Michigan Court of Claims Hears FOIA Challenge Over Antrim County Trial Exhibits; Judge Takes Matter Under Advisement

LANSING — The Court of Claims on Jan. 21 heard competing arguments over whether the Michigan Department of Attorney General properly withheld or redacted trial exhibits requested under the Freedom of Information Act.

Judge James Raul Redford opened the hearing in the case Eric L. Van Dusen v. Dana Nessel, noting the court had scheduled oral argument on the attorney general's motion for summary disposition. Assistant Attorney General Adam De Baer told the judge his team's focus was whether the contested records are exempt under Michigan's personal-privacy exemption in MCL 15.243(1)(a), and that the department had redacted categories of personal information, including home addresses, dates of birth, telephone numbers and Facebook account identification numbers.

"The mere fact that information has been disclosed or has been, or is partially available in the public sphere ... doesn't defeat the exemption under the FOIA," De Baer told the court, invoking Michigan Federation of Teachers and other authorities the defense says support withholding personal data even if some material appears publicly.

Plaintiff counsel, identified in court as Frederick Sig Nielsen, argued the government's redactions were overbroad and that production timelines showed nonexempt material was withheld for months or more than a year. Nielsen said the plaintiff supplemented the record during the hearing with an affidavit and screenshots intended to show material identical to what had been displayed in court and later accessible online.

"The attorney general intentionally and willfully withheld it from Mr. Van Dusen for more than a year," Nielsen said, urging the court to consider additional discovery, including depositions of the department's declarant, Danielle Hageman Clark, to probe the basis for redactions and timing of supplemental productions.

Central disputed issues included whether the public-domain doctrine defeats the privacy exemption when exhibits were temporarily displayed in open court or became available via trial publicity, and whether Facebook ID numbers count as "information of a personal nature" that would justify redaction. The parties also debated whether prior orders and trial-court practices (how exhibits are filed and retained) bear on FOIA obligations.

The defense said extensive supplemental production had occurred during litigation (including larger, unredacted productions months after trial events), and that the volume of material (the defense described thousands of responsive pages and roughly 215 documents in one subset) required careful, page-by-page redaction review rather than evidence of bad faith. De Baer also argued existing exemption logs and a declaration explaining redactions were, in the department's view, sufficient to support summary disposition without in-camera review.

Judge Redford conditionally admitted a supplemental affidavit offered by the plaintiff and set a deadline for the defense to object to the court's consideration of that material. After extended argument and questioning of counsel about specific exhibits — including a Department of Defense DD Form 214 that the parties debated as to whether it had been displayed in unredacted form at trial — the judge recessed and later returned to take the matter under advisement.

"The matter is submitted. We take it under consideration," the judge said, and warned the parties a written decision might not be immediate; he said he may ask counsel to reformat or resubmit documents or, if necessary, conduct an in-camera review. The judge told parties he would try to act as quickly as his schedule allows but that a decision could take weeks or months.

Next steps: the court will review the record (including the briefs, exemption logs and the supplementary materials admitted at the hearing) and may enter an order directing the parties to produce documents in a particular format or consenting to an in-camera review. The parties were given until Jan. 24, 2025 to raise objections to the newly-submitted affidavit and exhibits.