STATE OF MICHIGAN

OAKLAND COUNTY CIRCUIT COURT

CAROL BETH LITKOUHI,

Plaintiff, Case No.: 22-__________________-CZ

v.
Hon.

ROCHESTER COMMUNITY SCHOOL

DISTRICT, a government entity. Complaint

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.

Page 1 of 22
 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

stymied in her attempts to lawfully obtain records relating to the District’s

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

Mackinac Center Legal Foundation routinely provides legal representation to

individuals, like Plaintiff, who use the Freedom of Information Act (“FOIA”) to obtain

relevant documents from state and local governments.

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.

Unfortunately, the District has rejected Plaintiff’s attempts to promote this

transparency.

Page 2 of 22
 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

responded to Plaintiff’s request by partially granting it. Specifically, 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

and other records relating to the course was denied.

After receiving the District’s response, Plaintiff filed an administrative appeal

on January 19, 2022, in an attempt to obtain a response containing the remaining

materials she had requested. In this appeal, Plaintiff specifically noted that, unless

no materials had been distributed to students as part of the course, responsive

records necessarily had to exist. Plaintiff further explained that, despite numerous

attempts to obtain the requested records through FOIA and alternate means, she had

been repeatedly rebuffed.

The District responded to Plaintiff’s appeal on February 8, 2022 by denying it.

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.

Page 3 of 22
 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,

after some additional correspondence, the District issued a final determination on

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

those materials, instead requiring Plaintiff to inspect them in person.

In light of Plaintiff’s partial denial of Plaintiff’s December 14 th request (the

“History Request”) and the refusal to produce copies of records in response to

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

with Michigan law.

PARTIES, JURISDICTION, AND VENUE

1. Plaintiff, Carol Beth Litkouhi, is a natural person and resident and citizen of the

State of Michigan, County of Oakland.

2. Defendant, the Rochester Community School District, is a government entity

administered by the Board of Education and the Superintendent. Defendant is

headquartered at 501 W. University Drive, Rochester, Oakland County, Michigan

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

over this claim.

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

operative portion of this request read as follows:

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.

Exhibit A, Plaintiff’s History Request (errors original).1

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,

in the relevant part, as follows:

Your request is granted in part and denied in part. The notifications

section of the FOIA, MCL 15.235, requires the District to identify the
reason for any partial denial of your request. Your request is granted
to the extent that a unit plan document was provided to you in our
response dated October 4, 2021. The remainder of your FOIA request
is denied. Your request is denied in part as the District is not
knowingly in possession of any records responsive to your request for
“teacher lesson plans,” “readings given to students,” “viewings,” and
“assignments used to evaluate students,” or teacher prompts made on
Flipgrid and Google classroom during the time period from August
30, 2021 through present. This letter serves as the District’s
certification that no responsive records are known to exist.

Exhibit B, District’s History Denial.

9. Plaintiff appealed the District’s Denial on January 19, 2022. The relevant portion

of Plaintiff’s appeal reads as follows:

Dear Dr. Shaner,

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
Page 6 of 22
 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.

For example, the document provided to me on October 4, which the

FOIA Coordinator called, “Unit Plan”, does not appear to reasonably
address topics supposedly covered in the course, and it only accounts
for the first two weeks of school. This document is attached below.
The fact that the District was willing to produce this document,
without producing a single additional page (either the documents
listed in the Unit Plan or any additional documents after it was
drafted), additionally demonstrates the District’s bad faith denial of
my FOIA request.

I appreciate your immediate attention to this matter. While I would

prefer not to escalate this issue, if you plan to proceed consistent with
your prior responses and deny the requests, I plan to consider all of
the legal options for obtaining these documents. I have requested this
information for months, and have not received any substantive
response. As I am sure you are aware, the applicable statutes allow
me to collect reasonable fees and costs for my efforts to correct the
wrongful denial. The District’s continued attempts (now for many
months) at stonewalling my legal right to obtain these documents is
not only depriving the community access to information to which it is
entitled, but will soon be costing taxpayer money.

Please also be aware, given the likelihood this matter proceeds to

litigation, you are also put on notice to reserve, not destroy, and not
alter any documents that pertain to the History of Ethnic and Gender
Studies class. Any effort made by the District, or its employees, to
destroy or alter those documents violates the District’s legal duties.
Should you wish to resolve the matter without court intervention,
please let me know if you’re available to discuss.

Exhibit C, Plaintiff’s History Appeal.

10. The District responded to Plaintiff’s appeal on February 8, 2022. The District

denied that appeal on the following basis:

Page 7 of 22
 On January 11, 2022, the Districts FOIA Coordinator provided you
with a response that granted your request in part and denied your
request in parts. You were provided the responsive materials known
by the District to exist at the time. The remainder of your request
was denied for the reason that additional responsive materials did
not exist. I subsequently received an e-mail from you stating your
desire to appeal the response you received from the District’s FOIA
coordinator.

I have reviewed the matter, and confirm the FOIA Coordinator’s

response was accurate. Therefore, I uphold the FOIA Coordinator’s
response to you, and your appeal is denied. Please also be advised,
that while all District staff strive to be helpful and accommodating
to requests, the FOIA Coordinator is obliged to follow the District’s
FOIA procedures, which are in accord with the law. The FOIA
Coordinator is not obliged to engage in additional actions outside
the scope of the District’s FOIA procedures.

Exhibit D, District’s History Appeal Denial.

11. Plaintiff separately sought additional materials from the district via a FOIA

request on December 27, 2022. This request sought:

“access to all Diversity, Equity, and Inclusion training materials

(including materials related to Implicit bias, Social Justice, Cultural
Proficiency, Culturally Responsive Teacher) for the 2020/21,
2021/22, and any newly added materials in the coming school year.
If material is electronic, I request access via e-mail.”

Exhibit E, Training Materials Request.

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.

Exhibit F, Training Materials Cost Estimate.

13. Plaintiff paid that fee on January 24, 2022 and the District issued a final

determination on February 11, 2022. Exhibit G, Training Materials Final

Determination.

Page 8 of 22
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

materials, instead requiring Plaintiff to inspect them in person. Id.

COUNT I: VIOLATIONS OF THE FREEDOM OF INFORMATION ACT

A. The District’s History Denial Adopts an Unlawfully

Narrow Reading of the FOIA

15. The Plaintiff hereby incorporates the preceding paragraphs as if fully restated

herein.

16. The Department’s denial of Plaintiff’s History Request indicates that no

responsive records relating to that request, other than a unit plan, exists within

the Department’s position.

17. Upon information and belief, however, this statement is inaccurate.

18. In connection with prior FOIA requests, Plaintiff previously corresponded with

the District’s Executive Director of Secondary Education, Neil DeLuca. As part of

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

produced to Plaintiff, however, in response to her subsequent History Request.

Exhibit H, 2021.08.31 Secondary Director Correspondence.

19. Furthermore, in prior attempts to obtain information relating to the History of

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

Page 9 of 22
 daily question assignments presented to students, written and video materials

relating to grant writing assignments, videos contained in a PowerPoint, and

Google classroom assignments. Exhibit I, Prior Correspondence re History

of Ethics and Gender Course. These records were not produced to Plaintiff,

either after her initial correspondence, or in her subsequent History Request.

20. Upon information and belief, these materials are housed either by individual

schools within Rochester Community Schools, or within the records of individual

teachers within those schools.

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

Paragraphs 19. and 20.

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

are subject to the District’s authority.

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.

Plaintiff received no additional lesson plans in response to her History Request.

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

of individual teachers within those schools.

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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

Plaintiff’s request, to determine whether records responsive to Plaintiff’s request

existed, or to produce such records.

26. In addition to correspondence with the District, Plaintiff corresponded with a

curriculum consultant, who provided a PowerPoint to Plaintiff that had not been

provided by the District itself. Id. at 16.

27. Upon information and belief, the District later instructed the curriculum

consultant to not provide Plaintiff with additional course materials, and to direct

her to submit a FOIA request directly to the District. Id.

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

must be presented to the District itself.

30. The District’s position is, essentially, that the District must only produce those

records it possesses as the District administration. According to this line of

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

purposes of FOIA regardless of whether they are owned, used, possessed, or

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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

considers to be in possession of those records. Practically speaking, this means

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

and existing caselaw.

32. MCL 15.231(2) states:

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).

34. The FOIA is a pro-disclosure statute, and as a result, “exemptions to disclosure

are to be narrowly construed.” Swickard v Wayne County Medical Examiner, 438

Mich 536, 544 (1991).

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

individual member schools do possess that information.

36. The District is expressly a public body pursuant to MCL 15.232(h)(iii).

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

District’s, and its individual member schools’, public functions—public education.

39. Based on the Plaintiff’s conversations with employees of the District, it appears

that these materials were prepared, owned, used, possessed, or retained by

individual member schools or teachers, within the District.

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

additional records that may be responsive to Plaintiff’s request, it is the District’s

duty to locate and produce those records.

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

whether correspondence between a city attorney and an outside consultant was

subject to FOIA. The Court answered in the affirmative, concluding:

Under MCL 15.232(i) of FOIA, a “public record” is 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.” We reiterate that such “public records” must be “prepared,
owned, used, in the possession of, or retained by a public body” and
not by a private individual or entity. In the instant case, the office of

Page 13 of 22
 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

15.231(h)(iii). As such, the District is obligated to produce responsive records

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

Request, regardless of whether the District itself is in possession of those

materials.

45. The Districts failure to do so violates Plaintiff’s rights under MCL 15.233(1).

B. The Department’s Application of a “Copyright” Exemption

was Neither Properly Identified, nor Lawful.

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

15.243, or it must be produced in response to a request.

48. In responding to Plaintiff’s Training Request, the District’s withheld certain

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

identify a specifically applicable FOIA exemption.

49. By failing to specify the MCL 15.243 exemption justifying this withholding, the

District violated MCL 15.235(5)(a).

50. Nevertheless, it can be presumed that the District’s intent was to apply MCL

15.243(1)(d), which permits the withholding of materials if they are exempted by

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

of copyrighted materials in response to a FOIA request.

53. Upon information and belief, no Michigan Court has evaluated the interaction

between the Michigan FOIA and federal copyright law. The Michigan Attorney

General, however, has opined on this issue twice.

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

Attorney General stated:

Section 3(1) provides that a person has a right to receive copies of a

public record of a public body. However, the Constitution of the
United States provides:

‘The Congress shall have Power…To promote the Progress of

Science and useful Arts by securing for limited Times to Authors and

Page 15 of 22
 Inventors the exclusive Right to their respective Writings and
Discoveries.’ US Const, art 1, § 8

Pursuant to that constitutional mandate, Congress has enacted 90

State 2546 (1976); 17 USC 106 and 109, which state:

‘§ 106 … the owner of a copyright … has the exclusive rights to do

and to authorize any of the following:

****

‘(3) to distribute copies … of the copyrighted work to the public by

sale or other transfer of ownership, or by rental, lease, or lending;
….’

§ 109. (a) Notwithstanding the provisions of section 106(3), the

owner of a particular copy or phonorecord lawfully made under this
title, of any person authorized by such owner, is entitled, without
the authority of the copyright owner, to sell or otherwise dispose of
the possession of that copy or phonorecord.’

Copyright laws may not be encroached upon by the state. As stated

in Roebuck & Co v Stiffel Co, 376 US 225, 228-229 (1964):

‘Pursuant to this constitutional authority, Congress in 1790 enacted

the first federal patent and copyright law, 1 State 109, and ever
since that time has fixed the conditions upon which patents and
copyrights shall be granted … These laws, like other laws of the
United States enacted pursuant to constitutional authority, are the
supreme law of the land.’

It is my opinion, therefore, that copyrighted materials may not be

copied and distributed in violation of the Copyright Act.

1979-1980 Mich Op Atty Gen 255 (Mich AG), 1979 WL 36558 (July 29, 1979)

(cleaned up) (emphasis added)2.

2The full text of this opinion is 43 pages. For the Court’s convenience, the relevant
portion is attached as Appendix A.
Page 16 of 22
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 bureau, in response to a FOIA request, must provide “copies of

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),

1998 Mich OAG No 6965 (January 16, 1998). 3

56. This later opinion acknowledged the prior Attorney General opinion’s holding, but

ultimately rejected it as improper due to changed circumstance. Id. at 3.

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).

58. The Attorney General then stated:

OAG, 1979-1980, No 5500, supra, was issued by the U.S. Court of

Appeals, D.C. Circuit, in Weisberg v United States, 203 US App DC
242 (1980), decided the issue of whether copyrighted materials are
exempt from disclosure under the federal FOIA. In Weisberg, the
plaintiff brought a federal FOIA action to compel disclosure of
photographs in the government’s possession that were taken at the
scene of Dr. Martin Luther King, Jr’s. assassination. Some of the
requested file photos were taken and copyrighted by Life Magazine.
Id. at 825. The government argued that, based on federal FOIA
exemptions, copyrighted materials should never be subject to
mandatory disclosure. Id. at 828. The court, however, rejected the
government’s argument and held as follows:

3 Attached as Appendix B.
Page 17 of 22
 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.

The court recognized that under the government’s interpretation of

the federal FOIA, an agency would be permitted to mask its
processes or functions from public scrutiny by merely asserting a
third party’s copyright. Id. at 828.

Id. at 3 (emphasis added).4

59. The Attorney General concluded by stating: “Under the Weisberg decision, supra,

a government agency’s public records, even if copyrighted, are subject to disclosure

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

I decision had not explicitly reached a determination of whether copyright

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

4 The Weisberg decision referenced by the Attorney General is attached as Appendix

C.
5 The Weisberg II decision is attached as Appendix D.
Page 18 of 22
61. The situation presented in the Weisberg cases is largely analogous to this matter

with respect to Plaintiff’s Training Materials Request. In both instances, the

government has attempted to prevent the copying and production of allegedly

copyrighted materials on behalf of a third-party copyright holder, but has

indicated a willingness to permit those records to be inspected. Yet, as in Weisberg

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

assassination of Dr. Martin Luther King Jr., a matter that is axiomatically a

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

is a matter of great public import at this time.

63. The recent public interest in these types of records can hardly escape notice. In

Michigan alone, multiple records requests relating to training and education

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).
Page 19 of 22
 the disclosure of records by public schools.7 School transparency is now a matter

of national public import,8 with 19 states having introduced school transparency

bills as of February 23, 2022.9 Disclosure of records such as those Plaintiff has

requested would help to contribute to this public and political discourse.

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

information regarding the affairs of government,” Michigan law requires the

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

be significant hindered, as citizens would lack meaningful information about a

matter of high public interest.

65. Even if the Michigan FOIA does not require the copying and disclosure of

requested records as a matter of Michigan law, the Weisburg decisions would

7 See, e.g., Senate Bill No 868 of 2022, available at:

https://www.legislature.mi.gov/documents/2021-
2022/billintroduced/Senate/pdf/2022-SIB-0868.pdf.
8 See, e.g., Cromwell, Rich, Will A ‘Parental Bill Of Rights’ Finally Enforce

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

(February 23, 2022), available at: https://www.city-journal.org/the-fight-for-

curriculum-transparency.
Page 20 of 22
 suggest the alternate remedy would be for the third-party copyright holder to be

impleaded in this action to ensure an adequate adjudication of the copyright issue.

66. Should the Court adopt this approach in the previous paragraph, Plaintiff’s

anticipated use of the records for purposes of commentary and/or criticism in

further of political discourse on an issue of public importance clearly falls within

the fair use exception to copyright as outlined in 17 USC §107.

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

Training Materials Request. The District’s failure to produce those records

violated Plaintiff’s rights as established by MCL 15.233(1).

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

Department to a civil fine of $1,000.00 payable to the general treasury and a

separate $1,000.00 to Plaintiff.

70. The Department’s inappropriate application of the aforementioned exemptions

constitutes a willful and intentional failure to comply under MCL 15.240b, thereby

subjecting it to a civil fine of $2,500.00 to $7,500.00 payable to the state treasury.

71. Pursuant to MCL 15.240(6), Plaintiff, if she prevails, is entitled to

attorneys’ fees and costs:

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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

Defendant, Rochester Community Schools, to provide all information sought in her

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

equitable to remedy the District’s improper withholding of the requested information

and causing the need to bring this suit.

Dated: March 14, 2022 /s/ Derk A. Wilcox

Derk A. Wilcox (P66177)

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