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Plaintiff, File No. 2017-004334-CZ
Honorable Timothy G. Hicks
Plaintiff’s Brief Opposing Adjournment &
CITY OF NORTON SHORES, Seeking Detailed Description of Records

Daniel W. Rudd Michael S. Bogren & Lisa A. Hall (Grand Rapids)

Plaintiff, Pro Se PLUNKETT COONEY, P.C. for Defendant
201 S Lake Ave 950 Trade Centre Way, Suite 310
Spring Lake, MI 49456 Kalamazoo, Michigan 49002
(231) 557-2532 (269) 226-8822 & (616)752-4615



I. Defendant’s request to adjourn the bench trial is untimely.

MCL 15.240(5) provides that “An action commenced under this section and an appeal
from an action commenced under this section shall be assigned for hearing and trial or
for argument at the earliest practicable date and expedited in every way.” It has now been
more than a year since Plaintiff submitted his FOIA requests to the City of Norton Shores.

Due to scheduling issues, the trial court issued an order on 1/22/2018 which adjourned
the bench trial to 4/5/2018. This Court’s 10/2/2017 Scheduling Order specifies a 14 day
period wherein the parties are permitted to request an adjustment of the trial date.

Page 1 of 11
Accordingly, Defendant should have raised this issue within 14 days of the
1/23/2018 Order which denied summary disposition and rescheduled the bench trial for
4/5/2018. Defendant’s request to adjourn the bench trial is untimely.

II. Defendant has not established good cause for adjournment.

Chief Gale and Mayor Nelund have already submitted affidavits in support of
Defendant’s 12/1/2017 Motion for Summary Disposition. Both of these witnesses were
also deposed on 12/20/2017. Attorney Bogren was present and had the opportunity to
preserve testimony at that point as well. Transcripts were produced and provided to the
parties shortly thereafter. Defendant has not indicated the nature or purpose of the
additional testimony to be offered by Chief Gale or Mayor Nelund. Plaintiff proposed
that a stipulation could be reached for admission of further testimony but Defendant
declined to attempt that resolution.
Based upon the existing affidavits, deposition testimony, and the position Defendant
has consistently asserted, it seems unlikely that further testimony from these individuals
would be necessary for resolving the primary dispute regarding disclosure of the records.
As this Court observed during the 12/22/2017 hearing on Defendant’s motion for
summary disposition, the primary legal questions regarding disclosure have already been
framed. Counsel can argue Defendant’s position regarding the exemption claimed.
Chief Gale and Mayor Nelund’s testimony is not relevant to that inquiry (pg 34-35).
THE COURT: Isn't the bench trial just going to be an extended version of the
argument we're having today?
MR. DANIEL RUDD: Yes, it is, and I -- I stated that specifically to Mr. Bogren.
THE COURT: What factual disputes are there?
MR. DANIEL RUDD: The factual disputes would be, number one, is it credible that
Chief Gale asserts that this is the blanket policy that we apply across the board? Is
that -- because that's a credibility determination in an affidavit and in that case
summary disposition is not appropriate.
THE COURT: Well, I don't know about that. Isn't that issue really whether what he
asserts complies with the law?
Page 2 of 11
MR. DANIEL RUDD: That's the legal question, but there is still a factual question
of is this even the policy that they --
THE COURT: Okay. Let's suppose I find that he's a good, credible witness but he's
wrong about the law.
MR. DANIEL RUDD: Then they lose on that too.
THE COURT: So that's why I'm saying, does this credibility matter at all?
MR. DANIEL RUDD: It does, because I've also alleged that this denial of the
request was arbitrary and capricious and I'm asking for the [punitive] sanctions that
are expressed under the statute when a denial is made in that fashion. So my
assertion would be not only does this not comport with what we know of the policies
within Norton Shores, but this doesn't comport with Norton Shores' previous actions.

Plaintiff maintains his position that the testimony of Chief Gale and Mayor Nelund is

only relevant to the question of damages. Should the court determine that further
testimony from these individuals is necessary to resolve those questions, this does not
need to delay a ruling on disclosure of the records. This Court always has the option of
reserving judgement on the “derivative issues” and has already contemplated the
possibility of proceeding in this manner. (12/22/2017, pg 37):
THE COURT: Let's hold off on the derivative issues for a minute --
THE COURT: -- sanctions, arbitrary, capricious, attorney fees, that kind of stuff.
Let's hold off on those. At trial, if you win, what's the order say?
MR. DANIEL RUDD: Well, it would indicate which of those records are exempt
and which -- which of those records must be disclosed.
THE COURT: All right. Wouldn't it be better for me to start examining those now?
MR. DANIEL RUDD: I definitely think so. And I suggested to Mr. Bogren that
that's what should have been presented to the Court.

Expediting the determination on whether or not the records are exempt from
disclosure satisfies the Legislature’s concern “that the flow of information from public
bodies to persons should not be long impeded by court process.” Cashel v. Smith, 324
N.W.2d 336, 117 Mich. App. 405 (Ct. App. 1982). Even if factual disputes remain on
derivative issues, arguments and document review may still be expedited as required by
the statute. The bench trial set for 4/5/2018 should not be adjourned.

Page 3 of 11
III. Chief Gale and Mayor Nelund should appear to offer testimony at the hearing
which has been scheduled for 3/12/2018.

Mayor Nelund and Chief Gale have already submitted affidavits AND been deposed
under oath. If Defendant believes that further testimony is essential to the presentation
of their case, Defendant should specifically describe what type of testimony will be
offered, why it is essential to resolving this controversy, and why it cannot be admitted
in an alternate form. Plaintiff offered to discuss stipulation to admission of further
testimony through alternate means, but Defendant declined. (See Exhibit A).
Depending on what Defendant intends to establish through further testimony, a brief
examination during the 3/12/2018 hearing could suffice. Under certain circumstances
MCR 2.116(I)(3) allows the trial court to “order immediate trial to resolve any disputed
issue of fact.” If the court hears from these witnesses and is satisfied that no further
testimony is required, the matter could then proceed to arguments and final resolution
during the bench trial on 4/5/2018. In either case, presenting these witnesses at the
hearing on 3/12/2018 could aid the Court’s determination.
IV. Defendant still has not produced “particularized justifications” for the distinct
records and/or categories of records withheld.

Plunkett Cooney is one of Michigan’s leading law firms with over --- attorneys
employed. Mr. Bogren is the managing partner with substantial experience in FOIA
litigation. In that context it is troubling that Defendant continues to maintain numerous
positions which are untenable as a matter of law and contrary to Michigan’s policy of
open and transparent government. Of greatest concern is the continued effort to sustain
a generalized and blanket denial of any record which may have some connection to an
internal investigation. This position clearly subverts the FOIA mandate to separate
exempt from non-exempt materials along with the similar standards established by the
caselaw which Defendant has relied heavily upon in these proceedings.

Page 4 of 11
Chief Gale’s 11/29/2017 affidavit asserts that the citizen complaint and corresponding
documents (i.e. disposition reports, correspondence to complainant) were exempt from
disclosure because they have been grouped with internal investigation documents:
“When citizen complaints are received by the Norton Shores Police Department an
internal investigation file is opened and all records related to the complaint are kept
together in a single file.” (¶ 6A – Chief Gale’s Affidavit)

However, in his deposition on 12/20/2017, Chief Gale clearly demonstrated his

awareness that public records continue to exist in their distinct form regardless of their
association with an internal investigation (pg. 16-18)
MR. RUDD: …would one of those initial steps for the officer conducting the
[internal] investigation … be gathering together the department's existing records
related to that occurrence? Like say there was already a police report regarding an
occurrence, a citizen files a complaint that relates to that?
CHIEF JON GALE: As far as a police report, yes. They would look at a police
report for investigation.
MR. RUDD: Okay.
CHIEF JON GALE: That's your example, yes, that's true.
MR. RUDD: Would that police report then be placed into the personnel file that's
kind of referenced under “6A”?
CHIEF JON GALE: No. It's hard to -- I guess, go back to -- Let me see what you're
referring to, first.
MR. BOGREN: I think he's referring to the reference to the information would --
would be placed into a single file.
CHIEF JON GALE: It depends. Sometimes a report might refer to a police report, so
the report number would be listed on the internal affairs or they might be attached,
so it depends, but it would be brought back to as a single file, yes.
MR. RUDD: But would that police report that now is referenced in the internal
investigation folder would that continue to exist as a regular police report record?
MR. RUDD: So it's not like it's transferred and then it's not here anymore, it's -- I
mean, it would –
CHIEF JON GALE: That is correct.
MR. RUDD: Okay. Well, what about …the audio recordings that are generated by
the squad cars or worn by the officers, would those records be placed into the
internal affairs compartment or would they continue to exist where they are?

Page 5 of 11
CHIEF JON GALE: Once again, they might be referred to or they might be placed
in, depending on the circumstances.
MR> RUDD: Okay.
MR. BOGREN: But [see], I think what he's asking is if a copy of the recording is
placed in the internal affairs file, would the recording still remain in the -- the
composite of all the other 4 recordings?
CHIEF JON GALE: Yes. There'd be a … copy that would go in the file. There'd be
an existing recording.
MR. BOGREN: Is that what you were asking, Mr. Rudd?
MR. RUDD: Yes.

Chief Gale’s 11/29/2017 affidavit primarily asserts that the public’s interest in
disclosure is outweighed by the public’s interest in maintaining the confidentiality of
“statements made during the course of internal investigations.” Obviously, these type of
statements are not included in the citizen complaints or the correspondence to the
complainant. In his 12/20/2017 deposition, Chief Gale clearly acknowledged that these
statements are also excluded from the disposition report which is created after the
internal investigation is complete (pg 19):
MR. RUDD: When the investigation is complete -- what steps happen once the
investigating officer has, you know, come to their conclusions?
CHIEF JON GALE: The investigating officer turns over the investigation to myself,
and then I rule on the matter and after maybe consulting with them on what occurred
and give a disposition to the case.
MR. RUDD: When you say give a disposition, what does that mean?
CHIEF JON GALE: That means it's the official ending to the report, what's the
outcome of the investigation.
MR. RUDD: Is that a written document typically –
MR. RUDD: -- the disposition? And does the disposition include a record of the
internal affairs' statements that were made during the investigation?
MR. RUDD: Why does it not include those?
CHIEF JON GALE: Because the investigation is held confidential.

Page 6 of 11
Plaintiff’s 2/23/2017 appeal to Mayor Nelund clearly identified distinctions between
exempt and non-exempt records.
“Such a written reprimand, created for a personnel file, may be accurately described
as a personnel record. However, the citizen complaints, the report reviewed by the
police chief and the dispositional report itself are public records which are subject to
disclosure.” (Exhibit A from Plaintiff’s Complaint)

Plaintiff’s 12/15/2017 Brief Opposing Summary Disposition also addressed this issue:
The public policy concerns articulated by Chief Gale have been affirmed by our
courts and our legislature as it pertains to certain types of internal affairs
investigation records (in the nature of Garrity statements). These are not the type of
records which plaintiff seeks. Defendant’s affidavits do not establish that the
requested documents are exemptible under MCL 15.243(1)(s)(ix) and they do not
offer enough information for the court to make findings with particularity.
If any of the requested records are deemed exemptible under MCL 15.243(1)(s)(ix),
further judicial analysis is required before they are deemed exempt . Defendant has
not provided the necessary documentary evidence for the court to conduct the
required balancing test. According to the case law offered by defendant, this
balancing test typically calls for an in-camera review of the documents themselves.
(pg 3)

Plaintiff’s 12/15/2017 brief set forth extensive case law articulating the need for
particularized justifications to support non-disclosure of each individual records or
distinct “class” of records (see pages 7-10). The brief further defines the appropriate
form of documentary evidence (detailed affidavits) which would allow a trial court to
make determinations as the law requires. This Court also spent substantial time
discussing the numerous distinctions between various records which would presumably
require a unique justification for exemptions under the FOIA (12/22/2017 pgs. 10-17,
39 for a few examples).

Page 7 of 11
During the same hearing Plaintiff asserted that Defendant needed to produce more
information so that a meaningful analysis could occur (pg 30, emphasis added--):
MR. DANIEL RUDD: Many other cases are very clear in that distinction that just
because something is exemptible, it doesn't mean it's exempt. That's where the
balancing test comes in.
THE COURT: And the court has to look at those to do the balancing test.
MR. DANIEL RUDD: --Often has to do an in camera review of exactly those
reports. And the case law indicates that someone in my position is really limited on
their ability to say, well, here's exactly what they -- what I want, because that whole
process is kind of shrouded in secrecy, which isn't great for the public's confidence
in it, but it also creates a limitation of me being very specific about what those
records I want are and why I want them.
So the case law dealing with that conundrum says that the court is typically going to
be required to get some help from the parties and it places the primary emphasis on
the person who is withholding the records, because the burden of proof is on them,
not just at summary disposition stage, although much more so here.
But the burden of proof is on them to demonstrate in very specific ways particular to
each individual record, not a whole file. It's fine to keep them all together, but that
doesn't change the fact that these are individual records. And in most cases --
In fact, in Newark, the trial court had actually conducted an in camera review of the
records themselves and that's because the defendant had not presented affidavits
which adequately described the nature of the records, which I would contend is also
the case here today.

V. This Court should order Defendant to correct this deficiency through the process
established by the Michigan Supreme Court.

In Evening News Ass'n v. City of Troy, 417 Mich. 481, 503, 339 N.W.2d 421 (1983), the
Michigan Supreme Court described the challenges of a situation where only the public
body had knowledge of the particular nature of those records which were being
Where one party is cognizant of the subject matter of litigation and the other is not,
the normal common-law tradition of adversarial resolution of matters is decidedly
hampered, if not brought to a complete impasse. If one adds to this the natural
tendency of bureaucracies to protect themselves by revealing no more information
than they absolutely have to, it is clear that disclosure becomes neither automatic nor
functionally obtainable through traditional methods Id. at 515. (emphasis added)

Page 8 of 11
To overcome this difficulty, the Supreme Court set forth a multi-part process for
resolving the dispute. These rules were primarily directed to the law-enforcement-
purposes exemption, but subsequent rulings have applied these standards to claims of
exemption from disclosure on other grounds as well. See State News v. MSU, 735
N.W.2d 649, 274 Mich. App. 558, 481 Mich. 692 (Ct. App. 2007), overturned on other
grounds by State News v. Michigan State University, 753 N.W.2d 20, 481 Mich. 692
(2008). The process is succinctly described in State News v. MSU (Ct. App. 2007):
To meet its burden when claiming an exemption, the public body "should provide
complete particularized justification, rather than simply repeat statutory language."
In Evening News Ass'n v. City of Troy, the Michigan Supreme Court set forth the
following rules that should be used in analyzing a claim of exemption from
disclosure under FOIA:
1. The burden of proof is on the party claiming exemption from disclosure.
2. Exemptions must be interpreted narrowly.
3. "[The] public body shall separate the exempt and nonexempt material and make
the nonexempt material available for examination and copying."
4. "[D]etailed affidavits describing the matters withheld" must be supplied by the
5. Justification of exemption must be more than "conclusory", i.e., simple repetition
of statutory language. A bill of particulars is in order. Justification must indicate
factually how a particular document, or category of documents, interferes with law
enforcement proceedings.
6. The mere showing of a direct relationship between records sought and an
investigation is inadequate.

This is the process by which Norton Shores must establish particularized justifications
for non-disclosure of each record withheld. Government officials have been entrusted to
make an initial determination on the public’s interest in non-disclosure versus the
public’s interest in disclosure of documents requested. However, the legislature set forth
an expedited process with harsh sanctions and penalties to discourage “the natural
tendency of bureaucracies to protect themselves by revealing no more information than

they absolutely have to.” See Evening News Supra. at 515.

Page 9 of 11
Thus far, Defendant has only produced a conclusory blanket justification and a
numerical accounting for complaints against the department received during one of
three years requested (2014). Although required by CALEA standards, no such numbers
have been produced for 2015 and 2016. However, Chief Gale estimated that there were
between 10-20 citizen complaints in 2016 (Deposition, pg. 9). A reasonable
extrapolation would suggest that between 30-50 citizen complaints were submitted to
the department in some form during the period of time identified by Plaintiff’s FOIA
request (1/1/2014 through 1/27/2017). According to the department, disposition
reports and correspondence with the complainant are generated for each and every
citizen complaint.
It stands to reason that 90-150 individual public records are being withheld by the
City of Norton Shores under a singular and conclusory blanket justification. Under FOIA,
a “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(e). Plaintiff’s FOIA requests identified these records “sufficiently to
enable the public body to find the public record.” See Detroit Free Press, Inc v City of
Southfield, 269 Mich App 275, 280-281; 713 NW2d 28 (2005), citing MCL 15.233(1).
The burden is on the public body to prove that a record is exempt under any public-
interest balancing test. See Landry v City of Dearborn, 259 Mich App 416, 420; 674
NW2d 697 (2003). Otherwise, “a public body must disclose all public records that are
not specifically exempt.” See King v Mich State Police Dep’t, 303 Mich App 162, 176; 841
NW2d 914 (2013) (emphasis added).
Defendant’s continued reliance on this position appears to be an attempt to eliminate
judicial review from the process. It was offensive when Defendant initially asked this
court to simply accept their “determination” without any real scrutiny. Now, without the
slightest movement toward actual transparency, it is suggested that the opinions of Chief
Gale and Mayor Nelund should be the primary focus in this inquiry.

Page 10 of 11
The failure to produce the appropriate type of detailed affidavits with particularized

justification has not just "hampered" resolution of this dispute, but has effectively
brought that resolution "to a complete impasse." See Evening News above. Defendant
has not even defined the quantity or categories of records which have been withheld,

only regurgitated various iterations of the statutory language and broadly applying those
a conclusory "determination" to a multitude of diverse records. This is profoundly

Wherefore, Plaintiff asks this court to:

1) Deny Defendant's motion to adjourn the bench trial which is currently set for

2) Issue an order which compelling Defendant to file and serve an affidavit which
meets the standards set forth by the Michigan Supreme Court in Evening News
Ass'n v. City of Troy, 417 Mich. 481, 503, 339 N.W.2d 421 (1983).

3) Reserve the issue of sanctions.

Respectfully Submitted on 2/28/2018:

Daniel W. Rudd, Plaintiff (Pro Se)
(231) 557-2532

PROOF OF SERVICE: The undersigned certifies that a copy of the foregoing document was served
on counsel for Defendant by (1) email attachment to the addresses noted in the caption, & (2) Via U.S.
mail to the address noted in the caption above, with postage fully prepaid, on 2/28/2018.

Q4^> . Daniel W. Rudd, Plaintiff (Pro Se)

Page 11 of11
Exhibit A
2/28/2018 Mail - Rudd v City of Norton Shores

Rudd v City of Norton Shores
5 messages  

Austin, Diane <> Tue, Feb 13, 2018 at 1:42 PM
To: "" <>

Mr. Rudd,
Attached is a proposed Stipulation and Order to Adjourn the April 5, 2018 trial date in this matter.  As
you will see in the Stipulation, we are requesting a short adjournment due to the fact that Chief Gale will
be out of state and not available to testify at the trial.  If the Stipulation meets your approval, please let
me know if Mike Bogren has your permission to sign on your behalf. 
Diane Austin Legal Secretary to
Michael Bogren, Susan Finnegan   
and Keith Peterson  
  Plunkett Cooney
Attorneys & Counselors at Law
T 269.226.8834  
office | vcard | web

2 attachments


(prop) stip_order adj TD.DOCX

Daniel Rudd <> Tue, Feb 13, 2018 at 3:33 PM
To: "Austin, Diane" <>

Could you please check with Mr. Bogren to see if we might be able to stipulate to the testimony he wishes to
introduce, or maybe come up with a different way to have it admitted? I'm hoping we can wrap this matter up.
[Quoted text hidden]… 1/3
2/28/2018 Mail - Rudd v City of Norton Shores

Austin, Diane <> Wed, Feb 14, 2018 at 9:44 AM
To: Daniel Rudd <>
Cc: "Bogren, Michael" <>

Mr. Rudd,
I have conveyed your concerns to Mr. Bogren regarding you’re not wanting to adjourn the trial date in
this matter.  While we understand your desire to “wrap up this matter,” Mr. Bogren feels that it is in the
best interests of our client to have Chief Jon Gale present at the trial and to give live testimony.  If you
will not agree to the adjournment, via stipulation, we will have no choice but to file a motion.  I have
attached the proposed Stipulation for your reconsideration.
I will look forward to hearing from you.
Diane Austin Legal Secretary to
Michael Bogren, Susan Finnegan  
and Keith Peterson  
  Plunkett Cooney
Attorneys & Counselors at Law
T 269.226.8834  
office | vcard | web

From: Daniel Rudd [] 
Sent: Tuesday, February 13, 2018 3:33 PM  
To: Austin, Diane  
Subject: Re: Rudd v City of Norton Shores

Could you please check with Mr. Bogren to see if we might be able to stipulate to the testimony he wishes to
introduce, or maybe come up with a different way to have it admitted? I'm hoping we can wrap this matter up.

On Feb 13, 2018 1:51 PM, "Austin, Diane" <> wrote:

Mr. Rudd,

Attached is a proposed Stipulation and Order to Adjourn the April 5, 2018 trial date in this matter. As you will see in
the Stipulation, we are requesting a short adjournment due to the fact that Chief Gale will be out of state and not
available to testify at the trial. If the Stipulation meets your approval, please let me know if Mike Bogren has your
permission to sign on your behalf.



Diane Austin Legal Secretary to… 2/3
2/28/2018 Mail - Rudd v City of Norton Shores

Michael Bogren, Susan Finnegan 
and Keith Peterson  
Plunkett Cooney
Attorneys & Counselors at Law
T 269.226.8834  
office | vcard | web

2 attachments


(prop) stip_order adj TD (2).DOCX

Daniel Rudd <> Wed, Feb 14, 2018 at 4:00 PM
To: "Austin, Diane" <>
Cc: "Bogren, Michael" <>

The statute itself specifically calls for expedited hearings.  Mr. Bogren initially did not intend to have Chief Gale testify
and did not believe a deposition was necessary.  Also, it seems that Judge Hicks does not believe that Chief Gale's
testimony is necessary for making a determination on which records should and should not be disclosed (see
transcript excerpt from page 35 below).   So, rather than adjourn, I would propose that we proceed with the
scheduled trial date, allow the court to conduct any in camera review deemed necessary, and make a ruling on the
record disclosures.   If further testimony is required for the issue of damages and declaratory relief, the Court can
reserve judgment on that issue until a later date when Chief Gale can be heard. 

­Daniel Rudd

pg 34­35 12/22/2017

THE COURT: Isn't the bench trial just going to be an extended version of the argument we're having today?
MR. DANIEL RUDD: Yes, it is, and I ­­ I stated that specifically to Mr. Bogren.
THE COURT: What factual disputes are there? 
MR. DANIEL RUDD: The factual disputes would be, number one, is it credible that Chief Gale asserts that this is the
blanket policy that we apply across the board? Is that ­­ because that's a credibility determination in an affidavit and
in that case summary disposition is not appropriate.
THE COURT: Well, I don't know about that. Isn't that issue really whether what he asserts complies with the law?
MR. DANIEL RUDD: That's the legal question, but there is still a factual question of is this even the policy that they ­­
THE COURT: Okay. Let's suppose I find that he's a good, credible witness but he's wrong about the law.
MR. DANIEL RUDD: Then they lose on that too.
THE COURT: So that's why I'm saying, does this credibility matter at all?
MR. DANIEL RUDD: It does, because I've also alleged that this denial of the request was arbitrary and capricious
and I'm asking for the putative sanctions that are expressed under the statute when a denial is made in that fashion.

See also the court's comments on page 36 about reviewing the records and resolving that portion of the
dispute before proceeding to the question of damages.… 3/3