Illustration for FOIA 25-180: Two boxes checked: the trial records both exist and don't
FOIA 25-180 · Denied in full — certificate of nonexistence plus an exemption box checked; no fee, no pages produced

On Saturday, August 2, 2025, a request went out to the Delta County Prosecutor's Office asking for four numbers about the 2024 criminal term: how many cases went to a bench trial, how many went to a jury trial, and how those trials ended — guilty or not guilty. The office received it on Monday, August 4, and answered on Friday, August 8, four business days later. The answer was no. All four numbers were denied, each on the same ground: the records do not exist.

What makes the file worth reading is not the denial. A prosecutor's office is not obliged to keep a running tally of trial outcomes, and a certificate of nonexistence is a lawful answer when no such tally exists. What makes it worth reading is the second sentence of the denial, which appears three times: “the records of the underlying, raw data has already been provided to you in response to FOIA Request 25-135.” In the same packet, on the same page, the office certifies that the records do not exist and explains that it already gave them to the requester.

Both boxes on the Notice of Denial are checked. Box 1, Exempt from Disclosure, carries the sentence about 25-135 and a citation to Densmore v Department of Corrections. Box 2, Record Does Not Exist, carries the statutory certificate. The subsection line in box 1 is blank. No exemption is named anywhere in the nine-page packet.

How to read this page

Documented facts come from the released packet and are dated and quoted. The agency's position is what the office asserted or did. Legal interpretation is analysis of Michigan's Freedom of Information Act, labeled as such. Open questions are issues the record does not resolve. This page does not claim the denial was unlawful. It examines something narrower: whether the office described accurately what it was refusing, and whether checking two contradictory boxes left the requester a coherent answer to appeal.

Summary

FOIA 25-180 is a nine-page packet. Two pages are the response letter. Two are the request. One is the Notice of Denial. One is a blank FOIA Appeal Form. Two reproduce MCL 15.240. One is the county's FOIA policy page. Not one page is a public record responsive to the request.

The numbers are simple. Four business days to respond, inside the five the statute allows. Zero extensions taken. Zero dollars quoted. Zero pages produced. Four denials in one letter — the request as a whole, then the bench-trial count, the jury-trial count, and the verdict breakdown, each denied separately. One statutory certificate of nonexistence. Two reason boxes checked on the denial form. Zero exemption subsections identified.

That last pair is the whole file. A denial form with two reasons checked is not a form with a fallback; it is a form making two incompatible claims at once. Either the records exist and are being withheld under an exemption, or they do not exist at all. The office checked both and named no exemption, which means the only reason with any content behind it is the one about 25-135 — and that reason says the records were already released.

There is a version of this file in which the office is right, and it is worth stating plainly. FOIA is a disclosure statute, not a research service. It does not require an agency to count its own cases, build a table it does not keep, or answer a question that no existing document answers. If the office has no trial-outcome tally, it can say so. What it cannot do quite so easily is say so and say the underlying records were already handed over, because those two sentences describe different worlds. The first says there is nothing to give. The second says the giving already happened.

What was requested

The request is dated August 2, 2025, captioned “FOIA Request — 2024 Criminal Trials: Type and Outcome Summary,” and addressed to the FOIA Coordinator at 310 Ludington Street. It asks for records documenting the total number of criminal cases prosecuted by the office that proceeded to trial between January 1 and December 31, 2024, broken down three ways: bench trials, jury trials, and for each type, guilty versus not guilty or acquittal.

“If this information is tracked in internal reports, trial logs, performance summaries, or can be extracted from your case management system (CMS), please provide the most complete version available.”

Four features of the request matter to how it should have been read.

It asked for a count, not a case file. The words “total number” carry the request. Everything else describes acceptable packaging. A requester who asks “how many” has not asked for a document; he has asked a question a document might answer.

It offered the office the cheap route. The request did not demand a bespoke report. It asked for whatever already existed — an internal report, a trial log, a performance summary, a CMS extract — and said to send the most complete version available. That is a requester saying: do not build me anything.

It set a fifty-dollar ceiling and asked for an estimate first. “If the estimated cost to fulfill this request exceeds $50, I request a written itemized cost estimate in advance per MCL 15.234.” That provision usually forces an agency to price the work. Here it produced nothing, because no work was priced. The office quoted no fee, demanded no deposit, and did not explain why the request cost nothing to answer.

It asked for exemptions to be named and the rest released. “If any part of the request is denied, please: cite the specific exemption under MCL 15.243; describe the withheld content sufficiently to permit appeal; provide all reasonably segregable non-exempt portions per MCL 15.244(1).” The request anticipated the obvious objection — that case-level records carry defendant names and dates of birth — and pre-empted it by asking for redaction rather than withholding.

The paper trail

Figure 1 · Four business days, no extension, one answer

Select any date to read what happened and which clock it started or stopped.

Dates from the response letter dated August 8, 2025, the request dated August 2, 2025, and the Notice of Denial dated 08/08/2025. Statutory deadlines computed under MCL 15.235 and MCL 15.240.

Documented: the response is dated August 8, 2025 and captioned “Re: FOIA Request #25-180.” It runs two pages. It acknowledges receipt, quotes the request verbatim, denies it, certifies nonexistence, explains the appeal right, notes that the office enclosed its FOIA policy web address and a blank appeal form, and closes “Best Regards” over a signature labeled FOIA Coordinator.

The letter is, by the standards of this archive, fast and cleanly written. It arrives four business days after receipt, well inside the five the statute allows. It takes no extension. It quotes the request rather than paraphrasing it. It states a disposition for each subpart instead of answering the whole request with one word. It tells the requester where to appeal and what the appeal deadline is. On the mechanics of responding, this is the best-executed denial in the file.

The Notice of Denial is where the mechanics stop being clean. It is checked “All” of the request was denied, not “Part.” Reason box 1, “Exempt from Disclosure,” is checked, with this sentence typed into the explanation line: “The records have already been provided in response to FOIA Request 25-135 (see Densmore v Department of Corrections 203 Mich 363 (1994)).” The subsection number — the blank that identifies which exemption under section 13 is being claimed — is left blank. Reason box 2, “Record Does Not Exist,” is also checked. Reason box 3, “Redaction,” is not checked. The contact named is Emily DeSalvo, at 906-789-5100.

Two boxes, two theories. Box 1 says the records exist and are exempt — or, more precisely here, that they exist and have already been given out. Box 2 says they do not exist at all. A denial form is supposed to record one decision. This one records both, and leaves the exemption unidentified, so the only theory with any detail attached is the one that concedes the records exist.

The two boxes

Set the letter and the form side by side and the file develops a problem no amount of legal analysis resolves.

What the office said, in the order it said it
SourceWhat it saysWhat that concedes
Response letter, page 1The request “is DENIED as a review of the records reveal they do not exist,” followed by the statutory certificate.No responsive record of any kind exists.
Response letter, page 1–2“In addition, the records of the underlying, raw data has already been provided to you in response to FOIA Request 25-135.”Underlying records exist and were produced.
Notice of Denial, box 1“Exempt from Disclosure” checked; subsection blank; explanation: records already provided in 25-135.The records exist and disclosure already occurred.
Notice of Denial, box 2“Record Does Not Exist” checked, with the certificate language.The records do not exist.
Notice of Denial, box 3“Redaction” not checked; no subsection, no description.Nothing was withheld as exempt material.

The sentence about 25-135 is doing a great deal of work in a small space, and it is worth being precise about what it does and does not establish. It does not say “a compiled report of trial outcomes does not exist.” It says the underlying, raw data was already provided. Those are different claims about different things, and the letter never distinguishes them. If the office meant “we have no tally, but you already have the case files,” that is a coherent and probably lawful answer — and it is not the answer the form gives.

What the form gives is a certificate of nonexistence under the statutory language, which speaks to whether the public records requested exist “under the name nor any other name reasonably known to the public body.” A count of jury trials is not a record with a name. The office's own sentence acknowledges that the records from which such a count could be assembled were produced a month earlier. So the certificate is technically true about a document that was never asked for, and the sentence beside it is true about records that were.

There is a real legal point underneath this, and it cuts in the office's favor. Michigan's FOIA does not require a public body to create a new record, compile a statistic, or answer a question that no existing document answers. An office that keeps case files but no trial-outcome summary can decline to build one. The archive has made this point before, in FOIA 25-136, where the same office denied a request for a plea-agreement count. The point is not that the office had to produce a number. The point is that it had a clean way to say no — no compiled record exists, and we decline to create one — and instead checked a box certifying that nothing exists, next to a box saying everything already does.

What 25-135 actually produced

The cross-reference is not vague. FOIA 25-135, submitted June 27, 2025 and answered July 17, 2025, asked for case-level records of the 2024 cases that went to trial. The office granted it in part and produced twenty-four pages covering eight case files: felony informations, complaints, jury trial sheets, an order of acquittal or dismissal, judgments of sentence, and sentencing-on-jury-verdict forms.

Six of those documents record a jury trial and its outcome — three felony jury trial sheets and three misdemeanor sentencing-on-jury-verdict forms:

  • 23-11012-FH — guilty on Counts 1–3, verdict May 30, 2024.
  • 23-10872-FH — guilty on Count 1, trial July 30–31, 2024.
  • 23-11056-FH — guilty on Counts 1–4, verdict September 25, 2024.
  • Three misdemeanor files with sentencing-on-jury-verdict forms.

That is what the office means by “the underlying, raw data.” It is real, it was produced, and a reader can count from it. What the office did not produce, in 25-135 or in 25-180, is the tally itself. FOIA 25-180 asked for the tally and was told, in effect, that the tally does not exist but the raw data does — a sentence that is honest about the office's recordkeeping and incompatible with the certificate printed beneath it.

The distinction matters to the public because of what it costs to close the gap. A requester holding twenty-four pages of case documents can count six documented jury trials. He cannot know, from those pages alone, whether they are all the jury trials held in 2024, because the production was a partial grant and the office has never said how many cases it identified in its search. The count that would answer that question is exactly the count the office declined to compile. The public is left with the raw material and no denominator.

The zeros

Six numbers that describe the response
MeasureValueSource
Business days to respond4Received Aug 4; response dated Aug 8, 2025
Extensions taken0No extension notice in the packet
Pages of responsive records produced0Nine-page packet, no responsive document
Dollars quoted$0No fee estimate or deposit in the packet
Exemption subsections identified0Box 1 checked, subsection line blank
Reason boxes checked2Boxes 1 and 2 on the Notice of Denial

The timeliness number is the one that deserves credit, and it is the reason this page does not treat 25-180 as a failure of process. Four business days, no extension, a disposition stated for each subpart, an appeal right explained. Compared with 25-135 and 25-136 — where the same office took a ten-business-day extension on the ground that it needed to review “a voluminous amount of separate and distinct public records,” then denied on nonexistence — 25-180 is a model of promptness. Speed is not the problem here. Coherence is.

The zero-dollar figure is more interesting than it looks. A request that is denied because nothing exists costs nothing to answer, so a zero quote is consistent with the certificate. But the request had offered to pay up to fifty dollars and had asked for an itemized estimate if the work would exceed it. The office never engaged with that offer, because engaging with it would have required deciding whether there was work to price. A one-line estimate — “no charge; no responsive records” — would have closed the same file with less ambiguity.

The pattern this fits

25-180 is the second request in this archive asking the office to turn its own case files into a count, and the second to be answered with a certificate of nonexistence.

Requests for a number, and what came back
FOIAWhat was askedAnswerWhat was produced
25-136Plea agreements offered and accepted in 2024, felony and misdemeanorDenied in full; record does not existNothing. No fee quoted.
25-180Bench and jury trial counts for 2024, with verdict breakdownDenied in full; record does not exist — and, in the same sentence, already provided in 25-135Nothing. No fee quoted.
25-135Case-level records of the 2024 cases that went to trialGranted in part24 pages, 8 case files, 6 documented jury trials
26-22Conviction success rate, with the underlying dataFee quoted$9,548 estimate, $4,774 deposit, for roughly 3,300 case files
25-133Charge counts for 2024Denied in partPartial production with a cost itemization

The pattern is not that the office refuses everything. It produced case files in 25-135, quoted a detailed fee in 26-22, and made a partial production in 25-133. The pattern is narrower and more specific: when the request asks the office to aggregate its own records into a number, the answer is that no such number exists. When the request asks for the records themselves, the answer is often yes, for a price.

That is a defensible records-management position and an indefensible transparency one, and the difference is worth naming. An office that will sell you 3,300 case files but will not tell you how many cases it tried has not withheld a record. It has withheld the only thing most of the public actually wants, which is the total. The raw data is available to anyone with $9,548 and the patience to count. The count itself is available to no one.

The appeal, and what the Board did with it

Denial upheld. The requester appealed, and the Board of Commissioners upheld the denial. Chair John Malnar’s letter of September 3, 2025 records receipt of the appeal on August 18, 2025 and the determination at the regular meeting on September 2, 2025.

Documented: the letter gives one sentence of reasoning, and it introduces a third formulation rather than resolving the two the office had already used. It says the request was “initially denied because the response excluded records that the Delta County FOIA Coordinator determined were deemed to not exist or was already provided.” The office’s own Notice of Denial had checked both an exemption box under MCL 15.243 and a nonexistence box. The Board’s letter adds “already provided” without saying what was provided, when, or to whom.

Our reading: this is the crux of the page, and the appeal does not resolve it. A requester who is told that records are exempt, that they do not exist, and that they were already provided has been given three answers that cannot all be true of the same records. To decide whether to appeal further, he needs to know which answer applies to which part of the request. Neither the office nor the Board supplied that. The letter does not mention the certificate of nonexistence, the exemption box, or the bench-trial and jury-trial breakdown that was asked for. It records no vote count and cites no agenda item.

Timing: counting from August 18, 2025 and treating September 1, 2025 (Labor Day) as a legal holiday, September 2 was the tenth business day, so the determination fell on the statutory deadline. The written notice is dated September 3, one day later.

Legal framework

Show the statutes, cases, and sources cited on this page
  • MCL 15.235(2) — a public body must respond to a request within five business days, with a limited extension available under MCL 15.235(6). The office received the request August 4, 2025 and responded August 8, 2025, inside the window, without an extension.
  • MCL 15.233 — the disclosure duty, and the provisions this archive has cited for the point that FOIA does not require a public body to compile a new record or create a statistic it does not already keep. The office did not cite them.
  • MCL 15.243 — the exemptions. The Notice of Denial checks the “Exempt from Disclosure” box but leaves the subsection number blank, so no exemption under section 13 is identified anywhere in the packet.
  • Densmore v Department of Corrections, 203 Mich App 363 (1994) — cited in the letter and on the form as “203 Mich 363.” The decision is generally cited for the proposition that FOIA reaches records that exist and does not compel an agency to create new ones. It supports the office's right to decline to compile a count. It does not support certifying that records do not exist while stating that they were already produced.
  • MCL 15.240 — appeal to the head of the public body or a civil action in circuit court within 180 days. The letter explains the right; the packet encloses a blank appeal form and two copies of the statute.
  • MCL 15.244 — segregation. The request asked for reasonably segregable non-exempt portions. No redaction was made and none was claimed, so the duty was not engaged.

What would change this

Three documents would settle most of what this page cannot. A search declaration stating what the office searched and what it found would establish whether the certificate rests on a real search or on the absence of a report. A sentence identifying the exemption claimed in box 1 — or a corrected form unchecking it — would resolve the contradiction between the two boxes. And a count of the 2024 cases the office identified as having gone to trial, even a partial one, would tell the public whether the six jury trials documented in 25-135 are the whole story or a fraction of it.

None of those documents is required by FOIA, and this page does not pretend otherwise. They are the documents an office would produce if it wanted its denial to be understood rather than merely obeyed.

Open questions

  • Did the office search its case management system for a trial-outcome report, and what did the search consist of? The letter says only that “a review of the records reveal they do not exist.”
  • Which exemption under section 13 was intended by box 1? The subsection line is blank, and no exemption is named in the letter.
  • How many 2024 cases did the office identify as having proceeded to trial? 25-135 produced eight case files; the office has never said whether that was all of them.
  • Were any bench trials held in 2024? The packet does not say, and the 25-135 production contains jury trial sheets only.
  • If the underlying raw data in 25-135 is sufficient to answer the request, as the letter asserts, why does the office treat the count as a record that does not exist rather than a compilation it declines to make?
A note on what this page does not say

This page does not accuse anyone of lying. A form with two boxes checked is more often the product of haste than of intent, and the letter itself is careful and prompt. What the record supports is narrower and firmer: the office gave two incompatible reasons for the same denial, identified no exemption, and left the public with raw case files and no total. That is a documented inconsistency, not a proved motive.

Correlation note — added October 25, 2026. FOIA 25-239, now in this archive, is the request this file’s certificate of nonexistence did not have to face. Filed October 10, 2025, it asked for any list of officers with sustained credibility findings and for the office’s tracking policy. The office did not certify that no such records exist. It produced 137 pages, granted in part, and answered the third question by describing a case-by-case practice rather than a maintained list. Read together, the two files show the same office choosing between two answers to a request for a compiled record: certify it does not exist, as here, or produce the components and explain that no compiled version is kept, as in 25-239.

Correlation note — added October 25, 2026. FOIA 25-240, now in this archive, is the same certificate this file received, issued three times in one letter. Where the 25-180 denial form checks “Exempt from Disclosure” and “Record Does Not Exist” on a single request, the 25-240 form checks “Part of your request has been denied,” “Record Does Not Exist,” “Exempt from Disclosure,” and “Redaction” together, and certifies that no review memos, no written use-of-force standard, and no referral correspondence exist. The difference is that 25-240 names real exemptions — MCL 15.243(1)(a), (1)(b)(iii), (1)(d) under MCL 780.758, and (1)(w) — while this file’s form left the exemption subsection line blank. Read together, the two files show the office checking both “does not exist” and “exempt” on the same request, sometimes with a statute behind the exemption and sometimes without one. Neither practice tells a requester which of the two reasons actually applies to which part of what was asked.

Documents

These are redacted copies prepared for publication. Requester names, home addresses, personal phone numbers, and email addresses have been removed. Unredacted originals are not hosted on the public web server.