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A Better Partnership
June 16, 2017

COA: Government Computerized Databases Can Be FOIA’ed, But It Will Cost You.

The Michigan Department of State’s computerized database constitutes writing that is used to perform an official function, thus making it subject to the Freedom of Information Act (“FOIA”), said the Michigan Court of Appeals in Ellison v. Department of State, No. 336759.

In 2016 Terry Ellison’s license plate was forfeited, but after providing current insurance information to the Department of the State, his license was reinstated. Mr. Ellison sent the Department of the State a FOIA request asking for “any and all” information pertaining to him. The Department denied his FOIA request stating that all of the information was on an electronic database, there was no way to create an output of the database, and under MCL 15.233 they were not required to create an output. The Department also denied the request claiming Mr. Ellison had not paid a fee for each record. The Court of Claims ruled that the database was not a public record and Mr. Ellison appealed.

On appeal, the Court of Appeals first turned to the definition of “public record” under FOIA, and found that any writing used by a public body in the performance of an official function constitutes a public record. The Court then turned to Farrell v. Detroit, in which a computer formula was found to constitute writing under FOIA. Applying Farrell, the Court found that the Department’s database was in fact writing used to perform an official function, thus constituting a public record.  

The Court of Appeals found that the Court of Claims erred in finding that the database was not a public record, but ultimately chose not to reverse their decision because Mr. Ellison did not submit the appropriate fees for the record he sought. The Court found that the database was a public record maintained under the Motor Vehicle Code ("MVC"). MCL 257.208b(1) states that the Secretary of State may provide a commercial lookup service for public records maintained under the MVC and a fee shall be charged for each record lookup. Because Mr. Ellison’s information was intertwined throughout the database the Court found that he would need to request the entire database in order to obtain the information he requested. The Department’s FOIA coordinator estimated the fees to lookup the entire database would cost approximately $1.6 million, and it was undisputed that Mr. Ellison did not pay that amount. 

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