Approved, SCAO

STATE OF MICHIGAN JUDICIAL DISTRICT

Court address

5th JUDICIAL CIRCUIT COUNTY PROBATE

220 West State Street, Hastings, MI 49058 Plaintiff's name(s). address(es), and telephone no(s). ZACHOLSON (contact through counsel)

Plaintiff's attorney, bar no., address, and telephone no. OUTSIDE LEGAL COUNSEL PLC by Philip L. Ellison (P74117) PO Box 107 Hemlock, MI 48626 989-642-0055

Original - Court 1st copy - Defendant

2nd copy - Plaintiff 3rd copy - Return

SUMMONS AND COMPLAINT

v

Court telephone no.

(269) 945-1286 Defendant's name(s). address(es), and telephone no(s). HASTINGS AREA SCHOOL SYSTEM 232 W. Grand Street Hastings, MI 49058 269-948-4400

I SUMMONS I NOTICE TO THE DEFENDANT: In the name of the people of the State of Michigan you are notified: 1. You are being sued. 2. YOU HAVE 21 DAYS after receiving this summons to file a written answer with the court and serve a copy on the other party

or take other lawful action with the court (28 days if you were served by mail or you were served outside this state). (MCR 2.111 [C]) 3. If you do not answer or take other action within the time allowed, judgment may be entered against you for the relief demanded

in the complaint.

is summons is invalid unless served on or before its expiration date. This document must be sealed by the seal of the court.

I COMPLAINT I Instruction: The following Is Information that is required to be in the caption of every complaint and Is to be completed by the plaintiff. Actual allegations and the claim for relief must be stated on additional complaint pages and attached to this form. Family Division Cases D There is no other pending or resolved action within the jurisdiction of the family division of circuit court involving the family or family

members of the parties. DAn action within the jurisdiction of the family division of the circuit court involving the family or family members of the parties has

been previously filed in Court. The action D remains Dis no longer pending. The docket number and the judge assigned to the action are: I Docket no. Bar no. General Civil Cases ] There is no other pending or resolved civil action arising out of the same transaction or occurrence as alleged in the complaint. D A civil action between these parties or other parties arising out of the transaction or occurrence alleged in the complaint has

been previously filed in Court. The action 0 remains D is no longer pending. The docket number and the judge assigned to the action are: I Docket no. !VENUE I

Plaintiff(s) residence (include city, township, or village) Hastings, Michigan Place where action arose or business conducted Hastings, Michigan

05/14/2013

Defendant(s) residence (include city, township, or village) Hastings, Michigan

Date attorney/plaintiff

Bar no.

If you require special accommodations to use the court because of a disability or if you require a foreign language interpreter to help you fully participate in court proceedings, please contact the court immediately to make arrangements. MC01 (3/08) SUMMONS AND COMPLAINT MCR 2.102(8)(11). MCR 2.104, MCR 2.105, MCR 2.107, MCR 2.113(C)(2)(a), (b), MCR 3.206(A)

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STATE OF MICHIGAN IN THE CIRCUIT COURT FOR THE COUNTY OF BARRY

ZACHOLSON, Plaintiff, Case No.: 13 -Y~~ -CZ

------------~----Honorable Amy L McDowell ----~-----------

v.

HASTINGS AREA SCHOOL SYSTEM, Defendant

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OUTSIDE LEGAL COUNSEL PLC by Philip L. Ellison (P74117) Attorney for Plaintiff PO Box 107 Hemlock, MI 48626 (989) 642-0055 (888) 398-7003 - fax pellison@olcplc.com

COMPLAINT

COMPLAINT

NOW COMES ZACH OLSON, by and through counsel, Outside Legal Counsel PLC, and as his complaint states as follows:

PARTIES

1. Plaintiff ZACH OLSON is a resident of the State of Michigan.

2. Defendant HASTINGS AREA SCHOOL SYSTEM is a general powers school district and body corporate formed under the laws of the State of Michigan.

JURISDICTION

3. This Court has jurisdiction by statute pursuant to MCR 2.605, MCL 15.240(l)(b), and MCL 15.271(2).

4. Venue is proper in this case as Plaintiff resides within this County as well as being the county where the public record or an office of the public body is located and is where the public body serves. MCL 15.240(4); MCL 15.271(3).

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GENERAL ALLEGATIONS

5. Plaintiff is a graduating senior student of Hastings Area School System.

6. On April30, 2013, Plaintiff personally made a Freedom of Information Act request (hereinafter "FOIA Request") with Defendant seeking, among others, the names of all students expelled by board [of education] action from 2009 to the present.

7. On May 8, 2013 after personally meeting with Plaintiff, Mr. Robert "Tim" Berlin, Defendant's FOIA Coordinator, denied this portion of the FOIA Request citing The Family Educational Rights and Privacy Act (hereinafter "FERP A"), a federal law.

8. A copy of the response is attached as Exhibit A.

9.

10.

11.

12.

Michigan law also requires the minutes of the board of education meeting contain the student's name upon whom the vote to expel or discipline by board is undertaken but must also not include in or with its minutes any personally identifiable information that, if released, would prevent the public body from complying with ... the Family Educational Rights and Privacy Act of 1974 .

Schools' use ofFERPA as justification for non-disclosure of public decisions has been criticized by open government advocates and journalists. Fulfillment of the disputed portion of this FOIA Request could be easily and cost effectively satisfied by the disclosing the Board of Education's meeting minutes containing said information.

On information and belief, at least three students were expelled by a vote of the Board of Education that is required to take place in a public meeting, including one in January 2011 and two on or near October 2, 2012.

13. FERP A merely requires that school and educational institutions from disclosing personal identifiable information from education records.

14. The federal Secretary of Education, pursuant to its rulemaking authority, has defined education records NOT to include "[r]ecords created or received by an educational agency or institution after an individual is no longer a student in attendance and that are not directly related to the individual's attendance as a student."

15. Following the expulsion of the students discussed above and all others similar expelled during the relevant time period, meeting minutes must be subsequently drafted and subsequently approved after the expelled persons are no longer students in attendance and the name of the individuals are not related to the individuals' attendance as a student.

COUNT I OPEN MEETINGS ACT VIOLATION

16. The previous allegations are re-alleged word for word herein.

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17. Defendant's governing body, the Board of Education, is a public body as that term is defined by the Open Meetings Act.

18. All decisions of a public body must be made at a meeting open to the public.

19. The decision to expel a student is a decision required to be made in an open meeting of the Board of Education.

20. By failing to record the name of expelled individuals in the subsequently-drafted meeting minutes of the Board of Education violates the minutes taking requirements of the Open Meeting Act. See Palladium Publishing Co v River Valley Sch Dist, 115 Mich App 490, 493; 321 NW2d 705 (1982)

21. Because the meeting minutes of the Board of Education are not created until after the expelled individual is no longer a student of the Hastings Area Community Schools, the meeting minutes are not education records as defined and protected by FERP A.

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23.

24.

25.

By failing to follow adopt and follow a procedure that both fulfill the requirements of Palladium Publishing and FERP A, Defendant has violated the Open Meetings Act.

Plaintiff incurred attorney fees, costs, and disbursements in seeking to enjoin Defendant's on-going violation of the Open Meetings Act.

COUNT II WRONGFUL DENIAL OF REQUESTED RECORDS

The previous allegations are re-alleged word for word herein.

Plaintiff made a lawful and proper FOIA request for the name all individuals who were expelled by Defendant's Board of Education action (i.e. voting).

26. Defendant wrongfully denied the request that could be fulfilled by producing the meeting minutes, which should and must contain the name of the individual expelled by a public vote of Defendant's Board of Education.

27. Thus, the identity of the expelled person in the meeting minutes is not an education record and thus is not protected by FERP A.

28. Plaintiff incurred attorney fees, costs, and disbursements in seeking the rightful fulfillment of his request under Michigan's Freedom of Information Act.

RELIEF REQUESTED

29. WHEREFORE, Plaintiff requests this Court enter an order

a. declaring that Defendant's refusal to publish the names of expelled individuals from the subsequently drafted meeting minutes of Defendant's Board of Education is not required by FERP A and is a violation of the Open Meetings Act;

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b. enjoining Defendant from refusing to publish the names of expelled individuals from the subsequently drafted meeting minutes of Defendant's Board of Education;

c. directing Defendant to immediately fulfill Plaintiffs FOIA related to the expulsion of students by Defendant's Board of Education public vote;

d. awarding all actual and/or reasonable attorney fees, costs, and disbursements; and

e. granting all other relief that Court deems equitable and just.

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RESPECTFULLY SUBMITTED:

OUTSIDE LEGAL COUNSEL PLC BY PHILIP L. ELLISON (P74117)

Attorney for Plaintiff PO Box 107 Hemlock, MI 48626

Phone: (989) 642-0055 Fax: (888) 398-7003

Email: pellison@olcplc.com

Date: May 14, 2013