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Prison Legal News v. Michigan DOC, MI Complaint Public Records Suit 2009

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STATE OF MICHIGAN
IN THE CIRCUIT COURT FOR THE COUNTY OF INGHAM
PRISON LEGAL NEWS, a project
of the Human Rights Defense Center,
a Washington non-profit corporation,
Plaintiff,
-v-

Case No.

MICHIGAN DEPARTMENT OF
CORRECTIONS,
Defendant.
/

COMPLAINT FOR ACCESS TO PUBLIC RECORDS
I.

Introduction

1.

The Plaintiff filed a request with the Defendant pursuant to the Michigan Freedom of
Information Act, MCLA 15.231 et seq., for certain records and requested a waiver of the
costs of producing these public records pursuant to MCLA 15.234(1). In approving in part
this request, the Defendant failed to address the Plaintiff’s request for a waiver of those
costs connected to the request since “PLN is a non-profit media entity reporting on
criminal justice news and issues in its national monthly publication and on its website.”

II.
2.

Parties
Plaintiff Prison Legal News (PLN) is a project of the Human Rights Defense Center, a
Washington State 501(c)(3) non-profit corporation. Plaintiff is headquartered in the State
of Washington, located at 2400 NW 80th Street PMB #148, Seattle, Washington 98117.
PLN publishes a monthly journal entitled "Prison Legal News," which reports on criminal
justice news and issues. PLN also publishes, sells and distributes books on a variety of

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criminal justice, human rights and self-help issues. PLN further operates a website
(www.prisonlegalnews.org) containing an extensive database of case law, verdicts,
settlements, commentary, and other material related to these topics.
3.

Defendant Michigan Department of Corrections (MDOC) is a state agency that is required
to respond to requests for public records according to the provisions of MCLA 15.231 et
seq.

III.
4.

Jurisdiction
Jurisdiction is proper in this Court pursuant to MCLA 15.240.

IV. Factual Support of the Claims
5.

PLN is a legal journal that reports news and litigation concerning detention facilities.

6.

PLN has published monthly since 1990 and has approximately 7,000 subscribers in all 50
states and internationally. PLN’s subscribers include lawyers, journalists, judges, courts,
public libraries and universities.

PLN’s estimated actual readership is approximately

80,000. Approximately eighty (80) percent of PLN subscribers are state and federal
prisoners. PLN also maintains a website that has received more than 100,000 visitors a
month.
7.

PLN will contribute to the public interest and understanding of Michigan’s prison
operations and activities by analyzing and publishing the information obtained through this
FOIA request in its print journal and on its website. Specifically, PLN will analyze how
Michigan spends public tax dollars, will publicize facilities in which litigation has
identified problems, and will test how well Michigan programs address inmate concerns.

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8.

On May 29, 2009, PLN Editor Paul Wright submitted on behalf of Plaintiff a written
request to the FOIA Coordinator of the MDOC, see attached Exhibit 1, letter dated May
29, 2009.

9.

In Exhibit 1, Plaintiff specifically requested a “waiver of all fees associated with this
request,” and cited to MCLA 15.234(1). Plaintiff also explained to Defendant why it was
entitled to a waiver of these fees and provided a citation to a case where a request for
similar documents and a fees waiver had been granted.
I am also requesting a waiver of all fees associated with this request. The FOIA
provides for fee waivers for both searches and copies where the "public body
determines that a waiver or reduction of the fee is in the public interest because
searching for or furnishing copies of the public record can be considered as
primarily benefiting the general public." MCL § 15.234(l). PLN is a non-profit
media entity reporting on criminal justice news and issues in its national monthly
publication and on its website. The information being sought will further public
understanding of MDOC operations. I note that the United States District Court
for the District of Columbia determined that the same type of documents PLN
sought from the Bureau of Prisons under the federal Freedom of Information Act
were in the public interest and granted PLN a fee waiver. See Prison Legal News
v. Lappin, 436 F.Supp.2d 17 (D.D.C. 2006). PLN should likewise receive a fee
waiver from the MDOC.
Exhibit 1 at p. 1.

10.

On June 4, 2009, Sergio Cacciani, FOIA Coordinator for Defendant, sent Mr. Wright a
letter stating that Plaintiff’s request had been granted in part and denied in part. See
attached Exhibit 2, letter dated June 4, 2009. The partial denial related to another set of
documents that Plaintiff had requested and did not relate to the request for waiver of fees.

11.

Instead of informing Plaintiff whether its fees waiver request was denied, Mr. Cacciani
informed Plaintiff of the estimated costs to have the approved request produced and stated
that once a check for one-half of the estimated costs was provided, the requested
documents would be produced. Id. at p. 2.

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12.

A “Response to Request for Public Records-FOIA” was generated by Mr. Cacciani on June
5, 2009, see attached Exhibit 3, two pages, which also did not address the waiver of fees
request.

13.

Michigan FOIA provides that a public body may reduce or waive the fees for producing
requested documents if the agency determines that this would “primarily benefit the public
interest because searching for or furnishing copies of the public record can be considered
as primarily benefiting the general public.” MLCA 15.234(1). Defendant never made this
determination as required by statute.

14.

On July 17, 2009, General Counsel for HRDC wrote a letter to Mr. Cacciani. See attached
Exhibit 4. In this letter, Defendant was informed that a determination had not been made
as to the request for waiver of fees for production of the documents requested by the
Plaintiff. As of the filing of this complaint, no response has been provided.

15.

In this matter, Defendant’s refusal to address the waiver of fees request amounts to the
failure to exercise the statutory discretion granted by MCLA 15.234(1). Defendant was
required by statute to exercise its discretion and to determine whether Plaintiff met the
statutory criteria for the granting of its waiver of fees request.

16.

If the Defendant denies a waiver of fees request, it must provide a factual basis for such
denial which would allow a court to determine whether the Defendant has or has not
abused its discretionary authority. In this matter, Defendant has failed to provide any
factual basis for its denial of the waiver of fees request submitted by the Plaintiff so that a
court can determine whether its discretion was even exercised.

17.

Pursuant to MCLA 15.235(1), Defendant was required to inform the Plaintiff whether its
waiver of fees request was approved or denied and, if denied, the reasons why it had

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determined that Plaintiff’s waiver request would not “primarily benefit the public interest
....” Defendant failed to inform Plaintiff of the basis for its denial of Plaintiff’s waiver of
fees request.
18.

Under the state FOIA, the public has a broad right to inspect government documents, and
the general policy promoted is one of “full disclosure.” ; MLCA 15.231(2). This right to
review documents promotes the public interest in good government.

A public body’s

denial of a waiver of fees request pursuant to MCLA 15.234(1) should be reviewed with
this laudable goal in mind, and such denials should be reversed whenever the public body’s
discretion is not reasonably exercised in a manner consistent with the overall purpose of
Michigan’s .
V.

Relief

a.

Accept jurisdiction of this lawsuit.

b.

Declare that the Michigan FOIA was violated when Defendant failed to exercise its

discretion and inform Plaintiff whether or not its waiver of fees request had been denied.
c.

Declare that the Michigan FOIA was violated when Defendant failed to provide a factual

basis showing it had exercised its statutory discretion that Plaintiff’s waiver of fees request
would not “primarily benefit the public interest....”
d.

Find that Plaintiff is entitled to a waiver of fees since production of the requested

documents would “primarily benefit the public interest”, MCL 15.234(1).
e.

Order that the Defendant provides the requested record in electronic format as contained

in the original request.
f.

Find that Plaintiff is entitled to an award of $500 in punitive damages according to

MCLA 15.240(7).

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g.

Award attorney’s fees and costs according to MCLA 15. 240(6).

h.

Grant such further relief as the Court may find just and proper.
DATED this _____ day of August, 2009.

Respectfully submitted,

Daniel E. Manville (P39731)
General Counsel for Human
Rights Defense Center
P.O. Box 20321
Ferndale, Michigan 48220
248-890-4720 (phone)
248-556-5598 (fax)
daniel.manville@gmail.com

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