No One Wants It to Take 13 Months: Taking Apart Grand Rapids’ Supreme Court FOIA Brief

Grand Rapids asked the Michigan Supreme Court to bless a 13-month wait for records that took about three and a half hours to process. Its brief rests on authorities that undercut it, evidence that stops a month into the wait, and a reading of FOIA that has no outer limit at all.

Why I Have This Brief

I’ll say up front where I sit. On October 23, I filed an amicus curiae brief in this case in my own name as editor of Clutch Justice, supporting the ACLU and Peter Armstrong in part. My argument was simple. The value of a public record depends on when you get it, and small outlets like this one cannot sue every time a request disappears into a queue. The City’s supplemental brief arrived through the case distribution on November 6.

I read all 44 pages and the 112-page appendix. Let me tell you what I noticed first. The City wants the Court to read FOIA strictly, word by word, with no room for anything the Legislature did not spell out. Then, when its own words and its own sources don’t cooperate, it reads them generously. The brief is 15,236 words long. None of them explain why the City missed its own estimate.

What the Court Asked

The Supreme Court’s July 10 order framed three questions. Does FOIA require a public body to fulfill a request within a reasonable time? If so, was fulfillment 13 months after the deposit reasonable under the circumstances of this case? And did producing the records make the case moot?

The City answers no, yes, and yes. Each answer has a problem, and most of those problems come from the City’s own brief.

Issue One: The City’s Own Sources Use a Reasonableness Standard

The City’s core argument is textual. MCL 15.233(3) gives requesters a “reasonable opportunity” to inspect records. Nothing in FOIA says the same about receiving copies. The Legislature knew how to write deadlines, the argument goes, and it wrote one for responses but not for production. So there is no timing requirement for production, reasonable or otherwise.

Then the brief defines “best efforts,” the phrase that governs the City’s timeline estimate under MCL 15.234(8). For that definition it turns to a 2017 Attorney General opinion, OAG No. 7300, which reads “best efforts” as diligent attempts, measured by what “a reasonable person in the same circumstances” would do. In a footnote, the City adds an unpublished Court of Appeals decision, In re Raymond L Frick Trust, which says best efforts means what is reasonable under the circumstances.

Those are the City’s authorities. Both describe a reasonableness standard. The City’s position is that FOIA has no reasonableness requirement for production, and its definition of the statute’s key phrase includes one.

The sentence the City cuts in half

MCL 15.234(8) says the timeline estimate is nonbinding, but that the public body “shall provide the estimate in good faith and strive to be reasonably accurate and to provide the public records in a manner based on this state’s public policy under section 1 and the nature of the request in the particular instance.” The statute then adds that giving an estimate does not relieve the public body of any other requirement of the act.

The City reads that whole sentence as instructions about the estimate. But the clause “to provide the public records in a manner based on” the state’s public policy is about providing the records. It is a duty attached to the production itself, and it points straight at Section 1.

What Section 1 actually says

Section 1 of FOIA, MCL 15.231(2), declares that people are entitled to full and complete information about the affairs of government. Its last sentence reads: “The people shall be informed so that they may fully participate in the democratic process.”

The City quotes that sentence on page 12 of its brief and drops the word “they.” That is a typo, but the City also drops the idea behind it. Its argument, borrowed from the circuit court, is that Section 1 is about completeness and says nothing about timing. Participation in the democratic process happens on a calendar. Budgets get adopted. Contracts get signed. Elections happen. A record that arrives after the vote does not let anyone participate in it. That was the point of my amicus brief, and the City’s brief does not answer it.

The penalty section assumes delay can violate the act

The City’s strongest-sounding point is MCL 15.240(7). That section imposes a $1,000 civil fine and $1,000 in punitive damages when a public body “has arbitrarily and capriciously violated this act by refusal or delay in disclosing or providing copies of a public record.” The City reads it as the Legislature’s only word on delay. On that reading, delay is actionable only when it is arbitrary and capricious, and the ACLU never alleged that.

Look at the grammar. The provision covers a body that violated the act by delay, and does so arbitrarily and capriciously. The words “arbitrarily and capriciously” describe how the violation happened. They do not create it. A delay can violate FOIA without being arbitrary. When it is arbitrary and capricious, the penalties apply on top. The City treats the punitive tier as the definition of a violation, and the statute does not support that.

The same section also names “providing copies” as something a body can violate the act by delaying. That is the right the City says comes with no timing protection at all.

No outer limit

Follow the City’s reading to the end. If production has no timing requirement, and only arbitrary delay is actionable, then a fair first-in, first-out queue of any length is lawful. Thirteen months is fine. So is three years. The brief never names a point at which a non-arbitrary wait becomes a FOIA violation, because its theory doesn’t have one.

The City’s inspection argument leads somewhere odd too. It relies on Cashel v Regents of the University of Michigan to say the “reasonable opportunity” standard in MCL 15.233(3) protects only in-person inspection. If that is right, a requester who walks into the building to look at records gets a reasonableness guarantee, and a requester who asks for copies, which is how almost everyone uses FOIA now, gets nothing.

Legislative history: irrelevant, until it helps

The brief tells the Court that because FOIA is unambiguous, its legislative history is not relevant to its meaning at all. The ACLU’s bill analyses, it says, are unreliable staff documents. Two pages later, the City makes its own legislative history argument.

That argument centers on House Bill 4001, which became Public Act 563 of 2014. An early version would have cut fees by 20 percent for each day records were late and eliminated fees entirely for records produced more than five days past the deadline. The City says the Legislature dropped that penalty and wrote the best-efforts estimate into MCL 15.234(8) instead, which shows it rejected any production deadline. The City sources this history to appendices attached to the Michigan Municipal League’s amicus brief.

Even on its own terms, the history shows less than the City claims. The Legislature dropped a strict, punitive five-day production rule. It replaced that rule with a requirement that public bodies “strive” to provide records in a manner based on Section 1 and the nature of the request. Choosing a flexible standard over a hard deadline is not the same as choosing no standard.

The out-of-state cases cut the other way

The City says the ACLU’s cases from other states show courts deferring to agencies about what counts as a reasonable response time. Its two examples are State ex rel Shaughnessy v Cleveland, where the Ohio Supreme Court upheld production in 24 business days, and McKee v Peoria Unified School District, where an Arizona appellate court found 24 business days reasonable.

The City offered these to show what deference looks like. Both courts were reviewing waits of about five weeks. Grand Rapids is defending 272.

Issue Two: The City Does Not Account for Most of the Wait

The Court asked whether 13 months was reasonable “under the circumstances presented in this case.” The City answers by describing those circumstances: rising FOIA volume after a 2022 officer-involved shooting, more digital data, a small Records Unit, budget limits, turnover, and a long list of non-FOIA duties, from pistol sales records to LEIN entries to discovery for the City’s own lawyers.

Nearly all of it comes from one source, the records manager’s June 8, 2023 affidavit. The deposit had been paid four to six weeks earlier, depending on whose date you use. The records were not ready for another eleven and a half months. Nothing the City cites explains what happened in that time.

The City also had an earlier verdict on this delay, from inside its own government. The ACLU appealed the 8-to-10-month estimate in May 2023, and the City’s Committee on FOIA Appeals heard it on June 9, the day after the affidavit was signed. The committee ruled that it had no jurisdiction, because an estimate is not a denial. It then agreed to “document the lengthy delay in responding to Police Department FOIA requests” and forward the concern to the City’s Public Safety Committee. The 2026 brief does not mention it.

The affidavit also undercuts the City in one respect. It says three new people had been added to improve FOIA times and were in a six-month training period. By the affidavit’s own timeline, they would have been qualified around the end of 2023. The ACLU’s request was not ready until late May 2024.

Then there is the estimate. The City told the ACLU 8 to 10 months. Measured from the deposit, that window closed between January and March 2024. The City delivered in June. The brief describes the estimate as good faith and then never mentions the shortfall again. My amicus brief proposed using a public body’s own estimate as the benchmark, with an explanation required when the body misses it by a wide margin. The City’s brief does not address that proposal or any of the amicus briefs filed for the requesters. The only amicus brief it cites is the Municipal League’s.

Volume, or how the City allocated staff?

The City says GRPD processed 2,230 FOIA requests in 2022 and 2,340 in 2023. Most of those were small requests, which the records manager testified go out in about ten days. The deposit queue was a different line. On June 8, 2023, it held 80 requests. By the City’s own figures, it cleared about six a month.

A records unit that handles nearly 200 requests a month while its deposit queue moves six a month is not mainly dealing with volume. It is deciding where its staff time goes. The City says as much when it argues that FOIA staff also handle fingerprints, gun permits, court and agency requests, and counter traffic, and that nothing requires them to put FOIA first. It is a choice, and it is the reason for the wait.

The City then asks which public services should be cut to speed up FOIA: elections, fire protection, infrastructure? It leaves out that FOIA lets public bodies charge requesters for the labor of searching for, reviewing, and redacting records, and lets them require a deposit up front on requests like this one. The ACLU paid that deposit. The City kept it for more than a year while arguing that taxpayers could not afford faster processing.

“How would we even decide?”

The City spends a paragraph asking how it could prioritize requests if it couldn’t run a strict first-in, first-out line. Where would the cutoff be? How would smaller requests be ranked? Wouldn’t large requests get stuck?

Federal agencies already answer these questions. The federal FOIA, 5 U.S.C. 552(a)(6)(D), lets agencies run multitrack processing, with separate lines for simple and complex requests. The City cites the federal statute elsewhere in the same brief. Fairness in the order of the line does not require the line to be slow.

Issue Three: Mootness

The City’s last argument is that the case ended in June 2024, when the records went out. FOIA cases seeking production usually do become moot once the records are produced. But the City’s own authorities show why this one did not.

The fee claim keeps the merits alive

The City concedes that a court can decide attorney fees after a FOIA case becomes moot. It then cites Cramer v Village of Oakley for the rule that a fee award after disclosure still requires proof of an underlying FOIA violation. That means a court considering fees has to decide whether the City violated FOIA, which is the merits question the Supreme Court asked about.

The City also argues that the lawsuit did not cause the disclosure, so the ACLU cannot have prevailed. Its evidence is the same June 2023 affidavit, in which the records manager says she intended to fulfill the request in turn. The record shows that the request sat in the queue for eight months after the lawsuit was filed and was finished one week before her deposition. Whether the suit had a substantial causative effect is a factual question. It is not a reason to dismiss the appeal.

Likely to recur, and built to evade review

The City cites T&V Associates v Director of Health and Human Services, a November 2024 Supreme Court order, for the rule that an issue must be likely to recur, not just possibly recur. In T&V, the statute had been amended and the business had closed. Neither is true here. FOIA has not changed, and the City is still processing requests. The same requester has hit a year-long wait twice.

The City argues the issue does not evade review because two courts reviewed it. Both ruled after the records were out. Under the City’s theory, every delay claim ends the moment the body hands over the records, which means the body decides when the case ends. A requester who sues over a nine-month wait loses the case when the body produces in month ten. That is the evasion the exception exists for.

What Fighting This Has Cost

The City priced the ACLU’s request at $73.82. It has spent more than three years in three courts defending how long that request took. Grand Rapids has not published what the fight has cost. Its own pay ranges, the State Bar of Michigan’s rate survey, and the case record show it.

Start with the lawyers. The City’s job postings put the City Attorney at $195,862 to $244,568 a year and a litigation assistant city attorney at $115,507 to $147,260. With benefits, that is $75 to $100 an hour of public money. The record shows what that time produced: a response to the 2023 FOIA appeal, discovery with two affidavits and a deposition, a summary disposition motion, a Court of Appeals brief, an answer to the ACLU’s application, and a 15,236-word supplemental brief signed by three attorneys, with Supreme Court oral argument still ahead. That is 210 to 420 attorney hours, or $16,000 to $42,000 in salary. At the rates the State Bar’s 2026 survey reports for municipal and appellate work, the same hours are worth $46,000 to $168,000.

The Records Unit paid too. The manager of the unit responsible for processing the backlog signed two affidavits, sat for a deposition, and supported interrogatory answers. That is 15 to 30 hours. The request itself took 3.5.

Then there is the bill still coming. Under MCL 15.240(6), a requester who prevails in a FOIA suit is awarded reasonable attorney fees, costs, and disbursements, and a court may award them when the requester prevails in part. The ACLU’s team includes three staff attorneys and five cooperating attorneys, four of them from Honigman LLP. The State Bar survey puts the median rate at $385 an hour for civil rights work and $593 at firms with more than 50 lawyers. At 400 to 900 hours across three courts, the City is looking at $150,000 to $530,000.

In November 2023, the City Commission approved $194,942 to add two records specialists to the GRPD Records Unit. If the ACLU wins, Grand Rapids pays the ACLU’s lawyers more than it budgeted for the two people it hired to work down the backlog. Over one request it priced at $73.82.

Not one request

The ACLU is not the only requester who has had to sue. In June 2022, the State Appellate Defender Office requested GRPD’s full homicide file on Derrick Brown, who is serving life without parole and maintains his innocence. The City estimated 12 to 15 months after the final invoice. SADO received the file 775 days after asking, about nine months past the City’s own estimate, and sued in September 2024. SADO says the file could support a new trial. In March 2026, after the 12th officer-involved shooting in Grand Rapids since 2022, the Michigan Advance reported that the department’s FOIA letters were still quoting four to six months after the deposit.

Every one of those cases carries the same costs: attorney time, records staff pulled into litigation, and fee exposure, stacked on top of the backlog that started them. The actual figures are public records: City Attorney time entries for each FOIA case, deposition invoices, GRPD’s FOIA log with request, deposit, and fulfillment dates, and every FOIA lawsuit, settlement, and fee award since 2018. If the City Attorney’s office does not track its hours on these cases, then the City cannot say what defending its delays has cost.

The Errors, for the Record

None of these errors decides the case. But this brief asks the Court to hold requesters to the exact words of the statute, so its own words are fair game.

Why This Matters Beyond Grand Rapids

If the City wins on the first question, every public body in Michigan can give a requester a nonbinding estimate and then take as long as it wants, as long as the line is orderly. The only check would be proving the delay arbitrary and capricious, a standard the City says this 13-month wait does not come close to meeting.

The cost does not fall evenly. Large outlets and the ACLU can sue and wait. Most requesters are residents, families, small newsrooms, and researchers who need a record while it still matters. A police department’s drone records, its FOIA backlog, a jail death, a contract before the council vote: the value of each depends on when it arrives.

I will say what I said in my brief. The Court does not need to write a deadline into FOIA. The statute already asks public bodies to give an honest estimate and to strive to provide records consistent with the people’s right to participate. The City’s own estimate is a workable benchmark, and an explanation can be required when it is missed by months. Grand Rapids did not give one in its 44 pages.

Oral argument is next. I’ll be watching for whether anyone asks the City where its timeline ends.