STATE OF MICHIGAN
TH
IN THE 30 JUDICIAL CIRCUIT COURT OF INGHAM COUNTY
CITIZENS FOR A PRO-LIFE SOCIETY, )
a Michigan not for profit corporation, and )
MONICA MIGLIORINO MILLER, Ph.D., )
) FILE NO. 10-1913-AA
Plaintiffs, )
) HON.
vs. )
)
HEALTH INVESTIGATION DIVISION, )
BUREAU OF HEALTH PROFESSIONS, )
DEPARTMENT OF COMMUNITY HEALTH, )
Public Bodies of the STATE OF MICHIGAN, )
and ROBERT D. ULIERU, Director, Health )
Investigation Division, Bureau of Health )
Professions, MARY E. HESS, Freedom of )
Information Coordinator, Bureau of Health )
Professions, and JANET OLSZEWSKI, )
Director of the Department of Community )
Health, State of Michigan, all of said individuals )
being sued only in their official capacity, )
)
Defendants. )
Robert G. Fleming (P44610)
Local Counsel for Plaintiffs
148 East Grand River, Suite 106
Williamston, Michigan 48895
Phone (517) 203-1100
______________________________________________________________________________
There is no other pending or resolved civil action arising out of the same transaction or
occurrence as alleged in this complaint.
COMPLAINT TO COMPEL DISCLOSURE OF
PUBLIC RECORDS BY A PUBLIC BODY
Plaintiffs, CITIZENS FOR A PRO-LIFE SOCIETY, and MONICA MIGLIORINO
MILLER, Ph.D., complain of the defendants, the HEALTH INVESTIGATION DIVISION,
BUREAU OF HEALTH PROFESSIONS, DEPARTMENT OF COMMUNITY HEALTH, all of
which are Public Bodies of the STATE OF MICHIGAN, and ROBERT D. ULIERU, Director of
1
the Health Investigation Division of the Bureau of Health Professions, MARY E. HESS, , the
Freedom of Information Coordinator of the Bureau of Health Professions, and JANET
OLSZEWSKI, Director of the Department of Community Health of the State of Michigan, all of
which individuals are sued in their official capacity, as follows:
Nature of the Case
1. This is an action brought under the Michigan Freedom of Information Act (“FOIA” or
“the Act”), 1976 PA 442, as amended, by which plaintiffs seek to compel the defendants,
as Public Bodies of the State of Michigan, to produce Public Records, i.e., data and
documentation in response to plaintiffs’ request for same in order that plaintiffs may
achieve some modest or even minimal understanding of the basis for the defendants’
failure and refusal to take any action whatsoever on plaintiffs’ complaints about gross
breaches of confidentiality and serious risk of endangerment to public health and welfare
at multiple medical clinics in southeastern Michigan. As is more fully hereinafter
alleged, all that defendants would disclose to plaintiffs was the bland opaque declaration
that “no violation of the Michigan Public Health Code could be substantiated with the
information that was presented at the time,” without the slightest detail or explanation of
the specific provision or provisions of the Public Health Code that were considered, the
criteria used to determine whether or not there had been any violation thereof, and in
what degree or particulars the evidence which plaintiffs add uced had been deemed
inadequate or otherwise deficient in proving any violation of law. Defendants simply
cited an alleged exemption to the mandate of FOIA for prompt production of Public
Records (i.e., clearly unwarranted invasion of personal privacy), that was conclusory,
unsupported and patently inapplicable here. The upshot – and the spur that prompted this
2
lawsuit – is that plaintiffs are left utterly in the dark. Far from complying with FOIA’s
stated goal of fostering openness and transparency in go vernment, defendants have opted
rather to hide behind a Chinese wall.
The Parties
2. Plaintiff, Citizens for a Pro-Life Society (hereinafter “CPLS”), is a non-profit
corporation that was organized and continues to exist in good standing pursuant to the
laws of the State of Michigan. Its principal place of business is situated in Lyons,
Michigan. CPLS is a tax-exempt educational and advocacy organization which is
committed to pursue by means of all lawful means the reform of our nation’s laws and
practices that sanction or involve the killing of unborn infants and the infliction of
physical and/or emotional harm on American women and men in honor of “abortion on
demand.”
3. Plaintiff, Monica Migliorino Miller, Ph.D. (hereinafter “Dr. Miller”), is president and
director of CPLS and a professor at Madonna University. She resides in Lyons,
Michigan.
4. Defendant, Department of Community Health, is a department within the executive
branch of Michigan’s state government, one of whose constituent units is the Michigan
Bureau of Health Professions, with offices in the City of Lansing, Michigan.
5. Defendant, Bureau of Health Professions, is also an agency or unit of Michigan state
government, and part of the Department of Community Health.
6. Defendant, Health Investigation Division, is also an agency or unit of Michigan state
government, and part of the Bureau of Health Professions, which in turn is part of the
Department of Community Health.
3
7. Defendant, Janet Olszewski, is the Director of the Department of Community Health of
the State of Michigan, and she is sued herein only in her official capacity. Her office is in
the City of Lansing, Michigan.
8. Defendant, Mary E. Hess, is the Freedom of Information Coordinator for the Bureau of
Health Professions, of the Department of Community Health, and she too is sued herein
only in her official capacity. Her office is in the City of Lansing, Michigan.
9. Defendant, Robert D. Ulieru, is the Director, of the Health Investigation Division of the
Bureau of Health Professions of the Department of Community Health, and he too is sued
herein only in his official capacity. His office is in the City of Lansing, Michigan.
Juris diction and Venue
10. This Court has jurisdiction over the subject matter of this action, pursuant to Section
10(1)(4) of the Michigan Freedom of Information Act (codified at Sec. 15.240 of the
Michigan Statutes)(hereinafter “FOIA” or “the Act”). This statute provides that circuit
courts have jurisdiction over actions to compel a Public Body to disclose Public Records
within 180 days after a Public Body’s final determination to deny a request for such
records. The defendant entities that plaintiffs have sued herein all qualify as Public
Bodies within the meaning of the applicable provisions of the Michigan FOIA. The
defendant individuals are all responsible persons within those Public Bodies.
11. The Court also has jurisdiction over the person of the defendant Public Bodies and
individuals, inasmuch as they all have offices and/or conduct their public and official
business within the City of Lansing, Michigan.
12. Venue is properly laid here in Ingram County pursuant to Section 10(4) of the Act, which
provides in pertinent part that “the circuit court for the county in which the public record
4
or an office of the public body is located has venue of the action.” All defendants are
either situated within Ingram County or do business here.
Cause of Action
13. Prior to August 5, 2008, plaintiffs had filed a complaint and/or charge with the state
government defendants, namely, the Michigan Department of Community Health, Bureau
of Health Professions, Health Investigation Division. Plaintiffs complained about what
they believed to constitute matters of the utmost gravity involving the gross breach of
privacy and confidentiality of personal medical and financial records. Specifically, they
informed and advised defendants that literally hundreds of patient records had been
dumped in a trash container used by the Woman Care Clinic, located in Lathrop,
Michigan, a clinic owned and operated by Dr. Alberto Hodari. These patient records
were recovered over a five week period beginning February 7, 2008, and continuing
through March 29, 2008, so that the dumping of the records was far from any mere
isolated or “one time” event. Plaintiffs advised defendants that they had kept copies of
all the patient records retrieved from the trash and otherwise had in their possession
“plenty of evidence” to support their charges that patient confidentiality had been
seriously breached and compromised over a protracted period of time. Adding more
detail, plaintiffs advised defendants that there were at least 130 identifiable names
recorded on the supposedly confidential patient records found in the trash. These
documents comprised patient intake forms, recovery room forms, insurance forms,
recovery room forms, insurance forms, applications for financial assistance, as well as
patient consent forms. These were whole integral documents, many containing highly
personal information, and yet all were simply thrown into the trash.
5
14. Plaintiffs also reported to defendants that horrific bio-hazard waste was not only found in
the Lathrop, Michigan trash receptacle behind Dr. Hodari’s Women Care Clinic but also
in trash receptacles behind other clinics located in Southgate and Ster ling Heights,
Michigan. This “waste” consisted of the remains of aborted fetuses, including inter alia
body parts. Plaintiffs compiled a CD-Rom of their discovery, urging that this constituted
a grave imminent threat to public health & safety.
15. Thereafter, plaintiff, Dr. Miller, was advised by letter, dated August 5, 2008, from
defendant Ulieru, Director of the Health Investigation Division of the Bureau of Health
Professions, that an “investigation has been completed and forwarded to the Health
Regulatory Division for processing or closure,” etc. But there was no indication from
Mr. Ulieru as to the outcome of the investigation.
16. On or about February 18, 2010, plaintiff, Dr. Miller, wrote to inquire about the outcome
of the investigation upon her complaint and charges. This provoked a written response,
dated February 24, 2010, signed by defendant, Mary E. Hess, in her capacity as Freedom
of Information Coordinator, Bureau of Health Professions. Ms. Hess wrote to Dr. Miller
that, pursuant to the FOIA, 1976 PA 442, her request for information was “granted in part
and denied in part.” She further wrote:
“Pursuant to section 13(1)(t)(ii) of the FOIA, our records indicate that File No.
43-08-107813 was opened March 11, 2008, and closed following investigation
and expert review on January 6, 2010, based on a determination that no violation
of the Michigan Public Health Code, 1978 PA 368, as amended, could be
substantiated with the information presented at the time.”
17. Although the response to Dr. Miller’s F.O.I.A. request specifically stated that it had been
“granted in part and denied in part.” Dr. Miller received no further response of any kind
to her request, no documents, no pictures, no records, no further information or any kind.
6
Even if some of the information is legitimately exempt from disclosure, that portion
which is not exempt and which Dr. Millers request had been granted should have been
forwarded to her. It was not.
18. Defendant Ms. Hess continued that, “While [she] could empathize with your concerns,
we are precluded from sharing anything more from the closed allegation file,” and
“[t]herefore, an exemption from release of further information is hereby claimed pursuant
to section 13(1)(a) of the FOIA, on the grounds that release of this information would
constitute an unwarranted invasion of the individual(s) privacy.”
19. Section 13(1)(a) of the FOIA, however, states the following exemption from the
disclosure mandate of the FOIA:
“(1) A public body may exempt from disclosure as a public record under this act any of the
following:
(a) Information of a personal nature if public disclosure of the information would constitute a
clearly unwarranted invasion of an individual’s privacy.”
20. The FOIA provides that the Public Body claiming exemption from the disclosure
mandate for Public Records bears the burden of proving that an exemption applies, and
plaintiffs contend that this exemption is inapplicable here.
21. In this instance the only personal and private data whose disclosure would cause or
threaten to cause a “clearly unwarranted invasion of an individual’s privacy” are the very
patient records about whose public disclosure Dr. Miller and CPLS were complaining in the
first place. Those records, indeed, already had become “public” by virtue of the misbehavior
complained of, namely, their having been tossed out into publicly accessible trash receptacles
for ordinary garbage pickup. Mootness thus applies here insofar as any disclosure to
7
plaintiffs is concerned, as plaintiffs forthrightly explained at the outset that they were
retaining – in confidence! – copies of the patient records they had discovered.
22. Here, the defendants simply asserted in utterly conclusory fashion that personal privacy
considerations required wholesale denial of any disclosure, and yet Michigan’s FOIA
requires that a Public Body indicate factually and in detail how a particular document or
category of documents satisfies the exemption, and mere conclusory allegations are not
sufficient. At a minimum, the defendants should be required to produce these Public Records
for in camera inspection so that the Court may determine to what extent the defendants are
withholding data and/or documentation that goes beyond the narrowly drawn exemption that
they invoke. Moreover, wholly apart from the patient records themselves, how do the
defendants justify not even returning to plaintiffs their original complaint and/or charges, let
alone any explanation or justification for the result reached? Where a requested Public
Record pertains to the party making the request, it is unreasonable to refuse disclosure on the
grounds of invasion of privacy. How do the defendants justify under FOIA their telling the
plaintiffs that the evidence presented was insufficient to substantiate the charges of any law
violation without specifying in what particulars the evidence presented fell short or was
deficient?
23. To the extent that disclosure of the requested documents might have disclosed personal
information relating to witnesses interviewed during the course of the investigation or
hearing (assuming either were actually conducted, one was in fact held), that concern could
have been rectified by merely redacting the personal information from the records prior to
disclosing it.
8
24. Plaintiffs also provided the information set forth in paragraphs 13 and 14 above to the
appropriate Oakland County Law Enforcement Agencies and Prosecuting Attorney’s Office.
And based on information and belief, a ten count information was subsequently filed against
Alberto Hodari, based at least in part on the same conduct complained about the Michigan
Department of Community Health, Bureau of Health Professions. Mr. Hodari eventually
entered a guilty to plea to one count in exchange for dismissal of the remainder.
25. Plaintiffs in particular and the People of the Stet of Michigan in general have a vested
interested in learning how a licensed professional in this State can engage in conduct in the
scope of his occupation which constitutes a criminal offense , but which same conduct does
not in any way violate his professional code.
26. Plaintiffs thus ask the Court, pursuant to FOIA, to determine that defendants have
invoked their claimed exemption in a manner that is, at least, significantly overbroad and that
it order the defendants, and each of them, to cease withholding all or any part of the
requested Public Records related to the investigation and disposition of plaintiff’s charges, as
to which disclosure is properly required.
27. Plaintiffs urge that this action be expedited for hearing and trial or for argument at the
earliest practicable date and expedited in every way, as FOIA provides.
28. Plaintiffs further pray that, upon prevailing in whole or in part, they be granted an award
of reasonable attorney’s fees.
29. Plaintiffs further allege, on information and belief, that defendants have withheld some or
all of the data and documentation requested in an arbitrary and capricious manner, so that they
should also be awarded $5,000 in punitive and exemplary dama ges as well as compensatory
damages.
9
WHEREFORE, plaintiffs pray that they have judgment as hereinabove set forth; and that
they have all other relief to which they may be entitled upon the premises in accordance with
law.
Respectfully Submitted,
____________________________
Robert G. Fleming (P44610)
10