If this opinion indicates that it is “FOR PUBLICATION,” it is subject to
revision until final publication in the Michigan Appeals Reports.
STATE OF MICHIGAN
COURT OF APPEALS
JASON GILLMAN, JR., UNPUBLISHED
September 28, 2023
Plaintiff-Appellant,
v No. 362504
Court of Claims
DEPARTMENT OF TECHNOLOGY, LC No. 22-000037-MZ
MANAGEMENT, AND BUDGET,
Defendant-Appellee.
Before: HOOD, P.J., and FEENEY and MALDONADO, JJ.
PER CURIAM.
Plaintiff appeals by right the trial court’s order granting summary disposition in favor of
defendant pursuant to MCR 2.116(C)(4) (lack of subject matter jurisdiction). We affirm.
I. BACKGROUND
The facts of this case are simple and undisputed. On March 7, 2022, plaintiff e-mailed a
FOIA request to defendant requesting copies of “[r]etention and disposal schedules for state
agencies” as well as “[r]ecords related to the process of creation and approval of retention and
disposal schedules for state agencies.” Plaintiff followed the procedures laid out by defendant on
its website, but defendant never responded to plaintiff’s e-mail. Plaintiff did not contact defendant
to follow up on his e-mail regarding the request for records; instead, he sued them. On March 22,
2022, plaintiff filed a complaint in the Court of Claims alleging wrongful denial of a records
request and seeking attorney fees, costs, punitive damages, and fines.
On April 18, 2022, defendant’s FOIA coordinator wrote a letter to plaintiff stating that she
had been informed by defendant’s legal counsel that a FOIA request was attached to his complaint
but that defendant never actually received a FOIA request from plaintiff. Nevertheless, “in the
spirit of cooperation and to avoid unnecessary litigation,” defendant processed the request that was
attached to the complaint. Part one plaintiff’s request was granted and defendant provided “copies
of the 13 General Schedules for State of Michigan Agencies.” Part two of plaintiff’s request,
however, was denied because defendant concluded that the records were not sufficiently described
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for defendant to locate responsive records, but “[i]n an effort to be of assistance,” defendant
provided a link to a website that “provides information on records management.”
Plaintiff was not satisfied. The same day as the above-described letter, counsel for
defendant e-mailed plaintiff’s attorney, Philip Ellison, explaining that it did not receive the request,
informing him that it responded to the request once it learned of it, and requesting that he dismiss
the lawsuit. In his reply, attorney Ellison “declined to dismiss the case,” rejected defendant’s
“assertion that the FOIA request was not received,” asserted that compliance with a request after
an action is commenced does not spare the agency from its obligation to pay “attorneys’ fees,
costs, and disbursements,” and insisted that defendant’s conduct “mandates the FOIA penalties.”
Attorney Ellison likened this to an individual mailing a tax return late, noting that “the State
assesses a penalty regardless of excuses.” Thus, despite defendant’s efforts to find an amicable
resolution, the lawsuit proceeded.
In lieu of answering, defendant filed a motion seeking summary disposition on the basis
that the Court of Claims lacked subject matter jurisdiction. Plaintiff’s argument that jurisdiction
existed was based on the premise that defendant denied his request by failing to respond to it, but
defendant argued that this premise was wrong because it never actually received the request. Thus,
there was no failure to respond, no denial, and no basis for jurisdiction. Kenneth Partridge, an
employee for defendant’s IT department, explained in an affidavit the steps that he conducted to
recover the e-mail that had purportedly been sent to defendant by plaintiff. Partridge explained
that he searched the department’s mailbox “including online archives and 30 day deleted item
storage” but that the search “returned zero responsive items, indicating no message from [plaintiff]
was found anywhere in [defendant’s] mailbox or archive.” However, Partridge did eventually
locate the e-mail:
I performed a message trace using the Office 365 Exchange Admin Center portal
and identified that one message from [plaintiff] to [defendant] was received by the
Office 365 Exchange Online system on 3/7/2022 21:46 UTC. The message trace
indicated that the message was automatically quarantined by the system rather than
delivered to [defendant’s mailbox]. Due to this, the message was never delivered
to [defendant’s e-mail address], including the Junk E-mail folder.
Plaintiff responded with a competing motion for summary disposition pursuant to MCR
2.116(I)(2) (nonmoving party entitled to summary disposition).
The Court of Claims determined that the record was sufficient for it to decide the competing
motions for summary disposition without conducting a hearing, and it granted defendant’s motion
while denying plaintiff’s motion. The court explained that it agreed with defendant that the request
was never received by defendant:
The scenario in this case is equivalent to e-mail delivery to a spam or junk e-mail
folder, as contemplated in MCL 15.235(1). The Legislature contemplated that not
all e-mail systems reliably deliver mail and that, in some instances, e-mailed FOIA
requests may not reach their target. Thus, FOIA provides that if the e-mail is
delivered to a spam or junk-mail folder, the request is not received until one day
after the public body becomes aware of it. In fact, this situation is even more
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compelling because defendant never received the e-mail in the first place. The e-
mail did not go into defendant’s spam or junk mailbox because defendant’s server
(Microsoft Office 365 Exchange) quarantined the e-mail before it ever arrived in
any of defendant’s mailboxes. The Court, therefore, concludes that the e-mail
quarantine was the equivalent of delivery to a spam or junk e-mail folder.
The court also noted that plaintiff’s arguments regarding the subsequent denial of part two of the
request was irrelevant because plaintiff’s lawsuit was based on the March 2022 failure to respond,
not the April 2022 partial denial. The court explained that “FOIA only permits the Court to
consider claims based on final decisions, and plaintiff’s complaint is not based on a final decision
of a public body.” Therefore, the court concluded that defendant was entitled to summary
disposition pursuant to MCR 2.116(C)(4).
This appeal followed.
II. STANDARDS OF REVIEW
This Court reviews de novo a trial court’s decision regarding a motion for summary
disposition. True Care Physical Therapy, PLLC v Auto Club Group Ins Co, ___ Mich App ___,
___; ___ NW2d ___ (2023) (Docket No. 362094); slip op at 3. Summary disposition is proper
pursuant to MCR 2.116(C)(4) when, after considering the pleadings, depositions, admissions, and
other documentary evidence, the court determines that it lacks jurisdiction over the subject matter
of the case. Id. at 4.
This Court also reviews “de novo the interpretation and application of a statute . . . .” Boyle
v Gen Motors Corp, 468 Mich 226, 229; 661 NW2d 557 (2003). This Court reviews “de novo a
circuit court’s legal determinations in a FOIA case.” Bitterman v Village of Oakley, 309 Mich
App 53, 61; 868 NW2d 642 (2015). “The court’s factual findings are reviewed for clear error if a
party challenges the underlying facts supporting the court’s decision. Discretionary
determinations in a FOIA case are reviewed for an abuse of discretion. A trial court abuses its
discretion when its decision falls outside the range of principled outcomes.” Id. (quotation marks
and citations omitted).
This Court reviews de novo issues of ripeness. King v Mich State Police Dep’t, 303 Mich
App 162, 188; 841 NW2d 914 (2013).
III. RELEVANT FOIA PROVISIONS
This case concerns application of Michigan’s Freedom of Information Act, section 1 of
which provides in relevant part:
It is the public policy of this state that all persons, except those persons
incarcerated in state or local correctional facilities, are entitled to full and complete
information regarding the affairs of government and the official acts of those who
represent them as public officials and public employees, consistent with this act.
The people shall be informed so that they may fully participate in the democratic
process. [MCL 15.231(2).]
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Accordingly, under MCL 15.233(1), “upon providing a public body’s FOIA coordinator with a
written request that describes a public record sufficiently to enable the public body to find the
public record, a person has a right to inspect, copy, or receive copies of the requested public record
of the public body.” “ ‘Public record’ means a writing prepared, owned, used, in the possession
of, or retained by a public body in the performance of an official function, from the time it is
created.” MCL 15.232(i).
FOIA provides certain procedures and responsive deadlines with which the relevant public
body must comply when responding to a request made pursuant to this act. Section 5 provides in
relevant part:
(1) Except as provided in section 3, a person desiring to inspect or receive
a copy of a public record shall make a written request for the public record to the
FOIA coordinator of a public body. A written request made by facsimile, electronic
mail, or other electronic transmission is not received by a public body’s FOIA
coordinator until 1 business day after the electronic transmission is made.
However, if a written request is sent by electronic mail and delivered to the public
body’s spam or junk-mail folder, the request is not received until 1 day after the
public body first becomes aware of the written request. The public body shall note
in its records both the time a written request is delivered to its spam or junk-mail
folder and the time the public body first becomes aware of that request.
(2) Unless otherwise agreed to in writing by the person making the request,
a public body shall . . . respond to a request for a public record within 5 business
days after the public body receives the request by doing 1 of the following:
(a) Granting the request.
(b) Issuing a written notice to the requesting person denying the request.
(c) Granting the request in part and issuing a written notice to the requesting
person denying the request in part.
(d) Issuing a notice extending for not more than 10 business days the period
during which the public body shall respond to the request. A public body shall not
issue more than 1 notice of extension for a particular request.
(3) Failure to respond to a request under subsection (2) constitutes a public
body's final determination to deny the request if either of the following applies:
(a) The failure was willful and intentional.
(b) The written request included language that conveyed a request for
information within the first 250 words of the body of a letter, facsimile, electronic
mail, or electronic mail attachment, or specifically included the words, characters,
or abbreviations for "freedom of information", "information", "FOIA", "copy", or
a recognizable misspelling of such, or appropriate legal code reference to this act,
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on the front of an envelope or in the subject line of an electronic mail, letter, or
facsimile cover page. [MCL 15.235.]
Section 10 provides a procedure by which relief can be obtained by a party whose request
for a public record was denied:
(1) If a public body makes a final determination to deny all or a portion of
a request, the requesting person may do 1 of the following at his or her option:
(a) Submit to the head of the public body a written appeal that specifically
states the word "appeal" and identifies the reason or reasons for reversal of the
denial.
(b) Commence a civil action in the circuit court, or if the decision of a state
public body is at issue, the court of claims, to compel the public body’s disclosure
of the public records within 180 days after a public body’s final determination to
deny a request.
* * *
(6) If a person asserting the right to inspect, copy, or receive a copy of all
or a portion of a public record prevails in an action commenced under this section,
the court shall award reasonable attorneys’ fees, costs, and disbursements. If the
person or public body prevails in part, the court may, in its discretion, award all or
an appropriate portion of reasonable attorneys’ fees, costs, and disbursements. The
award shall be assessed against the public body liable for damages under subsection
(7).
(7) If the court determines in an action commenced under this section that
the public body has arbitrarily and capriciously violated this act by refusal or delay
in disclosing or providing copies of a public record, the court shall order the public
body to pay a civil fine of $1,000.00, which shall be deposited into the general fund
of the state treasury. The court shall award, in addition to any actual or
compensatory damages, punitive damages in the amount of $1,000.00 to the person
seeking the right to inspect or receive a copy of a public record. The damages shall
not be assessed against an individual, but shall be assessed against the next
succeeding public body that is not an individual and that kept or maintained the
public record as part of its public function. [MCL 15.240.]
In sum, if a FOIA request is delivered via e-mail then it is deemed “received” by the public
body the business day following the date the electronic transmission was made. MCL 15.235(1).
However, if the e-mail was delivered to the entity’s “spam or junk-mail folder” then it is not
deemed “received” by the public body until the business day following the date that the entity
became aware of the request. MCL 15.235(1). A public body generally must respond to a FOIA
request within 5 business days of receiving it, and a failure to comply with this deadline is treated
as a final determination to deny the request. MCL 15.235(2), (3). Finally, the right of a party to
bring a civil action regarding a FOIA request is contingent upon there having been a final
determination to deny the request. MCL 15.240(1)(a).
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IV. APPLICATION
A. PLAIN MEANING
Plaintiff argues that defendant made a final determination to deny plaintiff’s request by
failing to respond to the request after it was received. We disagree.
Resolution of this issue requires statutory interpretation. “The foremost rule, and our
primary task in construing a statute, is to discern and give effect to the intent of the Legislature.”
In re AGD, 327 Mich App 332, 343; 933 NW2d 751 (2019). “The words used by the Legislature
in writing a statute provide us with the most reliable evidence of the Legislature’s intent.” Drew
v Cass County, 299 Mich App 495, 499; 830 NW2d 832 (2013).
If the language of a statute is clear and unambiguous, the statute must be enforced
as written and no further judicial construction is permitted. . . . Only when an
ambiguity exists in the language of the statute is it proper for a court to go beyond
the statutory text to ascertain legislative intent.” [Vermilya v Delta College Bd of
Trustees, 325 Mich App 416, 418-419; 925 NW2d 897 (2018) (quotation marks
and citation omitted).]
“Where the language of a statute is of doubtful meaning, a court must look to the object of the
statute in light of the harm it is designed to remedy, and strive to apply a reasonable construction
that will best accomplish the Legislature’s purpose.” Marquis v Hartford Accident & Indemnity,
444 Mich 638, 644; 513 NW2d 799 (1994). Courts should give the statute a reasonable
construction that best accomplishes that purpose. Id. Interpreting courts may consider a variety
of factors and apply principles of statutory construction but “should not abandon the canons of
common sense.” Id.
Pertinent to this case, MCL 15.235(1) addresses the possibility that a public body may not
become aware that it received an e-mail because of automated e-mail sorting systems. By stating
that the public body does not receive such a request until it actually becomes aware of it, this
statute discourages implying knowledge of a FOIA request that was delivered to a public body’s
potentially unseen e-mail folders. Although the statute does not expressly refer to a quarantine
process that diverts an e-mail entirely away from any inbox, we agree with the trial court that an
automated system’s sending an e-mail to a quarantine area is the equivalent of sending it to a “spam
or junk-mail folder.” This conclusion is bolstered by the fact that not all e-mail systems use the
terms “spam” and “junk” for their alternative inboxes. For example, Gmail sorts seemingly
unnecessary e-mails into folders designated for “Promotions” and “Social” in addition to its
“Spam” folder. Thus, we conclude that this statutory provision represents a general intent to
remedy situations in which messages are incidentally diverted away from a user’s primary inbox
and, therefore, not seen.1
1
Nevertheless, we invite the Legislature to provide additional guidance regarding what an
agency’s responsibility is when an email is quarantined.
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Thus, the trial court did not err by treating the quarantined e-mail as equivalent to a “junk”
or “spam” e-mail for the purposes of receipt by DTMB.
B. SUBJECT MATTER JURISDICTION
For the reasons discussed above, plaintiff’s lawsuit was not ripe because it was initiated
prior to a denial of plaintiff’s request for public records. However, it has not been established in
Michigan whether lack of ripeness divests a court of its subject matter jurisdiction. The Court of
Claims, by granting summary disposition pursuant to MCR 2.116(C)(4), implicitly decided that it
does. We decline to review the merits of this issue because, even if the Court of Claims did err,
the error was harmless because summary disposition was nevertheless appropriate pursuant to
MCR 2.116(C)(10) (no genuine issue of material fact).
Summary disposition is properly granted pursuant to MCR 2.116(C)(4) when “[t]he court
lacks jurisdiction of the subject matter.” Subject-matter jurisdiction is the power of the court to
decide the type of case—not the particular case before it. Bowie v Arder, 441 Mich 23, 39; 490
NW2d 568 (1992). In contrast, the doctrine of ripeness “focuses on the timing of the action.” Mich
Chiropractic Council v Comm’r of the Office of Fin and Ins Servs, 475 Mich 363, 379; 716 NW2d
561 (2006), overruled in part on other grounds by Lansing Sch Ed Ass’n v Lansing Bd of Ed, 487
Mich 349 (2010). A claim is not ripe when it rests on future contingent events. King, 303 Mich
App at 188. When a claim is not ripe, the claim is not justiciable. Mich Chiropractic Council,
475 Mich at 381.
MCL 15.240(1)(b) expressly provides that an action involving the denial of a FOIA request
should be commenced within the Court of Claims when the action involves a state public body.
In this case, the court did not directly rule that it lacked subject-matter jurisdiction, but this is a
logical reading of the court’s opinion. The court stated that summary disposition was proper under
MCR 2.116(C)(4) when the trial court lacked subject-matter jurisdiction and then granted
summary disposition pursuant to MCR 2.116(C)(4). However, its rationale was based on the
timing of plaintiff’s lawsuit. Therefore, the court’s ruling was based on ripeness.
Whether a trial court properly grants summary disposition pursuant to MCR 2.116(C)(4)
when plaintiff’s claim is not ripe is an unresolved issue of Michigan law, but regardless, any error
would have been harmless because summary disposition was warranted pursuant to Subrule
(C)(10). This Court has recognized that there have been inconsistencies in this Court’s decisions
regarding whether summary disposition is properly granted under MCR 2.116(C)(4) when a
party’s claim is not ripe. Van Buren Charter Twp v Visteon Corp, 319 Mich App 538, 543; 904
NW2d 192 (2017). However, “[e]ven if the trial court erroneously granted defendant’s motion for
summary disposition under Subrule (C)(4) on ripeness grounds, this Court will not reverse when
summary disposition is nonetheless appropriate under a different subrule.” Id. Although granting
summary disposition on a different ground from the ground a party raised implicates the opposing
party’s right to due process if the party lacks notice and a meaningful opportunity to be heard on
the specific issue on which the lower court based its decision, Zelasko v Bloomfield Charter Twp,
___ Mich App ___, ___; ___ NW2d ___ (Docket No. 359002); slip op at 6, this concern is not
present here because DTMB had also moved for summary disposition pursuant to MCR
2.116(C)(10) (no genuine issue of material fact), and the motion put plaintiff on notice that DTMB
was arguing that his claim was untimely. Affirming on the basis that the lower court could have
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granted summary disposition pursuant to MCR 2.116(C)(10) does not implicate plaintiff’s due-
process rights in this case.
For the reasons discussed above, plaintiff did not have a valid FOIA claim because the
issue was not ripe. If MCR 2.116(C)(4) was not an appropriate basis for granting summary
disposition then summary disposition would nevertheless have been appropriate pursuant to MCR
2.116(C)(10). Therefore, any error was harmless.
Affirmed.
/s/ Noah P. Hood
/s/ Kathleen A. Feeney
/s/ Allie Greenleaf Maldonado
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