The Freedom of Information Act (FOIA) (MCL 15.231 et seq.); Rataj v. Romulus; Herald Co., Inc. v. Eastern MI Univ. Bd. of Regents; The law enforcement proceedings exception (MCL 15.243(1)(b)(i)); King v. Oakland Cnty. Prosecutor; Evening News Ass’n v. Troy; Attorney fees & costs; MCL 15.240(6); Amberg v. Dearborn; Nash Estate v. Grand Haven; Punitive damages; MCL 15.240(7); Local Area Watch v. Grand Rapids; Defendants’ obligation to determine whether materials requested under FOIA actually exist; MCL 15.235(5)(b)

The court held that the trial court erred in concluding that defendants-county and sheriff’s department met their burden to show that the FOIA exemption in MCL 15.243(1)(b)(i) applied to the video recordings plaintiff sought. Thus, the items should have been disclosed to him. However, it did not err in denying his request for attorney fees and costs under MCL 15.240(6) as he “had less litigious avenues” for obtaining the items. The court remanded for further proceedings as to punitive damages under MCL 15.240(7), instructing the trial court to determine whether the recordings existed. Plaintiff’s FOIA request arose from his arrest. The court previously remanded for further proceedings. The trial court conducted an evidentiary hearing and ruled that defendants adequately justified their reliance on the law enforcement proceedings exemption from FOIA disclosure. Plaintiff argued that it erred in doing so and in not ordering them “to release the patrol car and stationhouse videos.” The court agreed, concluding that they did not establish that releasing the requested videos would have hampered an ongoing investigation. At the evidentiary hearing, they relied entirely on the testimony of the arresting officer (M), a police captain (O), and the county prosecutor (N), and none of the three adequately explained how releasing the videos “would have hampered the law-enforcement investigation.” Their testimony was “comprised of inherently speculative and conclusory statements.” Further, N’s testimony, consistent with that of M and O, as well as defendants’ appellate arguments, suggested that the actual denial of the FOIA request “was premised on the mere existence of an ongoing investigation without adequate consideration of whether the investigation would actually have been hindered in any realistic, identifiable way if the requested records were released.” Thus, defendants could not rely on MCL 15.243(1)(b)(i). The court noted that, for the first time on remand, defendants’ witnesses suggested that the requested videos might not exist. “A plain reading of FOIA would suggest that, in the first instance, it is incumbent on defendants to determine whether materials requested under FOIA do, in fact, exist.” If the videos did “not exist, the extensive litigation that has occurred in this case would have been a waste that only defendants could have avoided.” Reversed and remanded.