STATE OF MICHIGAN IN THE 3rd JUDICIAL CIRCUIT COURT FOR THE COUNTY OF WAYNE

CITIZENS UNITED AGAINST CORRUPT GOVERNMENT, a Michigan Nonprofit Corporation, Case No. 13-008649-AW PLAINTIFF, Hon. Maria L. Oxholm -vMICHIGAN DEPARTMENT OF TREASURY, and CARLA ROBERT, in her official capacity as FOIA Coordinator for the Michigan Department of Treasury, DEFENDANTS. ________________________________________________________________________/ ANDREW A. PATERSON (P18690) MICHELLE M. BRYA (P66861) Attorney for Plaintiff HEATHER MEINGAST (P55439) 46350 Grand River Ave., Suite C JOSHUA BOOTH (P53847) Novi, MI 48374 Assistant Attorneys General (248) 568-9712 State Operations Division, Attorneys for Defendants, 525 W. Ottawa Street, 2nd Floor P.O. Box 30754 Lansing, MI 48909 (517) 373-1162 ________________________________________________________________________/

Plaintiffs Motion and Brief In Support of Motion for Writ of Mandamus and Declaratory Judgment To Compel Disclosure of Unredacted Public Documents Pursuant to the Freedom of Information Act (FOIA) and Order to Show Cause
PLAINTIFF, CITIZENS UNITED AGAINST CORRUPT GOVERNMENT, by and through its attorney, ANDREW A. PATERSON, for Motion and Brief in Support of Motion for Writ of Mandamus and Declaratory Judgment To Compel Disclosure of Unredacted Public Documents Pursuant to the Freedom of Information Act (FOIA) and Order to Show Cause under MCR 3.305(C), states and alleges the following: NATURE OF THE ACTION

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Plaintiff Citizens United has filed this civil action pursuant to MCL 15.235(7)(b) and MCL 15.240(1)(b) of the FOIA, seeking a writ of mandamus to compel Defendants to disclose the public documents described in Plaintiffs FOIA Request. Plaintiff does have the burden of establishing entitlement to the extraordinary remedy of a writ of mandamus. Lansing Sch Ed Assn v Lansing Bd of Ed (On Remand), 293 Mich App 506, 519; 810 NW2d 95 (2011). Mandamus is a writ issued by a court of superior jurisdiction to compel a public body or public officer to perform a clear legal duty. Lee v Macomb Co Bd of Commrs, 235 Mich App 323, 331; 597 NW2d 545 (1999), revd on other rounds 464 Mich 726 (2001). A writ of mandamus is an extraordinary remedy. Coalition for a Safer Detroit v Detroit City Clerk, 295 Mich App 362, 366-367; ____ NW2d ____ (2012). Plaintiffs must show that (1) the plaintiffs have a clear legal right to the performance of the duty sought to be compelled, (2) the defendants have a clear legal duty to perform the requested act, (3) the act is ministerial, and (4) no other remedy exists that might achieve the same result. Id. See also White-Bey v Dept of Corrections, 239 Mich App 221, 223-224; 608 NW2d 833 (1999). An act is ministerial if it is prescribed and defined by law with such precision and certainty as to leave nothing to the exercise of discretion or judgment. Citizens Protection Michigans Constitution, 280 Mich App 273, 286; 761 NW2d 210, affd in part 482 Mich 960 (2008), quoting Carter v Ann Arbor City Attorney, 271 Mich App 425, 439; 722 NW2d 243 (2006). The Freedom of Information Act, MCL 15.231 et seq.; MSA 4.1801(1) et seq., protects a citizens right to examine and to participate in the political process. It requires public disclosure of information regarding formal acts of public officials and employees. Booth v U of M Bd of Regents, 444 Mich 211, at 231; 507 NW2d 422 (1993). All public

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records are subject to full disclosure unless they are clearly exempt A FOIA request must be fulfilled unless MCL 15.243 lists an applicable specific exemption. MCL 15.233(1). Coblentz v Novi, 475 Mich 558, at 573 (2006). (Emphasis supplied) (citation omitted). Plaintiffs Complaint meets all of these requirements for this Court to issue its writ of mandamus against the Defendants to disclose the public documents Plaintiff has requested. Plaintiff has a clear legal right to the performance by the Defendants sought to be compelled hereby; Defendants have a clear legal duty under FOIA to perform the requested act of disclosing the public documents Plaintiff has requested; the act sought to compelled is ministerial in nature in that it is prescribed and defined by law with such precision and certainty as to leave nothing to the exercise of discretion or judgment.; and, there is no other adequate remedy at law to so compel Defendants to disclose the public documents Plaintiff has requested. In addition, pursuant to MCL 15.235(3) and MCL 15.240(7) of the FOIA, Plaintiff seeks the Court to declare that Defendants have violated the FOIA by their arbitrary and capricious refusal, and by impermissible delay in disclosing, or providing copies of, the public records sought by the Plaintiff as so requested in their FOIA Request. Accordingly, pursuant to the FOIA, the Court must award Plaintiff, any actual or compensatory damages proven, and punitive damages in the amount of $500.00. An actual controversy exists by reason of the Defendants refusal to fulfill and respond to Plaintiffs FOIA Request, which is a violation of the FOIA, and Plaintiff, as the person making the FOIA Request, is the proper party to litigate same. Pursuant to MCL 15.240(5) of the FOIA, Plaintiff respectfully requests the Court to assign for hearing and

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argument at the earliest practicable date and to otherwise expedite the action in accordance with MCR 3.301(D). WRIT OF MANDAMUS SHALL BE ISSUED AGAINST DEFENDANTS TO COMPEL THEM TO DISCLOSE AND PROVIDE PLAINTIFF WITH THE PUBLIC DOCUMENTS REQUESTED IN ITS MAY 15, 2013 FOIA REQUEST On May 15, 2013, Plaintiff Citizens Uniteds Director sent, on behalf of the Plaintiff Citizens United, via email, a written request to Defendant FOIA Coordinator and other highranking state officials within the Defendant Department of Treasury, a written request requesting: A copy of any and all written communications, including emails, notes, faxes, letters, memorandums, sent by or received by Andy Dillon, Brom Stibitz, and Richard Baird from any state and/or local officer, employee, elected official or any employee and/or representative and/or associate from the Jones Day Law Firm and/or City of Detroit regarding the appointment, interviewing process, and/or interviews/conference calls conducted with any candidate for the selection and/or appointment of an emergency financial manager for the City of Detroit under Public Act 72 of 1990, and regarding and pertaining to the March 14, 2013 special meeting of the Emergency Financial Assistance Loan Board. (See Plaintiffs May 15, 2013 FOIA Request attached to Plaintiffs Complaint as Exhibit B). As of July 1, 2013, and as of the date of the filing of the Complaint in this matter, Plaintiff Citizen Uniteds Director did NOT receive any written communication from the Defendants in response to Plaintiff Citizens Uniteds May 15, 2013 FOIA Request. (See Plaintiffs Directors Affidavit attached to Plaintiffs Complaint as Exhibit A). The FOIA commands that a public body respond to a request for public records either by granting it, or by [i]ssuing a written notice to the requesting person denying the request. Prins v

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Michigan State Police, 291 Mich App 586, at 590; 805 NW2d 619 (2011). (Emphasis in original). All public records are subject to full disclosure unless they are clearly exempt A FOIA request must be fulfilled unless MCL 15.243 lists an applicable specific exemption. MCL 15.233(1). Coblentz v Novi, 475 Mich 558, at 573 (2006). (Emphasis supplied) (citation omitted). Plaintiff Citizens United asserts that the documents requested from the Defendants, including emails, are not exempt under any exemption listed in MCL 15.243. Under the FOIA, Defendants are not permitted to deny Plaintiff Citizens United the information sought by its FOIA Request. Plaintiff Citizens United has a clear legal right to receive copies of such public documents and Defendants have a clear legal duty to provide the Plaintiff Citizens United copies of such public documents. Defendants denial of plaintiffs FOIA request constituted a final decision to deny the request. MCL 15.235(4). Plaintiff had the right, therefore, to institute his litigation, MCL 15.240(1)(b), and, at the conclusion of this litigation, the circuit court ordered production of the tape. The instant litigation was reasonably necessary to determine that all of defendants claimed exemptions lacked merit. Meredith Corp v Flint, 256 Mich App 703, at 713-714; 671 NW2d 101 (2003). A complete or partial denial of a request must contain the reason for the denial: an explanation of the basis for the exemption from disclosure, a description of the deleted material, or a certificate that the record does not exist. MCL 15.235(4); Federated Publications, Inc. v City of Lansing, 467 Mich 98, 102; 649 NW2d 383(2002); Detroit Free Press v Southfield, 269 Mich App 275, 281; 713 NW2d 28 (2005). The circuit court is to determine by de novo review whether disclosure should be compelled. MCL 15.240(4); Schroeder v Detroit, 221 Mich App 364, 365; 561 NW2d 497 (1997). (Emphasis supplied).

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Pursuant to the FOIA, a person has the right to receive, upon proper request, copies of any public records that are not subject to an exemption from disclosure. Booth Newspapers, Inc. v Univ. of Michigan Board of Regents, 192 Mich App 574; 481 NW2d 778; appeal granted 441 Mich 881; 491 NW2d 825; affirmed in part, reversed in part 444 Mich 211; 507 NW2d 422 (1992). A public body has a duty under FOIA, to provide access to nonexempt records sought or to deliver copies of such records. Mackenzie v Wales Tp., 247 Mich App 124; 635 NW2d 335 (2001). Under the FOIA, a public body must disclose all public records that are not specifically exempt. Larry S Baker, PC v Westland, 245 Mich App 90, 94; 627 NW2d 27 (2001). (Emphasis supplied). See also MCL 15.231. The [FOIA] statute does not require that the record be created by the public body, or even created at its behest. Rather, it is ownership, use, possession, or retention in the performance of an official function that is determinative. Detroit News v Detroit, 204 Mich App 720, at 724-725; 516 NW2d 151 (1994). Under the FOIA, Defendants cannot choose to restrict and deny Plaintiff Citizens United from receiving the information and public documents requested in its FOIA Request and Plaintiff Citizens Untied has the legal right to receive copies of such public documents so requested and Defendants have a clear legal duty to provide the Plaintiff Citizens United copies of such public documents. Any FOIA exemption claims must be narrowly construed. Courts narrowly construe any claimed exemption and place the burden of proving its applicability on the public body asserting it. Detroit Free Press v Southfield, 269 Mich App 275, 281; 713 NW2d 28; appeal denied 475 Mich 860; 713 NW2d 775; appeal denied 475 Mich 860; 713 NW2d 776 (2005). The burden of proving [a] need for an exemption rests on the public body asserting its application. To meet this burden, the public body claiming an

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exemption should provide complete particularized justification, rather than simply repeat statutory language. Detroit Free Press v Warren, 250 Mich App 164, at 167 (2002). The Michigan Court of Appeals, in State News v MSU (274 Mich App 558; 735 NW2d 649, affirmed in part and reversed in part, on other grounds, 481 Mich 692; 753 NW2d 20 (2007)), established the test by which courts must analyze and determine a claim of exemption under FOIA. The State News Court held: In Evening News Assn 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. [State News v MSU, 274 Mich App 558, 570-571; 735 NW2d 649 (2007).] As the Court of Appeals further noted in State News, supra: Although these rules were primarily directed to the Evening News Courts analysis of the law-enforcement-purposes exemption, with the exception of rule 6, we find them generally applicable to any claim of exemption from disclosure under FOIA. [State News v MSU, 274 Mich App 558, 571 fn16; 735 NW2d 649 (2007), (Emphasis supplied).]
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Thus, the emails and other written documentation requested by Plaintiff Citizens United pertains to actions of public officials within the Defendant Department of Treasury while they were acting in their official capacities during the process of selecting Kevyn Orr as the Emergency Financial Manager for the City of Detroit under the now-former Public Act 72 of 1990. The documents, including emails, of public officials of the Defendant Department of Treasury are not exempt under the FOIA. Emails of public officials transmitted in performance of an official function are public records subject to disclosure under the FOIA. As the Michigan Court of Appeals explained in Howell Ed Assn v Howell Bd of Ed, 287 Mich App 228, at 247, n 10; 789 NW2d 495 (2010): Although the question is not before us, we note that an e-mail transmitted in performance of an official function would appear to be a public record under FOIA. (Emphasis supplied). It is undisputed that the emails Plaintiff Citizens United seeks from the Defendants were transmitted in the performance of an official function of certain public state officials who were involved in the process of selecting Kevyn Orr as the new Emergency Financial Manager for the City of Detroit under the now-former Public Act 72 of 1990. Defendants cannot satisfy their burden of justifying the denial of the FOIA Request with a nonexistent exemption. However, the Defendants have raised some frivolous arguments asserting certain exemptions under the FOIA, which simply do not apply. Thus, Plaintiff Citizens United provides the following legal analysis for the Court addressing Defendants exemption claims. 1. Litigation Exemption Does Not Apply MCL 15.243(1)(v) of the FOIA provides an exemption of records or information relating to a civil action in which the requesting party and the public body are parties. (Emphasis supplied). As this Court is keenly aware, Plaintiff Citizens Uniteds Director,

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Robert Davis (Davis), in his individual capacity as a citizen, is currently involved in a separate Open Meetings Act (OMA) litigation in Ingham County Circuit Court (Davis v Emergency Financial Assistance Loan Board, et al., Case No. 13-281-NZ, Judge William E. Collette) against the Emergency Financial Assistance Loan Board, Governor Rick Snyder and State Treasurer Andy Dillon in which Davis alleges that the members of the Emergency Financial Assistance Loan Board and Governor Snyder violated many provisions of the OMA in their secretive selection of Kevyn Orr as the Emergency Financial Manager for the City of Detroit. Davis is the only plaintiff in the OMA case currently pending in Ingham County Circuit Court. Plaintiff Citizens United IS NOT a party plaintiff in the OMA case currently pending in Ingham County Circuit Court. Additionally, none of the named Defendants in the instant matter are party defendants in the OMA case currently pending in Ingham County Circuit Court. As noted above, Plaintiff Citizens United nor any of the named Defendants in the instant case are parties in the OMA case currently pending in Ingham County Circuit Court. Although Plaintiff Citizens Uniteds Director is the party plaintiff in the OMA case currently pending in Ingham County Circuit Court, Plaintiff Citizens Untied is not and what its Director does in his individual capacity has no legal bearing on Plaintiff Citizens Uniteds legal rights to receive public documents under the FOIA. As the Michigan Court of Appeals explained in Detroit Free Press v Southfield, 269 Mich App 275, at 290-291; 713 NW2d 28 (2005): The city argues that plaintiff did not have standing to sue because only Christoff, himself, may be considered a requesting person under the FOIA. We disagree. The FOIA provides that a person has a right to inspect, copy, or receive public records upon providing a written request to the FOIA coordinator

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of the public body. MCL 15.233(1), 15.235(1). The statute then grants the requesting person standing to commence an action in a circuit court to compel disclosure of records which the public body has refused to disclose. MCL 15.235(7)(b), 15.240(1)(b). Under the FOIA, [p]erson means an individual corporation, or other legal entity. MCL 15.232(c). A corporation acts through its individual agents as a matter of course. Here, Christoffs request was written on Detroit Free Press letterhead, and Christoff identified himself as the Lansing Bureau Chief. He also stated that he was a journalist for plaintiff and that he intended to use the requested information for an article in our newspaper. Therefore, plaintiff [Detroit Free Press] issued the request and had standing to pursue its claim. (Emphasis supplied). Like the reporter in Detroit Free Press v Southfield, supra, Plaintiff Citizens Uniteds Director sent Defendants its FOIA Request on Plaintiff Citizens Uniteds letterhead and its Director, Robert Davis, specifically stated therein that the FOIA Request was sent on behalf of Plaintiff Citizens United and not on his behalf. (See Plaintiff Citizens Uniteds May 15, 2013 FOIA Request attached to Plaintiffs Complaint as Exhibit B). Additionally, our Court of Appeals in Taylor v Lansing Bd of Water and Light, 272 Mich App 200, 205-206; 725 NW2d 84 (2006) determined that if both parties to a FOIA case are not parties in a pending litigation, then the pending litigation exemption does not apply. The Court of Appeals in Taylor held: Thus, the public body asserting the exemption in MCL 15.243(1)(v) must prove that it is a party to a civil action involving the requesting part. Otherwise, this Courts ruling in Central Michigan Univ Supervisory-Technical Assn v Central Michigan Univ Bd of Trustees, 223 Mich App 727, 730; 567 NW2d 696 (1997) (holding that FOIA does not conflict with the court rules governing discovery, nor does it supplement or displace them), is applicable, and

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the public body is afforded no exemption from disclosure based solely on the status of one of the parties as litigants. A plain reading of MCL 15.243(1)(v) would require a conclusion that the trial court correctly ruled the requested documents were not exempt. The plain language of the exemption cited by defendant applies only to information relating to a civil action in which both the requesting party and the public body are parties. Party is not defined in the statute itself, but is defined in Blacks Law Dictionary (6th ed) as those by or against whom a legal suit is brought. Plaintiff in this matter is the admitted best friend of Ms. Cluley, a party involved in a lawsuit against defendant. However, there is no dispute that plaintiff was not and is not a party to the Cluley action. MCL 15.243(1)(v) thus serves as no basis for exempting the records requested by plaintiff. [Taylor v Lansing Board of Water and Light, 272 Mich App at 205-206.] (Emphasis in original and Emphasis supplied). As noted, neither Plaintiff Citizens United nor any of the named Defendants to the instant action are parties to the OMA case currently pending in Ingham County Circuit Court. Thus, the FOIAs pending litigation exemption afforded under MCL 15.243(1)(v) cannot be applied in this case. 2. Frank Communications/Deliberative Process Exemption Does Not Apply Defendants have raised the so-called common law Deliberative Process Privilege and the Frank Communications Privilege as a basis for exempting documents under the Freedom of Information Act (FOIA). Specifically, Defendants list 4 emails in their document entitled Privilege Log for Citizens United Against Corrupt Government FOIA Request Dated May 15, 2013 that they believe are exempt from disclosure pursuant to the Frank Communications/Deliberative Process Exemption. (See Emails Defendants failed to disclose listed in Defendants Privilege Log attached hereto as Exhibit A). The deliberative process privilege is codified in 13(1)(m) of the FOIA (MCL 15.243(1)(m)).
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However, Defendants fail to explain to and inform the Court of the proper application of the deliberative process privilege. Doing so, of course, would demonstrate its inapplicability to shielding the production of the documents requested. The frank communication exemption, MCL 15.243(1)(m) of the FOIA, states in relevant part: (1) A public body may exempt from disclosure as a public record under

this act any of the following: *** (m) Communications and notes within a public body or between public bodies of an advisory nature to the extent that they cover other than purely factual materials and are preliminary to a final agency determination of policy or action. This exemption does not apply unless the public body shows that tin the particular instance the public interest in encouraging frank communication between officials and employees of public bodies clearly outweighs the public interest in disclosure. (Emphasis supplied). In order for the frank communication exemption under the FOIA to be applied to this case, Defendants have a huge burden to prove in accordance with the test established by our Michigan Supreme Court in Herald Co v Eastern Michigan Univ Bd of Regents, 475 Mich 463, 475; 719 NW2d 19 (2006). In Bukowksi v City of Detroit, 478 Mich 268, at 274-275 (2007), our Michigan Supreme Court thoroughly analyzed the test it established in Herlad Co that must be applied by this Court in order for the frank communication exemption to apply: In Herald Co, this Court examined the frank communication exemption. Drawing from the text of this provision and other portions of the FOIA, we set forth a framework for courts to apply the frank communication exemption. First, the public body seeking to withhold the document bears the burden of establishing the exemption. Second, the public record sought to be withheld from disclosure must meet the three-part statutory definition of a frank communication: (1) it is

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a communication or note of an advisory nature made within a public body or between public bodies, (2) it covers other than purely factual material, and (3) it is preliminary to a final agency determination of policy or action. Third, if the public record qualifies as a frank communication, the trial court must engage in the balancing test and determine of the public interest in encouraging frank communication clearly outweighs the public interest in disclosure. Finally, if the trial court determines that the frank communication should not be disclosed, the FOIA still requires the trial court to redact the exempt material and disclose the purely factual material within the document. (Emphasis supplied). As our Supreme Court explained in Herald Co v EMU Bd of Regents, 475 Mich 463, at 473: The frank communication exemption ultimately calls for the application of a weighted balancing test where the circuit court must weigh the public interest in disclosure versus the public interest in encouraging frank communication. Under the plain language of the provision, these competing interest are not equally situated, and the Legislature intended the balancing test to favor disclosure. The Legislatures requirement that the public interest in disclosure must be clearly outweighed demonstrates the importance it has attached to disclosing frank communications absent significant, countervailing reasons to withhold the document. (Emphasis supplied). Defendants must meet ALL of the threshold qualifications set forth by our Michigan Supreme Court in Herald Co., supra. If in the trial courts judgment, the document fails any one of these threshold qualifications, then the frank communication exemption simply does not apply. Herald Co. v EMU Bd of Regents, 475 Mich 463, at 475 (2006). (Emphasis supplied). Moreover, if the document is composed entirely of purely factual materials, it is not a frank communication, and the public body must disclose the document to the requesting party unless it has asserted an alternate, valid basis for
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nondisclosure. Herald Co. v EMU Bd of Regents, 475 Mich 463, at 475 (2006). (Emphasis supplied). Thus, the balancing test set forth by our Michigan Supreme Court in Herald Co., supra, and Bukowksi, supra, clearly favors disclosure. Accordingly, Defendants cannot demonstrate why the public interest in disclosure is outweighed by the interest in encouraging frank communication between officials and employees of public bodies. Additionally, the Michigan Department of Treasury is not the public body that took action appointing the emergency manager that public body was the Local Emergency Financial Assistance Loan Board, acting under Public Act 72 of 1990. The Department of Treasury documentation sought is not information or documentation preliminary to a final agency determination of policy or action by the Department of Treasury. The privilege does not apply. It has already been exposed by the media that the Governor and members of the Emergency Financial Assistance Loan Board, which includes the State Treasurer, had already predetermined that an emergency financial manager was going to be appointed even prior to a financial emergency being declared by the Governor. (See Media reports attached to Plaintiffs Complaint as Exhibit C). The Legislatures stated purpose in enacting the FOIA is to entitle all persons except prisoners to complete information regarding the affairs of the government and the official acts of those who represent them as public officials and public employees so that they may fully participate in the democratic process. Scharret v Berkley, 249 Mich App 405, at 411 (2002). More importantly, what Defendants fail to realize is that the names of candidates for the States public office of emergency financial manager for the City of Detroit, that may have considered, vetted, and/or interviewed, are clearly and simply not privileged. It is well-

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settled that when someone is a candidate for public office, he deliberately places his character and conduct before the public for their discussion and consideration. Robbins v Evening News Assn, 373 Mich 589, 591; 130 NW2d 404 (1964). In fact, the identity and resumes of the candidates are plainly subject to disclosure under the FOIA. The applications and resumes submitted by the candidates seeking the position of emergency financial manager for the City of Detroit are not exempt under the FOIA. The Michigan Court of Appeals and the Michigan Supreme Court have addressed the very issue of applications and resumes of candidates for public offices. The courts have unsurprisingly found them not to be exempt from disclosure under the FOIA. Indeed, this was the very holding of the Michigan Court of Appeals in Booth Newspapers, Inc. v U of M Board of Regents, 192 Mich App 574; 481 NW2d 778 (1992); affirmed in part and reversed in part on other grounds, 444 Mich 211; 507 NW2d 422 (1993). The Court of Appeals opinion in Booth Newspapers v U of M Board of Regents, supra, identified what discussions and deliberations could take place in a closed session under 8(f) of OMA. The Court of Appeals held: The phrase specific contents of an application for employment is clear and unambiguous, and it cannot be read to include, as the trial court held, all investigation and consideration of the applicants. The purpose of this exception is not the protection of the applicants identity, inasmuch as all interviews are required to be open to the public. The exception applies only to the review of the specific contents of the candidates application for employment. The exception allows the public body to deliberate on the specific contents of the application, but does not disguise the fact that an application has been made. [Booth v U of M Board of Regents, 192 Mich App 574, at 584. (Emphasis supplied).] The Supreme Court affirmed this reasoning and they said and held:
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In the instant case, the Court of Appeals construed the specific contents exemption narrowly and held that the OMA permitted closed sessions only to review personal matters contained in a candidates application. We agree. Considering the OMAs prodisclosure nature, the requirement to strictly construe exemptions and the mandate for open candidate interviews, it is reasonable to assume that the Legislature intended this exemption to be a limited compromise, allowing privacy rights to dictate in instances where boards were not engaged in decision-making activities. Here we agree with the panel that the board went beyond this limitation and made reduction decisions under the guise of this exemption. Clearly, however, the OMA requires that all decisions of a public body be made in public. Consequently, the act mandates that the Presidential Selection Committee made any reduction decisions in public. [Booth v U of M Bd of Regents, 444 Mich 211, 230-231. (Emphasis supplied).] In Herald Co v Bay City, 463 Mich 11, 125; 614 NW2d 873 (2000), our Supreme Court again decided that the applications and resumes of applicants for a public job are subject to disclosure under the FOIA. They held: [W]e conclude that the fact of application for a public job, or the typical background information one may disclose with such an application, is simply not personal within the contemplation of this exemption. Given the public nature of the position at issue, we think it difficult to conclude that the customs, mores, and views of the community contemplate that an application for such a position could be made without expectation of considerable public scrutiny. Certainly, defendants have failed to establish on his record why any of the information requested by plaintiff is the kind of intimate or embarrassing information that this FOIA exception protects. Importantly, even if the requested information was contained in public documents that also referenced embarrassing or intimate personal information (for example, medical data), the FOIA imposes on the city a duty to separate the exempt and nonexempt material and make the nonexempt
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material available for examination and copying. MCL 15.244(1); MSA 4.1801(14)(1); see also Evening News Assn v City of Troy, 417 Mich 481, 503; 339 NW2d 421 (1983). (Emphasis supplied). The Supreme Court in Herald Co, supra, further said: [W]e conclude that disclosure of the information concerning the final candidates for fire chief in the instant case would serve the policy underlying the FOIA because disclosure would facilitate the publics access to information regarding the affairs of their city government. It can hardly be challenged that the citizens of Bay City had a valid interest in knowing the identities of the final candidates considered in contention for this high-level public position. Keeping in mind that defendants bear the burden of proof that an exemption applies, and balancing the public interest against the relatively circumscribed privacy interest protected by the FOIA exemption, we cannot conclude that the disclosure sought might result in a clearly unwarranted invasion of an individuals privacy. [Herald Co, supra, 463 Mich at 127. (Emphasis in original and supplied).] Defendants cannot satisfy their burden of justifying their refusal to produce unredacted copies of the documents listed and attached as Exhibits A and B of Plaintiffs instant motion. Attached hereto as Exhibit B are the redacted emails that Plaintiff believes should also be disclosed in an unredacted form because the information that has been redacted (i.e. names and resumes of the candidates who were interviewed and/or vetted to be appointed the emergency financial manager for the City of Detroit) does not fit any of the exemptions codified under the FOIA that would prevent their disclosure. (See emails Plaintiff is requesting to be disclosed in an unredacted form attached hereto as Exhibit B). Accordingly, this Court, upon a de novo and in camera review of the documents in question, should order Defendants to produce the unredacted documents,

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including the resumes of the candidates, attached and listed as Exhibits A and B of this instant motion, to the Plaintiff as requested, on the date of the show cause hearing. COUNT III PLAINTIFF MUST BE AWARDED COMPENSATORY AND PUNITIVE DAMAGES OF $500 UNDER FOIA As a result of Defendants failure to respond to Plaintiff Citizens Uniteds FOIA Request within 5 business days, this Court is obligated and required to assess damages against the Defendants pursuant to MCL 15.235(3). MCL 15.235(3) of the FOIA states in pertinent part: (3)Failure to respond to a request pursuant to subsection (2) constitutes a public bodys final determination to deny the request. In a circuit court action to compel a public bodys disclosure of a public record under section 10, the circuit court shall assess damages against the public body pursuant to section 10(7) of the circuit court has done both of the following: (a) Determined that the public body has not complied with subsection (2). (b) Ordered the public body to disclose or provide copies of all or a portion of the public record. (Emphasis supplied). It is undisputed that the Defendants failed to respond to Plaintiff Citizen Uniteds FOIA Request within the statutory timeframe as required under MCL 15.235(2). Thus, if this Court orders the Defendants to disclose all or a portion of the public records Plaintiff Citizens United requested, then this Court must assess damages against the Defendants as a result of their failure to timely respond to Plaintiff Citizens Uniteds FOIA Request. Additionally, the Defendants have arbitrarily and capriciously violated FOIA by the refusal and delay in disclosing and/or providing copies of, the public records sought by Plaintiffs FOIA Request. Accordingly, pursuant to MCL 15.240(7), the Court shall award, in addition to any actual or compensatory damages, punitive damages in the amount of
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$500.00 to the Plaintiff. The Legislature did not define the terms arbitrarily and capriciously in FOIA. However, when reviewing a statute, all non-technical words and phrases shall be construed and understood according to the common and approved usage of the language, and if a term is not defined in the statute, a Court may consult a dictionary to aid it in this goal; a court should consider the plain meaning of a statutes words and their placement and purpose in the statutory scheme. McCormick v Carrier, 487 Mich 180 (2010). Arbitrary means fixed or arrived at through an exercise of will or by caprice, without consideration or adjustment with reference to principles, circumstances, or significance. Capricious means apt to change suddenly, freakish, or whimsical. Binsfeld v Dept of Natural Resources, 173 Mich App 779, 786; 434 NW2d 245 (1988). Defendants conduct in denying Plaintiff Citizen United the right to receive copies of the public documents requested was both arbitrary and capricious. Evidence of the capricious nature of the denial is that the Defendants totally ignored Plaintiff Citizens Uniteds FOIA Request and failed to provide Plaintiff Citizens United with a response to its FOIA Request as they are statutorily required to do. COUNT IV PLAINTIFF SHALL BE AWARDED COURT COSTS AND ATTORNEY FEES PURSUANT TO THE FOIA Plaintiff is entitled to court costs and attorney fees upon the Court declaring and determining Defendants violated FOIA by denying Plaintiffs FOIA Request, and/or upon the Court compelling delivery and disclosure of such public documents. MCL 15.240(6) sates in pertinent part: (6) If a person asserting the right to inspect, copy, or receive a copy of all or a portion of a public record prevails in an action commenced under this section, the

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court shall award reasonable attorneys fees, costs, and disbursements. (Emphasis supplied.) Attorney fees are available under [MCL 15.240] if a public body, in a final determination, denies an information request and the court orders production of the documents. Detroit Free Press, Inc v Dept of Attorney Gen, 271 Mich App 418, 420; 722 NW2d 277 (2006). [A]ttorney fees and costs must be awarded under the first sentence of MCL 15.240(6) only when a party prevails completely. The Local Area Watch v Grand Rapids, 262 Mich App 136, 150; 683 NW2d 745 (2004). If a plaintiff prevails completely in an action to compel disclosure under the FOIA, the circuit court must award costs and reasonable attorney fees to the plaintiff. Prins v Michigan State Police, ___ Mich App ___; ____ NW2d___ (2013) (Docket No. 309803), Issued March 5, 2013, slip op at pp 3-4. If a Plaintiff prevails in an action to compel disclosure under FOIA, the circuit court must award reasonable attorney fees, costs, and disbursements to the Plaintiff. Thomas v City of New Baltimore, 254 Mich App 196; 657 NW2d 530 (2002). [A]s long as an action for disclosure of public records is initiated pursuant to the FOIA, the prevailing partys entitlement to an award of reasonable attorney fees, costs, and disbursements includes all such fees, costs, and disbursements related to achieving production of the public records.The language of MCL 15.240(6) does not permit the circuit court to limit the prevailing partys request for attorney fees to those incurred only when the defendants refusal to disclose the public records is unreasonable. Instead, the statute provides without qualification that the circuit court must award the prevailing party reasonable attorney fees, costs and disbursements. Meredith Corp v Flint, 256 Mich App 703, at 715-716; 671 NW2d 101 (2003). (Emphasis supplied.) It is undisputed that Plaintiff Citizens United had to commence this action in order to cause the Defendants to produce the documents sought in Plaintiff Citizens Uniteds FOIA
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Request. Therefore, the award of attorney fees and court costs is warranted and required under the FOIA because the instant litigation was reasonably necessary to determine that all of defendants claimed exemptions lacked merit. Meredith Corp v Flint, 256 Mich App 703, 713-714; 671 NW2d 101 (2003). Moreover, even if Defendants disclose the requested documents after the commencement of this instant litigation, Defendants would still be obligated to pay Plaintiffs attorney fees and court costs. A plaintiff prevails in an action even if the defendant voluntarily discloses the requested information so long as the voluntary disclosure is after commencement of the circuit court action. Thomas, 254 Mich at 202-204. PRAYER FOR RELIEF WHEREFORE, for the foregoing reasons, Plaintiff prays and respectfully requests that the Court grant relief as follows: A. ISSUE a Writ of Mandamus compelling Defendants to IMMEDIATELY disclose unredacted copies of all of the documents and emails listed and attached as Exhibits A and B attached to this motion. B. ISSUE an Order to Show Cause, pursuant to MCR 3.305(C), against the Defendants to show cause as to why a writ of mandamus should not be issued compelling them to IMMEIDATELY disclose unredacted copies of all of the documents attached and listed in Exhibits A and B of this motion. C. ISSUE its ORDER that Defendants pay the Plaintiffs court costs and attorney fees pursuant to MCL 15.240(6). D. ISSUE its ORDER that Defendants pay punitive damages to the Plaintiff in the amount of $500, pursuant to MCL 15.235(3) and MCL 15.240(7). Respectfully submitted, /S/ ANDREW A. PATERSON ANDREW A. PATERSON (P18690)
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Attorney for Plaintiff Dated: September 27, 2013

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