FEDERATED PUBLICATIONS INC V CITY OF LANSING
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STATE OF MICHIGAN
COURT OF APPEALS
FEDERATED PUBLICATIONS, INC., d/b/a THE
LANSING STATE JOURNAL,
UNPUBLISHED
November 5, 2002
Plaintiff-Appellee/Cross-Appellant,
v
No. 218331
Ingham Circuit Court
LC No. 98-088151-AZ
ON REMAND
CITY OF LANSING,
Defendant,
and
CAPITOL CITY LODGE NO. 141 OF THE
FRATERNAL ORDER OF POLICE LABOR
PROGRAM, INC.,
Intervening DefendantAppellant/Cross-Appellee.
FEDERATED PUBLICATIONS, INC., d/b/a THE
LANSING STATE JOURNAL,
Plaintiff-Appellee/Cross-Appellant,
v
No. 218332
Ingham Circuit Court
LC No. 98-088151-AZ
ON REMAND
CITY OF LANSING,
Defendant-Appellant/CrossAppellee,
and
CAPITOL CITY LODGE NO. 141 OF THE
FRATERNAL ORDER OF POLICE LABOR
PROGRAM, INC., JANE DOE and JOHN DOE,
Intervening Defendants.
Before: Whitbeck, C.J., and Bandstra and Murray, JJ.
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PER CURIAM.
This case comes to us on remand from the Michigan Supreme Court. We reverse and
remand on the sole issue left for our consideration.
I. Basic Facts And Procedural History
Plaintiff Federated Publications, Inc., doing business as the Lansing State Journal (the
Journal), is a newspaper of general circulation in Lansing. The Journal asked defendant City of
Lansing (City) to disclose internal affairs investigative files for its police department from the
year 1997. As the record reveals, these files generally fell into one of two categories. The first
category of internal affairs investigative files were generated when citizens complained about
police conduct (citizen-initiated files). The police department itself generated the second
category of internal affairs investigative files (department-initiated files). The City denied the
Journal’s request for these files, asserting that the Freedom of Information Act (FOIA)1
exempted the information from disclosure. The Journal brought suit against the City and
requested that the trial court order disclosure of the documents pursuant to the FOIA.
When the parties filed cross-motions for summary disposition under MCR 2.116(C)(10),
the trial court partly granted the Journal’s motion for summary disposition and ordered the City
to disclose its citizen-initiated files pursuant to the FOIA. However, the trial court also partly
granted the City’s motion for summary disposition, concluding that the City’s departmentinitiated files were exempt from disclosure pursuant to the FOIA.
In the original appeal in this matter, the City and intervening defendant Capitol City
Lodge Fraternal Order of Police (Lodge) appealed as of right the portion of the order allowing
the citizen-initiated files to be disclosed and the Journal cross-appealed the trial court’s order
exempting the department-initiated files from disclosure. We reviewed de novo the trial court’s
decisions regarding the motions for summary disposition,2 a standard of review amply supported
in case law.3 However, as concerned the substantive question whether the files at issue were
subject to disclosure under the FOIA, we applied a mixed standard of review, examining “the
trial court’s factual determinations for clear error, but review[ing] its legal conclusions de
novo.”4 Applying this mixed standard of review, we held that citizen-initiated files were subject
to disclosure pursuant to the FOIA, thus affirming the trial court’s order granting summary
disposition regarding this aspect of the case.5 Nevertheless, we held that the trial court erred
1
MCL 15.231 et seq.
2
Federated Publications, Inc v Lansing, unpublished opinion per curiam of the Court of
Appeals, issued November 14, 2000 (Docket Nos. 218331 and 218332) (Federated I), slip op at
2.
3
See, e.g., Maiden v Rozwood, 461 Mich 109, 118; 597 NW2d 817 (1999); Spiek v Dep’t of
Transportation, 456 Mich 331, 337; 572 NW2d 201 (1998).
4
Federated I, supra at 2.
5
Id. at 5-6.
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when it ruled that the department-initiated files were all exempt from disclosure.6 Consequently,
we remanded that matter to the trial court “to determine if some or all of the department-initiated
complaints involved matters that would invoke the public’s interest in the conduct of the internal
affairs investigations.”7 We explained that if the public did, indeed, have an interest in the
internal affairs investigations, then those records would be “subject to disclosure.”8
Additionally, we directed the trial court to reconsider the Journal’s request for attorney fees,
noting that “[i]f at least some of the department-initiated files are subject to disclosure, as we
surmise, it might be fair to award plaintiff [the Journal] additional attorney fees.”9
The defendants then filed separate applications for leave to appeal in the Michigan
Supreme Court. The Supreme Court granted their applications for leave, limiting the issue on
appeal to “whether the requested files were exempt from disclosure under MCL 15.243(1)(s)(ix)
. . . .”10 This subsection of the FOIA permits a public body to exempt “personnel records of law
enforcement agencies” unless “the public interest in disclosure outweighs the public interest in
nondisclosure in the particular instance.”11 The Supreme Court took special notice of the
“particular instance” language in this statutory subsection, directing the parties to address it in
their briefs.12
In its opinion, the Supreme Court announced its holdings succinctly:
First, we hold that the application of exemptions requiring legal
determinations are reviewed under a de novo standard, while application of
exemptions requiring determinations of a discretionary nature, such as the one
presented here, are reviewed under a clearly erroneous standard. Second, we hold
that MCL 15.240(4) of the FOIA specifically places the burden of proof on the
public body to show that the public record is exempt from disclosure. Third, in
applying the public interest balancing test, the circuit court should consider the
fact that records have been made exemptible under § 243(1)(s). Fourth, the
“particular instance” language set forth in § 243(1)(s) requires the circuit court to
analyze the FOIA request to determine whether further categorization of the
requested records is required in order to determine whether the public interest in
disclosure outweighs the public interest in nondisclosure. If further categorization
6
Id. at 6.
7
Id.
8
Id.
9
Id.
10
Federated Publications, Inc v Lansing, 465 Mich 910; 638 NW2d 747 (2001) (Federated II).
11
MCL 15.243(1)(s)(ix).
12
See Federated II, supra.
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is required to perform the balancing test, the circuit court should direct the public
body to assist it in reasonably categorizing the sought-after records. . . . [13]
The Supreme Court added that the issues regarding the citizen-initiated files were moot because
the City had already released the records.14 However, the Supreme Court remanded the case,
essentially only the department-initiated files issue,15 to this Court “for reconsideration in light of
the principles expressed in this opinion.”16 The Court clarified that if this Court “find[s] that it is
not ‘left with the definite and firm conviction that a mistake has been made,’ [In re] Miller, [433
Mich 331, 337; 445 NW2d 161 (1989),] it must affirm the circuit court’s grant of summary
disposition”17 to the City on the department-initiated files issue.
II. Application Of The Supreme Court’s Directives
A. Standard Of Review
As the Supreme Court explained, the clear error standard of review applies to the trial
court’s decision that the department-initiated files were exempt from disclosure because MCL
15.243(1)(s)(ix) is a discretionary exemption.18 “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.”19 However, questions of law, such as statutory interpretation,
remain subject to review de novo.20
B. This Court’s Original Opinion
Our original opinion in this matter was, simultaneously, broadly worded and narrowly
applied. As we explained our essential holding regarding the department-initiated files:
[D]isclosure of the citizen-initiated complaints furthers the public interest
in ensuring the efficacy, fairness, and comprehensiveness of defendant’s internal
affairs investigations. Contrary to the trial court’s conclusion, we believe that the
public interest in this case would also be furthered by disclosing departmentinitiated complaints. The fairness of defendant’s investigations into departmentinitiated complaints would also have bearing on citizens’ confidence that
13
Federated Publications, Inc v Lansing, 467 Mich 98, 101; 649 NW2d 383 (2002) (Federated
III).
14
Id. at 101, 112-113.
15
Id. at 113-114.
16
Id. at 101.
17
Id. at 114.
18
Id. at 101.
19
Id. at 107, quoting Miller, supra at 337.
20
See Omelenchuk v City of Warren, 466 Mich 524, 527; 647 NW2d 493 (2002); see also
Federated III, supra at 101.
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defendant investigates their complaints thoroughly and fairly and that defendant
punishes appropriately. The citizens have a strong interest in knowing if
department-initiated complaints are pursued with more or less vigor than those
initiated by citizens. The public interest is not concerned so much with the
infraction as how the department handles its investigations. This interest applies
to both citizen-initiated and department-initiated complaints. Therefore, we
believe that defendants did not demonstrate that the public interest favored
nondisclosure regarding the department-initiated investigative files. These files
were not per se exempt from disclosure. . . .[21]
Thus, while we indicated – broadly – our belief that the public interest would be furthered by
disclosing the department-initiated files, we directed – narrowly – the trial court on remand to
determine if some or all these complaints involved matters that would invoke the public’s
interest in the conduct of internal affairs investigations.
To say the least, that the trial court never had an opportunity to follow these instructions
because the Supreme Court took the case before a remand occurred meant that this case was
postured somewhat oddly in the Supreme Court. To some extent, the case was, and remains, in
suspended animation. As a result, many of the legal principles the Supreme Court directed us to
apply must, in actuality, be applied in the trial court.22 The one aspect of the Supreme Court’s
opinion that was absolutely directed at this Court was its enunciation of the clear error standard
of review for discretionary exemptions. Therefore, as we indicated above, we are approaching
the analysis of the department-initiated files issue afresh under this standard.
C. The Trial Court’s Decision
The trial court’s analysis of the law enforcement personnel records exemption is at the
heart of this case. After citing the exemption and discussing the implications of Newark
Morning Ledger Co v Saginaw County Sheriff,23 the trial court classified the documents in
question as either “founded” or “unfounded,” stating that this Court in Newark suggested that
analyzing documents by the nature of the ultimate decision was appropriate. The trial court,
after engaging in something of a balancing process, ultimately found that there was insufficient
evidence to determine with particularity that the “unfounded” claims should not be released. The
trial court also determined that the City had failed to provide any competent evidence to support
its argument that the “founded” complaints should not be released.
The trial court then turned to citizen-initiated complaints and department-initiated
complaints. With respect to the latter, the trial court stated:
Plaintiff has emphasized throughout this case that it is concerned with
police interaction with the public. Releasing documents that do not involve the
21
Emphasis in the original.
22
See, e.g., Federated III, supra at 111 (discussing the trial court’s duties).
23
Newark Morning Ledger Co v Saginaw County Sheriff, 204 Mich App 215; 514 NW2d 213
(1994).
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public as a complainant do [sic] nothing to further that interest. Therefore, this
Court finds that there is no genuine issue of material fact upon which reasonable
minds could differ and Defendant is entitled to judgment as a matter of law.
The trial court also considered what it categorized as “miscellaneous balancing test
arguments.” Those arguments ranged far and wide, encompassing concerns that citizen
complainants would fear police officers if the identity of the citizen complainants became
known; that public disclosure would have a detrimental effect on litigation, increase the potential
for lawsuits, increase insurance coverage costs, and hamper the police department’s efforts to
build a case against wrongdoers by revealing its investigative techniques; and that, because the
City’s Board of Commissioners was created to oversee the police department’s internal affairs
activities, the Journal did not need to review the documents to ensure proper disposition. The
trial court, however, found no support for the City’s position. The trial court also found that,
with respect to department-initiated files, the only files that it found to be exempt under FOIA,
redacting the names of the officers “would not shift the balance” toward disclosure. With respect
to month-end summaries and an active investigation file not turned over for in camera
inspection, the trial court found that the City had failed to meet its burden, and therefore that
these records were not exempt. The trial court determined that the department-initiated files
were exempt from release under the law enforcement personnel records exemption of the FOIA
on the basis that (1) the Journal was concerned with “police interaction with the public” and (2)
“[r]eleasing documents that do not involve the public as a complainant do [sic] nothing to further
that interest.” As we outline below, based upon the Supreme Court’s analysis and the record
before us, we are left with the definite and firm conviction that trial court was mistaken in this,
and only this, decision.
The Supreme Court unambiguously held that, under the FOIA, “the burden of proof is on
the public body to demonstrate why it is entitled to protect a record from disclosure.”24 Citing
Newark, the trial court stated that the government has the burden of proving that the records fall
within the claimed exemption. Therefore, at a technical level, the trial court correctly allocated
the burden of proof to defendants. However, with respect to department-initiated files, it appears
that the trial court primarily emphasized the Journal’s expressed concern regarding police
interaction with the public. If this emphasis actually shifted the burden, the trial court clearly
made a mistake.
Though Justice Weaver effectively dissented on this point,25 the Supreme Court also held
that a trial court must consider the fact that the Legislature included a record under the class of
exemptible records listed in MCL 15.243(1)(s), because that inclusion “implies some degree of
public interest in the nondisclosure of such a record.”26 Obviously, when the trial court made its
decision, it did not have the benefit of this formulation of the balancing test. As a result, though
the trial court held that the City could exempt these department-initiated files, nothing in the trial
24
Federated III, supra at 108.
25
Justice Weaver concurred, but wrote separately to express her view that making certain classes
of records exemptible does not create a presumption of exemption, explaining that any
presumption would be “inconsistent with a fair balancing of the public interest.” See id. at 115.
26
Id. at 109.
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court’s reasoning reflects that it was “cognizant of the special consideration that the Legislature
has accorded an exemptible class of records,” as the Supreme Court now requires.27
The Supreme Court also held that a trial court may be required to categorize records by
their “particular instance” to enable it to identify and weigh similar aspects of the public interest
in favor of disclosure or nondisclosure.28 Clearly, the trial court in this case devised several
categories, including the nature of the ultimate decision on the complaint and the origin of the
complaint. However, the trial court denied the Journal access to the department-initiated files by
identifying an extremely limited version of the Journal’s concerns and because of the trial court’s
view that releasing the department-initiated files would “do nothing” to further the concern with
police interaction with the public. This analysis, at most, was cursory, not the full balancing
contemplated in the FOIA, even considering whatever weight must be accorded to a class of
records listed as exemptible.29 The trial court took notice of deposition testimony suggesting that
department-initiated files could concern the most minor of work rule infractions, such as wearing
the incorrect shirt to work, in which the public would have very little, if any, interest.
Nevertheless, the trial court did not consider at all the possibility that the department, not
only citizens, may initiate investigations for much more serious police matters directly
implicating the public interest. Some police activities might be the proper subject of an internal
investigation, and yet never be observed by a citizen, or at least by a citizen free to report such
misconduct. Rather, only a fellow officer might be in the position to observe and report such
conduct, thereby generating a department-initiated file instead of a citizen-initiated file. For
instance, and purely hypothetically in this case, if a police officer used excessive force against an
undocumented alien, the alien might not feel safe reporting the conduct because of the risk of
deportation.30 A fellow officer observing the excessive force would not face similar
consequences from reporting the misconduct, which would then be recorded in a departmentinitiated file instead of a citizen-initiated file. Surely, the public would have a significant interest
in this sort of information in a department-initiated file.
Further, as we pointed out in our original opinion,31 the public may have a highly
compelling interest in knowing that the police department undertakes all its investigations in a
fair and comprehensive manner, regardless of who initiates an investigation and the seriousness
of the allegations at issue. This is why the fairly blunt categorical distinction between citizeninitiated and department-initiated files, as well as the trial court’s characterization of the
Journal’s limited interest in the information in the files, failed to facilitate a full and accurate
balancing of interests in this case. Having cast the Journal’s interest in such narrow terms as the
interaction between the police and the public, and having taken notice of only the most benign
and uninteresting information potentially available in a department-initiated file, it is not
surprising that the trial court determined that the City was entitled not to disclose the department27
Id. at 110.
28
Id.
29
See Federated III, supra at 109.
30
See, generally, United States v Contreras, 134 F Supp 820, 823, 825 (SD Tex, 2000).
31
See Federated I, supra at 6.
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initiated files. Accordingly, we are left with the definite and firm conviction that trial court was
mistaken in engaging in this review. Had the trial court expanded its perspective on this case, it
may very well have found certain records subject to disclosure because the public interest in
disclosure outweighed the public interest in nondisclosure, which is why we have the definite
and firm conviction that it made a mistake.
On remand, in light of the Supreme Court’s reasoning in this case, the trial court shall:
(1) ensure that the City alone shoulders the burden of demonstrating that the department-initiated
files are exempt from disclosure under the FOIA; (2) consider the fact that these types of records
have been designated as exemptible by the Legislature; (3) analyze the FOIA request to
determine whether further categorization is needed to conduct the proper balancing of the public
interests involved. If the trial court is unable to apply the statutory public interest balancing test,
it shall direct the City to assist it in categorizing the department-initiated files in a reasonable
manner. If the trial court is able to apply the statutory public interest balancing test without such
assistance, it shall do so in accordance with the Supreme Court’s elucidation of that test.
III. The Other Issues
At its inception, this case plainly consisted of more than a debate over the application of
MCL 15.243(1)(s)(ix) to the department-initiated files. However, as the Supreme Court noted,32
the release of the citizen-initiated complaints makes moot any challenge to the trial court’s
decision that those records had to be disclosed. Further, though we affirmed33 the trial court’s
rulings that the Employee Right to Know Act34 and the deliberative process disclosure
exemptions35 did not apply in this case, the way the Supreme Court crafted the issues on appeal
and on remand to this Court makes it unnecessary to reexamine those issues. Consequently,
though our first opinion involved a partial affirmance, the exclusion of these other issues for our
consideration makes a straight reversal and remand appropriate in this case.
Reversed and remanded. We do not retain jurisdiction.
/s/ William C. Whitbeck
/s/ Richard A. Bandstra
/s/ Christopher M. Murray
32
See Federated III, supra at 112-113.
33
See Federated I, supra at 3-4.
34
MCL 423.501 et seq.
35
See In re Subpoena Duces Tecum to Wayne County Prosecutor (On Remand), 205 Mich App
700, 703-706; 518 NW2d 522 (1994); MCL 15.243(1)(m).
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