If this opinion indicates that it is “FOR PUBLICATION,” it is subject to 

revision until final publication in the Michigan Appeals Reports.

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S T A T E O F M I C H I G A N

C O U R T O F A P P E A L S

MICHIGAN RECORD COMPANY,

Plaintiff-Appellant,

UNPUBLISHED

August 17, 2023

v No. 363736

Court of Claims

DEPARTMENT OF STATE POLICE, LC No. 22-000036-MZ

Defendant-Appellee.

Before: YATES, P.J., and BORRELLO and PATEL, JJ.

PER CURIAM.

In this action under the Freedom of Information Act (FOIA), MCL 15.231 et seq., plaintiff, 

Michigan Record Company (MRC), appeals as of right the Court of Claims’ order denying 

plaintiff’s motion for summary disposition under MCR 2.116(C)(10) and instead granting 

defendant’s motion for summary disposition under MCR 2.116(I)(2). For the reasons set forth in 

this opinion, we affirm.

I. BACKGROUND

On February 28, 2022, plaintiff e-mailed and delivered via regular mail to defendant a 

FOIA request that stated, in part:

In accordance with the Michigan Freedom of Information Act, MCL 15.231 

et seq, I am formally requesting the following information, which I believe is used 

by, in the possession of, or under the control of your governmental/public body:

Any and all records, information and/or communication regarding police 

reports, dash or bodycam footage and/or recordings, and other documents or 

electronic communications dealing with Justin Ernst of Decatur, Michigan during 

September and October of 2021[.]

I am also requesting a copy of all FOIA procedures and guidelines and the 

written public summary with your response, as required to be provided free 

pursuant to MCL 15.234.
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Plaintiff further stated in the request: “I am willing to pay reasonable fees for the fulfillment of 

this request. However, if the cost of locating and copying the information exceeds $10.00, please 

contact me before proceeding.”

On March 22, 2022, after plaintiff did not receive a response from defendant, plaintiff filed 

a two-count complaint against defendant for violating the requirements of the FOIA. Defendant 

explained in a motion for summary disposition that it had no record of receiving plaintiff’s alleged 

FOIA request. Defendant included an affidavit of its Section Manager of the Records Resource 

Section, Lori M. Hinkley, who stated that she searched for the alleged FOIA request submitted by 

plaintiff and concluded that defendant “has no record of receiving what Plaintiff identifies in its 

complaint as a FOIA request” via e-mail or mail. Next, on May 18, 2022, the Court of Claims 

ordered defendant “to respond to the FOIA request in accordance with the time limitations and 

other requirements of FOIA, as measured from the date on which this order is entered.” However, 

unbeknownst to the court when it issued its order, defendant had apparently “found” plaintiff’s 

request and issued a written response on April 29, 2022, to plaintiff’s FOIA request. Defendant’s

response stated, in relevant part: 

Your request is granted as to existing, non-exempt records in the possession 

of the MSP that fall within the scope of your request. To process your request, the 

MSP estimates a FOIA processing fee of $70.67 to search for, retrieve, review, 

examine, and separate exempt material, if any.

* * *

As set forth under section 4(14) of the FOIA, MCL 15.234(14), if a fee 

appeal has not been filed under section 10a of the FOIA, MCL 15.240a, the MSP 

must receive the required deposit within 45 days after your statutorily-determined

receipt of this notice, which is June 16, 2022, otherwise the FOIA request will be 

considered abandoned, and the MSP will not be required to fulfill the request.

Upon receipt of the deposit, the MSP will complete the processing of your 

request. You will be notified of the balance due before release of the records, and 

of the statutory basis for the exemption of any records or portions of records, and 

of your statutory remedial rights, if applicable. The MSP estimates a processing 

time of two business days after receipt of payment.

The parties informed the court of defendant’s written response to plaintiff’s FOIA request via a 

joint motion filed by the parties on May 25, 2022. It is undisputed that plaintiff did not pay or 

appeal the requested good-faith deposit.

On August 12, 2022, plaintiff filed a motion for summary disposition under MCR 

2.116(C)(10). Plaintiff argued that defendant’s response to plaintiff’s FOIA request was improper;

that defendant could not assess a fee for the request because it did not result in unreasonably high 

costs to defendant, which plaintiff alleged had “a nearly $1 billion budget;” and that Arabo did not 

apply to this case because it was decided under a version of the FOIA that has since been amended. 

Defendant responded to plaintiff’s motion, arguing that the court should deny plaintiff’s motion 

and instead enter summary disposition for defendant under MCR 2.116(I)(2). Defendant argued 
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that the court lacked subject-matter jurisdiction because plaintiff failed to pay the good-faith 

deposit or appeal the assessed fee within 45 days as required by MCL 15.234(14).

The Court of Claims concluded that it lacked subject-matter jurisdiction to decide the 

merits of plaintiff’s FOIA claim stating: 

As discussed below, the issue whether the MSP’s April 29, 2022, letter constituted 

a “final decision” of plaintiff’s FOIA request hinges on whether plaintiff was 

required to pay the deposit (or challenge the fee) before the MSP provided a final 

decision. So the Court will consider whether the April 29, 2022 response was a 

“final decision” in the context of deciding whether plaintiff properly and timely 

challenged the fee request. 

The court found this case to fall “squarely” within this Court’s holding in Arabo, explaining:

Before providing a final decision that addressed any FOIA exemptions, the MSP 

informed plaintiff that it would need to pay a deposit. The MSP provided a detailed 

itemization of the fee, provided an estimated time frame to fulfill the FOIA request, 

and instructed plaintiff to pay the deposit or appeal the fee within 45 days (or by 

June 16, 2022). Like the agency in Arabo, the MSP stood ready to process the

FOIA request and issue its final decision regarding the FOIA exemptions upon 

payment of the required deposit. See Arabo, 310 Mich App at 388-389. So the 

MSP complied with its obligations under FOIA and in this Court’s May 18, 2022, 

order when it issued the April 29, 2022, response letter.

But plaintiff did not pay the deposit or challenge the amount of the fee in an 

appeal to the head of the agency (or in this Court) within the 45-day time frame.

Instead, plaintiff first challenged the reasonableness of the fee in its motion for 

summary disposition nearly four months after receipt of the MSP’s letter. Plaintiff 

does not explain why it did not appeal the fee to the agency or in this Court (such 

as through a motion to amend the complaint) within 45 days of receipt. The Court 

declines to consider plaintiff’s untimely (and unpleaded) challenge to the MSP’s 

fee assessment. Because plaintiff did not challenge the fee within 45 days, it 

abandoned its FOIA request. See MCL 15.234(14). The MSP, therefore, never 

issued a final determination for this Court’s review. See MCL 15.235(8) and MCL 

15.240(1). Accordingly, the Court lacks jurisdiction to decide the merits of 

plaintiff’s FOIA claim, and the MSP is entitled to summary disposition. 

This appeal followed.

II. ANALYSIS

Plaintiff argues that defendant’s response to plaintiff’s FOIA request was improper under 

King v Mich State Police Dep’t, 303 Mich App 162; 841 NW2d 914 (2013); that Arabo was an 

inappropriate precedent for the Court of Claims to base its decision upon; and that a request for a 

deposit does not automatically constitute a condition precedent to a public body making its final 

determination. Plaintiff further argues that the Court of Claims should have issued an order to 
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compel production of all the records that defendant has in its possession that do not have any basis 

for an exemption.

This Court reviews a trial court’s ruling on a motion for summary disposition de 

novo. Allstate Ins Co v State Farm Mut Auto Ins Co, 321 Mich App 543, 550; 909 NW2d 495 

(2017). Statutory interpretation is an issue of law that is also reviewed de novo. People v Morey,

461 Mich 325, 329; 603 NW2d 250 (1999). Under MCR 2.116(I)(2), “[i]f it appears to the court

that the opposing party, rather than the moving party, is entitled to judgment, the court may render

judgment in favor of the opposing party.” Aguirre v Michigan, 315 Mich App 706, 713; 891 NW2d

516 (2016). ”The trial court appropriately grants summary disposition to the opposing party under

MCR 2.116(I)(2) when it appears to the court that the opposing party, rather than the moving party,

is entitled to judgment as a matter of law.” Allstate, 321 Mich App at 552, quoting Rossow v

Brentwood Farms Dev, Inc, 251 Mich App 652, 658; 651 NW2d 458 (2002).

“Michigan’s FOIA grants the public an opportunity to examine and review the workings 

of government and its executive officials.” Hjerstedt v Sault Ste Marie, ___ Mich App ___, ___; 

___ NW2d ___ (2023) (Docket No. 358803); slip op at 4. The FOIA provides that all persons, 

unless incarcerated, “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(2). The statute further provides:

Except as expressly provided in [MCL 15.2431], upon providing a public 

body’s FOIA coordinator with a written request that describes a public record 

sufficiently to enable the public body to find the public record, a person has a right 

to inspect, copy, or receive copies of the requested public record of the public body. 

[MCL 15.233(1).]

Under MCL 15.235(2), “a public body shall, subject to [MCL 15.235(10)], respond to a 

request for a public record within 5 business days after the public body receives the request by”

granting the request, issuing a written notice to the requesting person denying the request, granting 

the request in part and issuing a written notice denying the request in part, or issuing a notice 

extending the response time by 10 days. See also Arabo, 310 Mich App at 380. The failure to 

respond to a request within the required number of business days, or the denial of a request in part 

or in whole, constitute a “final determination” as to the FOIA request. See MCL 15.235(3); MCL 

14.235(5). MCL 15.240(1) provides:

If a public body makes a final determination to deny all or a portion of a 

request, the requesting person may do 1 of the following at his or her option:

(a) Submit to the head of the public body a written appeal that specifically 

states the word “appeal” and identifies the reason or reasons for reversal of the 

denial.

 

1 MCL 15.243 addresses what types of records a “public body may exempt from disclosure as a 

public record” under the FOIA. See MCL 15.243(1).
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(b) Commence a civil action in the circuit court, or if the decision of a state 

public body is at issue, the court of claims, to compel the public body’s disclosure 

of the public records within 180 days after a public body’s final determination to 

deny a request.

Additionally, “[a] public body may charge a fee for a public record search, for the necessary 

copying of a public record for inspection, or for providing a copy of a public record if it has 

established, makes publicly available, and follows procedures and guidelines to implement this 

section as described in [MCL 15.234(4)].” “[T]he public body may require a good-faith deposit 

from the person requesting information before providing the public records to the requestor if the 

entire fee estimate or charge authorized under this section exceeds $50.00, based on a good-faith 

calculation of the total fee.” MCL 15.234(8). “If a public body requires a fee that exceeds the 

amount permitted under its publicly available procedures and guidelines or [MCL 15.234(4)], the 

requesting person may” submit a written appeal to the head of the public body if the public body 

provides for fee appeals or commence a civil action in the circuit court or the Court of Claims. 

MCL 15.240a(1). “The action must be filed within 45 days after receiving the notice of the 

required fee or a determination of an appeal to the head of a public body.” MCL 15.240a(1). MCL 

15.234(14) explains what happens if the person requesting records under the FOIA fails to pay the 

deposit required under MCL 15.234(8) and fails to appeal the required fee:

If a deposit that is required under subsection (8) . . . is not received by the 

public body within 45 days from receipt by the requesting person of the notice that 

a deposit is required, and if the requesting person has not filed an appeal of the 

deposit amount pursuant to section 10a, the request shall be considered abandoned 

by the requesting person and the public body is no longer required to fulfill the 

request . . . .

In Arabo, 310 Mich App at 387, this Court concluded that “reading §§ 4 and 5 of the FOIA 

together to produce a harmonious and consistent enactment as a whole, the statutory scheme can 

be reasonably construed so as to obligate the public body to respond with its final determination 

in accordance with § 5(2) and (4) of the FOIA once the requester has paid the required deposit 

authorized under § 4(2) of the FOIA.” As pointed out by the Court of Claims, MCL 15.234 and 

MCL 15.235 have both been amended multiple times since this Court decided Arabo.

2

 However, 

comparing the current versions of MCL 15.234 and MCL 15.235 to the pre-2015 versions applied 

by this Court in Arabo, and reading the current versions together to produce a harmonious and 

consistent enactment as a whole, the statutory scheme may still be reasonably construed so as to 

obligate the public body to respond with its final determination in accordance with MCL 15.235(2) 

and MCL 15.234 of the FOIA once the requestor has paid the required deposit authorized under

MCL 15.234(8) of the FOIA. See Arabo, 310 Mich App at 387. Therefore, we reject plaintiff’s 

argument that amendments to the FOIA statute render Arabo inapplicable.

Here, the issue is whether defendant’s April 29, 2022 response constituted a final 

determination under the FOIA. Defendant responded to plaintiff’s FOIA request by stating: “Your 

request is granted as to existing, non-exempt records in the possession of the MSP that fall within 

 

2 See MCL 15.234, as amended by 1996 PA 553; MCL 15.235, as amended by 1996 PA 553.
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the scope of your request.” (Emphasis added.) Such a response did not constitute a grant of 

plaintiff’s FOIA request, but rather was indicative, at least preliminarily, of a partial grant and 

partial denial. See Arabo, 310 Mich App at 386; King, 303 Mich App at 189-190. By itself, 

defendant’s partial grant and partial denial would constitute a final determination under the FOIA. 

See MCL 14.235(5).

However, defendant’s response also informed plaintiff that defendant was assessing a fee 

and requiring a deposit before processing plaintiff’s request. Indeed, defendant’s April 29, 2022 

response stated, “Upon receipt of the deposit, the MSP will complete the processing of your 

request.” (Emphasis added.) But plaintiff did not pay or challenge the deposit thereby negating 

defendant’s obligation to make a final determination. See Arabo, 310 Mich App at 388, 

(“Accordingly, we hold that a final determination by the Board is a prerequisite to plaintiff’s 

commencement of a cause of action to compel disclosure of the requested records...but a final 

determination is not required until plaintiff has paid the deposit required by the Board.”)

(Emphasis added.) Here, plaintiff’s claim similarly rested on a contingent future event, i.e., the 

payment of the required deposit. See id. at 388-389. Having failed to either tender or challenge 

the deposit, summary disposition in favor of defendant was proper. See id. at 382.

Although plaintiff argues that Arabo is no longer applicable because of changes to the 

FOIA, the changes plaintiff refers to actually run counter to, rather than support, his arguments. 

The current version of the FOIA specifically provides that if a deposit required under MCL 

15.234(8) “is not received by the public body within 45 days from receipt by the requesting person 

of the notice that a deposit is required, and if the requesting person has not filed an appeal of the 

deposit amount pursuant to [MCL 15.240a], the request shall be considered abandoned by the 

requesting person and the public body is no longer required to fulfill the request.” MCL 

15.234(14). Here, defendant notified plaintiff of the fee and good-faith deposit in defendant’s 

April 29, 2022 response to plaintiff’s FOIA request, and defendant informed plaintiff that 

defendant “must receive the required deposit within 45 days after your statutorily-determined 

receipt of this notice, which is June 16, 2022.” Plaintiff did nothing in response. According to the 

available record, plaintiff did not even dispute the fee until it filed its August 12, 2022 motion for 

summary disposition. Accordingly, plaintiff abandoned its FOIA request. See MCL 15.234(14)

Therefore, the Court of Claims lacked jurisdiction. See MCL 15.235(8); MCL 15.240(1). 

Although plaintiff additionally argues that defendant’s response to plaintiff’s FOIA request 

constituted an improper King response, “King does not compel a different result.” Arabo, 310 

Mich App at 388. Additionally, we are not persuaded by plaintiff’s reliance on Tooles Contracting 

Group, LLC v Washtenaw Co Rd Comm, unpublished per curiam opinion of the Court of Appeals, 

issued May 27, 2021 (Docket No. 354045),3because unlike defendant in this case, the public body 

in Tooles failed to respond to some of the plaintiff’s FOIA requests and explicitly denied the 

existence of documents that fell within other requests made by the plaintiff. Furthermore, the 

 

3 Unpublished decisions are not precedentially binding. MCR 7.215(C)(1); People v Green, 260 

Mich App 710, 720 n 5; 680 NW2d 477 (2004) particularly when there are published decisions 

directly on point. 
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public body in Tooles did not make payment of the deposit a prerequisite to its final determination. 

Therefore, Tooles is factually distinct from the instant case.

Plaintiff next argues that public bodies should be prevented from raising exemptions for 

the first time in the trial court and that this Court should reject the Residential Ratepayer doctrine 

that allows public bodies to raise new exemptions for the first time in the Court of Claims. This 

is not the first time plaintiff’s counsel has made this argument and it is also not the first time that 

plaintiff’s counsel failed to bring the issue to the attention of the Court of Claims, choosing instead 

to use the Court of Appeals as his court of first resort.

As indicated, plaintiff failed to raise this issue in the Court of Claims and according to this 

Court’s opinion in Mich Open Carry, Inc v Dep’t of State Police, 330 Mich App 614, 623-624; 

950 NW2d 484 (2019) failed to do so in that case:

MOCI (Michigan Open Carry, Inc) argues for the first time on appeal that the 

Department waived its right to assert an exemption to the FOIA request in the Court 

of Claims by failing to claim an exemption as part of its final decision on MOCI’s 

appeal within the Department. Additionally, MOCI argues that the legal precedent 

allowing consideration of newly raised defenses and exemptions should 

be overturned. We disagree.

In Residential Ratepayer Consortium v Pub Serv Comm #2, 168 Mich App 476,

481; 425 NW2d 98 (1987), this Court concluded that the FOIA’s “provision for de

novo review in circuit court suggests that the [public body] does not waive defenses

by failing to raise them at the administrative level.” This proposition was later

applied in Stone St Capital, Inc v Bureau of State Lottery, 263 Mich App 683, 688

n 2; 689 NW2d 541 (2004). Further, in Bitterman v Village of Oakley, 309 Mich

App 53, 60; 868 NW2d 642 (2015),4the FOIA requester argued that a public body

should be “estopped from raising any new defenses in support of its decision to

deny her FOIA requests after it made its ‘final determination to deny the request[.]”

This Court determined, however, that the argument was “without merit” because

the “exact issue” had already been addressed in Stone St Capital when this Court

reaffirmed that a public body can assert defenses in the circuit court despite their

not being raised at the administrative level. Id. at 61... Bitterman and Stone

St remain binding precedent that a public body may assert defenses or exemptions 

for the first time in the circuit court or Court of Claims. We decline to request the 

convening of a special panel to create a conflict with the existing binding precedent.

(Emphasis added.) Id.

We additionally note from our opinion in Mich Open Carry that the current appeal is also,

at a minimum, the second time that plaintiff’s counsel has requested that this Court abandon our

prior ruling in Residential Ratepayer Consortium. Again, we decline to do so. Thus, even

presuming plaintiff had preserved this issue for appeal, we find no clear rationale to award him

relief.

 

4 Plaintiff’s counsel was also counsel of record in Bitterman.
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Affirmed. Defendant having prevailed in full is entitled to costs. MCR 7.219.

/s/ Christopher P. Yates

/s/ Stephen L. Borrello 

/s/ Sima G. Patel