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STATE OF MICHIGAN
IN THE SUPREME COURT
ON APPEAL FROM THE COURT OF APPEALS

DANIEL W. RUDD,
Supreme Court Case No. 157879
Plaintiff, Appellee (Pro Se)
Court of Appeals Case No. 343759
v.
Circuit Court Case No. 17-4334-CZ
CITY OF NORTON SHORES,

Defendant, Appellant
____________________________________/
Mary Massaron (P43885)
Josephine DeLorenzo (P72170)
PLUNKETT COONEY, Attorneys for
Appellant City of Norton Shores
38505 Woodward Ave., Suite 100
Bloomfield Hills, MI 48304
(313) 983-4801
mmassaron@plunkettcooney.com
jdelorenzo@plunkettcooney.com

Daniel W. Rudd (Pro Se)

Plaintiff, Appellee
201 S Lake Avenue
Spring Lake, MI 49456
(231) 557-2532
daniel@stock20.com

PLAINTIFF/APPELLEE’S ANSWER TO APPELLANT’S

EMERGENCY APPLICATION FOR INTERLOCUTORY REVIEW
REGARDING THE DENIAL OF A STAY PENDING APPEAL

Respectfully filed in rudimentary form

(with apologies for errors) on June 6, 2018
by: Daniel William Rudd
Plaintiff/Appellant (Pro Se)
Appellee
post-filing corrections noted in red.
looks like I’m off to a good start!

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Table of Contents

Table of Contents .............................................................................................................. 2

Question for Review: When asking the Court of Appeals for a stay pending appeal, did
the City present a non-frivolous basis for pursuing their appeal? .................................... 3
Question for Review: Does the City now present a meritorious challenge to the trial
court’s finding that the citizen complaints themselves do not fall under any statutory
exemption? ............................................................................................................................. 5
Question for Review: Was the City deprived of the right to pursue their appeal when
the Court of Appeals denied the emergency motion for a stay of the disclosure order?.. 6
Question for Review: Was it error for the Court of Appeals to consider the City’s
likelihood of prevailing on their appeal? ............................................................................. 8
Question for Review: Did the Court of Appeals err by failing to “preserve the status
quo” throughout the pendency of appeals by the City? ...................................................... 9
Question for Review: Does this court have good reason to believe that the City will
actually litigate the merits of their appeal in good faith?................................................ 10

Background Facts ........................................................................................................... 11

I. The trial court properly found that complaints against the city are not personnel
records and do not fall within any of the statutory exemptions. ......................................... 13
II. The City has not demonstrated or established plausible concern for the anonymity of
complainants. ........................................................................................................................... 15
III. The City lost credibility with the Court of Appeals because they mislead the court
regarding critical portions of the trial Court’s rulings. ........................................................ 18
IV. The City relies on an irreparably flawed understanding of Newark. ..................... 19
V. The Court of Appeals got it right in Federated and they got it right now. ................. 24

Conclusion ........................................................................................................................ 27

Relief Requested .............................................................................................................. 29

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Question for Review: When asking the Court of Appeals
for a stay pending appeal, did the City present a non-
frivolous basis for pursuing their appeal?

The trial court answered: No. The trial court conducted two lengthy hearings

which were focused primarily upon the same arguments which the City presented to

the Court of Appeals. After reviewing the documents in camera the trial court

ruled:
There is no specific statutory exemption for the complaints themselves. The
second Evening News principle requires any exemption to be narrowly
construed. The third requires the public body to separate the exempt and
non-exempt materials.
Norton Shores’ position is adverse to both of these concepts. Principle 3,
cited above, requires the City to separate the exempt and non-exempt
materials to the extent that it can. The City's latest brief argues the
opposite-something like this:
"Every complaint triggers an investigation. The entire
investigation process was considered as a whole, so all
of the records associated with the process fall within
the exemption." This does not construe the exemption
"narrowly."
Under this interpretation, no complaint would ever be disclosed, despite
the absence of any statutory exemption.
Further, the City cannot put the complaint out of FOIA's reach by
inserting it into any personnel/internal affairs file. Newark at 204 Mich
App 220.
Interpreting MCL 15.243(1)(s)(ix) to allow law enforcement to refuse
disclosure of records by placing it in a personnel file would, "undercut the
policy of full and complete disclosure mandated by FOIA." id.

The City’s motion for a stay pending appeal cited the same fundamental

distortion of rulings and principles established in Newark. The City did not offer
5/21/18
any improvement during the hearing on 5/21/17. Noting that “Today’s argument

covers some of the same ground we’ve covered before,” the trial court rule,d “on the

record that this Court has now -- the Court’s denying the motion for a stay.”

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Appellant Norton Shores answers: Yes. On appeal, the City again reiterated its
previous reliance upon a distortion of Newark, Kent County Sheriff Assoc., and
Sutton1 which had been thoroughly litigated and rejected by the trial court below.
The City reiterated its claim that Newark and its progeny preclude separation of
the citizen complaints from the internal investigation records which may (or may
not) be generated as a result of the allegations within the citizen complaints.

Although the trial court acknowledged that internal investigation records

constitute personnel records that are exempt from FOIA, it fixated on the
fact that the FOIA does not specifically exempt citizen complaints that
initiate such internal investigation records. The controlling case law,
however, addresses requests that seek "all records" related to an internal
investigation. (The City’s motion for Stay filed in COA Nos. 343942 &
343459, at ¶18, emphasis added)

Appellee Rudd answers: No. Rudd argued that the trial court did not “fixate

upon the fact” but found that the true character of the records was dispositive on

the issue. The trial court exercised further diligence by conducting the balancing

test on the public’s interest in disclosures vs. non-disclosure—thereby eliminating

any concerns that could exist under another exemption. As he had done in the

lower court, Rudd specifically identified the City’s egregious misrepresentations of

the rulings in Newark, Kent County Sheriff’s Assoc., and Sutton. None of these cases

suggest any support for the premise that citizen complaints themselves are exempt

from disclosure (See Section IV below).

The Court of Appeals answered: No. The Court of appeals reviewed extensive

filings from the City, considered Rudd’s response and denied the City’s motion for a

stay of the disclosure order pending appeal.

1 See sections III and IV below for a more thorough discussion of these three cases.
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Question for Review: Does the City now present a
meritorious challenge to the trial court’s finding that the
citizen complaints themselves do not fall under any
statutory exemption?

Appellant Norton Shores Answers: Yes. On appeal to this Court the City asserts that

the trial Court “trial court gave insufficient weight to the record evidence regarding the

public interest in nondisclosure, instead, placing too much weight on its own personal

review of the documents.” (City’s Application, p. 17). The City further clarifies “record

evidence” as the statements made by city officials about the citizen complaints and the

anticipated harms which could occur if they were disclosed (Id. pp.18-20). This section

concludes by suggesting that the City’s affidavits should have ended the inquiry and it was

therefore error for the trial court to review the documents themselves (emphasis added):
…the trial court reversibly erred in reviewing the documents and ordering
citizen complaints to be disclosed. Controlling precedent governs and
should have compelled the trial court to exercise its discretion to uphold
the City’s determination that the records at issue are exempt. (Id. p.21)

Appellee Rudd answers: No. The City asserts a non-sequitur in suggesting

that the trial court was bound to “exercise its discretion” by resolving the dispute

without any real exercise of judicial discretion (i.e. conducting an in camera review

of the documents themselves). This position undermines the central functions of the
e.g.
FOIA framework (independent external review of government transparency by a

separate branch of the government). Chief Gale’s speculative opinions are not

evidence. FOIA disputes raise mixed questions of fact and law related to the actual

character of the records themselves. The trial court’s decision to review the actual

documents was an unquestionably appropriate exercise of discretion.

The City is not challenging the methodology, quality or quantity of judicial

review—but suggesting that judicial review should be eliminated from the process.

This is not a facially plausible basis for appeal.

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Question for Review: Was the City deprived of the right
to pursue their appeal when the Court of Appeals denied
the emergency motion for a stay of the disclosure order?

Appellant Norton Shores says: Yes. “The City is entitled to a stay so that the

Court of Appeals – and this Court if needed – can consider its claim on the merits.”

Without an emergency stay, the City will be “faced with either a contempt ruling if

it does not release the records or mootness and the loss of its right of appeal if it

releases them.”

The Court of Appeals said: A stay is not warranted. After considering

extensive filings and weighing the competing interests a three judge panel of the

court of appeals denied the City’s emergency motion to stay the disclosure order.

Appellee Rudd says: No. The City has not raised any specific challenge to the

particularized findings set forth by the trial court after reviewing all of the

complaints against the City in camera. The City is challenging the review itself.

Throughout the proceedings below, the City insisted that the affidavits by Chief

Gale should end the inquiry. On application to this Court (pp.18-20), the City

describes the generalized and conclusory statements regarding speculative harms

associated with disclosure—and deems these sworn statements as the “record

evidence” most probative to mixed questions of fact and law before the trial court.

The City specifically claims (p.20) that the “trial court gave insufficient weight to
the record evidence regarding the public interest in nondisclosure, instead, placing

too much weight on its own personal review of the documents.” This section of the

City’s application concludes by stating (emphasis added):

Given Rudd’s abject failure to provide support for any public interest in
disclosure in the particular instance, the trial court reversibly erred
in reviewing the documents and ordering citizen complaints to be
disclosed.

(Id. p.21). The City’s understanding of the FOIA review process eviscerates the

legislative intent which is plainly expressed in the statute. Removing independent

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judicial review from the process (including limitations on access to the most direct

form of evidence), eliminates the checks and balances and allows any local

government to unilaterally restrict access and participation in government affairs.

Independent judicial review provides the due process safeguards which allow a local

government to manage the disclosure of records in the first place.

All those concerns aside, the City’s position on appeal has already rendered

itself moot. The City asserts that the trial court was bound to accept the “balancing

test” conducted by city officials at face value—therefore the trial court “reversibly

erred in reviewing the documents and ordering citizen complaints to be disclosed.”

If reviewing the most direct form of evidence and independently

balancing the public’s interest is the trial court’s error—
what is the remedy?
Assuming arguendo that the trial court was wrong to assign more weight to the

actual records than the City’s remarks about the records—the in camera review

cannot be undone any more than disclosure of records can be undone. The trial

court has already reviewed all of the complaints against the City. Based on that

review, the trial court has already found that these records do not invoke the

concerns expressed by the City (5/3/18 Opinion pp. 4-5). Can the trial court redact

all memory of this review and the subsequent analysis? The City has not requested

a different factfinder or suggested any basis which would remotely justify this.
The City has claimed an appeal by right. They will be allowed to pursue this

appeal to completion. However, the Court of Appeals also had opportunity to review

the trial court’s findings after substantial litigation on this singular issue. The

City’s motion for stay was denied because there is no plausible basis for relief from

the reviewing courts.

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Question for Review: Was it error for the Court of
Appeals to consider the City’s likelihood of prevailing on
their appeal?

Appellant Norton Shores says: No. The City claims that no one will be

prejudiced by additional delays in disclosing the citizen complaints and argues that

“the status quo” must be preserved. On application to this Court, the City states

(emphasis added):
Rudd argued below that the City’s position is weak – which it is not – and
that its appeal should be mooted. This is a remarkable position, which
the Court of Appeals apparently accepted. The issue at present ought
not to be whether the City will ultimately prevail (although the
City believes it will). The issue at present is whether the Court should
preserve the status quo to permit the City to pursue its appeal as a
matter of right without being faced with either a contempt ruling if it
does not release the records or mootness and the loss of its right of appeal
if it releases them.

Appellee Rudd says: No. The circumstances are “remarkable” in that the City has

continued to assert a patently frivolous position. In light of the City’s untenable

position on appeal, the trial court and the Court of Appeals correctly ruled that a

stay is not warranted. Rudd agrees that preserving the right to complete a non-

frivolous appeal should carry much weight with this Court. However, this factor

alone does not eliminate all other considerations—especially when there is no

indication of a close question to review. Unwarranted delays in governmental

transparency is a presumed harm which is clearly established by the language of

the FOIA statute itself.

In addition to reliance upon a fundamental distortion of well-established FOIA

jurisprudence, the City has not demonstrated diligence in pursuing the most direct

expedient remedies for vindicating the merits of their position before a reviewing

court. (e.g. expedited motion for peremptory reversal, motion for expedited

consideration). This mitigates the urgency now asserted by the City.

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Question for Review: Did the Court of Appeals err by
failing to “preserve the status quo” throughout the
pendency of appeals by the City?

Appellant Norton Shores says: Yes, emphasizing that once the complaints

against the City are disclosed, they can never be made secret again.

Appellee Rudd says: No. The Court of appeals properly balanced the competing

interests. Importantly, the records managed by the City are the property of the

citizens of Michigan. Norton Shores has been entrusted to act in a fiduciary and

custodial capacity which involves designating records (and portions of records) as

exempt or non-exempt under the FOIA framework. However, the City has been

fully informed that these initial designations are subject to a specific process of

independent judicial review. When that process results in a re-designation of

records, the City has not lost anything or been deprived of a property interest.

In the present case, it is uncontested that the trial court conducted a

substantially more thorough analysis—reviewing each and every compliant (along

with additional documents). The City was clearly “cognizant” of the personnel

records exemption and the City’s concerns regarding an adverse impact on the

complainants. The City doesn’t really challenge this, arguing instead that the trial

court should have done less. The City’s ability to designate records without judicial

review is not a “status quo” which can be preserved.

The trial court’s disclosure order did not infringe upon the City’s right to make

initial determinations under the FOIA. When the City deems a record non-exempt,

that designation itself is not a property interest. The records are not being taken

from the City and given to the public. In fact, these particular records were created

by citizens (who presumably wished to effectuate change). The FOIA is a pro-

disclosure statute designed for expedient determinations and disclosure of non-

exempt materials. The public has already been denied access to these records for

nearly 500 days. The potential for irreparable harm cuts both ways.
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Question for Review: Does this court have good
reason to believe that the City will actually litigate
the merits of their appeal in good faith?

Appellant Norton Shores says: Yes.

Appellee Rudd says: No. At every point in the litigation the City has avoided the

very processes which exist to vindicate appropriate denials of information which

actually is exempt (or materials which are truly inseparable from exempt records).

The City opposed judicial review of records at every point and ardently claimed that

it was under no obligation to separate non-exempt materials or provide a general

description of the materials withheld. Now the City argues that the trial court’s

decision to conduct a review of the citizen complaints themselves was “reversible

error” in and of itself. The City abandoned its motion for reconsideration in the

trial court and still has not identified any “palpable error” which would lead to a

different result. In the Court of Appeals, the City expended considerable resources

to obtain an immediate stay but did not seek expedited consideration of the

relatively straightforward legal questions which govern disclosure of the citizen

complaints.2 The City has not identified any specific challenges to the trial court’s

findings regarding the true nature of the records and did not ask the Court of

Appeals to review the same records de novo.

Notably, the city is not asking for a brief stay which would allow for an
expedited motion for peremptory reversal, or expedited consideration of their claim

of appeal. The City is requesting that disclosure be stayed for an indefinite period of

time until all appellate remedies are exhausted in the Court of Appeals and in this

Court. The City appears to be primarily focused on delaying disclosure of the

records with minimal emphasis on establishing a valid basis for non-disclosure.

2 The City did not file a motion for remand or peremptory reversal with expedited consideration.
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Background Facts

Considering the limited time for preparing an expedited response, the City’s

recitation of the procedural history is adequate for the considerations now before

the court. Some points of dispute are identified in the arguments below.

The City has primarily relied upon Newark Morning Ledger Co. v. Saginaw Cty.

Sheriff, 514 N.W.2d 213, 204 Mich. App. 215 (Ct. App. 1994) from the outset of the

litigation. Upon receiving the City’s brief for summary dismissal, Rudd

immediately reached out to opposing counsel and respectfully suggested that the

the outcome and rulings of Newark (and the associated cases) had been

fundamentally misstated. The City declined any discussion of these concerns, so

Rudd addressed these issues in his brief. (this is discussed more fully in Sections

III & IV).

Contrary to the City’s representations, the trial court did not treat Plaintiff’s

concerns with skepticism. The City omits the trial Court’s subsequent remarks

indicating that the initial questions regarding Rudd’s residence were not relevant to

the inquiry. The trial court treated both parties with respect and open-mindedness

throughout the proceedings. If the trial court was skeptical about anything it was

the City’s fundamental distortion of the rulings in Newark. During the City’s two

motions on summary disposition, the trial court patiently coaxed the City to rethink
this position. Nonetheless, The City tenaciously refused to offer particularized

justifications for non-disclosure of specific records (including the citizen

complaints).3

3Even in the The City’s 4/24/18 Brief, they are still claiming that (based on these same three
cases) no separation of records and no particularized justifications are required (p.3, ¶1) “Based
on the Court of Appeals' decisions in Kent County Deputy Sheriffs' Ass'n, Newark Morning
Ledger, and Sutton, it is beyond argument that the records Plaintiff sought fall within the law
enforcement personnel records exemption of MCL 15.243(l)(s)(ix) and further justification by
Defendant need not be provided.”
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The trial court ultimately issued partial summary disposition to each party. The

5/3/18 Opinion concisely rejects the City’s claims regarding the citizen complaints

(p.4):
The City's latest brief argues… …. something like this: "Every complaint
triggers an investigation. The entire investigation process was considered
as a whole, so all of the records associated with the process fall within the
exemption." This does not construe the exemption "narrowly." Under this
interpretation, no complaint would ever be disclosed, despite the absence
of any statutory exemption.

Even in the present filings before this Court, the City asserts that there was

never any obligation to separate exempt material from non-exempt material or

provide particularized justifications for each records (or category of records) which

the City has deemed exempt. The City’s position is plainly incompatible with the

FOIA statute and well-established case law (including the cases cited by the City).

The trial court’s ruling on this matter was informed by numerous filings and two

lengthy hearings which were focused almost entirely upon this question (12/22/17 &

4/2/18). The trial court denied each of the City’s motions for summary disposition

and proceeded to conduct an in camera review which included all of the citizen

complaints. The trial court’s factual findings set forth specific reasons why the

City’s concerns regarding disclosure were meritless.

The City is not suggesting that some kind of procedural error or glaring mistake
by the trial court prevented them from obtaining a meaningful hearing on the

disputed issues. The City has not identified any specific errors in the court’s factual

findings which describe the nature of the citizen complaints. It appears that the

City believes that the court should have simply accepted the conclusory claims

which were asserted in the cities affidavits as being case determinative. This

position would eliminate judicial review from the process and leave local

government bodies to operate with no external accountability.

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I. The trial court properly found that complaints against the city are not personnel records
and do not fall within any of the statutory exemptions.

Contrary to appellee’s claims, Chief Gale’s affidavit and deposition testimony

does not support the City’s claims of exemption. The City was still relying upon the

same portion of Chief Gale’s affidavit during the 4/2/18 hearing on the City’s second

motion for summary disposition. Gale’s affidavit (p.2, ¶6a) asserts that:
When citizen complaints are received by the Norton Shores Police
Department, an internal investigation file is opened and all records
related to the complaint are kept together in a single file.

Although the statutory exemption identified by the city includes language

requiring a justification “in the particular instance” the City has consistently

claimed that all records associated with an internal investigation file may be

considered and exempted together as a unit. Rudd argued that this was

incompatible with the statutory obligation to separate and disclose any record or
independently
portion of record which does not interpedently trigger the specific basis for

exemption. During the 4/2/18 hearing, Rudd advised the trial court that some

portion of the complaints are not associated with any internal investigation at all.

(4/2/18 p.28).
MR. RUDD: Now qualifying that really quickly, he did note in the
deposition that not all citizen complaints generate an internal
investigation. Some, if there's allegations of criminal activity, are
referred to an external agency to investigate a criminal activity which, by
the way, would have no bearing whatsoever on a personnel file.
THE COURT: Are any of them peremptorily dismissed?
MR. RUDD: Yes.
THE COURT: I would guess that the city probably gets some -- some
complaints that are, in so many words, way out there.
MR. RUDD: And we discussed that in the deposition. It was just before
the hearing and, you know, you talked about Jimmy John's and
Christmas card. I talked about a complaint that officer so and so is
directing aliens to harass me by hovering over my yard.

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Plaintiff also argued (based on Chief Gale’s deposition) that the City does not

truly keep “all records related to the complaint … together in a single file,” and does

not actually believe a connection to an internal affairs investigation alters the

designation of a record for FOIA purposes. In his deposition, Gale acknowledged

that department records continue to exist in their original form even when the

record is included or referenced in a personnel file. (12/20/17 Dep. pg. 16-18)

MR. RUDD: ...would one of those initial steps for the officer conducting
the [internal] investigation ... be gathering together the department's
existing records related to that occurrence? Like say there was already a
police report regarding an occurrence, a citizen files a complaint that
relates to that?
CHIEF JON GALE: As far as a police report, yes. They would look at a
police report for investigation.
MR. RUDD: Okay.
CHIEF JON GALE: That's your example, yes, that's
true.
MR. RUDD: Would that police report then be placed into the personnel
file that's kind of referenced under “6A” [Gale affidavit]?
CHIEF JON GALE: No. It's hard to -- I guess, go back to -- Let me see
what you're referring to, first.
MR. BOGREN: I think he's referring to the reference to the information
would -- would be placed into a single file.
CHIEF JON GALE: It depends. Sometimes a report might refer to a
police report, so the report number would be listed on the internal affairs
or they might be attached, so it depends, but it would be brought back to
as a single file, yes.
MR. RUDD: But would that police report that now is referenced in the
internal investigation folder would that continue to exist as a regular
police report record?
CHIEF JON GALE: Yes.
MR. RUDD: So it's not like it's transferred and then it's not here
anymore, it's -- I mean, it would –
CHIEF JON GALE: That is correct.
MR. RUDD: Okay. Well, what about ...the audio recordings that are
generated by the squad cars or worn by the officers, would those records
be placed into the internal affairs compartment or would they continue to
exist where they are?
CHIEF JON GALE: Once again, they might be referred to or they might

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be placed in, depending on the circumstances.
MR RUDD: Okay.
MR. BOGREN: But [see], I think what he's asking is if a copy of the
recording is placed in the internal affairs file, would the recording still
remain in the -- the composite of all the other 4 recordings?
CHIEF JON GALE: Yes. There'd be a ... copy that would go in the file.
There'd be an existing recording.
MR. BOGREN: Is that what you were asking, Mr. Rudd?
MR. RUDD: Yes.

Rudd, raised these same issues before the trial court and included this same

passage in his response to the City’s emergency filings with the Court of Appeals.
II. The City has not demonstrated or established plausible concern for the anonymity of
complainants.

In the reviewing courts, the City has progressively shifted emphasis to a concern

regarding the anonymity of complainants. However, the City consistently failed to

identify specific circumstances where this might be the case. Chief Gale’s deposition

testimony demonstrates a profound lack of familiarity with the nature and quantity

of complaints which had been submitted to the department during the requested

time period. As it relates to the concern with an adverse impact on the complaints

themselves, Chief Gale struggled to identify any specific way that this had occurred

or might occur. (See Gale Dep. 22-24). A review of the pleadings and deposition

transcripts indicates that Chief Gale, Mayor Nelund and Anthony Chandler were
not familiar with the specific complaints at all when they submitted their affidavits.

Conversely, the trial court reviewed all complaints in their entirety.4 The trial

court went even further by also reviewing the entire investigatory files which were

related to six of the citizen complaints. The City was allowed to select which

investigation files were submitted for the trial court’s review. The City had the

4 In light of this contrast, it is baffling that the City now suggests that the trial Court erred by
relying on a review of the documents themselves instead of favoring the generalized and
speculative concerns expressed in Chief Gale’s affidavit.
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opportunity to present facts from the selected investigatory files which would

support the articulated concerns regarding disclosure of citizen complaints.

In conducting this review, the trial court had already been full advised of the

City’s concerns. Upon completing the review, the trial court issued specific factual

findings which concisely and specifically describe why disclosure of the citizen

complaints themselves would be unlikely to result in the harms described by The

City (5/9/18 Opinion, p.5, ¶1):

Many of the complaints disclosed stand on their own and
can be severed from the exemptible information.
One complaint involves an officer's allegedly insensitive
treatment of a mother's remains.
Several involve motor vehicle accidents involving
department personnel.
One involves officers' failure to appear in court.
Most of these do not implicate the concerns listed in the
Gale and Chandler affidavits.

If the trial Court had somehow missed the complaints which would tend to

validate the concerns expressed by the City, these errors could have easily been

identified on a motion for reconsideration or rehearing. 5 At any point, including

now, the City could have identified a citizen complaint which does implicate the

concerns listed in the Gale and Chandler affidavits (for the trial court or this court).

This has not occurred. The trial court was in the best position to adjudicate this
mixed question of fact in and law. A diligent and thorough process afforded the City

a full and fair hearing. The trial court remained unconcerned that citizens would be

chilled or negatively impacted in any substantial way.

As explained by Rudd during the 4/2/18 hearing, the citizen complaint form

itself indicates that it is an official police report (subject to prosecution for false

statements). Nothing about this form conveys that the complainant will maintain

5 The city initially indicated that such a motion was forthcoming and requested an extension of
time on this basis.
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anonymity (and there are many ways that a citizen could complaint anonymously).

A citizen who is willing to file a formal written complaint is advised that the

complaint will be discussed with the named officer—often with identity of the

complainant being revealed or easily inferred (See Gale Dep. 37-40, discussed

during the 4/2/18 hearing, p.30).

During this same hearing, Rudd acknowledged his personal experience as a

citizen who had actually filed a complaint, indicating his position that assurances of

transparency raise the public’s confidence and invite non-frivolous complaints.

Rudd repeatedly rejected the City’s contentions that they had no independent

understanding of the public’s interest in ensuring that internal affairs

investigations were conducted consistently, effectively and transparently. Rudd

argued this concern is well established by our courts, noting that, instead of

disparaging this concern, the City officials themselves should be the ones saying:
We want the public to trust us. We want them to believe that we're going
to treat their complaints with respect and we're going to, you know, put a
lot of diligence into it. We're not just going to be covering for our brothers
in blue. This isn't just going to be some code of silence. This isn’t going to
lead to the scandals we're seeing in Grand Rapids Police Department
where these phone calls get released and they're talking about how to let
their fellow officers or prosecutors off of DUI charges. That erodes the
public confidence.
The more secrecy in these things, the more difficult it is for people to
trust that they're conducting their internal affairs' investigations in an
appropriate way.
…
But when you withhold all that information, you take away the public's
ability to feel like if I walk in there to Chief Gale and I tell him this officer
intimidated me, this officer did this, is Chief Gale going to be looking out
for my best interests or is he going to be covering for that officer? That's
what the public wants to know. If Norton Shores isn't aware of that on
their own, independently, they are absolutely incapable of the balancing
test. (4/2/18, page 34)

As a whole the City has demonstrated a profound inability to understand these

matters from the perspective of the general public.

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III. The City lost credibility with the Court of Appeals because they mislead the court
regarding critical portions of the trial Court’s rulings.

Instead of directly challenging the trial court’s findings on appeal, the City

mischaracterized the trial Court’s ruling at several substantial points. For example,

the City altered the wording of the trial court’s findings regarding a chilling effect

upon future complainants. Rudd identified these misrepresentations in the City’s

emergency filing in the Court of Appeals (Emg.Mtn.to stay, ¶19) emphasis added:
“Additionally, the trial court here determined that the public interest in
disclosure of citizen complaints outweighed the interest in nondisclosure -
even though the trial court recognized that there would be "some
chilling effect on the Citizenry at large if the names of the complainants
are disclosed." (emphasis added)

As it pertains to the required balancing test “would be” vs “might be” is not a

trivial change. The City’s mischaracterization was more egregious in light of (1) the

trial court’s full statement (see below) and (2) the City’s derivative conclusion that

the trial court’s position was “nonsensical” in paragraph 19 (emphasis added):

…“The trial court's position is nonsensical, given that the interest of the
complaining citizens is directly at issue, and that, if such information is
disclosed, the citizenry at large will be affected by a diminished
willingness to come forward with complaints.”

The trial court certainly did not recognize that there would be some chilling

effect if the names of the complainants are disclosed. Here’s what the opinion

actually states (p. 5, underline added, but “some” is italicized in the original order):
Yes, the information in the complaints might be embarrassing to the
police force to some extent. Yes, there might be some chilling effect on the
citizenry at large if the names of the complainants are disclosed.
The public's interest in disclosure outweighs the reasons not to disclose.
Revelation of most of the complaints discloses very little to no
confidential police work. There is a public interest in knowing if an officer
or department is involved in some untoward behavior, or worse, a pattern
of inappropriate conduct, such as a series of motor vehicle accidents.
Moreover, disclosure of the complainant could encourage others to "go
public" with their complaints.
Expansive use of the exemptions can also diminish the public's confidence

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in its force, or create the appearance that there is a double standard for
police officers' mistakes or, in the worst scenario, unethical or criminal
conduct. Public confidence in the force could improve with knowledge
that the City was, and did, monitor its own officers' behavior.
Suppressing this information generates its own issues.

These particularized findings were set forth by the trial court after synthesizing

all arguments, carefully studying the applicable case law, and then reviewing all

complaints in their entirety. It appears that the City omitted the majority of these

fidings (above) from the discussion of the trial court’s ruling on application to this

Court. These findings (along with many other indicators) bely the City’s claim that

the trial court’s analysis was inadequate in establishing a particularized basis for

disclosure. A reading of the hearing transcripts and the 5/318 opinion clearly

demonstrate that the trial court was very cognizant of the special status afforded

the type of records which may be exempted under section 13. The trial court was

mindful, fair, thorough, and correct in reaching these determinations.

The trial court is in the best position to adjudicate the mixed questions of fact
act and

law which were raised in this dispute. The City had every possible benefit in

presenting their case. They have not specifically challenged the actual findings.

They have not identified a defect in the proceedings or the process which the trial

court employed.
IV. The City relies on an irreparably flawed understanding of Newark.
The City has repeatedly relied upon jarring misrepresentation of this Court’s ruling in

Newark. The City correctly describes the Newark plaintiff’s argument: records are not exempt

under MCL 15.243(1)(s)(ix) simply because they had been “placed in personnel files.” But has

repeatedly misstated the Appellate Court’s ruling in response to that argument. Newark is

cited extensively for the proposition that records are determined by their character and not by

their location. In spite of being rejected (at least twice) by the trial court), the City carried these

errors through to the Court of Appeals. (City’s COA Motion to Stay in, ¶18).
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In Newark, the plaintiff sought access to all records regarding the
defendant's completed internal affairs investigations, including all
factual findings and determinations made by the internal affairs
investigators and relevant command personnel. 204 Mich App at 216.
The plaintiff argued that investigation records were not necessarily
"personnel records" merely because the records were placed in personnel
files. This Court rejected this argument, observing that an employee
cannot access such records under the Employee Right to Know Act
(MCL 423.501, et. seq.), thus, "the Legislature would not have denied an
employee access to documents that were readily available to the public
pursuant to the FOIA." Id., pp 217-18. (emphasis added by appellee)

The City is obviously aware of the portion of the Newark opinion indicating that
these concerns are only applicable to certain portions of internal affairs files which

are inaccessible to an employee under the “Employee Right to Know Act.” These

are a specific type of investigatory record often containing Garrity statements. 6

The Newark opinion only establishes that information of this nature, deemed

confidential or privileged already, does fit within the intended meaning of MCL

15.243(1)(s)(ix) and may be considered for exemption under the appropriate

balancing test. But Newark clearly holds that this is only the beginning of the

inquiry. The Newark opinion goes on to unequivocally and repeatedly affirm that a

record is defined by the records character, NOT its location. The Court of Appeals

certainly did NOT reject the argument offered by the plaintiff in that case.

The NEWARK opinion unequivocally supports plaintiff’s position in this regard, plainly stating

that remand was necessary because the trial court deemed all the requested documents

“personnel records” based upon their placement in personnel file (citations omitted, emphasis

added):

6 From the beginning, Plaintiff/Appellee has clearly advised the City that he does not seek this
type of material and that the City could rightly redact or separate such information.
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Apparently on the basis of their location, the court treated all of the
requested documents as though they were "personnel records" under the
FOIA. The location of the documents is not determinative of the
applicability of the personnel records exemption. In construing [MCL
15.243(1)(s)(ix)], the United States Supreme Court stated:
Congressional concern for the protection of the kind of
confidential personal data usually included in a personnel file
is abundantly clear. But Congress also made clear that non-
confidential matter was not to be insulated from disclosure
merely because it was stored by an agency in its "personnel"
files. [Rose, supra at 372.]
This reasoning applies to the Michigan personnel records exemption as
well. An interpretation of the exemption that would allow a law
enforcement agency to shield any record from disclosure by merely
placing it in a folder labeled "personnel file" would undercut the policy of
full and complete disclosure mandated by the FOIA. Therefore, we
conclude that the Legislature did not intend that personnel records be
solely defined by their location. Newark 220-221 (emphasis added).

Plaintiff presented these same portions of Newark back in December of 2017 and

many times since. The trial Court has patiently re-directed the City on this issue at

several points in the litigation (for just one example see 4/2/18 pp.9-12). The trial

court’s 5/3/18 Opinion succinctly addresses the City’s failure to understand the law

which was established by this Court in Newark. (5/3/18 Order & Opinion, p.4,

emphasis added):
There is no specific statutory exemption for the complaints themselves. The
second Evening News principle requires any exemption to be narrowly
construed. The third requires the public body to separate the exempt and
non-exempt materials. Norton Shores's position is adverse to both of
these concepts.
Principle 3, cited above, requires the City to separate the exempt and non-
exempt materials to the extent that it can.
The City's latest brief argues the opposite-something like this: "Every
complaint triggers an investigation. The entire investigation process was
considered as a whole, so all of the records associated with the process
fall within the exemption." This does not construe the exemption
"narrowly."
Under this interpretation, no complaint would ever be disclosed, despite
the absence of any statutory exemption.

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Further, the City cannot put the complaint out of FOIA's reach by
inserting it into any personnel/internal affairs file. Newark at 204 Mich
App 220. Interpreting MCL 15.243(1) (s) (ix) to allow a law enforcement
to refuse disclosure of records by placing it in a personnel file would,
"undercut the policy of full and complete disclosure mandated by FOIA."
id.

The reasoning is sound and perfectly aligned with numerous subsequent rulings

of this Court and the Michigan Supreme Court. The City was given extensive

opportunity to brief this issue and to argue this issue (in two lengthy hearings). In

light of the actual rulings in the cases described by the City, it was patently

frivolous for the City to claim the trial court erroneously “fixated” on this “fact”:
Although the trial court acknowledged that internal investigation records
constitute personnel records that are exempt from FOIA, it fixated on the
fact that the FOIA does not specifically exempt citizen complaints that
initiate such internal investigation records. The controlling case law,
however, addresses requests that seek "all records" related to an internal
investigation. (App. Mtn. For Stay ¶18, emphasis added):

This is not a fixation. The “fact” identified by the trial court is dispositive. If any

error occurred, it was the trial court’s belief that a balancing test was still required

for the citizen complaints (certainly harmless to the City). Presumably, the trial

court engaged in this level of thoroughness to address any possibility that another

exemption would require a balancing test. The trial court’s findings regarding the

balancing test are equally unassailable (especially on a deferential standard of

review).

The City has often suggested that a blanket exemption can be asserted because

Plaintiff requested “all records” over a period of time. Accepting the City’s

characterization of the request, there is still no legal basis to support the City’s

position. A request for “all records” from a category or timeframe has no bearing on

the determinative questions for exemptions in the “particular instance.”

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Newark also specifically rejects the idea that a blanket request should be

disfavored (internal citations omitted, emphasis added).

The trial court's opinion also suggests that the public interest in
disclosure of multiple records of internal affairs investigations is always
less than the interest in disclosure of a particular instance. We disagree.
When multiple records are requested, conclusions can be drawn
concerning the efficacy and fairness of the disciplinary procedures.
Because the trial court did not address these various concerns, we are
unable to determine whether the conclusion reached by the trial court
regarding the balancing of the public interests was correct. Therefore, we
remand this case to the trial court for additional findings and for a
determination whether the public interest in disclosure outweighs the
public interest in nondisclosure of some, all, or none of the documents in
their original or redacted versions. Newark at 227.

The City has also repeatedly asserted a (false) claim that citizen complaints were

deemed exempt in Newark. As noted in the preceding passage, this Court

remanded the matter with instructions to the trial court. There is no reasonable

basis to believe that no records were produced. The City relies on the same tactic in

misrepresenting the records disclosed in the other two cases relied upon [sheriff

Sutton]. These claims were refuted in Plaintiff’s arguments on 4/2/18 (p.25):

What they're trying to do is exactly the opposite of what Newark calls for.
And Newark did not deem the records exempt. Newark remanded to the
trial court.
We have no idea if they had to produce the citizen complaints or not
because we don't know what the trial court ruled after it got sent back
there.
But that request was for 14 years' worth of all documents and that case
did not find its way back to the court on remand, so I'm guessing some
documents were produced.
The Defendant is saying that in all three cases, “they considered all the
records as a whole and none were produced.” Absolutely not true. In
sheriff -- Kent County Sheriff, the Supreme Court decision specifically
says approximately 30 some documents had already been produced
totaling around 270 some--I believe--pages, and that was just for the one
investigation.

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And in that investigation, they already had the complaint. They already
had the disposition. …The officers had been disciplined. They were
trying to, you know, fight through a grievance issue and they wanted the
very specific internal investigation records which would disclose “who
ratted on us.”
That's what they weren't going to disclose. And that's not what I'm
asking for. But they certainly had all the other records.
So it's completely wrong to say in those -- in Sutton, the third case… --
where they also say “all the records were withheld”, not true. In Sutton, it
was the complainant who was asking for the internal affairs records. He
already had the disposition. He already had the complaint. He wrote it.
What he wanted was the confidential stuff and they said “no.” …these
three cases are absolutely inapplicable to what they're trying to establish.

Even in the present application to the highest court of our state, the City still

insists that “no citizen complaints were disclosed.” The City also replicates a

corresponding error which was also identified by Rudd during the 4/2/18 hearing.

The City quotes an excerpt from the Newark opinion which comes from the trial

court below. The Court of Appeals cited this portion of the trial court’s opinion with

disfavor. It is provided as an example of what not to do. However, the City has

repeatedly presented this very portion as if it were the ruling issued by the Court of

Appeals in Newark. The City states “The same result must follow here.” (City’s

Application to MSC, pp.16-17).

V. The Court of Appeals got it right in Federated and they got it right now.

The City’s reference to disclosure rendering an appeal moot cites State News v
Mich State Univ, 481 Mich 692, 704 n 25; 753 NW2d 20 (2008) but originates in

Federated Publications, Inc. v. City of Lansing, 467 Mich. 98, 649 N.W.2d 383

(2002). The entire body of Federated litigation is highly instructive for the present

controversy. These rulings categorically oppose the City’s position regarding

disclosure of the citizen complaints. In Federated the Plaintiff sought disclosure of

“any reports or other documents regarding complaints investigated by the Lansing

Police Department Internal Affairs Bureau for the time period of January 1, 1997

through December 31, 1997.” The city asserted the law enforcement personnel
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records exemption and denied the request, “Instead, the city voluntarily disclosed a

"statistical summary of internal affairs investigations for the year 1997." The trial

court ordered the release of all records related to investigations triggered by citizen

complaints. On its way to the Michigan Supreme Court (and back to this Court on

remand) more liberal disclosures were deemed appropriate. The following summary

comes from the Supreme Court’s 2002 ruling as cited above:

Upon consideration of the various interests at stake, the court ordered
the release of all internal affairs investigation records, except those
relating to department-generated complaints. Shortly after the circuit
court's decision, the city, as well as intervening defendant Capital City
Lodge, filed an emergency motion in the Court of Appeals for a stay of the
circuit court proceedings. After initially granting the motion, the Court of
Appeals vacated its order. Without taking any further action, the city
then released the non-exempt citizen-generated complaint records to
plaintiff. Id. at 387 (emphasis added)

In addition to a remarkable similarity in the subject matter of the controversy,

the appellate litigation of Federated is also instructive as it pertains to the present

emergency request for a stay of the trial court’s order granting partial summary

disposition (“disclosure order”). In Federated, the order to disclose all records

related to the citizen complaints was issued on 1/14/99. Plunkett Cooney filed an

appeal for the City of Lansing on 2/4/99 along with an emergency motion for a stay

of the disclosure order (initially granted on the same day). 7 After reviewing

transcripts and a response from the opposing party the Court of appeals

immediately vacated the stay order (2/12/99). The City was required to disclose all

records (including internal affairs investigatory records) which were related to

citizen complaints during the time period identified by the requestor.

This disclosure order is substantially broader in scope than the disclosure order

which the City of Norton Shores now challenges on appeal (calling for disclosure of

only the citizen complaints themselves).

7 COA Appellate Docket sheet 217384

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The present disclosure order involves a simpler set of legal questions—especially

when compared to Federated’s order for disclosure all records related to the citizen

complaints. Record for record, It is unlikely that the trial court in Federated

engaged in a comparable level of judicial review (Judge Hicks allowed two lengthy

hearings and reviewed all the complaints before ordering the City to disclose them).

Also, in the present case, disclosure of the records has already been delayed by

litigation in trial court for a greater period of time than was the case in Federated.

The Court of Appeals properly effectuated legislative intent to expedite disclosure

of public records though the unique statutory framework set forth in the FOIA, by

denying a stay of the disclosure order where the appeal lacked merit. The Supreme

Court’s opinion in Federated includes a description of these procedural events and

the Court of Appeals
does not articulate any concern regarding this Court’s decision which allowed

immediate disclosure. Very few (if any) Michigan attorneys are in a better position

to overcome the challenges created by the Federated than Attorney Mary Massaron

of Plunkett Cooney. Her distinguished appellate career includes substantial

contributions to the law and numerous victories in justifying non-disclosure by

government bodies. However, the City still has not presented case law which calls

for a different result than this Court reached in Federated (on the disclosure order

and the emergency stay). It is likely that similar arguments were presented in
Federated to support the emergency motions to stay that disclosure order. However,

if this Court had allowed the stay to remain in place throughout the course of the

appellate process, the disclosure of those citizen complaint records would have been

delayed for several years.

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Conclusion
In our democracy, based on checks and balances, neither the Bill of
Rights nor the judiciary can second-guess government's choices. The only
safeguard on this extraordinary governmental power is the public,
deputizing the press as the guardians of their liberty.[1] "An informed
public is the most potent of all restraints upon misgovernment[.]"
Grosjean v. Am. Press Co., 297 U.S. 233, 250, 56 S.Ct. 444, 80 L.Ed. 660
(1936). "[They] alone can here protect the values of democratic
government." New York Times v. United States, 403 U.S. 713, 728, 91
S.Ct. 2140, 29 L.Ed.2d 822 (1971) (per curiam) (Stewart, J., concurring).

Especially in this digital age, delayed transparency equals diminished

accountability. A government which is not promptly transparent is not accountable

to the people. This creates problems looking backwards (sometimes the damage has

been done), and a problem looking forward (if a government body knows that it can

conduct its affairs without proper scrutiny or timely scrutiny). An extended failure

to by a government body to be accountable to the citizens constitutes an irreparable

and cumulative harm.

The statutory language of the FOIA expresses an inherent presumption that

continued delays in the release of records deemed non-exempt amounts to a

substantial and cumulative harm. "An action commenced pursuant to this section

and appeals therefrom shall be assigned for hearing and trial or for argument at the

earliest practicable date and expedited in every way." MCL 15.240(3).

Expediting the determination on whether or not the records are exempt from
disclosure satisfies the Legislature’s concern “that the flow of information from

public bodies to persons should not be long impeded by court process.” Cashel v.

Smith, 324 N.W.2d 336, 117 Mich. App. 405 (Ct. App. 1982).

Plaintiff requested these records from the City on 1/27/17. The city claimed that

the citizen complaints themselves were “personnel records of law enforcement.”

Plaintiff immediately appealed (Feb. 2017) arguing (inter alia) that: “Just because a
copy of a citizen’s complaint may be placed into an officer’s personnel file, that does

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not change the nature of the complaint itself. The complaint itself is a public
the
record.” The City should have immediately recognized that duty to separate exempt

materials from non-exempt materials—a principle which has been well-established

for decades. The City continued on this patently frivolous trajectory throughout the

litigation below.

The present appeal is patently frivolous and has been interposed for the express

purpose of further delays in disclosure of non-exempt public records which have

already been improperly shielded from public scrutiny for nearly a year and half

already. The FOIA provides a distinct litigation framework, which differs in many

ways from disputes where some type of property interest will be shifted from one

party to the other. The expectation of expedient resolution permeates the language

of this pro-disclosure statute. Throughout the litigation, the City has had extensive

opportunities to develop a non-frivolous basis for deeming citizen complaints

exempt. The trial court patiently and judiciously parsed the arguments and then

afforded the maximum level of judicial review on the citizen complaints themselves.

The City has not set forth any credible procedural or substantive challenge to the

trial Court’s findings. In denying the City’s motion for a stay pending appeal, the

trial court relied upon its intimate familiarity with the case. The Court of appeals

also reviewed extensive filings and denied the motion for a stay. The City has not
offered any authority for non-disclosure of records which Michigan Courts have

deemed non-exempt for decades (complaints submitted by citizens). Because it is

extremely unlikely that the City will prevail on this appeal, the Court of Appeals

did not err by denying the City’s motion for a stay of the disclosure order.

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Relief Requested

Appellee, Daniel William Rudd asks this Court to issue an order affirming the

5/31/18 Order whereby the Court of Appeals denied the City’s motion for a stay of

the disclosure order pending appeal. If it pleases the court a couple paragraphs of

discussion would also be appreciated.

Respectfully Submitted on 6/05/2018: /s/ Daniel William Rudd

a few post-filling corrections noted in red… Daniel W. Rudd, Plaintiff (Pro Se)
201 S LAKE AVE, SPRING LAKE, MI 49456
(231) 557-2532 daniel@stock20.com

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