COA 378249 TOM ROTTA V MASON COUNTY PROSECUTOR Opinion - Per Curiam - Unpublished 7/27/2026

If this opinion indicates that it is “FOR PUBLICATION,” it is subject to
revision until final publication in the Michigan Appeals Reports.
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S T A T E O F M I C H I G A N
C O U R T O F A P P E A L S
TOM ROTTA,
Plaintiff-Appellant,
UNPUBLISHED
July 27, 2026
10:16 AM
v No. 378249
Mason Circuit Court
MASON COUNTY PROSECUTOR, LC No. 2025-000081-CZ
Defendant-Appellee.
Before: ACKERMAN, P.J., and REDFORD and FEENEY, JJ.
REDFORD, J. (concurring in part and dissenting in part).
For the reasons set forth below, I respectfully concur in that part of the majority’s opinion
which affirms the trial court, and I dissent from those parts of the opinion which reverse and
remand.
I. BACKGROUND
As stated by the majority, this is a FOIA appeal related to events that took place on
November 5, 2024. This was an election day in Michigan and throughout the nation. Certain
events took place at a polling station in Mason County, and criminal charges were filed against
Muzette Elizabeth O’Connell. O’Connell was charged with two counts of assaulting, resisting or
obstructing a police officer, as well as three other counts related to election law violations.
O’Connell is not a party to the FOIA litigation or this appeal.
A preliminary exam was held in the O’Connell case on March 19, 2025; and following the
close of proofs of the prosecution’s case-in-chief, the following exchange between the court and
the prosecutor took place:
The Court: What about the resisting/obstructing charges?
Mr. Marvin: After reviewing that, I do not feel comfortable asking for those
to be bound over.

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After this, the two resisting and opposing charges were dismissed, and the remaining three charges
were bound over for trial.
The criminal trial of O’Connell took place on October 27, 2025, and she was acquitted of
all remaining charges.
This appeal arises out of a FOIA request that was submitted by appellant on March 19,
2025, to the prosecutor’s office, which stated:
Under provisions of the Michigan Freedom of Information Act (MCL
15.231 et seq; MSA 4.1801 (1) et seq) I am requesting the right to inspect the
following records or receive them electronically in .pdf format or on CD for
recordings:
Earlier this afternoon, Prosecutor David Marvin stated in a pretrial hearing
that the MCPA had reviewed the footage of the police response to an election day
issue at Hamlin Town Hall and admitted that an arrested woman (Muzette Elizabeth
O’Connell) had not actually committed the crime of R&O.
Please provide the body cam footage of Deputies Mike Fort and Noah Noble
retained and reviewed by the MCPA for the mid-day arrest of Muzette Elizabeth
O’Connell on November 5, 2024, at Hamlin Town Hall and used for the purpose
by the MCPA to decide charging two accounts of R&O back in November 2024.
This is to be used for the passing of such information to the general public
(media purposes) or corroborative research, and not for personal gain. If you need
any clarifications of this request, please reply expediently to this E-mail address. If
requested record(s) do not exist, please enumerate which ones do not, as per the
Act. If you determine that some of the requested information is exempt from
disclosure, please detail what is being withheld and cite the exemption under FOIA.
If fees to comply with this request exceed $20, please contact me at this E-Mail
address with those fees enumerated. As provided under FOIA, I would anticipate
my request being filled within five working days of receipt of this letter.
On March 27, 2025, the prosecutor’s office answered the FOIA request as follows:
This case is active and video evidence will be needed at trial should the case
not settle by plea agreement or other resolution. Specifically, evidence supporting
the charge of MCL 168.934 (Election Law—Polling Place Violations) is captured
on the video. Until the case is resolved, the FOIA request cannot be met.
Once resolved—which could happen soon since there remain 2
misdemeanor charges—your FOIA demand will be honored subject to redaction of
any individual’s identity who is present as an elector. Unredacted disclosure could
violate an individual’s privacy rights whilst voting—whether seated with a ballot
in hand or waiting in the queue to vote.

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In anticipation of an impending resolution to the matter, we are preparing
the video evidence to convey to you pursuant to a future, renewed request.
The current is request is currently denied for the reasons stated. Since there
is no mechanism to keep this request on HOLD pending resolution of the case,
please do not hesitate to follow-up after completion of the matter so we can best
serve you.
Following this denial, appellant filed a lawsuit alleging violations of FOIA and Brady v Maryland
as it relates to discovery in the O’Connell criminal matter.
Appellee filed a motion for summary disposition, and oral argument was heard on
October 13, 2025. Between oral argument and the trial court rendering its opinion, the trial court
reviewed in its entirety in camera the video evidence from the police body cameras obtained on
November 5, 2024.
On October 28, 2025, the trial court issued an 8-page, single spaced opinion setting forth
its analysis and conclusions.
The beginning of the trial court’s opinion stated:
Neither the request nor the response is a good example of how the FOIA is
intended to work. Plaintiff’s request is poorly worded in that it appears to limit the
scope of the request to records used in the prosecutor’s deliberative process.
Defendant might have initially responded to this request by stating that no such
records exist because the decision to charge was not based on a viewing of any
video. Instead, because the request was “sufficiently descriptive to allow the record
to be found” Thomas v City of New Baltimore, 254 Mich App 196, 203; 657 NW2d
530, 535 (2002), Defendant’s response denied the request by invoking an
exemption. This response shows that Defendant knew what Plaintiff was looking
for and Defendant’s belated argument that Plaintiff requested documents that did
not exist is rejected.
Defendant’s response was also deficient in that the response does not
expressly notify the requesting party that an exemption is being asserted by
reference to the statute or statutory language of the exemption asserted. It was not
until Defendant filed an answer to Plaintiff’s complaint that Defendant actually
identified the law enforcement exemptions set forth in MCL 15.243(1)(b)(i).
In its findings and conclusion, the court stated:
Based on its own review of the public record the Court finds:
1. Types of Public Record. The public record is comprised of 3 separate
recordings.
• Officer Mike Fort approximately 33 minutes. (Video 1)

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• Officer Noah Noble approximately 30 minutes. (Video 2)
• Officer Noah Noble approximately 1 minute. (Video 3)
Video 1 and Video 2 both depict officers Fort and Noble arriving at the crime scene
and both begin with interviews of witnesses at the scene. The videos continue with
the arrest of the suspect and her eventual transport to the jail for booking. Video 1
and Video 2 depict the same events when the officers are together, but diverge when
the officers separate for a period of time. During this time Video 1 contains
information regarding conversations between Officer Fort and other officers
regarding crime scene processing and Video 2 contains Officer Noble’s in custody
conversation with the suspect. Video 3 is a short recording from Officer Noble
when he returns to ask the suspect a follow up question.
2. Categories Within the Records. The public record contains the following
categories of information: (a) interviews with witnesses, (b) in custody statements
and conversations between the suspect and law enforcement; and (c) statements of
law enforcement regarding crime scene processing.
a. Interviews with Witnesses. Disclosure of recorded witness, if released
publicly, can influence other witnesses and reveal the prosecution’s evidentiary
strategy. They may also expose witnesses to pre-trial public scrutiny or harassment.
b. In Custody Statements of the Defendant. Disclosure at this stage of “in
custody” statements made by the suspect during conversations with law
enforcement might materially interfere with the ability of both the prosecution and
defense to receive a fair trial. Public release to the media could prejudice the jury
pool or influence witness testimony, and complicate evidentiary rulings at trial.
c. Statements of Law Enforcement Regarding Crime Scene Processing.
The in-camera review further revealed a segment of the recording consisting of
officer conversations regarding how to handle the defendant’s vehicle and related
evidence. Although this portion does not contain statements by the suspect or
witnesses, it reflects investigative and evidentiary decision-making—including the
sequence of securing the scene, preserving potential evidence, and allocating law
enforcement resources. Disclose of these conversations at this stage would reveal
aspects of the investigation that are reasonably likely to be the subject of evidentiary
motions and could compromise the integrity of trial preparation.
3. Non-Exempt Materials. To the extent there are any non-exempt portions
of the videos, they are embedded between exempt segments in a manner that makes
redaction impractical if not impossible. Under Evening News, where exempt and
non-exempt information are inextricably intertwined, full withholding is
permissible.
4. Futility of Further Particularization. Although the Defendant never fully
complied with its obligation to particularize the reliance on the law enforcement

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exemption, the Court has itself reviewed the evidence in camera and basically did
this work on its own. The Court’s statements constitute the Court’s effort to
sufficiently particularize its reasons for concluding that the law enforcement
exemption applies. Requiring Defendant to repeat this exercise is unnecessary.
Although the Court concludes that the law enforcement exemption under
MCL 15.243(1)(b)(i) applies and that the requested recordings are properly
withheld from disclosure, the Defendant failed to comply with the procedural
requirements of the FOIA. The initial denial contained no statutory citations, did
not provide a particularized justification for the claimed exemption, and failed to
advise the requester of the right to appeal. These omissions constitute a violation
of the Act, regardless of whether the underlying exemption is ultimately sustained.
As stated in Local Area Watch v City of Grand Rapids, 262 Mich App 136, 149
(2004), however, the test as to when a party can be considered to “prevail” is
whether “(1) the action was reasonably necessary to compel the disclosure; and (2)
the action had the substantial causative effect on the delivery of the information to
the plaintiff.” Since this complaint did not result in the disclosure of the record or
information to Plaintiff, he cannot be said to have prevailed in this action.
Plaintiff also asks that the Court order Defendant to pay, to the general fund
of the state treasury, $1,000.00 as punitive damages for Defendant’s violation of
the FOIA. MCL 15.240(7) states:
If the court determines in an action commenced under this
section that the public body has arbitrarily and capriciously violated
this act by refusal or delay in disclosing or providing copies of a
public record, the court shall order the public body to pay a civil fine
of $1,000.00, which shall be deposited into the general fund of the
state treasury. The court shall award, in addition to any actual or
compensatory damages, punitive damages in the amount of
$1,000.00 to the person seeking the right to inspect or receive a copy
of a public record. The damages shall not be assessed against an
individual, but shall be assessed against the next succeeding public
body that is not an individual and that kept or maintained the public
record as part of its public function.
The Court finds that Defendant’s failure to include notice to Plaintiff of the
right to seek judicial review, as required by MCL 15.235(4), constitutes a violation
of the FOIA and the Defendant is admonished to take notice of this in the future.
However, under MCL 15.240(7), civil penalties are available only where a public
body arbitrarily and capriciously refuses or delays disclosure of a public record.2
The Court declines to impose a penalty for the Defendant’s procedural missteps
where the denial itself was substantively appropriate under statutory exemptions
and there is no evidence of bad faith. See e.g. Local Area Watch. Also, the Plaintiff
was not delayed in pursuing judicial review, which eliminated any prejudice caused
by the deficient notice. Accordingly, while Defendant’s procedural lapse is noted,
it does not warrant the imposition of a civil fine, damages, or attorney fees.

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2 This case is distinguishable from Meredith Corp v City of Flint, 256 Mich. App.
703; 671 N.W.2d 101 (2003). In that case, the public body refused to release a 911
recording relying on the law enforcement exception even though both the
prosecutor and the defendant had signed affidavits stating that they did not oppose
disclosure. Here, there is no suggestion that either party to the underlying criminal
case consents to the disclosure. Indeed, since the subject of the video tape in
question is represented by an attorney who is already in possession of the video
tape, and there is no protective order preventing the defendant or her attorney from
disseminating that video to Plaintiff or the public at large, it is appropriate to assume
that disclosure is opposed by both parties to that criminal proceeding.
__________________________________________________________________
The instant appeal followed.
II. ANALYSIS
It is clear from the well-reasoned opinion of the trial court that the material sought by
plaintiff fell squarely within the MCL 15.243(1)(b)(i) exemption from disclosure. The FOIA
request was submitted on the date of the preliminary examination and referenced statements made
by the prosecuting attorney regarding pending criminal proceedings. The prosecutor office’s
response identified the statute and crime for which charges would be sought and specifically stated
that the body camera footage provided evidence related to that. This level of detail provides the
“particularized justification” necessary for the law enforcement exception to apply. Evening News
Ass’n v Troy, 417 Mich 481, 493; 339 NW2d 421 (1983). The prosecutor’s office explained that
it could not release the information because it was evidence needed at trial in a criminal proceeding
and, therefore, it was unable to release it prior to resolution. To require more, as the majority
seems to do here, elevates form over substance and ignores the timing and circumstances in which
the request was made.
The trial court recognized this as well, concluding that:
Disclosure of these conversations at this stage would reveal aspects of the
investigation that are reasonably likely to be the subject of evidentiary motions and
could compromise the integrity of trial preparation.
* * *
To the extent there are any non-exempt portions of the videos, they are embedded
between exempt segments in a manner that makes redaction impractical if not
impossible. Under Evening News, where exempt and non-exempt information are
inextricably intertwined, full withholding is permissible.
These conclusions were clearly correct both as a matter of fact and as a matter of law. As
a result, the result reached by the trial court was likewise correct.

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I would affirm all aspects of the trial court’s decisions in this matter.
/s/ James Robert Redford

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