HERALD CO INC V EASTERN MICH UNIV BD OF REGENTS
Annotate this Case
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STATE OF MICHIGAN
COURT OF APPEALS
HERALD COMPANY, INC., d/b/a BOOTH
NEWSPAPERS, INC., and d/b/a ANN ARBOR
NEWS,
FOR PUBLICATION
February 10, 2005
9:05 a.m.
Plaintiff-Appellant,
v
EASTERN MICHIGAN UNIVERSITY BOARD
OF REGENTS,
Defendant-Appellee.
No. 254712
Washtenaw Circuit Court
LC No. 04-000117-CZ
Official Reported Version
Before: Whitbeck, C.J., and Sawyer and Saad, JJ.
WHITBECK, C.J. (dissenting).
This case arises from the construction of a new official residence, University House, for
the president of Eastern Michigan University (the University). Apparently, there was
considerable public controversy regarding the expenditures associated with University House,
and ultimately the president resigned, perhaps because of this controversy. In any event, it is
clear from the record that University Regent Jan Brandon wrote a letter to Patrick Doyle, the
University's vice president for finance, asking Mr. Doyle to address several questions relating
directly or indirectly to the construction of University House. On September 3, 2003, Mr. Doyle
responded by letter, and it is this communication (the Doyle letter) that is at issue here. Plaintiff
Herald Company1 sought to obtain a copy of the Doyle letter, and the University denied the
request on the basis of the "frank communications" exception2 of the Freedom of Information
Act (FOIA).3 The Herald Company sued, and the trial court upheld the University's denial, as
does the majority here.
1
Doing business as Booth Newspapers, Inc., and the Ann Arbor News.
2
MCL15.243(1)(m).
3
MCL 15.231 et seq.
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I respectfully dissent from the majority's opinion.
In construing the frank
communications exemption of the FOIA the majority has posited a false choice between "good
government" on the one hand and "disclosure for disclosure's sake" on the other. The FOIA
contains no such choice but, by reading it into the statute, the majority assures that the contents
of the Doyle letter will remain secret. In the process, the majority ignores the concept of
accountability that is so essential to the process of governing. It disregards the requirement in
the frank communications exemption that the public body must show in the particular instance
the public interest in encouraging frank communication between officials and employees of
public bodies clearly outweighs the public interest in disclosure. It articulates what amounts to
an abuse of discretion standard for appellate court review of FOIA cases. It speculates about
what may occur in the future under the guise of construing the frank communications exemption
while ignoring facts that are, in my view, outcome determinative in the particular circumstances
of this case. And finally, relying on a New York case, it reaches the amazing conclusion that
"public welfare is more important than public knowledge." In the process, the majority
overlooks the fundamental proposition that in a democracy public knowledge is essential to
public welfare and ignores the explicit public policy statement in the FOIA that "[t]he people
shall be informed so that they may fully participate in the democratic process."4 For these
reasons, I dissent.
I. Overview: Accountability And The Process Of Governing
Chess is a game of complete information.5 In a chess game, each player looks at the
board and sees the same information and that information is all that is available. By contrast,
poker is a game of partial information. In a stud poker game, for example, all players have some
information that they share equally—that is, knowledge of the cards that have been dealt face
up—but each player also has some information unique only to that player—that is, knowledge
of the cards that are in that player's hand.
The game of poker is more analogous to real life than is the game of chess, which may
account for poker's significantly greater popularity. As individuals within a larger society, we
rarely have exactly the same information and almost never do we have all the information that
exists. The decisions that we make, therefore, may depend as much on past experience, on
intuition, on context, and on our own value systems as they do on factual information.
The process of governing is a real life exercise and, while it is most certainly not a game,
it is an exercise characterized by partial information. Rarely do individual citizens have the
same information about governmental decisions. Almost never do such citizens have all the
information that exists. In part, this is inevitable. Although the direct democracy of the town
meeting still exists in a few areas, we now largely function within a representative form of
4
MCL 15.231(2).
5
McManus, Positively Fifth Street: Murderers, Cheetahs, and Binion's World Series of Poker
(New York: Farrar, Straus & Giroux, 2003).
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government in which elected and appointed officials make decisions on our behalf without our
participation and, indeed, often without our knowledge.
Nonetheless, as citizens we must be able to hold our elected and appointed officials
accountable for the decisions that they make on our behalf. Accountability, in turn, depends on
information; we cannot make an informed judgment about whether a decision of a government
official was the correct one without having at least some information about that decision. In
1976, the Michigan Legislature took a decisive step toward regularizing the access that citizens
have to information about governmental decision-making and, thereby, toward ensuring
accountability by elected and appointed governmental officials. That step was the passage of the
FOIA.
The first section of the FOIA spells out a policy that would appear to be premised upon
the concept of perfect information:
It is the public policy of this state that all persons, except those persons
incarcerated in state or local correctional facilities, are entitled to full and
complete information regarding the affairs of government and the official acts of
those who represent them as public officials and public employees, consistent
with this act. The people shall be informed so that they may fully participate in
the democratic process.[6]
The mechanisms of the FOIA, however, do not actually result in the provision of full and
complete information in all instances. Section 137 of the FOIA currently contains twenty-five
discrete exemptions from the broad sweep of the act. The inclusion of such exemptions reflects
a wholly realistic series of policy decisions by the Legislature that, sometimes, full disclosure
would not advance the process of governing. Court after court, however, has said that these
exemptions are to be construed narrowly.8
Further, there can be no question that the concept of accountability is central to both the
broad policy and the implementing mechanisms of the FOIA.9 The FOIA, then, is a pro
6
MCL 15.231(2) (emphasis supplied).
7
MCL 15.243.
8
See, for example, Detroit Free Press, Inc v Dep't of Consumer and Industry Services, 246 Mich
App 311, 315; 631 NW2d 769 (2001) ("The exemptions in the FOIA are narrowly construed, and
the party asserting the exemption bears the burden of proving that the exemption's applicability
is consonant with the purpose of the FOIA."); Herald Co v Bay City, 463 Mich 111, 119; 614
NW2d 873 (2002) ("[T]he FOIA is a prodisclosure statute, and its exemptions are narrowly
construed."); Kent Co Deputy Sheriffs' Ass'n v Kent Co Sheriff, 238 Mich App 310, 313; 605
NW2d 363 (1999) ("The FOIA [is] interpreted broadly to allow public access, and its exceptions
are interpreted narrowly so its disclosure provisions are not undermined.").
9
See, for example, Detroit Free Press v City of Warren, 250 Mich App 164, 168-169; 645
NW2d 71 (2002) ("Under [the] FOIA, citizens are entitled to obtain information regarding the
(continued…)
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disclosure statute that by its enactment sought to expand access to information in the hands of
government officials. Thereby it allows the citizens of this state to hold those officials
accountable for the decisions that they make on our behalf. While the Legislature did not, and
could not, provide for complete access to information, it did significantly shift the balance away
from restricted access to open access in all but a limited number of instances. The Legislature
therefore necessarily made the decision that disclosure, except in a few instances, facilitates the
process of governing because it incorporates the concept of accountability.
This was a deliberate, reasoned policy choice and one to which we in the judiciary
should, in the process of judicial review, defer. In my view, the majority here exhibits no such
deference. Rather, the majority substitutes its own view of proper policy—that the process of
governing would be hindered in the context of the "frank communications" exemption by
providing access to the Doyle letter—on grounds that are suspect at best when the actual
language of that exemption is examined.
II. The Frank Communications Exemption
Section 13(1)(m)10 of the FOIA is the "frank communications" exemption. The frank
communications exemption contains, first, a description of the public documents that are to be
exempted and, second, a requirement for a necessary showing for the exemption to apply. The
description of the public documents to be exempted provides that such documents must be
(1) communications and notes within a public body or between public bodies, (2) other than
purely factual materials, and (3) preliminary to a final agency determination of policy or action.
The trial court found, and I agree, that the Doyle letter at issue here met each of these three
prongs.
The "necessary showing" requirement is, however, another matter. Section 13(1)(m)
states that "[t]his exemption does not apply unless the public body shows that in the particular
instance the public interest in encouraging frank communication between officials and
employees of public bodies clearly outweighs the public interest in disclosure." (Emphasis
supplied.) Thus, the public body claiming exemption must show with particularity how the
public interest in encouraging frank communications clearly outweighs the overall public interest
in disclosure.
(…continued)
manner in which public employees are fulfilling their public responsibilities."); Manning v East
Tawas, 234 Mich App 244; 593 NW2d 649 (1999) (the FOIA is a manifestation of the state's
public policy recognizing the need that public officials be held accountable for the manner in
which they perform the duties); Thomas v New Baltimore, 254 Mich App 196, 201; 657 NW2d
530 (2002) (the FOIA was enacted "recognizing the need for citizens to be informed so that they
may fully participate in the democratic process and thereby hold public officials accountable for
the manner in which they discharge their duties").
10
MCL 15.243(1)(m).
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It is within the context of this language that I find the majority's reliance on the "public
interest balancing" mentioned in Federated Publications11 to be, at the very least, interesting. It
is clear from the case law, including Federated Publications, that applying the FOIA, of
necessity, requires the balancing of the interest in disclosure and the interest in nondisclosure.
However, in the frank communications exemption, the Legislature, in a manner of speaking, put
its thumb on the scale. The Legislature placed the burden squarely on the public body to show
that the interest in nondisclosure clearly outweighs the interest in disclosure. In addition, the
Legislature provided that this showing must be made in the particular instance. Thus, in the
frank communications exception the competing interests in nondisclosure and disclosure do not
stand on equal footing. Rather, the Legislature has weighted the balance in favor of disclosure.
It follows that it is not enough to state that there is a public interest in the nondisclosure
of communications and notes within a public body or between public bodies that contain other
than purely factual materials and that are preliminary to a final agency determination of policy or
action. The Legislature has already made such a determination and it is a given. Merely
repeating that given advances the analysis not at all. The issue here is whether the interest in
nondisclosure clearly outweighs the competing interest in disclosure in this particular instance.
In my view, the majority skirts this issue, in the process conflating two considerably different
standards of review.
III. Standard Of Review12
The majority states in its section on the standard of review that the applicable standard is
whether the trial court's ruling constitutes clear error. Curiously, later in its analysis the majority
revisits the standard of review. In its later analysis, the majority refers to Federated Publications
to bolster its position that "the clearly erroneous standard was adopted by our Supreme Court to
provide deference to trial courts that engage in precisely the type of balancing of public interests
conducted here." Ante at ___.
This is simply inaccurate, factually and logically. Federated Publications did not deal at
all with the frank communications exemption nor with its explicit "clearly outweighs" standard.
Rather, Federated Publications dealt with the FOIA exemption applicable to personnel records
of a law enforcement agency.13 Therefore, Federated Publications did not deal at all with
"precisely the type of balancing of public interests conducted here." It dealt with a wholly
different "equal footing" balancing scheme applicable to another, and wholly distinct, exemption
in which the Legislature had not weighted the scales in favor of disclosure. As articulated in
Federated Publications, and subject of course to the broad policy bias in favor of disclosure and
11
Federated Publications, Inc v Lansing, 467 Mich 98, 109; 649 NW2d 383 (2002).
12
Note that the standard of review in question here is at the appellate level. At the trial court
level, the FOIA explicitly states that the court "shall determine the matter de novo and the
burden of proof is on the public body to sustain its denial." MCL 15.240(4).
13
MCL 15.243(1)(s)(ix).
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to the narrow scope of the exemptions to disclosure in the FOIA, the interest in disclosure and
the interest in nondisclosure in the law enforcement exception stand on something akin to equal
footing. There is no such equal footing standard in the frank communications exception. That
exemption has its own distinct and discrete "clearly outweighs" standard.
More broadly, there are three general categories of appellate review: de novo, clear
error, and abuse of discretion. Federated Publications discussed the first two of these
categories. It noted that the Supreme Court had, in some instances and without elaboration,
applied a standard of review de novo to FOIA cases.14 However, Federated Publications limited
review de novo to applications of FOIA exemptions involving legal determinations.15 In a
footnote, the majority here propounds the theory that it would be an inefficient use of judicial
resources to require appellate courts to review every FOIA challenge de novo. While I generally
agree, I do note that Federated Publications appears to stand for the proposition that review de
novo is required with respect to the applications of FOIA exemptions involving legal
determinations.
Federated Publications does hold, squarely, that "the clearly erroneous standard of
review applies to the application of exemptions requiring determinations of a discretionary
nature" and that "[a] finding is clearly erroneous if, after reviewing the entire evidence, the
reviewing court is left with the definite and firm conviction that a mistake has been made."16
The majority, however, is not satisfied with this reasonably straightforward standard and
quotes People v Cheatham17 to the effect that to be clearly erroneous a decision must "strike us
as wrong with the force of a five-week old, unrefrigerated dead fish." Cheatam was a criminal
case and, in writing it, Justice Boyle noted that "[c]redibility is crucial in determining a
defendant's level of comprehension, and the trial judge is in the best position to make this
assessment."18 Credibility is, generally, not at issue in FOIA cases and most certainly not an
issue in this FOIA case; the trial court here made its decision after a review in camera of the
Doyle letter in which credibility determinations played no part. The majority does not explain
why an admittedly colorful illustration of the clearly erroneous standard in a footnote in a
criminal case that quotes a federal Circuit Court of Appeals decision in another circuit is of any
assistance in understanding the clearly erroneous standard in a Michigan FOIA case that
involves no credibility determinations whatsoever.
14
Federated Publications, supra at 105-106 n 4, citing Bradley v Saranac Community Schools
Bd of Ed, 455 Mich 285, 293; 565 NW2d 650 (1997), and Herald Co v Bay Co, 463 Mich 111,
117; 614 NW2d 873 (2000).
15
Federated Publications, supra at 106.
16
Id. at 107.
17
People v Cheatham, 453 Mich 1, 30, n 23; 551 NW2d 355 (1996), quoting Parts & Electric
Motors v Sterling Electric, Inc, 866 F2d 228, 233 (CA 7, 1988).
18
Cheatham, supra at 30.
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Beyond that, however, is the fact that the majority has in essence conflated the clearly
erroneous standard with the abuse of discretion standard. Federated Publications did not discuss
the abuse of discretion standard and, clearly, it has no application to FOIA cases. At its core, the
abuse of discretion standard recognizes that in some circumstances a trial court is in a better
position to make certain factual determinations and is therefore to be accorded considerable
deference as "an acknowledgment of the trial court's extensive knowledge of the facts and that
court's direct familiarity with the circumstances . . . ."19 The majority here seizes upon the word
"deference," and states that because of the trial court's ability to "hear testimony and review
documents in camera and appraise the multiple factors that influence this balance," the trial
court's determination should be accorded "great deference."
There were no credibility determinations involved in the trial court's decision here.
While the trial court reviewed the Doyle letter in camera, so have we. If there were other
"multiple factors" that influenced the trial court's balancing process, those factors are not
discernable from the trial court's opinion or from the record in this case. By conflating the
clearly erroneous standard with the abuse of discretion standard and, in essence, applying the
latter, the majority has made the trial court's decision virtually unreviewable. This is a far cry
from a standard that requires us, in order to reverse, to review the entire evidence and come to a
definite and firm conviction that the trial court has made a mistake. The deference that is due the
trial court's decision is the deference that flows from a careful review of the evidence and from a
reasoned analysis of that decision, no more and no less. I suggest that it is this review that we
should be conducting in this case. I further suggest that this is not the review that the majority
has conducted.
IV. The "Particular Instance" Of This Case
A. The Majority's View
The majority addresses the particularized circumstances of this case in one very specific
instance and then in a series of very broad statements. Specifically, the majority notes that the
University's Board of Regents honorably discharged its obligations. Presumably, the majority
here refers to the undisputed fact that the University ultimately released a comprehensive report
by the independent auditing firm that investigated the University House controversy. I agree that
the University acted responsibly and in good faith in releasing this report. Were this the only
factor bearing on this case, I would be inclined to affirm the trial court's decision. Of course, this
is not the only factor involved here. (I do note, however, that the situation here is not precisely
the same as in the federal case of Montrose Chemical Corp of California v Train,20 a decision on
which the majority relies. In Montrose, the court was faced with a situation in which all the facts
concerning the matter at issue were in the public record and, therefore, the document that was
19
People v Babcock, 469 Mich 247, 270; 666 NW2d 231 (2003).
20
Montrose Chemical Corp of California v Train, 160 US App DC 270; 491 F2d 63 (1974).
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being withheld was, to a considerable extent, redundant. Here, a review in camera of the Doyle
letter plainly discloses that all the facts are not in the public record.)
The majority then offers a series of generalized policy statements in support of its view.
(For example, "The natural human tendency to 'circle the wagons' or 'play it safe,' coupled with
apprehension of retaliation if the written opinion is made public would, we fear, deprive the
Board of an important perspective . . . . " Ante at ___.) Ostensibly, these statements are related
to the situation that the University's Board of Regents faced here. However, these generalized
concerns do not actually relate to the particular circumstances of this case; in fact, they express
an overall view on proper public policy not with respect to this instance, but to future instances.
But speculation about what may occur in the future is not our task when construing the frank
communications exemption of the FOIA. By the language of that exemption, our task is to
confine our inquiry to the "particular instance" of this case. If we limit our inquiry to the facts as
they exist here, then I am at a loss to understand how the public interest in encouraging frank
communications "clearly outweighs" the public interest in disclosure.
B. The Facts As They Exist Here
The majority acknowledges, in passing, that that the matter here involves the
"administration's expenditure of public funds." To me, this fact is central to our consideration of
this case. We are not dealing here, as we were in McCartney v Attorney General,21with legal
memoranda that the Attorney General's staff prepared regarding the Governor's negotiations with
Indian tribes over casino rights. We are not dealing here, as we were in Favors v Dep't of
Corrections,22 with a comment sheet used by a Department of Corrections disciplinary credit
committee to determine whether to recommend the award of disciplinary credits. Rather, we are
dealing with the direct expenditure of public funds—derived, we may reasonably assume, from a
combination of taxpayer dollars and tuition payments—by the president of a major university for
the construction of a residence in which he would live. Further, we are dealing with a situation
in which there were allegations, confirmed at least in part by the University's report, that these
expenditures were extravagant and inappropriate. Thus, the question of the president's
accountability, not just to the University's Board of Regents, but also to the taxpaying public, for
these expenditures is at the core of this case.
The majority's opinion keeps the Doyle letter, a document that was highly critical of the
president, hidden from public view. It posits, in my view, a false choice between "good
government" on the one hand and "disclosure for disclosure's sake" on the other. There is no
provision in the FOIA for disclosure for disclosure's sake. Rather, there is the broad policy
decision by a fully cognizant Legislature that disclosure, because it fosters accountability,
facilitates good government. To hide the contents of the Doyle letter behind the façade of a
Manichean choice between "good government" and the disclosure of arguably extravagant and
21
McCartney v Attorney General, 231 Mich App 722; 587 NW2d 824 (1998).
22
Favors v Dep't of Corrections, 192 Mich App 131; 480 NW2d 604 (1991).
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inappropriate expenditures of public funds by a public official is not only to run from reality, it is
to obscure the very existence of that reality.
The second fact central to our consideration of this case is that it is apparent that Mr.
Doyle had decided to retire well before he wrote his letter to Regent Brandon and, as the trial
court noted in its opinion, Mr. Doyle resigned several days after he wrote that letter. The
majority's concern that a high level administrator such as Mr. Doyle might be "naturally
reluctant" to give his candid opinion of the "highest ranking official in the administration, the
president, his immediate superior, whose favor he needs for job security," ante at ___, is thus
absolutely unfounded. Mr. Doyle could have no fears about his future job security, or about the
president's "favor," because he had already decided to retire. Further, he had made that decision
known to the president months before he penned his letter to Regent Brandon.23
In my view these facts determine the outcome in this case, for they exemplify precisely
the sort of circumstances the Legislature commanded us to consider in the particular instance of
an exemption claimed under the frank communications exemption to the FOIA. The majority
avoids this conclusion by turning to case law from other states. It places heavy reliance on the
California case of Times Mirror Co v Sacramento Co Superior Court,24 In that case, the Times
Mirror sought disclosure of the Governor's appointment schedules. The California Supreme
Court ultimately denied that disclosure, stating: "The deliberative process privilege is grounded
in the unromantic reality of politics; it rests on the understanding that if the public and the
Governor were entitled to precisely the same information, neither would be likely to receive
it."25
I first note that the issue of access to a Governor's appointment schedule simply could not
arise in Michigan as the definition of a "public body" "does not include the governor or
lieutenant governor, the executive office of the governor or lieutenant governor, or employees
thereof."26 Second, the California court fell into the same error as the majority here when it
expounded its own view of proper public policy, which was based on speculation about what
might happen in the future, while ignoring the language that the legislature had actually enacted.
The New York decision in In the Matter of Shaw27 exhibits the same hubris. At issue
were rating reports of a high school referee that had been compiled by high school coaches.
23
I also note that the Legislature has effectively dealt with the fear that employers will retaliate
against employees, including public employees with the exception of those in the state classified
service, who report violations or suspected violations of laws, regulations, or rules through the
enactment of the Whistleblowers' Protection Act, MCL 15.361 et seq.
24
Times Mirror Co v Sacramento Co Superior Court, 53 Cal 3d 1325; 283 Cal Rptr 893; 813
P2d 240 (1991).
25
Id. at 1345.
26
MCL 15.232(d)(i).
27
In the Matter of Shaw, 112 Misc 2d 260; 446 NYS2d 855 (1981).
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There, the court stated that "[a] public dissemination of the ratings would temper an honest and
free evaluation with fear of reprisals and animosity and deter a proper decision."28 The court
reached the amazing conclusion that "[p]ublic welfare is more important than public
knowledge."29 Remarkably, the majority here cites In the Matter of Shaw, a New York case, for
the proposition that the Michigan Legislature had made the policy judgment that public welfare
is more important than public knowledge. How a decision construing a New York statute can
shed any light whatsoever on the intent of the Michigan Legislature in enacting the FOIA
completely eludes me. My puzzlement is increased by the fact that neither the Michigan
Legislature nor, to my knowledge, any court construing the FOIA in Michigan has ever reached
the astounding conclusion that the public knowledge of the functioning of its government is
overridden by the incantation of the phrase "public welfare," a phrase that both the New York
court and the majority here leave conveniently undefined. If this is the law in Michigan, then the
FOIA is simply a dead letter.
V. The Majority's Response To This Dissent
The majority responds to my dissent in this case and I will do similarly, briefly. The
majority's response commences with the charge that there are "many misstatements,
misapprehensions, and mischaracterizations contained in the dissent . . . ." Ante at ___. Such
alliterative ruffles and flourishes neither require nor deserve a response. The majority's view and
my own are set out in the language of our respective opinions and I am content to let the chips
fall where they may.
More substantively, the majority circles around the question of the standard of review at
some length, with frequent references to Federated Publications.30 The majority view appears to
have two components. The first is that Federated Publications articulates a "clearly erroneous"
standard of review. I agree. Indeed, I say exactly that in the body of this dissent. I also point
out, however, that Federated Publications dealt with the FOIA exemption applicable to
personnel records of a law enforcement agency and not to the frank communications exemption
at issue here. As the majority appears to concede, the frank communications exemption has its
own "clearly outweighs" standard. Unless the specific language of the frank communications
exemption is to be rendered entirely nugatory, this "clearly outweighs" standard, along with the
requirement to take into account the "particular instance" of a case involving the frank
communications exemption, must be part of the public interest balancing that Federated
Publications requires.
The second component of the majority's view appears to stem from the rather common
sense observation in Federated Publications that "[i]n contrast with the universe of public
records that are non-exemptible, the Legislature has specifically designated these classes of
28
Id. at 261.
29
Id. at 262.
30
See Federated Publications, supra.
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records as exemptible."31 Of course, the fact that the Legislature designated a class of records as
exemptible does not end the inquiry. As the Supreme Court said, "[W]e emphasize that these
records are merely exemptible and not exempt, and that exemption is not automatic."32 And, I
suggest, even when taking into account the Supreme Court's following comment that a reviewing
court should remain "cognizant of the special consideration that the Legislature has accorded an
exemptible class of records,"33 that special consideration can be overriden by a conclusion that
the records should be made public when, as here, the public interest in encouraging frank
communication does not clearly outweigh the public interest in disclosure.
In short, I do not see the conflict in emphasis on which the majority seizes. To me, the
process is rather simple. Under Federated Publications, we are to review a lower court's
decision under a "clearly erroneous" standard. Under the language of the frank communications
exemption, that review necessarily involves a special inquiry into whether the public interest in
encouraging frank communications "clearly outweighs" the public interest in disclosure. The
second inquiry is just as important as the first and neither can be disregarded. Indeed, in my
view at least, the two inquiries constitute a seamless whole.34
In this regard, the majority states that I disagree with the trial court's findings. Indeed, I
do. But I do not simply disagree. After reviewing the entire evidence, I am left with the definite
and firm conviction that the trial court made a mistake. As set out below, that mistake was in
ignoring the special "clearly outweighs" standard contained in the frank communications
exemption and thereby ignoring the fact that, with respect to this particular exemption, the
Legislature has made a policy decision that tilts the balance in favor of disclosure.35
31
Federated Publications, supra at 109.
32
Id.
33
Id. at 110.
34
The majority also refers to the University as a "constitutionally mandated board." The
University is specifically mentioned in Const 1963, art 8, § 4 and is covered by art 8, § 6. But,
for example, the Civil Rights Commission is also a constitutionally created entity. See Const
1963, art 5, § 29. Yet, no court, to my knowledge, has concluded that the commission enjoys
any special or unique status with respect to the application of the FOIA. Nor, in my view, does
the University enjoy any such status.
35
The majority also states, inferentially, that I have speculated on "(1) why Doyle wrote what he
did; (2) when he wrote the letter; (3) whether Doyle is credible to the Board in his opinions; (4)
how the Board may have judged his credibility, reliability, or sincerity; or (5) what the Board
may have known about the relationship between Doyle and the University president and how this
affected its decision regarding further investigations." Ante at ___. Try as I have, I can find no
such speculation in my dissent. The majority here perhaps engages in the informal, but material,
fallacy of tu quoque: meeting criticism with the argument that the other person engages in the
very conduct he or she is criticizing. I have indeed suggested that that majority is speculating
about the policy effect of future events. The statement that I myself have done the same is, to
put it gently, without any foundation, at least that I can find, in the words of my dissent.
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VI. Conclusion
In its conclusion, the majority states that:
In balancing the public interests, the trial court determined that the Board's
important, constitutional oversight function and investigative role, and thus, the
public interest in good government, would be better served by nondisclosure
rather than disclosure of the Doyle letter. In so finding, the trial court did not
clearly err. [Ante at ___.]
I see nothing in the trial court's opinion referring to the "important, constitutional
oversight function and investigative role" of the University's Board of Regents. However, I do
agree that the trial court found in essence that nondisclosure of the Doyle letter would better
serve the public than would disclosure. And it is for that precise reason that the trial court's
decision was clearly erroneous.
In its opinion, the trial court reached a general conclusion: "The public interest in
encouraging frank communication within the public body or between the public bodies clearly
outweighs the public interest in disclosure." The trial court apparently recognized, however, that
such a general conclusion, standing alone, could not carry the day. The trial court therefore went
on to say:
Plaintiff 's specific need for the letter, apparently to "shed light on the
reasons why a highly respected public official resigned in the wake of EMU being
caught misleading the public as to the true cost of the President's house," or the
public's general interest in disclosure, is outweighed by Defendant's interest in
maintaining the quality of its deliberative and decision-making process.
Obviously, the trial court was aware of the "clearly outweighs" standard. However, when
analyzing the particular instance of the Herald Company's FOIA request, it ignored that standard.
Rather, the trial court simply balanced the interest in nondisclosure against the interest in
disclosure and came down on the University's side. In so doing, the trial court failed to
recognize that, under the FOIA's frank communications exemption, the interest in nondisclosure
and the interest in disclosure do not stand on equal footing. With respect to this particular
exemption, the Legislature has weighted the scales in favor of disclosure. Ignoring this
legislative policy decision is the very definition of clear error.
The majority commits the same error. It states that, "[w]hen, as here, the public body
makes the proper showing that good governance is better served by nondisclosure rather than by
disclosure, it will not be required to release the information." Ante at ___. Like the trial court,
the majority is obviously aware of the "clearly outweighs" standard. Indeed, it quotes that
standard in its very next sentence. Like the trial court, however, it then simply ignores that
standard. Like the trial court, it balances the supposed harm that may flow from disclosure
against the supposed good that may flow from nondisclosure, in the future as a policy matter,
without regard to the legislatively imposed mandate that requires consideration of the
particularized instance of this case. Like the trial court, it overlooks the concept of
accountability that is at the core of the FOIA. Like the trial court, therefore, it clearly errs.
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In my view, this error is profound. The majority reaches the astounding conclusion that
in Michigan the "public welfare"—defined without regard to the particular circumstances of this
case—is more important than public knowledge. If this is the law of this state, then the
Legislature's broad policy decisions in the FOIA and its carefully tuned implementing
mechanisms are without meaning. In the process, a narrowly tailored exemption from the broad
sweep of the act will have swallowed the overall rule. Within the context of the frank
communications exception, this consigns our citizens to the receipt of only that information that
the public body determines it is safe, according to its definition of the public welfare, to release.
I cannot agree that this is the result the Legislature intended. I would reverse and remand.
/s/ William C. Whitbeck
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