Michigan Supreme Court Asked to Address First-of-Its-Kind Transparency Question Under Michigan's FOIA Law

On behalf of a Michigan freelance journalist, attorney Philip L. Ellison of Outside Legal Counsel PLC has filed an Application for Leave to Appeal in VanDussen v. Attorney General, asking the Michigan Supreme Court to decide a question Michigan courts have never squarely answered: whether the government can invoke secrecy over information it has already voluntarily disclosed to the public in open court.

At the center of the case is what is commonly referred to in federal courts as the "public domain doctrine," a principle holding that once the government officially discloses specific information, it cannot later rely on disclosure exemptions to withhold that same information. While widely recognized in federal transparency law, Michigan courts have not yet formally adopted or rejected the doctrine. This case now presents that issue cleanly and directly.

The underlying facts are straightforward. During a high-profile criminal trial involving members of the Wolverine Watchmen, state prosecutors introduced and displayed numerous exhibits in open court, discussed those materials before a public audience, and relied on them to secure convictions. Yet when journalist Eric VanDussen later requested those same materials under FOIA, the Michigan Department of Attorney General reversed course by redacting and withholding information that had already been presented publicly without restriction. Only after litigation was filed did the AG begin producing large volumes of previously withheld material, including hundreds of pages of documents and extensive audio and video files.

Ellison’s filing argues that Michigan law must confront whether such conduct is permissible under FOIA.

“This case presents a question Michigan has never answered,” Ellison said. “Can the government place information into the public domain through its own voluntary actions—and then later pretend that same information is secret? Federal courts have answered that question. Michigan has not. Now it must.”

The Application urges the Court to formally recognize that when the government itself discloses information in open court without restriction, the justification for later withholding that same information collapses. According to the filing, allowing the government to “reclaim secrecy” after public disclosure would create a system of selective transparency—one where disclosure is driven by convenience rather than law.

“That is not how FOIA is supposed to work,” Ellison explained. “Transparency cannot depend on whether the government finds disclosure useful in the moment. Once information is publicly disclosed by the government itself, the law should not permit it to be hidden again.”

Beyond the public-domain issue, the case also raises a critical question about enforcement. Despite the State producing substantial additional records only after litigation began, the lower courts ruled that the journalist did not “prevail” under FOIA and therefore was not entitled to recover attorney fees.

Ellison argues that this interpretation undermines the very structure of Michigan’s transparency law.

“FOIA relies on citizens and journalists to enforce it,” he said. “If the government can withhold records, wait until it is sued, produce documents only after litigation pressure mounts, and still avoid paying attorney fees, then the enforcement mechanism collapses.”

The filing frames the case as a turning point for Michigan transparency law, particularly because it presents a doctrinal gap that has never been addressed at the state level.

“This is not about extending FOIA,” Ellison said. “It is about deciding whether Michigan will recognize a basic limitation on government secrecy that federal courts have long accepted. Right now, there is no clear rule in Michigan preventing the government from disclosing information publicly and then later withholding it. That uncertainty invites abuse.”

The filing asks the Michigan Supreme Court to grant review and establish clear guidance on both issues, i.e., whether Michigan will recognize the public-domain doctrine in its FOIA jurisprudence and whether plaintiffs who compel disclosure through litigation are entitled to meaningful relief under the statute’s fee-shifting provision.

Ellison concluded that the case presents a rare opportunity for the Court to define the outer limits of government secrecy in Michigan.

“When the government speaks publicly, the law should take it at its word,” he said. “This case asks whether Michigan will adopt that principle—or allow secrecy to be reassembled after the fact.”