KINCAID
v.
DEPARTMENT OF CORRECTIONS
Docket No. 111727.
Michigan Court of Appeals.
Decided September 6, 1989.Frank J. Kelley, Attorney General, Louis J. Caruso, Solicitor General, and Barbara A. Schmidt, Assistant Attorney General, for defendant.
Before: DANHOF, C.J., and CYNAR and WEAVER, JJ.
PER CURIAM.
Defendant, Michigan Department of Corrections, appeals as of right from the circuit court's grant of summary disposition in favor of plaintiff, Timothy Kincaid, and the award of punitive damages on his action alleging violation of the Freedom of Information Act, MCL 15.231 et seq.; MSA 4.1801(1) et seq. Summary disposition was granted on the basis of MCR 2.116(C)(9), failure to state a valid defense. We affirm.
Plaintiff, presently and throughout, has been incarcerated at the State Prison of Southern Michigan in Jackson. On March 5, 1987, plaintiff forwarded a letter to defendant which stated that he had received a major misconduct citation on February 16, 1987, and was found guilty on March 2, 1987. The letter then requested copies of the misconduct report, all statements and documents submitted at the hearing, the hearing investigation report, and the hearing report.
On March 9, 1987, defendant denied plaintiff's request stating that the records requested did not exist under the name or description given and that "[y]our request does not describe the record sufficiently to enable us to determine what record you are seeking." Further, defendant's denial form suggested that plaintiff submit a new request, indicating that defendant needed the "actual date of hearing."
*179 On March 11, 1987, plaintiff submitted a second request which made the hearing date absolutely clear, stating specifically:
The actual date of the hearing, as stated in my first request, was March 2, 1987. I was on a visit at the time, and the hearing was held in my absence. I received the guilty verdict in the mail. However, the misconduct and the guilty finding were lost when I was moved from 11 to 8 Blk. Again, I request the above documents so that I can prepare and file an appeal in this matter.
On March 13, 1987, defendant again denied plaintiff's request for the same reasons given in its first response form. Additionally, this second denial stated: "H/O packet of 3-2-87 (Nothing in hearing file of that date pretaining [sic] to you. Must have actual date hearing was held)." [Emphasis added.]
On April 6, 1987, plaintiff submitted a third request to defendant which again set forth the precise hearing date, as well as a chronicle of his efforts to obtain the requested information. He concluded his letter by stating:
I have twice given the date of the hearing, and it would be impossible for me to describe the record since I was not present at the hearing, nor am I in possession of any of the record.
As a result of the denials of my F.O.I.A. requests, I am being deprived of my right to appeal. I have also been layed-in from my assignment in industries, moved out of the honor block, and deprived of visits as a result of the guilty finding on the misconduct.
I respectfully request that you straighten this matter out. After the five (5) day response period, I will have no other recourse than to take legal action.
*180 Defendant failed to respond to this latest letter, and plaintiff received no further communications of any kind from defendant with respect to his request as a whole.
On June 2, 1987, plaintiff filed his complaint and sought punitive damages pursuant to the FOIA. On September 1, 1987, defendant filed its answer asserting two affirmative defenses: (1) that a misconduct report pertaining to plaintiff for the date requested, March 2, 1987, did not exist, i.e., plaintiff did not provide an accurate date of the hearing; and (2) that defendant acted in good faith in accordance with the requirements of the FOIA and each of plaintiff's requests was responded to in a timely and reasonable manner in compliance with the FOIA.
On September 28, 1987, plaintiff moved for summary disposition pursuant to MCR 2.116(C)(9). In support, plaintiff submitted a copy of defendant's major misconduct docket, which indicated that the hearing in question was in fact held on March 2, 1987, as plaintiff claimed. Defendant did not respond to plaintiff's motion.
On February 26, 1988, the circuit court granted plaintiff's motion, stating:
Defendant does not deny that Plaintiff received his major misconduct ticket on February 16, 1987, or that he was found guilty of the violation on March 2, 1987. Defendant denied Plaintiff's request solely on the basis that its files regarding misconduct matters are organized by the date of hearing. If in fact the date of hearing on Plaintiff's guilt finding is not March 2, 1987, Defendant is obviously of the opinion that it need not examine its files for the days immediately preceding the guilt finding. The Court is of the opinion that Defendant's strict application of MCL 15.233(1); MSA 4.1801(3)(1), is unreasonable. Defendant knew *181 the date of Plaintiff's guilt finding and could easily determine the date of his hearing. Moreover, Defendant became aware after Plaintiff's second request that Plaintiff had no other way of determining the hearing date since he had lost his own records in a move from one cell block to another. Defendant's failure to provide Plaintiff with such easily determinable records for the reasons given is unreasonable.
Further, the court found that defendant's claims of good faith were unreasoned and did not negate the arbitrary and capricious quality of its denial which breached the "very intent" of the FOIA.
The court concluded that, since defendant failed to deny plaintiff's allegations, its defenses were clearly untenable as a matter of law, and, therefore, no factual development could possibly deny plaintiff's right to recovery. The court ordered defendant to turn over plaintiff's records and pay $500 in punitive damages.
On March 4, 1988, defendant petitioned the circuit court for reconsideration. For the first time, defendant submitted the affidavits of two of its employees to support its contention that when plaintiff made his requests defendant discovered the records to be "missing" and that every effort was made to locate them but without success.
The court denied defendant's motion on August 30, 1988, observing that defendant in its answer and affirmative defenses claimed only that plaintiff's requests failed to sufficiently describe the records sought and that defendant in its motion claimed they were missing. As in its original opinion of February 26, 1988, the court found that the records sought by plaintiff formed the basis of his guilt on the major misconduct violation and, therefore, defendant's failure to provide them breached the intent of the FOIA.
*182 Despite defendant's protestations to the contrary, we find we are in complete agreement with the circuit court under the facts of this case.
A motion for summary disposition pursuant to MCR 2.116(C)(9), for failure to state a valid defense, tests the legal sufficiency of the pled defense. Such a motion is tested by reference to the pleadings alone, with all well-pled allegations accepted as true. The proper test is whether defendant's defenses are so clearly untenable as a matter of law that no factual development could possibly deny plaintiff's right to recovery. Further, summary disposition is improper under this rule where a material allegation of plaintiff's complaint is categorically denied. Hazel Park v Potter, 169 Mich. App. 714, 718; 426 NW2d 789 (1988).
A request for disclosure pursuant to the FOIA must describe the requested records sufficiently to enable the public body to find them. MCL 15.233(1); MSA 4.1801(3)(1). When a request for records is denied on the ground that the descriptions are insufficient to enable the public body to locate the records, the person requesting the records has two options. He may either revise the description or, pursuant to MCL 15.235(7); MSA 4.1801(5)(7), and MCL 15.240; MSA 4.1801(10), file suit in circuit court. If suit is filed, the sole issue for the trial court is whether the records were sufficiently described. Cashel v Smith, 117 Mich. App. 405, 412; 324 NW2d 336 (1982), lv den 417 Mich. 956 (1983).
The public body has the burden of justifying nondisclosure of the requested records. MCL 15.240(1); MSA 4.1801(10)(1). The burden is a heavy one, and it is the duty of this Court to determine whether it has been met. United Plant Guard Workers of America v Dep't of State Police, 118 Mich. App. 292, 295; 324 NW2d 611 (1982), aff'd *183 422 Mich. 432 (1985); Penokie v Michigan Technological University, 93 Mich. App. 650, 663; 287 NW2d 304 (1979).
In this case, the circuit court's grant of summary disposition and assessment of punitive damages was entirely proper as the facts demonstrate that the defendant's conduct was indeed arbitrary and capricious in contravention of MCL 15.240(5); MSA 4.1801(10)(5). For the better part of three months, plaintiff repeatedly attempted to obtain his disciplinary records, which were necessary for him to be able to appeal the defendant's finding of guilt on the major misconduct violation. In response, defendant twice denied plaintiff's requests on the basis that his requests were not sufficiently specific and the records did not exist as described, despite the fact that defendant's own records established the exact opposite to be true. Eventually defendant simply ignored plaintiff's request.
When plaintiff moved for summary disposition, defendant did not respond or attend the hearing. The circuit court reasonably found plaintiff's request to be sufficiently specific. Further, defendant by not responding clearly did not carry its burden to show otherwise, and the court properly rejected defendant's affirmative defenses as a matter of law.
Moreover, defendant's last-minute attempts to argue that the records were lost or stolen do it no credit or service. Defendant claims that as early as March 3, 1987, it knew that the records existed, but were missing. Yet, defendant failed or refused to inform plaintiff or the court until faced with an order granting plaintiff summary disposition and punitive damages.
Thus, we find no error on the part of the circuit court and affirm.
Affirmed.