The public body in FOIA cases has both the burden of proof and the burden of going forward to claim any exemption from production of documents. In my second FOIA case the Oakland County Prosecutor told the court she had returned all police reports. Quite obviously, if you do not have a document you cannot deliver it. The Oakland County Circuit Court denied me any discovery from the OCP in the trial court, and the November 20, 2012 delivery of the police reports was after the discovery cutoff date.
Interestingly, this subject was raised by the Court of Appeals during my oral argument. I do not have a transcript of the hearing, but I recall one of the judges asking Assistant Prosecutor Jeffrey Kaelin if his office had replied accurately regarding documents to the trial court. Kaelin turned and asked Assistant Prosecutor Thomas Grden, who was also in the court room, for advice and then replied the statement was essentially true.
How does a citizen protect his request for documents in a FOIA case if the public body deliberately or mistakenly states that it does not have the document? What would you do in your FOIA case under these facts?