Extended deadlines for FOIA responses authorized by Executive Order No. 2020-38; Adequacy of defendant’s FOIA responses; MCL 15.233(1)

The court held that at the time of defendants’ response to plaintiff’s FOIA requests, “they acted timely under then-existing law” (Executive Order No. 2020-38). Also, the trial court did not err by holding that defendants’ eventual response was compliant with FOIA. Thus, the court affirmed the trial court’s order granting defendants-Kent County and Kent County Health Department summary disposition. Plaintiff argued that they did not have a valid basis for the “delayed response to plaintiff’s request because Executive Order No. 2020-38, which extended the relevant deadlines, did not have a proper statutory basis.” While it was “undisputed that defendants did not comply with the timeframes laid out by FOIA, it is likewise undisputed that defendants did comply with the modified timeframes provided by Executive Order No. 2020-38. Under this order, the deadline to respond to a request was extended to 10 days, and public bodies were authorized to issue a notice ‘extending the period of time in which to respond for as long as the public body deems necessary’ before the expiration of the order.” Also, the court noted that “to the extent that compliance with a request required ‘in-person efforts,’ the public body was authorized to ‘defer that portion of the request until the expiration of this order or any order that follows from it.’” Plaintiff argued that this executive order could not “shield defendants from liability because Governor Whitmer did not have the statutory authority to issue it.” Defendants argued and the trial court concluded that “defendants reasonably relied on Executive Order 2020-38 because it was effective at the time of plaintiff’s request.” The court concluded that as “the United States Court of Appeals for the Sixth Circuit has recently observed, our Supreme Court’s holding in 2020 that Governor Whitmer’s executive orders were invalid beyond April 30 of that year was intended to apply prospectively.” The court noted the Supreme Court explained that “‘the executive orders issued by the Governor in response to the COVID-19 pandemic now lack any basis under Michigan law.’” It further noted that the Supreme Court also said that “‘the [statute] cannot continue to provide a basis for the Governor to exercise emergency powers.’” The court found that although the then-existing “law was later held to be without proper authority, our Supreme Court has made it clear that courts are not to undo or unravel those then-permissible acts of a local official. If our Supreme Court disagrees, it will need to revisit and clarify the matter.”