Litkouhi v. Rochester Cmty. Sch. Dist.

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CAROL BETH LITKOUHI, Plaintiff-Appellant, v. ROCHESTER COMMUNITY SCHOOL DISTRICT, Defendant-Appellee.

No. 364409

Court of Appeals of Michigan

February 22, 2024

UNPUBLISHED

Oakland Circuit Court LC No. 2022-193088-CZ

Before: K. F. KELLY, P.J., and JANSEN and HOOD, JJ.

PER CURIAM.

In this case involving FOIA requests for teacher materials plaintiff, Carol Beth Litkouhi (Litkouhi), appeals as of right the trial court's order granting summary disposition in favor of defendant, Rochester Community School District (Rochester). We affirm.

I. BACKGROUND

This case originates from a request under the Freedom of Information Act (FOIA), MCL 15.231 et seq., from Litkouhi, a parent within the Rochester Community School District, to Rochester for records related to a course on ethnic and gender studies taught in a district school. In late August 2021, Litkouhi contacted Neil DeLuca Rochester's Executive Director of Secondary Education. The specific details of that contact are unclear, but it related to an elective course offered to high school students called "History of Ethnic and Gender Studies." In response, DeLuca emailed Litkouhi a description of the course and informed her that he could connect her with one of the teachers teaching the course for various materials. In the afternoon that same day, Litkouhi responded and asked to schedule a conversation with DeLuca.

DeLuca contacted Chad Zwolinski, a teacher of the ethnic and gender studies course, and, "to be responsive to Ms. Litkouhi," asked him "to prepare a document to describe the topics addressed in the course." Zwolinksi produced an outline of the first two weeks of the course that detailed various activities, including "community building activities," writing activities, and other assignments. In early September 2021, Litkouhi followed up with DeLuca after he offered to send her additional course materials. DeLuca responded the same day, informing Litkouhi he would stop at one of the schools to "obtain a copy." Later that same evening, DeLuca forwarded Litkouhi a course syllabus.

Approximately a week after she received the syllabus from DeLuca, Litkouhi submitted a FOIA request to Rochester for course materials related to the ethnic and gender studies course. The FOIA request sought

all teacher training materials and references (written and video) for the "History of Ethnic and Gender Studies" course, given between August 1-September 10, 2021. If material is electronic, I request access via email. If book(s) were given to be used, I request that the book(s) be made available for me to come and review.

Also, I request access to and a copy of all teacher lesson plans, readings given to students (articles, publications, case studies), viewings (video clips), and assignments used to evaluate students (writing prompts) used for the "History of Ethnic and Gender Studies" Course at Rochester High School, Adams High School, and Stoney Creek High School during the time period from August 30-September 10, 2021. If material is electronic, I request access via email. If book(s) were given to be used, I request that the book(s) be made available for me to come and review.

In an early October 2021 letter, Elizabeth Davis, Rochester's Chief Human Resource Officer and the FOIA Coordinator for the district, granted Litkouhi's request in part. Davis explained that the request was "denied to the extent that the District is not knowingly in the possession of any records responsive to [Litkouhi's] request" for lesson plans, readings, viewings, or assignments to evaluate students between August 30, 2021, through September 10, 2021. Davis indicated the letter "serve[d] as the District's certification that no responsive records are known to exist."^[1] Davis granted the request for teacher training materials and references for the course. She indicated that the "responsive records known by the District to exist at this time ha[d] previously been provided to [Litkouhi]," but were "attached to this letter as well." The document produced with the October 2021 letter mirrored the one Zwolinski produced at DeLuca's request and that DeLuca had forwarded to Litkouhi.

In mid-December 2021, Litkouhi emailed Davis another FOIA request. The request was similar to her earlier request; she sought

access to and a copy of all teacher lesson plans, curriculum, readings given to students (such as articles, publications, case studies), viewings (such as video clips), and assignments given to students (such as writing or discussion prompts) used for the "History of Ethnic and Gender Studies" Course at Rochester High School during the time period from August 30 - present. Also, I request access to teacher prompts made on Flipgrid and Google classroom during the time period from August 30 - present. If material is electronic, I request access via email. If book(s) were given to be used, I request that the book(s) be made available to me to come and review.

Litkouhi also asked Davis to provide a written explanation should she deny Litkouhi's request, asking for "reference to the specific statutory exemption(s) upon which you rely" and "all segregable portions of otherwise exempt material."

In a mid-January 2022 letter, Davis acknowledged receipt of Litkouhi's December 2021 FOIA request. Davis indicated that Litkouhi's "request [was] granted in part and denied in part." Davis granted the request "to the extent that a unit plan document was provided to you in our response dated October 4, 2021." Davis also explained the partial denial as follows:

[T]he District is not knowingly in the possession of any records responsive to your request for "teacher lesson plans," "readings given to students," "viewings," and "assignments used to evaluate student", or teacher prompts made on Flipgrid and Google classroom during the time period from August 30, 2021[,] through present. This letter serves as the District's certification that no responsive records are known to exist.

Litkouhi received this letter on January 12, 2022.

A week after receiving the letter from Davis, Litkouhi emailed Dr. Robert Shaner, Rochester's superintendent. She wrote that, despite indications to the contrary from the district, she believed that "responsive documents do exist" because the class had "been allowed to run uninterrupted for the last 6 months." She asked Dr. Shaner to reconsider the district's response, indicating that although district administrators had "rebuffed" her requests, "common sense" and statements from others in the district suggested the documents existed. Litkouhi noted the likelihood of litigation, advised Dr. Shaner to preserve all documents related to the course, and indicated her willingness to discuss the issue to avoid court intervention. In an early February 2022 letter, Dr. Shaner responded to Litkouhi's appeal, noting his review of the issue. Dr. Shaner confirmed the accuracy of Davis's response and upheld her decision, denying Litkouhi's appeal.

In mid-March 2022, Litkouhi sued Rochester, alleging a single claim for violation of FOIA. Within that single count, Litkouhi alleged that in denying her FOIA request, Rochester adopted a narrow reading of FOIA when it indicated that it only had to produce records in possession of district administrators and records held by member schools or individual teachers were not considered in the district's possession for FOIA purposes. She alleged that Rochester was obligated to produce responsive records used, possessed, or retained by its member schools, and to ask if any of the member schools had responsive materials in their possession. She also alleged that Rochester failed to properly identify an exemption when it withheld certain materials because of copyright concerns.^[2] Litkouhi sought statutory damages for the alleged FOIA violations, and attorneys' fees and costs.

In late April 2022, Rochester answered Litkouhi's complaint and asserted various affirmative defenses, generally acknowledging the accuracy of her allegations related to the circumstances of her FOIA request and appeal, but otherwise denying the allegations as untrue, or neither admitting nor denying them. Rochester admitted that some documents were not provided to Litkouhi, responding, however, that it did not know whether those documents even existed and denied possessing them.

In early July 2022, the parties stipulated to allowing Litkouhi to file an amended complaint. The amended complaint contained largely the same allegations regarding Litkouhi's request related to the course on ethnic and gender studies. Relevant here, Litkouhi added allegations that Rochester had a duty to locate and produce any responsive records possessed by any schools or individual teachers. Rochester answered in mid-July 2022, largely tracking the answers in its initial answer. It denied, however, that it had a duty to locate and produce records that schools or individual teachers may possess. In early August 2022, Rochester filed a notice of deposition, seeking to depose Litkouhi because her complaint was "replete with allegations raising factual issues" requiring discovery. Litkouhi opposed the deposition and sought to quash it; the court adjourned the motion to quash.

Critical to this appeal, the trial court, in mid-September 2022, entered a stipulated order regarding early motions for summary disposition. Acknowledging that the case "present[ed] two purely legal issues," the parties stipulated that the first issue involved Litkouhi's December 2021 request. The order states:

Plaintiff's position is that FOIA requires Defendant to provide any responsive records prepared, owned, used, or possessed by individual teachers. Defendant's position is that it is not required [to] search for or provide[] such

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