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### STATE OF MICHIGAN

COURT OF APPEALS

RODD MONTS,

Plaintiff-Appellant, UNPUBLISHED January 5, 2016

v No. 321790 Wayne Circuit Court DETROIT PUBLIC SCHOOL DISTRICT, LC No. 13-011037-CZ

Defendant-Appellee.

Before: R ONAYNE K RAUSE , P.J., and G LEICHER and S TEPHENS , JJ.

P ER C URIAM

.

The Freedom of Information Act, MCL 15.231 et seq ., requires a public body to make available certain public records on written request. To trigge r this disclosure obligation, a person must describe the information sought “sufficiently to enable th e public body to find the public record[.]” MCL 15.233(1). The Detroit Public School District concluded that plaintiff Rodd Monts’ FOIA request seeking “the t otal number of student discip line matters that have been referred to” the District’s police department or the Detroit Po lice Department could not be fulfilled, as the District does not “refer” disciplinary matter s to the police. Monts challenged this finding by filing suit. Adopting the District’s reasoning, the circuit court granted summary disposition in favor of the District.

We hold that the District unreas onably interpreted plaintiff R odd Monts’ FOIA request, as information routinely collected by the District specifically denotes whether “police [were] involved” in matters resulting in student discipline, and the D istrict’s data separately identifies incidents reported to the public by school officials. Plaintif f’s request sufficiently informed the
District that the informa tion sought could be found within its records. We reverse.

I.

Plaintiff Rodd Monts is employed by the American Civil Liberti es Union of Michigan as its “Field Director.” In that capacity, Monts mailed a FOIA re quest to the District’s FOIA coordinator seeking information regarding the relationship betw een student discipline in the Detroit Public Schools and police involvement in matters giving rise to disciplinary actions. Monts sought five different categories of information, which hi s FOIA request described as
follows:-2- This request concerns all middle schools and high schools with in the
Detroit Public School District. Please produce the following records retained in DPS Forms 4549, Forms A-N and all other locations:

1. The total number of students who have been suspended or expe lled during the past three academic years, categorized by: school, grade, i ncident date, race or ethnicity of the student, incident type (e.g., weapons, assault s, etc.), school hearing date, penalty imposed, penalty start date, expulsion he aring date,
attendance return date and current outcome.

2. The total number of student discipline matters that have bee n referred by school officials to DPS Police Depa rtment officials during the past three academic years, categorized by: school, gr ade, incident date, race or et hnicity of the student, and incident type.

3. The total number of student discipline matters that have bee n referred by
school officials to the Detroit P olice Department or other law enforcement agencies during the past three academic years, categorized by: school, grade, incident date, race or ethnicity of the student, and incident t ype.

4. All policies, procedures, memos, minutes, and other document s that govern school suspensions and ex pulsions, including policies an d procedures relating to disciplinary hearings and all policies and procedur es addressing the referral by school officials or student discipline matters to l aw enforcement
offiicals.

5. The total number of students that have been referred by scho ol officials to any program designed specifically as an alternative to suspensi on or expulsion, including in-school suspensions , restorative pr actices, positiv e behavior support initiatives, or similarly designed programs, and any documentat ion of outcomes from said alternative discipline programs; during the past thre e academic years, categorized by: program, school, grade, race or ethnicity, and gender. [Emphasis added.]

Monts closed his letter by stating: “If there are any questions or you require further information about this request, please cont act me at [telephone number omit ted]. Thank you for your courtesies and cooperation.”

Pursuant to the FOIA, the District was obligated to respond to Monts’ request within five business days. MCL 15.235(2). On the seventh business day, th e District sought a 10-day extension under MCL 15.235(2)(d). 1 After the extension period ex pired, the District’s FOIA
coordinator informed Monts: “I’ve been informed that additional time is needed to make every

1 MCL 15.235 was amended effective July 1, 2015. 2014 PA 563. Subsection (2) of MCL
15.235 was not affected.-3- effort to comply with your request; therefore, the District is requesting an additional extension [of fifteen days].” Fifteen days came and went, with no inform ation produced. After some prodding from Monts, the Distric t finally responded—just short of two months after its disclosure was due. The District granted Monts’ request for th e information summarized in the first paragraph of his request, promised that the information i n paragraphs four and five would be provided at a later date, and denied the information sought in paragraphs two and three, averring: “the requested infor mation does not exist.”

Thus, the District supplied Mo nts with records reflecting the number of students suspended or expelled during the preceding three academic years , categorized in the specific
manner Monts desired. The Distric t pledged that it would later produce its policies and procedures relating to discipl inary hearings and, notably, thos e “addressing the referral by school officials or student discipline matters to law enforcement,” as well as data reflecting the number of students “referred by school o fficials” to programs intended as alternatives to suspension or expulsion. The District claimed that records regarding student discipline matters “that have been referred by school officials” to po lice authorities did not exi st.

A few weeks later, the District fulfilled its promise to provi de Monts with the policies and procedures described in the fourth paragraph of his request . The documents included Form 4549, which Monts had specifically referenced in his initial FO IA request. The information contained within form 4549 concerns “disciplinary action” invol ving students and the “offense date,” “type of behavior,” and “offense code.” The form also i ncludes the job description of the person who reported the “offense” and whether the police were “ involved”:

The District also produced form 63, titled: “Undesirable Incide nt Report.” A “principal, security officer and others making a writt en report” fills out this form when an “undesirable incident” occurs. The form provides that “[a]ll serious cases involving police must be reported.” Spaces on the form seek information rega rding the “[t]ype of [i]nciden t” and the “[p]olice [i]nvolved.”

Monts appealed the District’s re fusal to produce materials res ponsive to requests two and-4- three. 2 As to the latter, Monts’ appeal letter maintained:

With regard to the denials of requests 2 and 3 dealing with po lice referrals to DPS and Detroit police on the ground that the information do es not exist, the ACLU would point out that the DPS Form 63 “Undesirable Incident Reports” includes a check box for police involvement by “In-school’ or “ Precinct” officers. The ACLU requests reversal of the denials for the reason that the requested information does exist in the Undesir able Incident Reports and elsewhere. The required completion and submissi on of these forms indicates a p rocess for collection of the requested information, thus the contents of t he forms collected during the parameters of the original request should be forward ed to us in an expeditious manner. [Emphasis added.]

The District upheld its denial of the information sought in par agraphs two and three, reiterating that “the requested information does not exist.” Monts then fi led this civil action.

Monts’ complaint recites the facts we have summarized above, a nd adds two salient references. The first is MCL 380.1310a, which requires that sc hool boards report annually to the superintendent of public instruction “incidents of crime occurr ing at school within the school district.” The report must inc lude “at least crimes involving physical violence, gang-related activity, illegal possession of a c ontrolled substance or contr olled substance analogue, or other intoxicant, trespassing, and property crimes including, but notlimited to, theft and vandalism.” MCL 380.1310a(2). Monts’ complaint also indicates that DPS pol ice leadership had assured Monts that such information was tracked on a regular basis. Su pporting that claim, Monts attached a 2013 memorandum prepared by Inspector Michael Walsh of the Detroit Public Schools which summarizes the “[p]olice [r]eports processed” dur ing the 2013 school year, the number of persons (adults and juveniles) arrested, and the “[c] rimes reported to [the Detroit Public Schools Police Department] this . . . school year (based on reports received).” The list identifies the number of each particular crime (such as “[r]obb ery [a]rmed” and “[n]arcotics [i]ncidents”) reported.

Approximately two months after Monts filed his complaint, the District’s counsel produced new material “in response to Item #2” of Monts’ origin al FOIA request. One of the documents, identified in the record as exhibit 10 to the Distri ct’s summary disposition motion, details the circumstances surrounding the expulsion of dozens o f students. The list sets forth each expelled student’s birth date, grade, school, and the natu re and date of the “incident.” According to the exhibit, each of the incidents listed relates to criminal conduct. A second document (exhibit 7) lists the dat es of particular crimes, the school at which the crime occurred, and includes information regardi ng whether an arrest was made.

2 MCL 15.240(1) permits a requesting party to appeal a public bo dy’s “final determination to deny all or a portion or a request[.]” Within 10 days of the a ppeal, the public body must reverse its decision, “issue a written no tice to the requesting person upholding the disclosure denial,” or
reverse the disclosure denial in part. MCL 15.240(2). Amendme nts that took effect on July 1, 2015, clarify that the public body ha s “10 business days” to re ach its decision. 2014 PA 563.-5- The District moved for summary disposition under MCR 2.116(C)( 8) and (10), asserting that “a reasonable search for the requested records was made, h owever, the records requested in Paragraphs 2 and 3 do not exist.” 3 According to the District’s brief, the information contained in its forms, including Form 4549, did not relate to “student disc ipline matters” that had been “referred” to a police authority. Monts filed a cross-motion f or summary disposition, contending that the information he sought was readily retrievable from for ms 4549 and 63 and the reports generated pursuant to MCL 380.1310a. Further, Monts contended, the information provided after the lawsuit commenced was responsive to his FOIA request, and should have been produced in a timely fashion.

The circuit court ruled that Monts’ request was not “clear,” a nd that the District was “kind of hamstrung on exactly what was requested.” The informa tion eventually produced, the court determined, “wasn’t neces sarily responsive” to Monts’ req uest, thereby precluding summary disposition in Monts’ favor. The court instead granted summary disposition to the District. Monts now appeals.

II.

This FOIA dispute involves whether the District complied with its FOIA obligations when it denied paragraphs two and three of Monts’ request on th e ground that responsive information did not exist. Because this issue comes to us by w ay of a grant of summary disposition under MCR 2.116(C)(10), we review de novo whether a n appropriate factual basis supported the circuit court’s ruling. See Coblentz v Novi , 475 Mich 558, 567-568; 719 NW2d 73 (2006). We review de novo whether the circuit court properly i nterpreted the FOIA. Herald Co, Inc v Eastern Michigan Univ Bd of Regents , 475 Mich 463, 470; 719 NW2d 19 (2006). The
burden rests on the District to justify its refusal to produce information responsive to Monts’
request. Herald Co v Bay City , 463 Mich 111, 119; 614 NW 2d 873 (2000). The District’s “burden is a ‘heavy’ one,” and it is the duty of this Court to determine whether it has been met. United Plant Guard Workers of America v Dep’t of State Police , 118 Mich App 292, 295; 324 NW2d 611 (1982).

III.

The FOIA requires public bodies t o grant “a written request th at describes a public record sufficiently to enable the public body to find the public recor d[.]” MCL 15.233(1). This obligation correlates with FOIA’s “broadly declared legislative policy” of “full disclosure of public records” sought by an interested citizen. Herald Co , 463 Mich at 118. In Herald Co , our Supreme Court explained that “th e FOIA is a prodisclosure statu te” that “does not establish detailed requirements for a valid request.” Id . at 119-120. The Court emphasized that consistent with the Act’s stated purpose affording inquiring persons “full and complete information

3 Defendant filed two affidavits signed by employees who averred that they “made a reasonable search for the records requested” in Monts’ FOIA request, but t hat “[t]he records requested do not exist and the information requ ested is not stored in any da tabase maintained by the Detroit Public Schools’ Office of Code of Conduct” or its “Police Depar tment.”-6- regarding the affairs of governme nt,” the Legislature elected a gainst imposing “detailed or technical requirements as a pr econdition for granting the publi c access to information. Instead,” the Court continued, “the Legislature simply required that any request be sufficiently descriptive to allow the public body to find public records containing the information sought.” Id . at 121 (quotation marks and citation omitted).

The question in this case is wh ether the following two paragra phs of Monts’ request “sufficiently” described informa tion within the District’s poss ession:

Please produce the following records retained in DPS Forms 4549 , Forms A-N,
and all other locations:

* * *

2. The total number of student discipline matters that have bee n referred by school officials to DPS Police Depa rtment officials during the past three academic years, categorized by: school, gr ade incident date, race or eth nicity of the student, and incident type.

3. The total number of student discipline matters that have bee n referred by
school officials to the Detroit P olice Department or other law enforcement agencies during the past three academic years, categorized by s chool, grade, incident date, race or ethnicity of the student, and incident t ype.

Monts points out that information could have been gathered from the District’s own forms, which contain information directly relevant to the number of “s tudent discipline matters . . . referred by school officials” to either the Detroit Police Depa rtment or the DPS Police Department. Essentially, Monts contends, the information he so ught was that which MCL 380.1310a required the District to gather and report. Monts hi ghlights that he conveyed this point to the District i n his appeal by stating:

The ACLU requests reversal of the denials for the reason that t he requested information does exist in the Undesirable Incident Reports and elsewhere. The required completion and submissi on of these forms indicates a p rocess for collection of the requested information, thus the contents of t he forms collected during the parameters of the original request should be forward ed to us in an expeditious manner.

The District insists that the forms “do not delineate whether the offenses were committed by students and whether students received discipline .” (Emphases in original.) Moreover, the District insists, “[s]tudent dis cipline matters are not referre d to the police department,” and
therefore no connection exists be tween student d iscipline matte rs and the police.

Our review of the District’s forms and the information belated ly produced resolves this dispute. The heading for form 4549 describes the form’s conten ts as “Detroit Public Schools Student Code of Conduct Disciplin ary Action.” The information compiled on the form includes the “school’s name,” the “student’s name,” the “offense date,” and the “offense code.” The person completing the form must indicate by checking “yes” or “ no” whether there were “police-7- involved” in the “disciplinary action.” Plainly, this form rel ates directly to “disciplinary action” involving students and the poli ce. Form 63, headed “Detroit Pu blic Schools Undesirable Incident Report,” similarly requires the person filling in the blanks to state whether police were “[i]nvolved,” and if so, to check a box for “[i]n-school [o]ffi cer,” “[o]ther,” or “[ p]recinct [c]all.” Production of these two forms (with any personal information re dacted) would have satisfied Monts’ request. In other word s, the information Monts sought i n paragraphs two and three of his FOIA request existed on the District’s forms.

Moreover, the two data summarie s provided to Monts after the l itigation commenced delineate information directly r elevant to paragraphs two and t hree of Monts’ FOIA request. Exhibit 10 lists “school discip line matters” organized by “scho ol, grade, incident date . . . and incident type.” Exhibit 7 is bro ader, in that it summarizes cr imes committed by students and non-students on school property. The two exhibits plainly fell within the ambit of Monts’ FOIA request. The District has offered no explanation for its failu re to timely produce these data compilations in response to Monts’ FOIA request rather than wel l after litigati on was underway. Accordingly, the circuit court e rred in concluding that the Dis trict’s submission of these documents was unresponsive to Monts’ request and that the docum ents were therefore irrelevant.

We cannot accept the District’s hyper-technical claim that bec ause its schools did not “refer” disciplinary matters to police authorities, it was unde r no obligation to provide Monts with the documents ultimately p roduced, or redacted copies of f orms 4549 and 63. In Coblentz

, 475 Mich at 572, our Supreme Court rejected a similar argument, observing that the defendant’s “restrictive reading of the FOIA request” was “not consistent w ith the language of the act.” The Court emphasized that the FOIA is a user-friendly statute, inte nded as an easily-opened gateway to public information: “All thata request must accomplish is t o describe the record ‘sufficiently’ to enable the public body to identify it.” Id. The Court continued:

The Legislature chose not to require an exacting standard in M CL 15.233(1). It could have required a “written request that desc ribes a public record precisely or fully.” But, instea d, the Legislature chose to us e the lesser standard of “sufficiently.” The words chosen by the Legislature are pre sumed intentional. We will not speculate that it used one word when it meant anoth er. [ Id .]

Monts’ description of the infor mation he sought was not perfec t, in that “student discipline matters” such as the decision whether to expel or su spend a student are the business of the school, and are not “referred” to the police. But successf ul use of the FOIA does not depend on drafting lawyerly requests. In common-sense, everyday parla nce, Monts’ request obviously sought matters of student discip line in which the police had be come involved through referral by a school employee. This is precisely the information contained within forms 4549 and 63. Had the District produced the forms in addition to the documents it eventually ceded, it would have fulfilled its FOIA obligation. 4

4 In this regard we respectfully disagree with our dissenting co lleague’s characterization of the facts as an “extrapolation.” The District was well aware that some disciplinary actions wound up-8- The District’s rigid, mechanical approach to Monts’ FOIA reque st runs counter to the letter of MCL 15.233(1), and the prodisclosure spirit of the ac t. Monts’ appeal further sufficed to notify the District that its own forms constituted the publi c records that would satisfy his request. That Monts’ language may have been somewhat imprecise does not justify the District’s refusal to make a good faith effort at compliance, o r to call to Monts’ attention that the
District was confused about his us e of the term “referred.”

In summary, paragraphs two and three of Monts’ FOIA request, c ombined with the explanation he provided on admi nistrative appeal, sufficed to a llow the District to find the information Monts sought. That the original request itself ide ntified form 4549, and Monts later
informed the District that form 63 also contained the informati on he wanted, buttresses our
conclusion. The District’s failure to allow Monts access to re dacted copies of forms 4549 and 63, and to timely produce the exhibits it eventually provided, violated the FOIA. Accordingly,
the circuit court er red by failing to grant summary disposition in Monts’ favor.

We reverse and remand for further proceedings consistent with this opinion. We do not retain jurisdiction.

/s/ Elizabeth L. Gleicher /s/ Cynthia Diane Stephens

as police referrals. Monts sought the forms reflecting which d isciplinary matters were reported to the police. No guessw ork was required.