In Davis v City of Detroit, an unpublished Michigan Court of Appeals decision released earlier this week, the court dismissed the Plaintiff’s case and upheld sanctions against him.  The matter involved a FOIA request, a second request for information brought under the Michigan Constitution, and a frivolous lawsuit.  The relevant facts are as follows.

Plaintiff Robert Davis allegedly mailed a FOIA request to the City of Detroit on November 14, 2018, which was never received.  Thereafter, Plaintiff’s attorney emailed City personnel requesting some, but not all, of the information sought in the previous FOIA request.  Notably, the attorney represented that the second request was not made pursuant to FOIA but, instead, was made pursuant to a provision of the Michigan Constitution.  In response, the City’s FOIA coordinator explained that the City had no duty to disclose the documents sought under the constitutional provision cited and that, in any case, no such documents existed.  Thereafter, Plaintiff filed a complaint relative to the FOIA request and the later constitutional request.  The complaint was later amended to remove the FOIA claim and instead allege that the constitutional request should have been interpreted as a FOIA request.

The appellate court observed that Plaintiff’s attorney’s email raising a constitutional request fulfilled the basic requirements of a written request under the FOIA.  Nevertheless, the attorney’s email affirmatively stated that the request for information was made pursuant to the Michigan Constitution, rather than the FOIA.  The court concluded there was not sufficient evidence for the City to conclude that the attorney’s request was a FOIA request.  Therefore, the FOIA claim was dismissed. 

The court also upheld sanctions against Plaintiff.  The lower court had reasoned that the legal action was a waste of time and could have been avoided if Plaintiff’s counsel had simply emailed the original alleged FOIA request to the City’s FOIA coordinator and made clear the request was made under the FOIA.  Instead, Plaintiff filed a lawsuit.

The case, which may be accessed here, serves as a good reminder that a requester may not retroactively make a FOIA request.