DETROIT FREE PRESS INC V CITY OF WARREN
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STATE OF MICHIGAN
COURT OF APPEALS
DETROIT FREE PRESS, INC.,
FOR PUBLICATION
February 26, 2002
9:10 a.m.
Plaintiff-Appellant,
v
No. 231010
Wayne Circuit Court
LC No. 00-030323-CZ
CITY OF WARREN,
Defendant-Appellee.
Updated Copy
May 24, 2002
Before: K.F. Kelly, P.J., and Hood and Zahra, JJ.
ZAHRA, J.
Plaintiff appeals as of right from an order granting summary disposition to defendant in
this case involving the Michigan Freedom of Information Act (FOIA), MCL 15.231 et seq. We
reverse and remand.
I. Facts
Plaintiff made an FOIA request to defendant, requesting inspection of bills, invoices, and
related records of legal services paid for by defendant for city officials and employees who had
been called before a federal grand jury or had met with agents of the Federal Bureau of
Investigation (FBI). Defendant provided copies of these records, but redacted the names of the
city officials and employees. Because defendant refused to disclose the names of the public
officials and employees, plaintiff filed a complaint for declaratory and injunctive relief and a
motion for summary disposition, arguing that the FOIA mandated disclosure of the names. The
trial court denied plaintiff 's motion and granted summary disposition to defendant under MCR
2.116(I)(2), ruling that the requested information was exempt from disclosure under the FOIA.
II. Analysis
We review de novo a trial court's decision on a motion for summary disposition. Van v
Zahorik, 460 Mich 320, 326; 597 NW2d 15 (1999). "The trial court properly grants summary
disposition to the opposing party under MCR 2.116(I)(2) if the court determines that the
opposing party, rather than the moving party, is entitled to judgment as a matter of law."
Washburn v Michailoff, 240 Mich App 669, 672; 613 NW2d 405 (2000). Whether a public
record is exempt from disclosure under the FOIA is a mixed question of fact and law, and we
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review the trial court's factual findings for clear error and review questions of law de novo.
Messenger v Consumer & Industry Services, 238 Mich App 524, 530-531; 606 NW2d 38 (1999).
The FOIA requires full disclosure of public records, unless those records are exempted
under the act. Bradley v Saranac Community Schools Bd of Ed, 455 Mich 285, 293; 565 NW2d
650 (1997). The burden of proving need for an exemption rests on the public body asserting its
application. Id. To meet this burden, the public body claiming an exemption should provide
complete particularized justification, rather than simply repeat statutory language. Hyson v Dep't
of Corrections, 205 Mich App 422, 424; 521 NW2d 841 (1994).
Defendant claims to be exempt under the FOIA's privacy exemption, MCL 15.243(1)(a),
which states:
(1) A public body may exempt from disclosure as a public record under
this act:
(a) Information of a personal nature where the public disclosure of the
information would constitute a clearly unwarranted invasion of an individual's
privacy.
For information to be exempted under the FOIA's privacy exemption, two factors must be
established: the information sought must be of a "personal nature," a determination that requires
consideration of the customs, mores, or ordinary views of the community, and the disclosure of
such information must constitute a clearly unwarranted invasion of privacy. Herald Co v Bay
City, 228 Mich App 268, 288-289; 577 NW2d 696 (1998), rev'd in part on other grounds 463
Mich 111; 614 NW2d 873 (2000); see also Bradley, supra at 294. Information is of a "personal
nature," if it reveals intimate or embarrassing details of an individual's private life, as evaluated
in terms of the customs, mores, or ordinary views of the community. Herald Co, supra, 463
Mich 123-124. Information not of a personal nature is subject to disclosure without considering
the second prong of the privacy exemption. Bradley, supra at 295.
In analyzing the first prong, consideration must be given not merely to the question
whether the identifying information is of a personal nature. Rather, the inquiry must be broader,
and must consider whether any information disclosed in association with identity is of a personal
nature. For example, our Supreme Court determined that personnel documents of public school
teachers and principals, which contained performance appraisals, disciplinary actions, and
complaints relating to these employees' accomplishments in their public jobs, did not contain
information of embarrassing, intimate, private, or confidential nature and, thus, were not
personal in nature and exempt from disclosure under the privacy exemption of the FOIA.
Bradley, supra at 294-295. However, in Mager v Dep't of State Police, 460 Mich 134, 143, 146147; 595 NW2d 142 (1999), the Court determined that information concerning gun ownership
was information of a personal nature and, thus, a listing of registered gun owners was exempt
from disclosure. See also Detroit Free Press, Inc v Dep't of State Police, 243 Mich App 218,
225-227; 622 NW2d 313 (2000) (where information concerning public officials' applications for
licensing to carry concealed weapons was likewise classified as information of a personal
nature).
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In this case, the question is whether the names of defendant's officials and employees
redacted from the documentation provided to plaintiff constitutes information of a personal
nature given the fact that these names are associated with information concerning grand jury
proceedings. Under Michigan's FOIA, citizens are entitled to obtain information regarding the
manner in which public employees are fulfilling their public responsibilities. See Mager, supra
at 142-143. Here, the names sought were those of elected officials and city employees for whom
defendant, a public body, had paid attorney fees in connection with their grand jury appearances
or FBI interviews. This fact strongly suggests that the names and associated information
constitutes information concerning matters of legitimate public concern, rather than information
of a personal nature.
Relying on this rational and reasonable assumption, plaintiff contends that the connection
between the unidentified individuals and the grand jury probe relates only to these individuals'
public duties, and alleges that the grand jury investigation concerns possible corruption in
defendant's city government. Defendant, meanwhile, argues that despite plaintiff 's allegation,
because of the secrecy surrounding such matters, no one can truly know the subject matter of the
grand jury proceedings and, thus, there is no way to determine whether the individuals are
involved because of their public employment status. While there may exist some question with
respect to the full context of the investigation until the time any and all indictments are issued,
the burden of demonstrating applicability of an exemption under the FOIA is squarely on
defendant. See Bradley, supra at 293. We conclude that defendant has utterly failed to satisfy
this burden.
Defendant relies on the mere claim that the secrecy of grand jury proceedings leaves
room only for conjecture with respect to the subject matter of the investigation. Presenting no
proofs indicating that the investigation involves the conduct of its various officials and
employees in their private lives, or, at minimum, an affidavit asserting that the inherent secrecy
has wholly prevented it from gaining even basic information from its employees concerning the
investigation's context, defendant instead argues that the individuals connected to the
investigation through disclosure of their names will become the subject of rumors and innuendo.
On appeal, defendant recites one anecdotal example of a retired city employee who was not
home when FBI agents showed up to speak with him. Defendant asserts that this individual was
distraught over what his neighbors may have thought about the FBI seeking to question him.
Contrary to defendant's argument, however, we are not persuaded that this deleterious effect
associated with the identification of a person connected to the investigation rises to the level of
revealing intimate or embarrassing details of the individual's private life. We conclude that
given defendant's limited argument and lack of proofs, the trial court clearly erred in finding that
the information was of a personal nature.1 Therefore, the court erred in determining that the
privacy exemption is applicable.
1
Moreover, even assuming the subject of the grand jury investigation relates to employees'
personal conduct, the investigation is of public concern because defendant utilized public funds
to provide legal counsel for allegedly private matters.
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We further conclude that the trial court erred in ruling that the information plaintiff
requested is exempt from disclosure pursuant to MCL 15.243(1)(d), which provides an
exemption for "[r]ecords or information specifically described and exempted from disclosure by
statute." Defendant asserts that F R Crim P 6(e) is a "statute" barring disclosure in the instant
case. We disagree. The Legislature is presumed to have intended the meaning it plainly
expressed. Nation v W D E Electric Co, 454 Mich 489, 494; 563 NW2d 233 (1997). Given that
MCL 15.243(1)(d) plainly includes only statutes, and not rules of procedure, F R Crim P 6(e)
cannot serve as a basis for exemption in this case. See Mager, supra at 143 (recognizing that the
FOIA is a prodisclosure statute with narrowly construed exemptions); see also MCL
15.243(1)(h) (specifically exempting information subject to privileges recognized "by statute or
court rule." (Emphasis added.)2
III. Conclusion
In sum, defendant failed to carry its burden of demonstrating that production of the
information sought was exempt under the FOIA. Therefore, we reverse and remand for entry of
judgment in favor of plaintiff. We do not retain jurisdiction.
Reversed and remanded.
Hood, J., concurred
/s/ Brian K. Zahra
/s/ Harold Hood
2
Moreover, nothing in F R Crim P 6(e) bars the disclosure of the names of the public employees
and officials in this case. F R Crim P 6(e)(2) states:
General rule of secrecy. A grand juror, an interpreter, a stenographer, an
operator of a recording device, a typist who transcribes recorded testimony, an
attorney for the government, or any person to whom disclosure is made under
paragraph (3)(A)(ii) of this subdivision shall not disclose matters occurring before
the grand jury, except as otherwise provided for in these rules. No obligation of
secrecy may be imposed on any person except in accordance with this rule. A
knowing violation of Rule 6 may be punished as a contempt of court.
Plaintiff is requesting the information from defendant, who paid for the city officials' and
employees' attorneys. Plaintiff did not request information from any person bound to secrecy
under F R Crim P 6(e)(2). Because neither grand jury witnesses, witnesses' attorneys, witnesses'
employers, nor the people who paid for the witnesses' attorneys are bound to secrecy under F R
Crim P 6(e), defendant is not bound to secrecy in regard to the grand jury proceedings.
Defendant is free to disclose witnesses' names or other information from the grand jury
proceedings.
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