Illustration for FOIA 26-291: A list where the law asked for a ledger
FOIA 26-291 · Granted in part — a nine-row title-and-date table supplying two of the eleven requested fields, no count, and a citation to a subsection of MCL 15.243 that does not exist

On Sunday, October 25, 2026, a requester faxed the Delta County Prosecutor's Office a six-paragraph request for a privilege log — an index of what the office withheld from FOIA 25-195, with eleven specific fields for each withheld record. The office received it on Monday, October 26 and answered on Thursday, October 29, business day three of five. What it produced is a nine-row table with three columns: Document Name, Sent on, Author. Every one of the nine documents is authored by “Prosecutor Wickman.” There are no recipients, no page counts, no exemption designations, no full-or-partial column, and no total.

The letter also says the office “still maintains the exemption for the actual documents exists as Attorney-Client Privilege pursuant to MCL 15.243(9).” Michigan's Freedom of Information Act does not have a subsection (9). MCL 15.243 runs from (1)(a) through (1)(cc), then (2), (3) and (4). The attorney-client exemption is MCL 15.243(1)(g). The office cited, as the legal basis for withholding records from the public, a provision of the statute that does not exist.

How to read this page

Documented facts come from the released records 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 and is labeled as such. Open questions are issues the record does not resolve. Nothing on this page asserts that the nine documents are not privileged, that the office was required to produce them, or that anyone acted in bad faith. Where the record supports only a question, only a question is stated.

Summary

A privilege log exists so that a requester can test a withholding without seeing the withheld document. The public body describes each record — date, author, recipients, subject, type, length, whether it was withheld in whole or in part, and the specific exemption and element relied on — and the requester can then argue that this or that entry is not privileged, or that the exemption does not reach so far. The log is the substitute for the document. Without it, a withholding cannot be reviewed by anyone outside the office.

The request asked for that log in six paragraphs and specified eleven fields for each entry. The response produced a list of nine document titles with dates and a single author name. Measured against the eleven fields the request named, the table supplies two: the date, and a name in the author column. It supplies no title or office for the author, no recipient, no copy recipient, no subject matter, no record type, no page count, no full-or-partial designation, no exemption element, no litigation-anticipation statement, and no statement about sharing outside the office.

It also does not say what the nine rows are. The letter never states whether these nine documents were withheld or released. It says the request “is granted with the attached/included document” and then says the request is “denied to the extent the document does not contain all the details/information requested.” A reader cannot tell whether the table is a log of withholdings, a list of what was produced, or an inventory of documents that happened to be in a folder.

The eleven fields the request specified, and what the table supplies
FieldWhat the request asked forSupplied?
(a)Date of the recordYes — a “Sent on” column
(b)Author, with name and job title or officePartly — a name only, identical in all nine rows
(c)Each recipient, with name and job title or officeNo
(d)Any copy recipientsNo
(e)General subject matter, described without privileged contentNo — a title is not a subject description
(f)Type of record — memorandum, letter, e-mail, report, spreadsheet, presentation, otherNo
(g)Number of pagesNo
(h)Withheld in full or in part; if in part, the number of pages or portions releasedNo
(i)The specific exemption, and for MCL 15.243(1)(g) the particular element of the attorney-client privilege relied onNo — the letter cites a subsection that does not exist
(j)Whether prepared in anticipation of litigation, and if so the matter or claimNo
(k)Whether shared outside the office and the Board of Commissioners, and with whomNo

What was requested

The request is dated October 25, 2026 and was transmitted by fax. It is a model of specificity: it names the prior request (25-195), names the exemption (MCL 15.243(1)(g)), and lists the eleven fields in a sub-paragraph structure from (a) to (k). It then adds five more paragraphs: a count of records withheld in full and in part with total pages; any log already prepared; any written policy or training material used to decide which county reports are privileged; any correspondence with the Board of Commissioners, the County Administrator or county counsel about the withholding decision; and, if none of that exists, a written certification naming the employee who searched and the locations searched.

The framing matters. Paragraph 1 asks for the log “to the extent that the information is not itself privileged.” That is the standard construction, and it is the requester solving the office's problem in advance: the log can describe a document without disclosing it. Paragraph 4 is the one that turns out to matter most, because it asks whether any written standard governs the privilege call. Paragraph 6 anticipates a total refusal and asks for a certificate instead.

What the office answered

The letter is dated October 29, 2026, signed by Emily DeSalvo as FOIA Coordinator, and runs four pages. Pages one and two restate the request. Page two carries the disposition for paragraphs 1, 2 and 3 and the citation paragraph. Page three is the table. Page four carries the denials for paragraphs 4 and 5 and the appeal paragraph.

The disposition for paragraphs 1, 2 and 3 reads:

“As to your request in Paragraph 1, 2, and 3, your request is granted in part, denied in part. Your request is granted with the attached/included document. Your request is denied to the extent the document does not contain all the details/information requested, as those details/information did not exist as specified. Any document containing that specific information would have to be created or added to.”

That is followed by a certificate of nonexistence for the missing detail. Then the paragraph that carries the citation:

“Please note Delta County still maintains the exemption for the actual documents exists as Attorney-Client Privilege pursuant to MCL 15.243(9).”

Then a scope paragraph, which is the most substantive thing in the letter:

“It should be further noted, that the documents are believed to be beyond the scope of the original request, as it broadly requested memos provided to the Delta County Board of Commissioners. However, as the request cannot be interpreted beyond the plain reading of the request, a broad response was provided. No documents or records exists related to fiscal year 2024-25 budget request, ‘staffing levels,’ ‘case assignment,’ or ‘legislative inquiry’ in the form of a memo or report to the Board of Commissioners outside of the records previously provided in response to FOIA Request 25-195. Those records were not deemed privileged as they were provided to the Board of Commissioners not in the Delta County Prosecutor's capacity as civil counsel, but as part of a budget presentation that was done publicly at a Board meeting.”

Paragraphs 4 and 5 are each denied with the standard “review of the records maintained by the Delta County Prosecutor's Office reveal the records do not exist” sentence and a certificate of nonexistence. Paragraph 6 — the fallback certification naming the employee and the locations searched — is not addressed.

The document that was produced

Page three is a nine-row table. It is reproduced here as it appears, including its spelling:

The nine-row table produced in response to paragraphs 1, 2 and 3
#Document NameSent onAuthor
1Township Zoning02/02/2023Prosecutor Wickman
2Boundary in Cornell and Escanaba Township05/17/2023Prosecutor Wickman
3Open Meeting Act – Advisory Committee Attendance04/17/2023Prosecutor Wickman
4Room Accomidations – open Meeting06/16/2023Prosecutor Wickman
5Case Review regarding Bisio v City of Clarkston08/20/2024Prosecutor Wickman
6Written Appeal for Case Report #24-1562 (FOIA Request 24- — District)08/17/2024Prosecutor Wickman
7Contract with Delta Conservatin05/07/2023Prosecutor Wickman
8Interium Adminstrator Contract04/04/2023Prosecutor Wickman
9Veterans' Relief Fund04/17/2023Prosecutor Wickman

Four features of the table are worth stating plainly, because each bears on whether it is a log at all.

The dates are out of order. Read down the “Sent on” column: 2023, 2023, 2023, 2023, 2024, 2024, 2023, 2023, 2023. Rows 5 and 6 are 2024 documents inserted in the middle of a run of 2023 documents. A log maintained as records were withheld would be in the order they were logged. A list sorted by date would be in date order. This is neither, which is consistent with a list typed by hand from memory or from a folder view rather than exported from a tracking system.

Every author is the same person. Nine rows, nine entries of “Prosecutor Wickman.” The attorney-client privilege protects confidential communications between a client and an attorney. A log in which every record has one author and no recipient does not describe communications; it describes documents. The column header says “Sent on,” which implies a recipient, but there is no recipient column and no row identifies one.

The subjects do not match the request. The request was about memos and reports provided to the Board of Commissioners concerning the fiscal year 2024-25 budget request, staffing levels, case assignment and legislative inquiry. The table lists township zoning, a boundary dispute, Open Meetings Act advisory committee attendance, room accommodations, a case review, a written appeal, a conservation district contract, an interim administrator contract, and a veterans' relief fund. Only one row — the interim administrator contract — is plausibly a county-administration document. The rest read like a list of legal opinions the prosecutor's office provided to county officials over 2023 and 2024, which is a different category of record.

The table is unedited. “Accomidations,” “Conservatin,” “Interium.” Row 6 trails off into “(FOIA Request 24- — District)” with the number missing. These are the marks of a document typed quickly and not proofread. That is not a scandal; it is evidence about what the document is. A maintained index does not usually contain a truncated reference to its own file number.

The citation that does not exist

Legal interpretation. The letter states that “Delta County still maintains the exemption for the actual documents exists as Attorney-Client Privilege pursuant to MCL 15.243(9).” MCL 15.243 is the exemptions section of the Freedom of Information Act. It is structured as a long subsection (1) with lettered paragraphs running from (a) to (cc), followed by subsections (2), (3) and (4). There is no subsection (5), let alone a subsection (9). The provision the office means is MCL 15.243(1)(g), which exempts:

“Information or records subject to the attorney-client privilege.”

This is not a subtle point of statutory interpretation. It is a citation to a provision that is not in the statute. A requester who wanted to challenge the withholding would have to guess which exemption the office meant, and a court reviewing the withholding would have to decide whether a citation to a nonexistent subsection is a citation at all.

Under MCL 15.240(1)(b) and MCL 15.235(4), a denial must identify the exemption relied on. A citation to a subsection that does not exist does not identify anything. The defect is the same kind as the one documented in 26-30, where the office cited “Densmore … 203 Mich 363 (1994)” and dropped the “App.” and the regional reporter. In both files the citation is close enough that a reader can work out what was meant, and wrong enough that it cannot be relied on.

The two positions in one letter

The letter contains two statements about privilege that cannot both be true of the same set of records. The first is that “Delta County still maintains the exemption for the actual documents exists as Attorney-Client Privilege.” The second is that the 25-195 records “were not deemed privileged as they were provided to the Board of Commissioners not in the Delta County Prosecutor's capacity as civil counsel, but as part of a budget presentation that was done publicly at a Board meeting.”

So the office is saying, in a four-page letter, that the documents are privileged and that they are not privileged. The reconciliation the letter offers is that the privilege attaches to “the actual documents” while the records previously produced in 25-195 were a different set. That is possible. But the letter does not identify which documents are in which set, and the nine-row table does not either. A reader is left with nine titles, an assertion of privilege over unnamed “actual documents,” and a statement that the records actually produced were not privileged.

There is a further oddity. If the 25-195 records were not privileged because they were a public budget presentation, then the public already has them, and there is nothing for a privilege log to protect. If they were privileged, then the office produced privileged records in 25-195, which is a different problem. The letter does not choose between these accounts.

The policy that does not exist

Paragraph 4 asked for “any written policy, procedure, guideline, memorandum, training material, or written instruction that the office uses or has used to determine which reports prepared for or provided to county officials are subject to the attorney-client privilege and which are not.” The office denied it: the records do not exist.

That denial is the most consequential sentence in the packet, and it is easy to miss because it is written in the same boilerplate as the paragraph 5 denial. If no written standard exists, then the privilege determination in 25-195, and in this response, was made case by case, by judgment, without a documented rule. That is lawful — there is no statute requiring a written privilege policy — but it means the office cannot point to a standard that a requester could test. The determination is whatever the person making it decided it was.

Paragraph 5 asked for correspondence with the Board of Commissioners, the County Administrator or county counsel about the withholding decision. That was also denied as nonexistent. So the record now shows: no written policy, no correspondence, and no log with the fields that would allow review. What remains is nine titles and a citation to a subsection that does not exist.

The count that was never given

Paragraph 2 asked for a specific number: “The total number of records the office withheld from Request No. 25-195 under MCL 15.243(1)(g), stated separately as the number withheld in full and the number withheld in part, and the total number of pages so withheld.” The response does not give it. Nine rows is not a count of records withheld, because the letter never says the nine rows are records that were withheld.

This is a small thing with a large consequence. Without a count, there is no way to know whether the nine rows are the complete set. A log of nine entries could mean nine records were withheld, or it could mean nine records were found in a folder and listed. The difference between those two readings is the difference between a complete disclosure of the withholding and a document that happens to have nine rows.

The timeline

Eleven days, three business days used
DateDayEventBusiness day
October 25, 2026SundayRequest dated and faxed—
October 26, 2026MondayReceived by the office, per its own letter0
October 27, 2026Tuesday—1
October 28, 2026Wednesday—2
October 29, 2026ThursdayResponse letter dated and signed; nine-row table produced3
November 2, 2026MondayFifth business day — deadline under MCL 15.2355

What the record shows

One. The office received the request on October 26, 2026 and answered on October 29, 2026, business day three of five. It was timely.

Two. The office produced a nine-row table with three columns, supplying two of the eleven fields the request specified.

Three. The office cited “MCL 15.243(9)” as the basis for the attorney-client exemption. That subsection does not exist; the exemption is MCL 15.243(1)(g).

Four. The letter states both that the documents are privileged and that the 25-195 records were not privileged because they were a public budget presentation, without identifying which documents fall in which category.

Five. Paragraphs 4 and 5 were denied as nonexistent, so the record shows no written privilege policy and no correspondence about the withholding decision.

Six. No count of records withheld in full or in part was given, and paragraph 6 — the fallback certification naming the employee and locations searched — was not addressed.

Seven. No fee was quoted, no deposit was demanded, and the MCL 15.234 fee waiver the request asked for was neither granted nor denied.

Opinion: a list where the law asked for a ledger

The interesting thing about this response is not that it is thin. Thin responses are common in this archive. The interesting thing is that the office went to the trouble of producing something, and the something it produced answers a different question than the one asked.

A privilege log is a specific instrument with a specific job. It lets a stranger check the withholding. That is why the eleven fields exist: date, author, recipients, subject, type, length, full or partial, exemption and element, litigation anticipation, outside sharing. Each field corresponds to an argument a requester might make. If the author is the prosecutor and the recipient is the county administrator, the communication may be privileged. If the author is the prosecutor and the recipient is a newspaper, it is not. Without the recipient field, that argument cannot be made. Without the page count, no one can tell whether a withholding is proportionate. Without the exemption element, no one can tell whether the office claimed the privilege for a client-to-lawyer communication or a lawyer-to-client one, which are protected for different reasons.

The table the office produced has the date and the author. It is, in other words, a list of documents that exist, which is the opposite of a log of documents that do not. A log says: here is what I am keeping from you, and here is why. This table says: here are nine things I have written. The first is an instrument of accountability. The second is an inventory.

And then there is the citation. It would be easy to treat “MCL 15.243(9)” as a typo and move on. It is a typo, in the sense that the person who typed it meant (1)(g). But the sentence it sits in is the only sentence in the letter that states a legal basis for withholding anything, and it cites a provision that does not exist. A requester who wanted to appeal would have to file against a citation he cannot look up. A court reviewing the withholding would have to decide whether the office had identified an exemption at all. The typo is doing the work of a legal argument, and it cannot bear the weight.

The contradiction is worse than the typo. The office says the documents are privileged and that the 25-195 records were not, because they were a public budget presentation. Both statements are in the same letter, four paragraphs apart. One of them must be about a different set of documents, but the letter never says which, and the table never says which. So the public is told that something is privileged and that the same something is not, and given nine titles that do not resolve the question.

What makes this file worth keeping is the paragraph 4 denial. The office says there is no written policy, procedure, guideline, memorandum, training material or written instruction governing which county reports are privileged. That may be true. If it is, then every privilege determination this office makes is an unreviewable judgment call, made without a standard, recorded in a table with three columns. The absence of a policy is not itself a violation. It is, however, the reason the log matters, and the reason a nine-row inventory is not an adequate substitute for one.

None of this requires a finding that the nine documents are public. Some of them may well be privileged. The point is that the public cannot tell, and the office has arranged the response so that it cannot. A log with the eleven fields would have let a reader test the claim. A list with two fields lets the office assert it.

What this record does not show

It does not show that the nine documents are not privileged. Several of them — a case review, a written appeal, contract advice — are exactly the kind of record that attorney-client privilege is designed to protect.

It does not show that the office withheld more than nine records. It shows that the office did not say how many it withheld, which is a different defect.

It does not show that the citation error was deliberate. A coordinator working from a template could easily have typed a subsection number that a prior template used.

And it does not show that no privilege policy exists anywhere in county government. It shows that the prosecutor's office certified that none exists in its records.

What to ask next

The first follow-up is the citation. Ask the office to confirm, in writing, whether it intended to cite MCL 15.243(1)(g) and whether it withdraws the reference to MCL 15.243(9). A one-line answer settles whether the withholding has a stated legal basis.

The second is the count. Ask again for the number of records withheld from 25-195 in full and in part, and the total pages, and ask the office to state whether the nine rows in the October 29 table are records that were withheld or records that were produced. That single clarification determines what the table is.

The third is the recipient field. Ask for the recipient of each of the nine documents, and for the record type and page count. Those four fields — recipient, type, pages, full or partial — are the minimum needed to test any of the nine claims, and they require no legal analysis to supply.

The fourth is paragraph 6, asked alone. If the office maintains that no log exists with the requested fields, ask for the certification naming the employee who searched and the locations searched. A certificate of nonexistence without a named searcher is an assertion, not a record of a search.

Authorities and sources cited on this page

Show the statutes, cases, and sources cited on this page
  • Michigan Freedom of Information Act, MCL 15.231 et seq.
  • MCL 15.243(1)(g) — exemption for “information or records subject to the attorney-client privilege.” This is the provision the office appears to have meant.
  • MCL 15.243(9) — cited in the response letter. No such subsection exists; MCL 15.243 contains subsection (1) with lettered paragraphs (a) through (cc), and subsections (2), (3) and (4).
  • MCL 15.233(1) — certification that a public record does not exist, used by the office for paragraphs 4 and 5.
  • MCL 15.234 — fee waiver and reduction; invoked by the request, not addressed by the response.
  • MCL 15.235 — five-business-day response period; written grant or denial with the exemption identified.
  • MCL 15.240 — appeal to the chairperson of the county board of commissioners, or judicial review in circuit court; the response letter states that a prevailing requester may recover attorney fees, costs and disbursements, actual or compensatory damages, and punitive damages of $1,000.00.

Documents relied on: the October 29, 2026 response letter and its attached nine-row table (four pages), published below with the requester's identifying information redacted. The prior request, FOIA 25-195, is published separately in this archive.

Redactions. The requester's name and the salutation line have been redacted from the published bundle. Everything else — the eleven-field request, the disposition, the “MCL 15.243(9)” citation, the scope paragraph, the nine-row table, the two certificates of nonexistence, the office's signature block and the appeal paragraph — is legible.

No interactive figure on this page. The response produced a nine-row table, which is presented above as a data table rather than as an interactive graphic. Under this site's rule, interactive graphics are built when a release contains a body of documents or data worth exploring; a single short table is more legible as a table.

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.