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STATE OF MICHIGAN

TH
14 CIRCUIT COURT FOR THE COUNTY OF MUSKEGON

DANIEL W. RUDD,
Case No. 2017-004334-CZ
Plaintiff, Hon. Timothy G. Hicks

vs.

CITY OF NORTON SHORES;

Defendant.

Daniel W. Rudd Michael S. Bogren (P34835)


Plaintiff IN PROPRIA PERSONA Attorney for Defendant
201 S Lake Ave Plunkett Cooney, P.C.
Spring Lake, MI 49456 950 Trade Centre Way, Suite 310
(231) 557-2532 Kalamazoo, Michigan 49002
daniel@stock20.com (269) 382-5935
mbogren@plunkettcooney.com

PLAINTIFF’S FIRST AMENDED FOIA COMPLAINT

Parties & Jurisdiction


1. This matter arises under the Michigan Freedom of Information Act, MCL § 15.231, et
seq. (“FOIA”), MCL § 15.240 and other applicable law.

2. Plaintiff Daniel W. Rudd is a private citizen who resides in Ottawa County, Michigan.

3. The City of Norton Shores is a municipality and a public body located within Muskegon
County, Michigan.

4. Under MCL § 15.240(4) venue is proper in the Muskegon County Circuit Court.

5. Plaintiff states that the communication and correspondence between the parties,
referenced in this complaint is already in defendant’s possession.

Rudd v. Norton Shores 17-004334-CZ 14th Circuit Court, Michigan 1


GENERAL ALLEGATIONS:

6. On 1/27/2017 Plaintiff submitted identified and requested the following public records in
a written FOIA request under “Request 4”:
“any/all complaints submitted against the Norton Shores Police Department’s
policies or employees from January 1, 2014 until the present. I am also
requesting a copy of any corresponding written report, disposition or
document describing the results of the internal investigation.”

7. Plaintiff’s request also included the following instructions regarding partial disclosure:
“If clarifying information is required on any single item please contact me
immediately regarding that clarification instead of waiting until the other
items have been granted or denied. If some portion of this request can be
fulfilled immediately or at a minimal cost, please proceed with those portions
instead of waiting until all of the items can be fulfilled in their entirety.”

8. On 2/16/2017, Anthony Chandler wrote (e-mail), on behalf of defendant:


“Dear Mr. Rudd, We have completed our search for the items you have
requested through FOIA and a response is ready for you to pick up. An
invoice is also attached that includes the fees associated with your FOIA
request from January 27. Collection of the fees are necessary considering the
nature of your request and large amount of information requested.”

9. On 2/16/2017, after paying $128.16 for the documents disclosed under FOIA Requests 1-
3, plaintiff then received notice that the city of Norton Shores had denied FOIA Request 4:
Request #4 - This item is exempt from disclosure under FOIA Section 13,
Subsection (1)(s)(ix), because: this request seeks records contained in the
personnel records of a law enforcement agency, which are not subject to
disclosure unless the public interest in disclosure outweighs the public
interest in nondisclosure in this instance, which has not been shown.

10. Plaintiff appealed this denial in a letter dated 2/23/2017, primarily asserting:

The Norton Shores Police Department solicits citizen complaints and provides a
form for this purpose. The form itself states that it is an official police complaint (which
is a public record). In soliciting complaints from citizens regarding police services, the
City of Norton Shores website describes a process whereby additional public records are
created for review purposes and to advise the complainant of the findings. The nature of
the record is not changed when it is placed into a personnel file. The public interest for
disclosure of these records is plainly evident in the communications issued by the
department regarding accountability and transparency.

Rudd v. Norton Shores 17-004334-CZ 14th Circuit Court, Michigan 2


11. Plaintiff’s appeal included an offer to provide more information regarding the public’s
interest in disclosure of these records as expressed publically by Norton Shores.

12. Plaintiff’s 2/23/2017 appeal was denied in a letter dated 3/3/2017:

13. The 2/23/2017 denial of Plaintiff’s appeal (Exhibit B) did not include any explanation
establishing the public’s interest in non-disclosure of the requested records. The denial did not
describe the type of records which defendant had separated from the non-exempt materials and
withheld from disclosure.

14. The denial was also non-responsive to the central claim in plaintiff’s appeal, asserting:

“Just because a copy of a citizen’s complaint may be placed into an officer’s personnel file, that
does not change the nature of the complaint itself. The complaint itself is a public record.”

15. Plaintiff sent the following e-mail message to Mr. Chandler, on 3/6/2017:
Thanks Anthony, This letter doesn't seem to address the issues raised in my
appeal at all. Is the mayor's decision on this considered to be the final
decision of the "head" of the public body, or is there further appeal available
short of the circuit court?

Rudd v. Norton Shores 17-004334-CZ 14th Circuit Court, Michigan 3


16. Mr. Chandler responded on 3/6/2017:
You have a right to commence an action in circuit court to compel disclosure
of a public record(s)…
…The Mayor’s response letter dated 3/3/2017 shall serve as the final
determination from the public body

17. Plaintiff filed this complaint within 180 days of the final determination of the public
body, and seeks relief under MCL 15.240Sec. 10 (1)(b)

COUNT 1: Violation of MCL 15.235(2)


(untimely and incomplete notice of denial)
18. Plaintiff incorporates herein by reference all preceding paragraphs.

19. MCL 15.235(2) requires a public body to issue some kind of response within 5 business
days. In this case, defendant should have issued a notice of extension in response to plaintiff’s
FOIA Requests 1-3, AND issued a written notice of denial in response to FOIA Request 4.

20. Defendant’s blanket denial of plaintiff’s 1/27/2017 FOIA Request #4 did not require any
research, separation of records or efforts to locate records.

21. However, defendant did not issue a written notice of this partial denial until 2/16/2017
and did not provide notice that request #4 had been denied until after plaintiff had paid $128.16
for the disclosure of documents responsive to request #1-3.

COUNT 2: Violation of MCL 15.244


(failure to separate exempt from nonexempt material)

22. Plaintiff incorporates herein by reference all preceding paragraphs.

23. MCL 15.244 Sec. 14 states in pertinent part (emphasis added):


(1) If a public record contains material which is not exempt under section 13,
as well as material which is exempt from disclosure under section 13, the
public body shall separate the exempt and nonexempt material and make the
nonexempt material available for examination and copying.
(2) When designing a public record, a public body shall, to the extent
practicable, facilitate a separation of exempt from nonexempt information. If
the separation is readily apparent to a person requesting to inspect or receive
copies of the form, the public body shall generally describe the material
exempted unless that description 32 would reveal the contents of the exempt
information and thus defeat the purpose of the exemption.

Rudd v. Norton Shores 17-004334-CZ 14th Circuit Court, Michigan 4


24. Citizen complaints, are submitted on a form which is provided by (and presumably
designed by) the city of Norton Shores.

25. The City of Norton Shores also creates other documents for dissemination to recipients
who are not part of the internal affairs investigation.

26. The City of Norton Shores creates documents to advise the complainant of the outcome
of the investigation.

27. These records, or at least portions of these records, are public documents which are

subject to FOIA disclosure.

28. Defendant, a public body is required to separate exempt materials from non-exempt
material.

29. If any portion of these records are to be designated exempt under Sec. 13, the public body
must make an individualized determination on what would serve the public’s interest as it
pertains to each record.

30. Internal investigation reports, or portions thereof, which include privileged statements
made during the course of an internal investigation, may qualify for non-disclosure.

31. Defendant failed to separate exempt from non-exempt material and failed to consider less
restrictive measures such as redactions or production of a “Vaughn index.” Defendant did not
provide a “Vaughn Index” or otherwise describe the general nature of the records which were not
disclosed as required by Sec. 14. (2).

32. By asserting a blanket exemption over several categories of records, without giving each
individual category and record particularized consideration, defendant has violated the FOIA.

Rudd v. Norton Shores 17-004334-CZ 14th Circuit Court, Michigan 5


ALL COUNTS: Arbitrary & Capricious Violations of the FOIA
(defendant has not acted in good-faith)

33. Plaintiff incorporates herein by reference all preceding paragraphs.

34. It has been well established for more than a decade that the location of the records is not
determinative. On information and belief, the City of Norton Shores knew that no valid legal
basis existed to claim that a citizen complaint is transformed into a personnel record when placed
into a “personnel file.”

35. Defendant was fully apprised of the law at the time the FOIA request was denied, but still
required plaintiff to commence this civil action to compel the disclosure of citizen complaints
and corresponding documents which are not privileged.

36. Defendant expressed a broad and general claim that the public interest in non-disclosure
outweighs the public’s interest in disclosure when it comes to citizen complaints and any
corresponding documents. However, defendant has promptly disclosed citizen complaints and
corresponding documents when it serves defendant’s own interests.

37. Accordingly, the denial of plaintiff’s request demonstrates an arbitrary and unprincipled
violation of the FOIA.

38. Defendant has alleged concern that disclosure may cause citizens to refrain from coming
forward with future complaints. In the context of defendant’s previous actions, the justifications
asserted for non-disclosure appear to be capricious.

39. Defendant’s cursory “blanket denial” demonstrates a disregard for the well-established
legal standards and minimizes the duty of public officials to conduct government affairs with
impartiality and integrity.

Rudd v. Norton Shores 17-004334-CZ 14th Circuit Court, Michigan 6


WHEREFORE, Plaintiff petitions this Court for the following relief:

a. Order the City of Norton Shores to provide copies of all documents which are
deemed non-exempt by this court, regardless of the record location. MCL 15.240(4);

b. For any records, or portions of public records which are withheld or redacted,
require the City of Norton Shores to establish that records not disclosed are truly personnel
records AND that an exception is warranted because the public’s interest in disclosure is
outweighed by the public’s interest in non-disclosure. MCL 15.240(4);

c. At the court’s discretion, conduct an in camera review of any records which


remain in controversy. MCL 15.240(4);

d. Order the City of Norton Shores to pay any and all costs, fees, disbursements
incurred by plaintiff in bringing this independent action. MCL 15.240(6);

e. Order the City of Norton Shores to pay actual or compensatory damages for each
occurrence of a FOIA violation which is deemed arbitrary or capricious in nature. MCL
15.240(7);

f. Order the City of Norton Shores to pay additional punitive damages to plaintiff in
the amount of $1000 for each arbitrary or capricious violation. MCL 15.240(7);

g. Order the City of Norton Shores to pay a civil fine of $1,000.00 into the general
fund of the state treasury for any violations which are deemed arbitrary or capricious
violation. MCL 15.240(7);

h. Order defendant to pay the damages described in “g”, “h”, and “i” as mandated by
MCL 15.235(4), because defendant violated MCL 15.235(2) by failing to provide timely
notice of the partial denial;

i. If the court determines that defendant intentionally failed to comply with this act
or otherwise acted in bad faith, order defendant to pay an additional fine not less than
$2,500.00 or more than $7,500.00 for each occurrence (to be deposited in the state
treasury). MCL 15.240b;

Rudd v. Norton Shores 17-004334-CZ 14th Circuit Court, Michigan 7


j. Enter a judgement declaring that defendant has wrongfully, arbitrarily, and
capriciously withheld disclosure of citizen complaints and corresponding documents (or
portions thereof) which do not contain privileged internal investigation information;
k. Issue a permanent injunction barring the City of Norton Shores from (1) engaging
in preferential treatment of the citizens who submit FOIA determinations; and (2)

prohibiting the practice of applying a conclusory blanket exemption to any document which
is placed into a "personnel file."

Respectfully Submitted on \ A

m u^
Daniel W. Rudd, Plaintiff (In Pro Per)

PROOF OF SERVICE:
I, Daniel W. Rudd, under penalty of perjury, do declare and affirm that I served a copy of this
document to Michael Bogren, Attorney for Defendant, at the address noted in the caption, by
pre-paid first class mail. I placed this document in the mail for deliver on 1/12/2018.

Q3^
Daniel W. Rudd
rha/f?
date:

Rudd v. Norton Shores 17-004334-CZ 14th Circuit Court, Michigan

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