-1- 

STATE OF MICHIGAN 

COURT OF APPEALS 

TERRY LEE ELLISON, 

 Plaintiff-Appellant, 

FOR PUBLICATION 

June 13, 2017 

9:00 a.m. 

v No. 336759 

Court of Claims 

DEPARTMENT OF STATE, LC No. 16-000183-MZ 

 Defendant-Appellee. 

Before: SWARTZLE, P.J., and SAAD and O’CONNELL, JJ. 

O’CONNELL, J. 

 Plaintiff, Terry Lee Ellison, appeals by right the January 26, 2017 order of the Court of 

Claims granting summary disposition under MCR 2.116(I)(2) (opposing party entitled to 

judgment) to defendant, Michigan Department of State, on plaintiff’s claims under the Freedom 

of Information Act (FOIA), MCL 15.231 et seq. The Court of Claims erred by concluding that a 

computerized database was not a public record, but because plaintiff did not pay the appropriate 

fee for the records he sought, we affirm. 

I. FACTUAL BACKGROUND 

 Plaintiff’s allegations included that on March 31, 2016, defendant notified plaintiff that it 

was canceling his license plate and registration because it was unable to verify his insurance. 

Plaintiff submitted appeal paperwork, but his license plate was forfeited. After calling 

defendant’s insurance fraud unit and speaking with numerous workers, defendant reversed its 

forfeiture decision and reinstated plaintiff’s license plate. 

 On July 6, 2016, plaintiff sent defendant a FOIA request that included two distinct 

requests. First, plaintiff requested “any and all” information related to the full name, address, 

vehicle plate or registration number, vehicle ID number, insurance audit date, date of most recent 

vehicle renewal, and fee category for all vehicle registrants that defendant notified about an 

inability to verify proof of insurance at renewal. Second, in the alternative, plaintiff requested 

that defendant provide paper copies of the letters it sent resulting from the same circumstances. 

 Defendant denied plaintiff’s first request under MCL 15.233 and MCL 15.235(4)(b) on 

the basis that it did not possess a responsive record and was “not required to make a compilation, 

summary, report of information, or create a new public record.” Defendant denied plaintiff’s 

second request because he had not completed a record lookup request form and paid a fee for 
-2- 

each record. At her deposition, defendant’s FOIA coordinator Michelle Halm testified that she 

denied plaintiff’s FOIA request because the computerized system did not provide an electronic 

output, there was no way to create an output, and defendant was not required to create one. 

 Joe Rodriguez testified at his deposition that he is the assistant administrator of 

defendant’s Office of Customer Services. He was familiar with the insurance database, which 

included some of the information—such as registration, VIN numbers, and customer 

information—that plaintiff sought. Rodriguez testified that it was not possible to simply copy 

the database because it had a front end and a back end, and the front end was shared between all 

the users on the staff. However, it would be possible to copy the database’s back-end tables onto 

a jump drive. 

 On August 2, 2016, plaintiff filed his complaint in this action, seeking an order 

compelling FOIA disclosure, a fine, punitive damages, and costs. Plaintiff alleged that defendant 

improperly denied his first FOIA request because it maintained an electronic database with the 

information he sought, and improperly denied his second FOIA request because he was entitled 

to the records through FOIA rather than through the Michigan Vehicle Code (MVC)1

commercial lookup service. Plaintiff moved for summary disposition under MCR 2.116(C)(10) 

(no genuine issue of material fact), asserting that defendant violated FOIA by requiring him to 

use the MVC service and by not providing a copy of its electronic database in response to his 

FOIA request. 

 Defendant responded by moving for summary disposition under MCR 2.116(I)(2), 

arguing that plaintiff had requested personal information that was exempt from disclosure and 

that the records plaintiff sought did not exist, and defendant was not required to create a new 

record that would be responsive to plaintiff’s request. Additionally, the MVC required defendant 

to charge a person a fee for each record contained in a computerized file, and plaintiff did not 

submit his request in the proper format because he failed to submit the proper fees. 

 The Court of Claims granted summary disposition to defendant on plaintiff’s first request 

on the basis that the record did not exist in the form sought by plaintiff. It reasoned that the 

database contained “some or most of the information,” but it was not a public record because 

“there was no routinely generated report containing this information.” It additionally reasoned 

that defendant was not required to compile or summarize the database or create a new record. 

 Regarding plaintiff’s second request, the Court of Claims refused to consider defendant’s 

personal information exemption request because defendant did not cite the exemption when 

denying plaintiff’s request, nor did defendant make any argument before the court on the 

balancing test employed in evaluating the exemption. However, the Court of Claims determined 

that defendant properly denied plaintiff’s request because plaintiff had not met the statutory 

requirement to pay the statutory fee under the MVC. 

II. STANDARDS OF REVIEW 

 

1

 MCL 257.1 et seq. 
-3- 

 This Court reviews de novo the trial court’s decision on a motion for summary 

disposition. Herald Co v Bay City, 463 Mich 111, 117; 614 NW2d 873 (2000). MCR 

2.116(I)(1) provides that “[i]f the pleadings show that a party is entitled to judgment as a matter 

of law, or if the affidavits or other proofs show that there is no genuine issue of material fact, the 

court shall render judgment without delay.” A genuine issue of material fact exists if, when 

viewing the record in the light most favorable to the nonmoving party, reasonable minds could 

differ on the issue. Gorman v American Honda Motor Co, Inc, 302 Mich App 113, 115; 839 

NW2d 223 (2013). 

 We also review de novo issues of statutory interpretation. Herald, 463 Mich at 117. The 

goal of statutory interpretation is to discern the Legislature’s intent from the words expressed in 

the statute. Id. “If the language of a statute is clear and unambiguous, the plain meaning of the 

statute reflects the legislative intent and judicial construction is not permitted.” Id. at 117-118. 

III. ANALYSIS 

 First, plaintiff argues that an insurance database itself is a public record and defendant 

improperly denied plaintiff’s request because the database was responsive to his request. We 

conclude that there is a question of fact on whether defendant could simply copy the relevant 

database file or instead defendant would have to create or alter a record. 

 FOIA broadly provides that “all persons . . . are entitled to full and complete information 

regarding the affairs of government and the official acts of those who represent them as public 

officials and public employees, consistent with this act.” MCL 15.231. Accordingly, “FOIA’s 

specific provisions generally require the full disclosure of public records in the possession of a 

public body.” Herald, 463 Mich at 118. 

 FOIA defines “public record” as “a writing prepared, owned, used, in the possession of, 

or retained by a public body in the performance of an official function, from the time it is 

created.” MCL 15.232(e). FOIA defines “writing” as 

handwriting, typewriting, printing, photostating, photographing, photocopying, 

and every other means of recording, and includes letters, words, pictures, sounds, 

or symbols, or combinations thereof, and papers, maps, magnetic or paper tapes, 

photographic films or prints, microfilm, microfiche, magnetic or punched cards, 

discs, drums, or other means of recording or retaining meaningful content. [MCL 

15.232(h).] 

For the purposes of FOIA, writings include “electronic copies and computer tapes.” City of 

Warren v Detroit, 261 Mich App 165, 172; 680 NW2d 57 (2004) (citations omitted). 

 If a writing exists in an electronic format, the plaintiff is entitled to an electronic copy. 

Farrell v Detroit, 209 Mich App 7, 14; 530 NW2d 105 (1995). See MCL 15.234(1)(c). 

However, subject to exceptions that do not apply in this case, FOIA “does not require a public 

body to make a compilation, summary, or report of information,” MCL 15.233(4), and “does not 

require a public body to create a new public record . . . .” MCL 15.233(5). 
-4- 

 In Warren, 261 Mich App at 173, this Court determined that a computer formula used to 

calculate water and sewer rates was a public record. In that case, the defendant argued that the 

formula did not exist in the form of a public record because it was not itself a document or 

computer disk. Id. at 172. This Court rejected the argument because the formula was 

information stored in a computer and was used during a computing process in the same way that 

entered data would be. Id. at 171. The Court further reasoned: 

We can discern no reason why the formula contained on the computer disk would 

be different than those types of electronic recordings already recognized as 

“writings” by this Court. To hold otherwise would allow public bodies to hide 

behind the exception by creating and maintaining public records within software 

and on computer disks only. [Id. at 173.] 

 In this case, the database contained some of the information plaintiff sought, including 

the names, addresses, vehicle ID numbers, registration, and insurance audit information. It was 

not necessary for defendant to generate a report from the database for it to be a public record. 

The database itself was a writing because it was information stored in a computer, Warren, 261 

Mich App at 172-173, that defendant used to perform an official function, MCL 15.232(e). The 

Court of Claims erred when it held that the database was not a public record. 

 Defendant responds that disclosing the information stored on the database would have 

required it to create a new record because the database did not contain only the information 

plaintiff sought. Summary disposition on these grounds would be improper because there is a 

question of fact regarding whether defendant could have copied the database without creating a 

new, more specifically responsive record. 

 A FOIA request need only be descriptive enough that a defendant can find the records 

containing the information that the plaintiff seeks. Herald, 463 Mich at 121. When a plaintiff 

does not ask the defendant to create a new record, “the fact that the [defendant] had no obligation 

to create a record says nothing about its obligation to satisfy plaintiff’s request in some other 

manner . . . .” Id. at 122. In this case, simply because defendant could have created a strictly 

responsive record does not mean that it could not have satisfied plaintiff’s request by copying the 

back-end tables. Plaintiff requested “any” information that was included in its list. The 

database’s tables contained much of the information plaintiff sought. 

 Rodriguez’s testimony about whether he could copy the tables containing the information 

plaintiff sought without needing to create a new record was self-contradictory. Rodriguez 

testified that he could not simply copy the entire database onto a jump drive. He testified that to 

put the entire database on a thumb drive, he “would have to change the programming . . . .” 

Rodriguez testified that he would have to program the database to give him specific output, like 

names and addresses.2

 But he also testified that he could copy the back-end tables onto a jump 

drive. The types of information plaintiff sought were stored as fields in the database tables. 

 

2

 Such a query would necessarily compile and create a report of the information, which the FOIA 

does not require defendant to do. See MCL 15.233(4). See Warren, 261 Mich App at 173. 
-5- 

Rodriguez’s self-contradictory testimony created a question of fact regarding whether defendant 

could have provided plaintiff the information he sought by simply copying the database’s backend tables or whether defendant could not do so without creating a new compilation of the data. 

 However, this Court need not reverse or vacate a trial court’s order unless doing so 

appears to this Court to be inconsistent with substantial justice. MCL 2.613(A). The trial court’s 

error is harmless if it is not decisive to the case’s outcome. See Ypsilanti Fire Marshal v Kircher 

(On Reconsideration), 273 Mich App 496, 529; 730 NW2d 481, vacated and remanded in part on 

other grounds 480 Mich 910 (2007). We conclude that the Court of Claim’s error does not 

require reversal because plaintiff did not submit the appropriate fees for the records he sought. 

 The MVC provides that a person seeking records may proceed through either the MVC or 

FOIA: 

 Records maintained under this act, other than those declared to be 

confidential by law or which are restricted by law from disclosure to the public, 

shall be available to the public in accordance with procedures prescribed in this 

act, the freedom of information act, . . . or other applicable laws. [MCL 

257.208a.] 

The word “or” is a disjunctive term that allows a choice between alternatives. Michigan v 

McQueen, 293 Mich App 644, 671; 811 NW2d 513 (2011). But while plaintiff is correct that he 

may proceed under FOIA or the MVC, this does not mean that FOIA’s fee provision applies. 

 FOIA allows a public body to charge a fee to respond to a public record search. MCL 

15.234(1). For records on “nonpaper physical media,” this fee is “the actual and most reasonably 

economical cost of the computer discs, computer tapes, or other digital or similar media.” MCL 

15.234(1)(c). However, FOIA’s fee provisions “do[] not apply to public records prepared under 

an act or statute specifically authorizing sale of those public records to the public, or if the 

amount of the fee for providing a copy of the public record is otherwise specifically provided by 

an act or statute.” MCL 15.234(10). 

 In this case, defendant maintains the database pursuant to the requirements of the MVC. 

The MVC provides that records maintained under the act “shall be available to the public.” 

MCL 257.208a. The database is therefore a public record maintained under the MVC. The 

MVC specifically provides that the Secretary of State may provide a commercial lookup service 

of records maintained under the MVC. MCL 257.208b(1). A fee shall be charged for each 

record looked up. Id. The fee is established annually by the Legislature or the Secretary of 

State. Id. Therefore, FOIA’s fee does not apply because the records are prepared under an act 

that specifically authorizes sale of its records to the public, and the act specifically provides the 

amount of the fee. 

 The fact that plaintiff is seeking a database rather than individual paper records is not 

determinative. The MVC expressly addresses this scenario: 

The secretary of state shall not provide an entire computerized central file or other 

file of records maintained under this act to a nongovernmental person or entity, 
-6- 

unless the person or entity pays the prescribed fee for each individual record 

contained within the computerized file. [MCL 257.208b(9).] 

The term “shall” is mandatory. Walters v Nadell, 481 Mich 377, 383; 751 NW2d 431 (2008). 

 The database in this case is a computerized central file that contains records for numerous 

individual persons. Accordingly, MCL 257.208b(9) prohibits defendant from providing plaintiff 

with the database unless defendant charges plaintiff a fee for each individual record that the file 

contains. Halm estimated that this fee would be an estimated $1.6 million in this case, and it is 

undisputed that plaintiff has not paid this amount. Accordingly, the Court of Claims correctly 

concluded that defendant had grounds to deny plaintiff’s FOIA request because plaintiff had not 

paid the statutorily required fee. 

 We affirm. 

/s/ Peter D. O’Connell 

/s/ Brock A. Swartzle 

/s/ Henry William Saad