STATE NEWS V MICHIGAN STATE UNIVERSITY
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Michigan Supreme Court
Lansing, Michigan
Opinion
Chief Justice:
Justices:
Clifford W. Taylor
Michael F. Cavanagh
Elizabeth A. Weaver
Marilyn Kelly
Maura D. Corrigan
Robert P. Young, Jr.
Stephen J. Markman
FILED JULY 16, 2008
STATE NEWS,
Plaintiff-Appellee,
v
No. 133682
MICHIGAN STATE UNIVERSITY,
Defendant-Appellant.
_______________________________
BEFORE THE ENTIRE BENCH
YOUNG, J.
This case involves the applicability of the Freedom of Information Act
(FOIA) privacy and law-enforcement-purposes exemptions to a police incident
report.
Following a notorious assault of several Michigan State University
students in a dormitory room, plaintiff State News made a FOIA request that
defendant Michigan State University disclose the report. Michigan State resisted
this request, claiming that the FOIA privacy and law-enforcement-purposes
exemptions permitted it to withhold the requested report. Litigation between the
parties ensued, and the Court of Appeals eventually held that the circuit court had
erred in determining that the entire report could be withheld. In its decision
remanding the case to the circuit court, the Court of Appeals observed that the
“subsequent availability of information as a result of later court proceedings in the
criminal justice system may well strengthen or weaken the arguments of the
parties to a FOIA dispute regarding the applicability” of the exemptions at issue
and instructed the circuit court to consider the effect of that availability.1
We conclude that this instruction from the Court of Appeals was erroneous
and hold that unless the exemption asserted provides otherwise, the applicability
of a FOIA exemption is measured when the public body asserts the exemption.
The passage of time and the course of events after the assertion of a FOIA
exception do not affect whether a public record was initially exempt from
disclosure.
Accordingly, we reverse the judgment of the Court of Appeals in part and
remand this case to the circuit court, in accordance with the remainder of the Court
of Appeals judgment that ordered an in camera inspection of the police incident
report for the circuit court to decide what information is exempt from disclosure
and to make particularized findings to support its conclusion, as well as to
separate, if possible, the exempt material from the nonexempt material.
1
State News v Michigan State Univ, 274 Mich App 558, 566-567, 583; 735
NW2d (2007).
2
FACTS AND PROCEDURAL HISTORY
On March 2, 2006, State News submitted a FOIA request to Michigan State
seeking disclosure of a police incident report that detailed an incident at Hubbard
Hall, a student dormitory at Michigan State, on February 23, 2006. Three male
assailants, one of whom was a Michigan State student, allegedly entered a dorm
room, threatened three victims with a gun, and poured gasoline on one of the
individuals while threatening to light him on fire. The three men were later
arraigned on charges of home invasion, felonious assault, and possessing a firearm
during the commission of a felony. In a story published several days later, the
State News reported the names of the three men.
Michigan State denied the FOIA request, citing the privacy exemption2 and
subsections 1(b)(i) to (iii) of the law-enforcement-purposes exemption.3 State
News appealed administratively, and in a letter replying to State News, Michigan
State University President Lou Anna K. Simon affirmed the original determination
to deny the FOIA request. State News then filed a complaint in the circuit court,
accompanied by a motion to show cause why Michigan State should not disclose
the report and a motion for summary disposition.4 The circuit court ordered a
2
MCL 15.243(1)(a).
3
MCL 15.243(1)(b)(i), (ii), and (iii).
4
State News initially filed suit in Oakland County, but the Oakland Circuit
Court granted Michigan State’s motion to transfer venue to Ingham County. State
News refiled its complaint in the Ingham Circuit Court.
3
show cause hearing. Michigan State, in its response, attached affidavits from its
FOIA officer, the Michigan State University Chief of Police, and the Ingham
County Chief Assistant Prosecuting Attorney to support its decision to withhold
the report. The affidavits stated that the police incident report contained “incident
report persons sheets,”5 “narrative incident reports,”6 physical evidence
documents,7 inmate profiles and booking photographs, and other information
about the suspects.
At the show cause hearing, the circuit court heard arguments from the
parties and ruled from the bench in favor of Michigan State, concluding that the
report in its entirety was exempt under both the privacy exemption and subsections
1(b)(i) to (iii) of the law-enforcement-purposes exemption. However, the court
did not inspect the police incident report in camera before it reached its decision.
With respect to the privacy exemption, the court found that some of the
information sought, such as names, addresses, birthdates, driver’s license numbers,
and criminal histories of the accused, victims, and witnesses, was information “of
5
According to the affidavits, these documents contained “personally
identifiable information about the victims, witnesses, responding police officers,
and defendants (such as name, address, sex, race, weight, height, date of birth,
driver’s license number, student number, criminal history, and other personal and
sensitive information).”
6
According to the affidavits, these reports consisted of “statements from
the responding officers, witnesses, victims, defendants, and a third party.”
7
According to the affidavits, these documents consisted of “photographs of
evidence, property sheets, property inventory form[s], crime scene photographs,
laboratory evidence documents, and advice of rights forms.”
4
a personal nature” and that its disclosure would not further the core purpose of
FOIA of shedding light on the workings of government. Thus, according to the
circuit court, disclosure of this information would constitute a clearly unwarranted
invasion of privacy.
Turning to the law-enforcement-purposes exemption, the court concluded
that the analysis for the privacy exemption also applied to subsection 1(b)(iii) of
that exemption, which protects against disclosure of investigating records that
would constitute an unwarranted invasion of personal privacy. With respect to
subsections 1(b)(i) and (ii) of the law-enforcement-purposes exemption, the court
found that Michigan State had made a particularized showing that disclosure of the
report would interfere with law-enforcement proceedings or deprive a person of a
fair trial.
The court relied on affidavits from the police chief and the chief
assistant prosecuting attorney stating that the potential existed for retaliation
against witnesses and victims, tainting of the jury pool, and tainting of witnesses’
testimony if the report was disclosed to the public. The circuit court dismissed
State News’s complaint with prejudice.
State News appealed, and the Court of Appeals, in a published opinion per
curiam, remanded this case to the circuit court for further proceedings.8 The panel
identified several errors committed by the circuit court. It first addressed the
circuit court’s handling of the law-enforcement-purposes exemption.
8
State News, 274 Mich App at 582-583.
5
Citing
Evening News Ass’n v City of Troy,9 the Court of Appeals held that with respect to
subsections 1(b)(i) and (ii), the circuit court had failed to offer particularized
reasons to justify its conclusion that the entire police incident report was exempt
from disclosure. With respect to subsection 1(b)(iii), the panel, relying on United
States Dep’t of Justice v Reporters Comm for Freedom of the Press,10 suggested
the possibility that the names or addresses of the suspects or other information
identifying them in the police incident report might be exemptible.
The panel then addressed the circuit court’s handling of the privacy
exemption. It followed the two-part test for the privacy exemption developed by
this Court in Bradley v Saranac Community Schools Bd of Ed,11 and Mager v
Dep’t of State Police.12 Concerning the first prong of the test, the panel stated
that, “as a hypothetical matter,” the names and addresses of the victims, witnesses,
and suspects and other information identifying them could constitute information
“of a personal nature,” but that the passage of time and the course of events might
have rendered some, if not all, of this information matters of public knowledge
9
417 Mich 481; 339 NW2d 421 (1983).
10
489 US 749; 109 S Ct 1468; 103 L Ed 2d 774 (1989).
11
455 Mich 285; 565 NW2d 650 (1997). This Court recently slightly
modified the Bradley test. See Michigan Federation of Teachers v Univ of
Michigan, ___ Mich ___; ___ NW2d ___ (Docket No. 133819, decided July 16,
2008).
12
460 Mich 134; 595 NW2d 142 (1999).
6
and therefore not of a personal nature.13 Concerning the second prong, which
requires that the disclosure would create a clearly unwarranted invasion of an
individual’s privacy, the panel tentatively concluded that Michigan State had
failed to demonstrate that the release of the police incident report would shed no
light on its conduct as a public body. However, it declined to reach a firm
conclusion with respect to the second prong because the panel could not review
the report, which was not part of the circuit court record.
Next, the Court of Appeals, again citing Evening News, held that on remand
the circuit court should review the requested information in camera. In addition,
the panel held that the exempt and nonexempt material should be separated to the
extent practicable, with the nonexempt material made available to State News.14
Michigan State sought leave to appeal in this Court. We granted leave to
appeal on a limited basis and denied leave in all other respects.15
STANDARD OF REVIEW
This Court reviews de novo as a question of law issues of statutory
interpretation.16 We give effect to the Legislature’s intent as expressed in the
13
State News, 274 Mich App at 578.
14
These aspects of the Court of Appeals judgment were not included in this
Court’s limited order granting leave to appeal.
15
480 Mich 902 (2007).
16
Herald Co, Inc v Eastern Michigan Univ Bd of Regents, 475 Mich 463,
471-472; 719 NW2d 19 (2006).
7
language of the statute by interpreting the words, phrases, and clauses according to
their plain meaning.17
THE EFFECT OF THE PASSAGE OF TIME
We granted leave to appeal,
“limited to the issue whether the Court of Appeals erred in
instructing [the circuit court], on remand, regarding the “personal
nature” of public records covered by the Freedom of Information
Act privacy exemption[18] or the law enforcement purposes privacy
exemption,[19] including whether the “personal nature” of such
17
Bukowski v Detroit, 478 Mich 268, 273-274; 732 NW2d 75 (2007).
18
The privacy exemption, MCL 15.243(1)(a), provides:
(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.
19
The law-enforcement-purposes exemption, MCL 15.243(1)(b), provides,
in pertinent part:
(1) A public body may exempt from disclosure as a public
record under this act any of the following:
* * *
(b) Investigating records compiled for law enforcement
purposes, but only to the extent that disclosure as a public record
would do any of the following:
(i) Interfere with law enforcement proceedings.
(ii) Deprive a person of the right to a fair trial or impartial
administrative adjudication.
(continued…)
8
records may be affected by the contemporaneous or later public
status of some or all of the information.[20]
We are not determining in this appeal whether the police incident report ultimately
is exempt from disclosure.21
The Court of Appeals made the following observation about the effect of
the passage of time on the FOIA exemptions in this case:
(…continued)
(iii) Constitute an unwarranted invasion of personal privacy.
20
480 Mich 902 (2007) (citations omitted).
21
Recently, in Michigan Federation of Teachers, ___ Mich at ___, slip op
at 2, we modified the definition of “information of a personal nature” in the
privacy exemption to include “information of an embarrassing, intimate, private,
or confidential nature.” Thus, Bradley as modified by Michigan Federation of
Teachers now governs the privacy exemption. On remand, then, the modified
definition set forth in Michigan Federation of Teachers must guide the circuit
court’s application of the privacy exemption.
In Michigan Federation of Teachers, we also addressed whether
information can be “of a personal nature” and whether an individual retains a
privacy interest in that information if it might be found elsewhere in the public
domain at the time of the FOIA request. We held that “[t]he disclosure of
information of a personal nature into the public sphere in certain instances does
not automatically remove the protection of the privacy exemption and subject it to
disclosure in every other circumstance.” Id. at ___, slip op at 24. Michigan
Federation of Teachers quoted with approval the United States Supreme Court’s
observation that “‘[a]n individual’s interest in controlling the dissemination of
information regarding personal matters does not dissolve simply because that
information may be available to the public in some form.’” Id. at ___, slip op at
24, quoting United States Dep’t of Defense v Fed Labor Relations Auth, 510 US
487, 500; 114 S Ct 1006; 127 L Ed 2d 325 (1994). As with the modified Bradley
definition, these holdings must guide the circuit court on remand when it applies
the privacy exemption and the law-enforcement-purposes exemption to the facts of
this case.
9
We note at the outset that the passage of time may have
affected aspects of this appeal and that, while we can make some
observations based on the record, there are other aspects about which
we can only speculate. We know from the record that before it made
its FOIA request to MSU, State News had already identified the
three men arrested at Hubbard Hall. Thus, at least the names of these
men and some identifying information about them were in the public
domain. We know from the record that when President Simon issued
her April 6, 2006, denial, these men had already been arraigned on
charges of home invasion, felonious assault, and felony-firearm.
Further information about these men might therefore have been in
the public domain at that time, but the record before us does not
disclose what that information might be. We also know from the
record that when the trial court issued its June 8, 2006, decision, one
of these men had been scheduled for trial and the preliminary
examinations for the remaining two were scheduled for the next day.
From the record before us, however, we do not know whether trials
have now been held or, if so, what the results of those trials may
have been and what information might have entered into the public
domain during the course of later proceedings.
Rather obviously, public bodies and trial courts can only
make decisions on FOIA matters on the basis of the information that
is before them at the time, and it is not the function of appellate
courts to second-guess those decisions on the basis of information
that later becomes available. Here, because we do not have the any
information about what may have transpired after the trial court’s
June 8 decision, we could not engage in such second-guessing in any
event. We do observe, however, that the subsequent availability of
information as a result of later court proceedings in the criminal
justice system may well strengthen or weaken the arguments of the
parties to a FOIA dispute regarding the applicability of the privacy
exemption and the law-enforcement-purpose exemption.
As a practical matter, we suspect that this subsequent
information, of which the trial court can take judicial notice on
remand under appropriate procedures, will weaken MSU’s position
and strengthen State News’s position. But, ironically, the
newsworthiness of the information contained in the police incident
report may also have decreased over time. However, FOIA is not
concerned with newsworthiness. Rather, it is concerned with
10
requiring the disclosure of nonexempt public records so as to ensure
accountability.[22]
The panel reiterated this observation when it discussed the first prong of the
privacy exemption and noted that “the passage of time and the course of events
may have rendered some, if not all, of this information matters of public
knowledge and therefore not of a personal nature.”23
We agree with the Court of Appeals statement that “public bodies and trial
courts can only make decisions on FOIA matters on the basis of the information
that is before them at the time, and it is not the function of appellate courts to
second-guess those decisions on the basis of information that later becomes
available.” We disagree, however, with the panel’s further, contrary musings that
the passage of time and subsequent events could negate the applicability of a
FOIA exemption. Rather, we hold that unless the FOIA exemption provides
otherwise,24 the appropriate time to measure whether a public record is exempt
under a particular FOIA exemption is the time when the public body asserts the
exemption.
22
State News, 274 Mich App at 565-567 (citation omitted).
23
Id. at 578.
24
Certain FOIA exemptions contain explicit time limitations on their
applicability. See, e.g., MCL 15.243(1)(e), (i), (j), (p), and (x). However, we note
that the applicability of even those FOIA exemptions would be measured at the
time the public body invoked the exemption to deny the FOIA request.
11
The denial of a FOIA request occurs at a definite point in time. The public
body relies on the information available to it at that time to make a legal judgment
whether the requested public record is fully or partially exempt from disclosure.
The determinative legal question for a judicial body reviewing the denial is
whether the public body erred because the FOIA exemption applied when it denied
the request.
Subsequent developments are irrelevant to that FOIA inquiry.25
There is no indication from the text of either the privacy or the law-enforcementpurposes exemption or from another, independent FOIA provision that the public
body’s assertion of a FOIA exemption may be reexamined by the circuit court or
an appellate court while taking into consideration information not available to the
public body when it denied the request.
Further, the procedures in FOIA for submitting a FOIA request, reviewing
the FOIA request, and appealing that review suggest that the timing of the public
body’s response to the FOIA request is crucial to deciding whether the requested
record is exempt. FOIA requires the public body to respond to a FOIA request
within 5 business days, with a possible extension of not more than 10 business
25
Of course, release of the requested public record by the public body
would render the FOIA appeal moot because there would no longer be a
controversy requiring judicial resolution. See Federated Publications, Inc v City
of Lansing, 467 Mich 98; 649 NW2d 383 (2002). Mootness is not at issue in this
case, however.
12
days.26 There is no language in that provision or elsewhere in FOIA that requires
a public body to continue to monitor FOIA requests once they have been denied.27
FOIA does not prevent a party that unsuccessfully requested a public record from
submitting another FOIA request for that public record if it believes that, because
of changed circumstances, the record can no longer be withheld from disclosure.
CONCLUSION
We reverse the judgment of the Court of Appeals in part and hold that
events that occur after a public body’s denial of a FOIA request are not relevant to
the judicial review of the decision. Thus, in this case, the passage of time and
course of events have no bearing on whether Michigan State properly denied State
News’s FOIA request under the privacy exemption and the law-enforcement-
26
MCL 15.235(2)(d).
27
MCL 15.233(1) grants a person the right to subscribe to future issuances
of public records that are created, issued, or disseminated on a regular basis. This
provision, however, is inapposite in this case for the obvious reason that a police
incident report is a single public record that would not be created, issued, or
disseminated on a regular basis. Moreover, that provision does not necessarily
entitle the requesting party to the full contents of those public records.
13
purpose exemption. Accordingly, we remand this case to the circuit court for
further proceedings consistent with this decision.28
Robert P. Young, Jr.
Clifford W. Taylor
Michael F. Cavanagh
Marilyn Kelly
Maura D. Corrigan
Stephen J. Markman
28
On remand, the parties and the circuit court should take cognizance of the
special protection afforded to crime victims by our constitution and legislative
enactments, particularly those provisions that exempt certain information about
victims from disclosure under FOIA. See Const 1963, art 1, § 24; 1985 PA 87 the
Crime Victim’s Rights Act, MCL 780.751 et seq. For instance, § 8 of the Crime
Victim’s Rights Act provides that certain information about the victim is exempt
from disclosure under FOIA, such as the home address, home telephone number,
work address, and work telephone number unless the address is used to identify
the place of the crime, and any picture, photograph, drawing, or other visual
representation of the victim, including any film, videotape, or digitally stored
image. MCL 780.758 (3)(a) and (b). See also MCL 780.769(2), 780.769a(3),
780.771(4), 780.788(2), 780.798(5), 780.818(2), 780.830. As the circuit court
reconsiders on remand whether the police incident report is exempt from
disclosure in whole or in part, and whether any exempt material is separable from
the nonexempt material, it must respect the Legislature’s determination that
certain information about crime victims is exempt from disclosure.
14
STATE OF MICHIGAN
SUPREME COURT
STATE NEWS,
Plaintiff-Appellee,
v
No. 133682
MICHIGAN STATE UNIVERSITY,
Defendant-Appellant.
_______________________________
WEAVER, J. (concurring).
I concur in the decision reached by the majority, but write separately to
stress the two points I consider most important with respect to a request for
documents pursuant to the Freedom of Information Act (FOIA).1
First, I agree that the appropriate time to measure if a public record is
exempt under a particular FOIA exemption is when the public body asserts the
exemption.
Second, while I agree that “[t]here is no language in [MCL
15.245(2)(d)] or elsewhere in FOIA that requires a public body to monitor FOIA
requests once they have been denied,” ante at 13, it is important to note that
“FOIA does not prevent a party that unsuccessfully requested a public record from
submitting another FOIA request for that public record if it believes that, because
1
MCL 15.231 et seq.
of changed circumstances, the record can no longer be withheld from disclosure,”
ante at 13-14 (emphasis added).2
Elizabeth A. Weaver
2
Moreover, to my understanding, when a party resubmits a FOIA request
because of “changed circumstances,” it may very well be that those “changed
circumstances” occurred over time. It is not the “passage of time” that is critical,
but the “changed circumstances.” For example, a document containing
information that had formerly been private, but subsequently became public, may
no longer be exempt under FOIA.
2
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