In Arabo v Michigan Gaming Control Board, No. 318623, the Michigan Court of Appeals considered whether requiring a good faith deposit of one-half the assessed fee associated with fulfilling a request under the Freedom of Information Act (“FOIA”) constitutes a denial of that request. The court held that a public body may require the payment of a portion of these fees before it begins the process of producing the requested public documents. Such payment is a prerequisite of the request and therefore a request cannot be said to be denied where the deposit has not been paid.
Plaintiff Peter Arabo made a request to the Michigan Gaming Control Board (“the Board”) to produce documents under the FOIA. Specifically, the plaintiff requested documents regarding countermeasures approved by the Board authorizing Detroit casinos to prevent card counters from profiting at blackjack as well as any rules or laws of the Board that allow the casinos to exclude skillful players from any game. The Board received the request and responded that this request implicates 6,206 pages of responsive information, which would take approximately 103 hours for an employee to retrieve and redact exempt information and which would ultimately cost the Board approximately $4,303.34. Because section 4(2) of the FOIA permits a public body to charge a fee equal to the expense of producing the documents, with up to one-half of that amount payable up front as a good-faith deposit, the Board requested a deposit from the plaintiff of $2,151.67 to process his request.
Rather than pay this deposit, Arabo filed a complaint alleging first, that the Board had wrongfully denied his request and second, that the Board had imposed excessive fees to process this request. The trial court granted summary disposition in favor of the Board on both counts. On appeal, the Court of Appeals affirmed summary disposition of count one stating that the fact that the plaintiff had not paid the requested deposit meant that the Board had no obligation to make a final determination regarding his request. Therefore, the request could not have been improperly denied. However, the court reversed the trial court’s grant of summary disposition on the second count, holding that the plaintiff might have a valid claim for excessive fees and while the FOIA may not allow for monetary damages for such a claim, he could seek declaratory and injunctive relief.
On appeal, the plaintiff also contends the trial court abused its discretion by denying each of his three discovery requests. The plaintiff requested that the Board provide an index of all responsive records, that he be allowed to inspect the process undertaken by the Board in identifying responsive records or alternatively allow him to inspect the records described as responsive to his request, and that he be allowed to depose the Board’s staff member who determined that the 6,000 plus pages fell within the scope of his FOIA request. The trial court granted a protective order in favor of the Board and denied all three discovery requests. The Court of Appeals affirmed the denial of the index and inspection requests as unduly burdensome, but reversed the denial of the deposition as an abuse of discretion.
