C. Reverse FOIAs

Generally, a party filing a reverse-FOIA suit seeks to "enjoin rather than compel disclosure of public records." Tobin v Michigan Civil Service Comm, 416 Mich 661, 663 (1982).  In Bradley v Saranac Community Schools Board of Education, 455 Mich 285 (1997), the Michigan Supreme Court discussed the courts' general course of analysis of reverse-FOIA suits:

[I]n a reverse FOIA action, a determination whether the FOIA requires disclosure of the requested documents should be the first step in an action challenging an FOIA request. A finding that the documents are public records under the FOIA, and no exemptions apply, requires that the documents be disclosed.  Additionally, a finding that the privacy exemption does not apply obviates the need for an analysis under the common law, because, irrespective of whether there was a common-law claim, the FOIA governs the resolution of the case. . . .

     Principles of common-law privacy do come into play when the court is determining whether information of a personal nature constitutes a "clearly unwarranted invasion of an individual's privacy."

Id. at 301-02 (footnotes omitted).

Bradley was a case wherein members of the public sought access to personnel files of school employees.  One of the arguments presented against disclosure of those files was that it was contrary to the process set forth in a collective bargaining agreement.  The Michigan Supreme Court held a school district could "not eliminate its statutory obligations to the public merely by contracting to do so" with another party.  Id. at 303.  The court stated: "The FOIA requires disclosure of all public records not with an exemption.  No exemption provides for a public body to bargain away the requirements of the FOIA."  Id. (footnote omitted); See also Kent Co Deputy Sheriff's Ass'n v Kent Co Sheriff, 463 Mich 353, 361 (2000) (quoting Bradley); and Detroit Free Press v Detroit, 480 Mich 1079 (2008) (citing Kent County Sheriff's Ass'n).

Thus privacy concerns and negotiated agreements are typically insufficient to overcome the public's ability to get fast, cheap information from the government.

But as the instant case clearly exemplifies, reverse-FOIA suits impede rapid access to public documents.  The initial request was filed in March 2007, and yet Zarko still has not seen most of the documents the trial court indicated he was entitled to.  Reverse-FOIA suits also discourage citizens from using the FOIA, since a party seeking public documents may have to hire an attorney to intervene in the reverse-FOIA lawsuit and spend significant amounts litigating that case.  Even if that person were to win the suit and receive attorney fees and court costs, he or she may find it difficult to raise the money to pay the lawyer while the case is being litigated. Such considerable expenditures stand in stark contrast to the simple copying costs and the minimal labor costs described in the FOIA.