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158150-1 Progress Michigan v Attorney General

Progress Michigan,


Mark Brewer





(Appeal from Ct of Appeals)



(Ct of Claims – Stephens, C.)


Attorney General,


Kyla Barranco





Believing that the state’s (former) Attorney General and members of his staff used their personal e-mail accounts to perform official functions, plaintiff nonprofit organization requested, under the Freedom of Information Act (FOIA), MCL 15.231 et seq., all of defendant’s department’s e-mails since 2010 that were sent or received using a personal e-mail account in the performance of any official function. On October 19, 2016, defendant’s department denied the request, explaining that it did not possess records that met plaintiff’s description, with the exception of one e-mail that was exempt from disclosure. Plaintiff appealed, and defendant’s department upheld the denial. On April 11, 2017, plaintiff filed a FOIA complaint in the Court of Claims, pursuant to MCL 15.240(1)(b). Defendant moved to dismiss the complaint for failure to comply with MCL 600.6431(1), which provides in part that no claim may be maintained against the state unless the claimant, within 1 year after the claim has accrued, files a written claim that “shall be signed and verified by the claimant before an officer authorized to administer oaths.” Plaintiff amended its complaint to be statutorily compliant, but the amended complaint was filed on May 26, 2017, beyond the 180-day FOIA statute of limitations. Defendant moved for summary disposition, which the Court of Claims denied in part, holding that the original complaint tolled the limitations period and the amended complaint related back to the original, timely complaint. Defendant appealed. Drawing on medical malpractice caselaw, the Court of Appeals reversed in a published opinion, holding that because plaintiff’s original, timely complaint was neither signed nor verified the “[n]o claim may be maintained” language in MCL 600.6431 was triggered, rendering the original complaint void and incapable of amendment. Progress Michigan v Attorney General, 324 Mich App 659 (2018). The Supreme Court has granted plaintiff’s application for leave to appeal to address: (1) whether there is a sovereign or governmental immunity defense to the failure to disclose public records pursuant to the FOIA; (2) if so, whether that immunity is waived by the FOIA; (3) whether the notice and verification requirements of the Court of Claims Act, see MCL 600.6431(1), are applicable to a FOIA appeal; (4) if so, whether the Court of Appeals erred when it held that plaintiff’s failure to follow the verification requirement in its original complaint, which was filed within one year after the FOIA claim accrued, MCL 600.6431(1), rendered the complaint “invalid from its inception” and incapable of amendment; and (5) whether the Court of Appeals erred when it held that the verified amended complaint, also filed within the one-year period, could not “relate back” to the date of the original complaint for purposes of compliance with the 180-day limitations period of the FOIA. ​