Professional Documents
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2022.03.14 Rochester Schools Complaint (Complete)
2022.03.14 Rochester Schools Complaint (Complete)
v.
Hon.
Defendant.
________________________________________________________________________
Derk A. Wilcox (P66177)
Stephen A. Delie (P80209)
Patrick J. Wright (P54052)
Mackinac Center Legal Foundation
Attorneys for Plaintiff
140 West Main Street
Midland, MI 48640
(989) 631-0900 – voice
(989) 631-0964 – fax
[email protected]
______
COMPLAINT
______________________________________________________________________________
There is no other pending or resolved civil action arising out of the same transaction
or occurrence alleged in the complaint.
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NOW COMES Plaintiff, Carol Beth Litkouhi, by and through her attorneys,
The Mackinac Center Legal Foundation, and for her Complaint alleges and states as
follows:
INTRODUCTION
The plaintiff, Carol Beth Litkouhi, is a parent within the Rochester
Community School District (the “District”) who, despite repeated attempts, has been
curriculum, training materials, and other related records. Having exhausted all
reasonable attempts to obtain the records she seeks, this lawsuit follows.
The Mackinac Center for Public Policy (the “Mackinac Center”) is a nonprofit
organization dedicated to improving the quality of life for all Michigan residents by
promoting sound solutions to state and local policy questions. To that end, its
individuals, like Plaintiff, who use the Freedom of Information Act (“FOIA”) to obtain
This case deals with a matter of significant public interest, namely, the ability
of parents to ensure schools are transparent about the lessons being taught to the
children they serve. The need for transparency in this particular area is essential, as
it affords parents the opportunity to understand what their children are learning,
and to fully engage with local government officials about these lessons.
transparency.
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On December 14, 2021. Plaintiff submitted a FOIA request to the District for
the release of information relating to a “History of Ethnic and Gender Studies” course
that had been taught by at least one of the District’s member schools. The District
granted Plaintiff’s request with respect to a unit plan, which was provided to Plaintiff
as part of an earlier request. The remainder of her request for curriculum materials
materials she had requested. In this appeal, Plaintiff specifically noted that, unless
records necessarily had to exist. Plaintiff further explained that, despite numerous
attempts to obtain the requested records through FOIA and alternate means, she had
In its denial, the District emphasized that it had provided those responsive records
known to exist by the district, and denied the remainder of Plaintiff’s appeal on the
grounds that no responsive materials existed. The District failed to address any
specific argument raised in Plaintiff’s appeal, including the fact that the District’s
position would inherently mean that no classroom materials had been produced in a
course that had been actively taught for over six months.
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Plaintiff separately sought additional materials from the district via a FOIA
request on December 27, 2021. On that date, Plaintiff sought access to materials
relating to Diversity, Equity, and Inclusion trainings for the years 2020-2022. The
District responded on January 21, 2022 by granting that request and requesting a
deposit in the amount of $418.45. Plaintiff paid that fee on January 24, 2022, and,
February 11, 2022. Although the District’s response was styled as a full grant, a
number of unidentified materials were withheld on the basis of the fact they were
copyrighted materials. Based on that fact, the District refused to produce copies of
Plaintiff’s December 27th request (the “Training Materials Request”), Plaintiff brings
this action against the District. Neither the District’s refusal to release curriculum
materials, nor its refusal to produce copies of allegedly copyrighted materials comport
48307.
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3. Venue is proper pursuant to MCL 15.240(1)(b).
4. Pursuant to MCL 15.240(5), this action should be “assigned for hearing and trial
or for argument at the earliest practicable date and expedited in every way.”
5. Pursuant to MCL 15.240(1)(b) and MCL 600.605, the circuit court has jurisdiction
FACTUAL BACKGROUND
6. The Plaintiff hereby incorporates the preceding paragraphs as if fully restated
herein.
7. On December 14, 2021, Plaintiff submitted a FOIA request to the District. The
Pursuant to the state open records law Mich. Comp. Laws. Secs.
15.231 to 15.246, I write to request access to and a copy of all
teacher lesson plans, curriculum, readings given to students (such
as articles, publications, case studies), viewings (such as video clips),
and assignments given to students (such as writing or discussion
prompts) used for the “History of Ethnic and Gender Studies”
Course at Rochester High School during the time period from
August 30 – present. If material is electronic, I request access via
email. If book(s) were given to be used, I request that the book(s) be
made available for me to come and review.
1Plaintiff has submitted requests for similar requests relating to the “History of
Ethnic and Gender Studies” course in the past, but for purposes of this lawsuit,
Plaintiff’s complaint is limited to the violations of law arising from her December
14, 2021 request, as well as those arising from her December 27, 2021 request.
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8. On January 11, 2022, the District responded to Plaintiff’s request by partially
granting and partially denying Plaintiff’s request. The District’s response reads,
9. Plaintiff appealed the District’s Denial on January 19, 2022. The relevant portion
I would like to appeal this FOIA response I received from the District
on January 12, 2022, regarding my request to access class curriculum
for the History of Ethnic and Gender Studies. To date, Rochester
Community Schools District (“District”) responded that no responsive
documents exist. I have reason to believe that responsive documents
do exist, since the class has, upon information and belief, been
allowed to run uninterrupted for the last 6 months. Indeed, unless the
District, school, or teacher, have not distributed any materials in the
class since its inception (which, based on District admissions, I do not
believe is the case), the District is in direct violation of its Freedom of
Information Act (“FOIA”) obligations. I ask you to reconsider the
District’s response.
As I have shared with you in a previous letter, I’ve tried reaching out
to multiple district employees to request information informally,
politely, respectfully. My requests were rebuffed by District
administrators who told me and forced me to use the legal process of
FOIA to obtain this information. With great disappointment, even my
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formal FOIA submissions failed to produce any response other than
form letter denials of the existence of letters related to my requests—
even for material that obviously exists and was distributed in the past
according to other communications. The FOIA requests themselves
were narrowly tailored, and were reasonable within their scope. Note,
the District did not object to the scope or breadth of the requests
themselves, but merely stated it was not in possession of such
documents. Again, based on statements made by individuals in the
District, as well as common sense, I do not believe that to be true.
10. The District responded to Plaintiff’s appeal on February 8, 2022. The District
11. Plaintiff separately sought additional materials from the district via a FOIA
12. The District responded to Plaintiff’s Training Materials request on January 21,
2022 by granting that request and seeking a deposit in the amount of $418.45.
13. Plaintiff paid that fee on January 24, 2022 and the District issued a final
Determination.
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14. Although the District’s response was styled as a full grant, a number of
unidentified materials were withheld on the basis of the fact they were
copyrighted materials. Id. Based on that fact, the District refused to produce those
15. The Plaintiff hereby incorporates the preceding paragraphs as if fully restated
herein.
responsive records relating to that request, other than a unit plan, exists within
18. In connection with prior FOIA requests, Plaintiff previously corresponded with
this correspondence, Plaintiff obtained a course syllabus for the History of Ethnic
and Gender Studies course, as well as a course description. These items were not
Ethics and Gender studies course, Plaintiff learned that a number of other
documents relating to the course exist, but these documents were not produced in
response to the History Request. These documents include such material as the
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daily question assignments presented to students, written and video materials
of Ethics and Gender Course. These records were not produced to Plaintiff,
20. Upon information and belief, these materials are housed either by individual
21. Upon information and belief, Beth Davis, The District’s FOIA coordinator, did not
ask individual schools or teachers to locate and provide the records referenced in
22. Upon information and belief, The District’s FOIA coordinator only produced
those records collected and retained by the District itself, without attempting to
locate responsive records housed within the District’s member schools and which
23. In fact, in response to her initial inquiries, Plaintiff received only one lesson plan
for the first two weeks of the History of Ethnic and Gender Studies course. Upon
information and belief, more lesson plans for this course have been created.
24. Upon information and belief, these additional records are owned, used, possessed,
or retained by either individual schools within the District, or within the records
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25. Upon information and belief, the District did not ask either individual schools, or
those teachers responsible for teaching the course that was the subject of
curriculum consultant, who provided a PowerPoint to Plaintiff that had not been
27. Upon information and belief, the District later instructed the curriculum
consultant to not provide Plaintiff with additional course materials, and to direct
28. At that time, Plaintiff had already submitted multiple FOIA requests, all of which
had failed to produce some material that was both relevant and responsive. See,
e.g., Id.
29. Further, when Plaintiff inquired as to whether she should be directing her request
to individual schools within the District, she was informed that all FOIA requests
30. The District’s position is, essentially, that the District must only produce those
thinking, those public records held by schools within the District, or by teachers
within those schools, are not considered within the District’s possession for
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maintained by either individual schools or teachers, even when in the performance
of an official function.
31. Thus, Plaintiff is caught in a catch-22. The District refuses to acquire records from
its schools and teachers in order to fulfill her requests, but also forbids members
of the public from directly requesting those records from the parties the District
that records held by a member school, but not by the District itself, are essentially
unattainable through FOIA requests. This is contrary to both the purpose of FOIA
It is the public policy of this state that all persons, except those persons
incarcerated in state or local correctional facilities, are entitled to fully
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 participate in the democratic process.
33. The public body has the burden of proof in applying an exemption. MCL
15.235(5)(a)-(c); MLive Media Group v City of Grand Rapids, 321 Mich App 263,
271 (2017).
35. Here, rather than applying an exemption, the District has claimed that no
responsive records exist in its possession. Upon information and belief, this is
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because the District itself does not possess responsive records, even if its
37. The District’s member schools are also public bodies for purposes of MCL
15.232(h)(iii).
38. There can be no meaningful dispute that course materials, regardless of by whom
they are prepared or retained, are prepared or retained in connection with the
39. Based on the Plaintiff’s conversations with employees of the District, it appears
40. Thus, these records are public records as defined by MCL 15.232(i).
41. To the extent that schools within the District, or even individual teachers, possess
42. This issue was largely settled in the Supreme Court’s Bisio v City of Village of
Clarkston case, 506 Mich 37 (2020), in which the Court was asked to examine
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the city attorney constitutes a “public body” because it is an “other
body that is created by state or local authority” pursuant to MCL
15.231(h)(iv). Furthermore, the documents at issue are
“writing[s]…retained” by the public body “in the performance of an
official function” under MCL 15.232(i).
Id. at 55.
43. Here, the District’s member schools are public bodies pursuant to MCL
owned, used, possessed, or retained by those schools, just as the City of Village of
Clarkston was required to produce responsive records in the possession of its City
Attorney.
44. In light of the above the District is legally obligated to ask its members schools
for any materials in their possession that are responsive to Plaintiff’s History
materials.
45. The Districts failure to do so violates Plaintiff’s rights under MCL 15.233(1).
46. The Plaintiff hereby incorporates the preceding paragraphs as if fully restated
herein.
47. Under MCL 15.232(i), a public record is either exempt from disclosure under MCL
materials on the basis that providing copies of those materials would violate an
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unidentified party’s copyright rights. In doing so, the District failed to specifically
49. By failing to specify the MCL 15.243 exemption justifying this withholding, the
50. Nevertheless, it can be presumed that the District’s intent was to apply MCL
another statute. It can further be presumed that the District’s citation to “Title 17
of the US Code” was intended to indicate the statute on which the District relied.
51. 17 USC 101 et seq. is the federal law which governs copyright and copyright
actions.
52. Thus, for the District to be able to withhold the requested records, it necessarily
must be claiming that federal copyright law prevents the copying and production
53. Upon information and belief, no Michigan Court has evaluated the interaction
between the Michigan FOIA and federal copyright law. The Michigan Attorney
54. In 1979, the Attorney General was asked to evaluate a wide variety of issues
associated with the FOIA, including copyright. In addressing the issue, the
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Inventors the exclusive Right to their respective Writings and
Discoveries.’ US Const, art 1, § 8
****
1979-1980 Mich Op Atty Gen 255 (Mich AG), 1979 WL 36558 (July 29, 1979)
2The full text of this opinion is 43 pages. For the Court’s convenience, the relevant
portion is attached as Appendix A.
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55. The Attorney General again opined on the interaction between the FOIA and
copyright in 1998. In this matter, the relevant question was whether the state
insurance manuals of rules and rates which are in its possession and are required
by law to be filed by insurers with the bureau, without first obtaining the
permission of the copyright holder.” 1997-1998 Mich Op Atty Gen 93 (Mich AG),
56. This later opinion acknowledged the prior Attorney General opinion’s holding, but
57. The Attorney General first noted that interpreting the Michigan FOIA
consistently with the federal FOIA was appropriate where analogous. Id., citing
Capitol Information Association v Ann Arbor Police, 138 Mich App 655, 658 (1984).
3 Attached as Appendix B.
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We hold that mere existence of copyright, by itself, does not
automatically render FOIA inapplicable to materials that are clearly
agency records.
Id. at 825.
59. The Attorney General concluded by stating: “Under the Weisberg decision, supra,
under the federal FOIA. A similar result should prevail under the Michigan
FOIA.” Id.
60. Subsequent cases relating to the Weisberg case (hereinafter Weisberg I) are
consistent with this result. In Weisberg v US Dept of Justice, (Weisberg II) the
District Court for the District of Columbia noted that that the while the Weisberg
prevented the requested records from being disclosed, it was unlikely the
documents at issue would have ever been disclosed absent the FOIA request,
despite the fact they were made available for public inspection. Weisberg v US
Dept of Justice (Weisberg II), 745 F.2d 1476, 1481, n. 7 (DC Cir 1984).5
II, it is unlikely the relevant records will be meaningfully disclosed to the public
absent the copying of the records sought by Plaintiff’s Training Materials Request.
62. Similarly, the release of the requested records in both Weisberg II and in this
matter relate to subjects of great public important. In the Weisberg cases, the
public interest was gaining a greater understanding of the events surrounding the
matter of public interest. Here, the relevant records Plaintiff seeks relate to
diversity, equity, and inclusion, implicit bias, and social justice, along with any
training methods thereof. This subject matter and/or the implementation thereof
63. The recent public interest in these types of records can hardly escape notice. In
materials have received media attention.6 The public interest is so high that bills
have been introduced in the Michigan Legislature that would specifically address
6See, e.g., Kieffer, Amanda, Parents Need a Say on Education Curricula, Washington
Examiner (October 29, 2021).
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the disclosure of records by public schools.7 School transparency is now a matter
bills as of February 23, 2022.9 Disclosure of records such as those Plaintiff has
64. In light of the Attorney General’s most-recent opinion on this matter, and FOIA’s
clear public policy goal of providing all persons with “full and complete
District to make the relevant records available for copying. Indeed, absent such
an order, the people’s ability to “fully participate in the democratic process” would
65. Even if the Michigan FOIA does not require the copying and disclosure of
Government School Transparency?, The Federalist (February 10, 2022), available at:
https://thefederalist.com/2022/02/10/will-parental-bill-of-rights-finally-enforce-
government-school-transparency/; Poff, Jeremiah, Minnesota Republicans Introduce
School Transparency Bills, Washington Examiner (February 15, 2022), available at:
https://www.washingtonexaminer.com/restoring-america/community-
family/minnesota-republicans-introduce-school-transparency-bills.
9 Rufo, Christopher F., The Fight for Curriculum Transparency, City Journal
66. Should the Court adopt this approach in the previous paragraph, Plaintiff’s
67. Thus, under both Michigan law and the framework established by the Weisberg
cases, Plaintiff is entitled to receive copies of the records she requested in her
C. Statutory Damages
68. The Plaintiff hereby incorporates the preceding paragraphs as if fully restated
herein.
69. In light of the above, the Department’s improper withholding of the requested
records is arbitrary and capricious under MCL 15.240(7), thereby subjecting the
constitutes a willful and intentional failure to comply under MCL 15.240b, thereby
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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).
RELIEF REQUESTED
Plaintiff, Carol Beth Litkouhi, respectfully requests that this Court order
FOIA requests in unredacted form; apply the full penalties available under MCL
15.234(9), MCL 15.240(7), and MCL 15.240b; award attorneys’ fees and costs under
MCL 15.240(6); and award any other relief this Court determines to be just and
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