STATE OF MICHIGAN

IN THE 14th CIRCUIT COURT FOR THE COUNTY OF MUSKEGON

DANIEL W.RUDD,

Plaintiff, Case No. 2017-004334-CZ

v. HON. TIMOTHY G. HICKS

CITY OF NORTON SHORES,

Defendant.

Daniel W. Rudd (Pro Se) Michael S. Bogren (P3483S)

201 S. Lake Ave LisaA.Hall(P70200)
Spring Lake, Michigan 49456 Attorneys for Defendant
(231-557-2532) PLUNKETTCOONEY
daniel@stock20.com 950 Trade Centre Way, Suite 310
Kalamazoo, Michigan 49002
(269-226-8822)
mbogren(5>plunkettcooney.com

RESPONSE IN OPPOSITION TO PLAINTIFF'S MOTION & BRIEF

REQUESTING AN ORDER COMPELLING DEFENDANT TO FILE AND
SERVE AN INDEX OF RECORDS WITHHELD

Defendant City of Norton Shores ("Defendant"), by and through its attorneys,

Plunkett Cooney, presents this Response in Opposition to Plaintiffs Motion & Brief

Requesting an Order Compelling Defendant to File and Serve an Index of Records Withheld.

Plaintiff incorrectly claims that Defendant has failed to produce particularized

justifications for the records withheld and, without any legal authority whatsoever,

requests this Court to enter an order compelling Defendant to file and serve an index of the

records withheld under the exemption. Plaintiffs request must be denied for the reasons

set forth below.

 As articulated in Defendant's response to Plaintiffs FOIA request, Defendant denied

Plaintiffs FOIA request pursuant to MCL 15.243(l)(s)(ix). MCL 15.243(l)(s)(ix) exempts

the personnel files of law enforcement agencies unless the public interest in disclosure

outweighs the public interest in nondisclosure. As evidenced by the Affidavits of Chief Gale
and Anthony Chandler, copies of which are attached as Exhibit A, the public interest in

disclosure of the records sought by Plaintiff does not outweigh the public interest in

nondisclosure. The Affidavits supplied by Defendant are not conclusory in that they simply

recite the statutory language provided for in MCL 15.243(l)(s)(ix). Indeed, the Affidavits

contain detailed testimony as to why the public interest in disclosure of these internal

affairs records would not outweigh the public interest in nondisclosure. Specifically, as set

forth in the Affidavits, disclosure of the internal affairs records would have a serious

negative impact on the Department's ability to conduct meaningful internal investigations

and would have a negative impact on the morals of the Department Accordingly, contrary

to Plaintiffs claims, and unlike the defendants in Evening News where only a generic

assertion was given regarding disclosure harming the investigation, Defendant has

provided detailed affidavits describing the type of matters withheld (i.e., internal

investigation files) and provided particularized justifications for the exemption.

While Plaintiff asserts various portions of the internal investigation file may not be

exempt and requests this court to compel Defendant to file and serve an index of records
withheld, case law interpreting MCL 15.243(l)(s)(ix) does not support Plaintiffs request

for relief.1 In Kent County Deputy Sheriffs' Ass'n v Kent County Sheriff, 238 Mich App 310,

1 Plaintiff cites King v Michigan State Police Department, 303 Mich App 162; 841 NW2d 914 (2013) to suggest
portions of the personnel files may contain public records that are not exempt, but King did not involve the
subject exemption at hand. Case law interpreting MCL 15.243(l)(s)(ix) provides that the entire internal
605 NW2d 363 (1999); Newark Morning Ledger Co v Saginaw County Sheriff, 204 Mich App

215, 514 NW2d 213 (1994); and Sutton v City of Oak Park, 251 Mich App 345, 650 NW2d

404 (2002), plaintiffs sought all documents associated with the internal investigations. The

Court of Appeals did not require the initial complaints to be disclosed, nor did the Court

require the disposition of the complaints to be disclosed. The entire internal investigation

process was considered as a whole, and all of the records associated with the process were
held to fall within the exemption. The same result must follow here.

There is no question Defendant, in its pending Motion for Summary Disposition, has

provided law to support that the records sought by Plaintiff fall within the exemption for

personnel records and has provided testimony to establish that the public interest in
disclosure does not outweigh the public interest in nondisclosure. 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.

For the reasons set forth above, along with the reasons set forth in Defendant's

pending Motion for Summary Disposition, Defendant respectfully requests that the Court

deny Plaintiffs Motion, grant its pending Motion for Summary Disposition, and grant any
further relief which this Court deems just

investigation process is considered as a whole, and all of the records associated with the process fall within
the exemption.
 Respectfully submitted,

DATED: April 25, 2018 PLUNKETTGOONEY

i /
By: . n \LlJcJ-
U Michael S. Bogren (P34835]
Lisa A. Hal! (P70200)
Attorney for Defendant

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