs brought this action prematurely because it was filed before their FOIA requests were denied and before defendant had a chance to make a final determination after having searched for and reviewed the documents and separated exempt from nonexempt information.Defendant further contended that the case was moot because defendant had provided plaintiffs with the nonexempt records in its possession and the relief requested had thus been granted.In addition, defendant asserted that plaintiffs were not entitled to attorney fees and costs because the trial court did not order disclosure of records and plaintiffs were not prevailing parties as defined in the FOIA.

On April 6, 2011, plaintiffs filed a brief opposing defendant's motion for summary disposition.Plaintiffs argued that a dispute existed regarding the appropriate processing fee.The records produced consisted of 3,411 pages of information, but according to plaintiffs, only 1/3 of the documents provided were related to Busch.Plaintiffs thus opined that they were charged approximately $11,000 for $4,000 worth of records.Further, plaintiffs contended that they were entitled to additional relief.In particular, plaintiffs had requested the affidavits underlying a warrant to search Busch's former residence.Plaintiffs also sought production of a PowerPoint presentation prepared by the investigating officers regarding Busch's involvement in the OCCKs.Plaintiffs also sought to take the discovery depositions of two of defendant's employees to determine why plaintiffs were charged $11,000 for $4,000 worth of records.Finally, plaintiffs asserted that the trial court was required to determine the amount of attorney fees to be awarded to plaintiffs.Plaintiffs thus asked the trial court to deny defendant's motion for summary disposition and grant plaintiffs the relief they requested.

In its April 14, 2011, reply brief in support of its motion for summary disposition, defendant argued that it was entitled to reimbursement of the costs incurred in processing plaintiffs' FOIA requests and that the interconnectedness of the records required defendant to search for, retrieve, and separate records to the same extent regardless of plaintiffs' limitation of their requests to documents relating to Busch.Further, defendant asserted that it did not possess records regarding the PowerPoint presentation.This assertion was supported by an affidavit of an employee, stating: “To the best of the Department's knowledge, information, and belief, the PowerPoint slides do not exist within the Department.A PowerPoint was created by the Oakland County Prosecutor's Office but is not in the possession of the Michigan State Police.”Finally, defendant asserted that, in the interest of judicial economy, plaintiffs' brief opposing defendant's motion for summary disposition should be treated as plaintiffs' appeal of defendant's decision to uphold the partial denial of plaintiffs' FOIA requests.

On April 19, 2011, the trial court dispensed with oral argument and denied defendant's motion for summary disposition.The trial court further ordered that “[i]n the interest of judicial economy and to expedite this matter, the Court will treat Plaintiffs' response to the instant motion as an appeal of Defendant's December 22, 2010 final determination to partially deny Plaintiffs' FOIA requests.”

After holding a pretrial hearing, the trial court entered an order on May 13, 2011, which provided, in part, the following:

At issue is the amount of the...