DETROIT FREE PRESS INC V DEPT OF CONSUMER & INDUSTRY SERVICES
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STATE OF MICHIGAN
COURT OF APPEALS
DETROIT FREE PRESS, INC.,
FOR PUBLICATION
June 5, 2001
9:15 a.m.
Plaintiff-Appellant,
v
DEPARTMENT OF CONSUMER & INDUSTRY
SERVICES, OFFICE OF FINANCIAL AND
INSURANCE SERVICES, DIVISION OF
INSURANCE,
Defendant-Appellee.
No. 229864
Wayne Circuit Court
LC No.00-024778-CZ
Updated Copy
August 17, 2001
Before: K. F. Kelly, P.J., and O'Connell and Cooper, JJ.
O'CONNELL, J.
In this action brought pursuant to the Freedom of Information Act (FOIA), MCL 15.231
et seq., plaintiff appeals as of right from the trial court's grant of summary disposition to
defendant. We affirm.
On May 5, 2000, plaintiff sent an FOIA request to defendant, seeking the opportunity to
review all consumer complaints filed with defendant against property insurers in 1999. The letter
specified that plaintiff was seeking "all complaints filed in 1999, regardless of [defendant's]
determination of their merit." The request also sought access to all of defendant's documentation
arising from these complaints,1 as well as the complainants' names, addresses, and telephone
1
Plaintiff 's request specified that it was not seeking documentation arising from complaints filed
against medical insurers. With regard to the records sought, plaintiff's request stated:
These documents shall included [sic], but not be limited to, documents
showing what the department did to investigate the complaints, all
correspondence, reports, photographs, etc.
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numbers. A second request dated the same day also sought a copy of defendant's database of
insurance complaints spanning the years 1998, 1999, and 2000.2
Defendant denied plaintiff 's request to review the consumer complaint files and the
database, concluding that disclosure of this information would amount to an unwarranted
invasion of privacy in violation of the FOIA. See MCL 15.243(1)(a). Plaintiff subsequently
filed a complaint seeking disclosure of the information pursuant to the FOIA. On cross-motions
for summary disposition, the trial court concluded that information in the consumer complaint
files was not exempt from disclosure.3 However, the trial court ordered that the names and
addresses of the private citizens who filed the complaints be redacted. On appeal, plaintiff
challenges the trial court's decision to redact this information.
We review a trial court's grant or denial of summary disposition de novo. Spiek v Dep't of
Transportation, 456 Mich 331, 337; 572 NW2d 201 (1998).4
In evaluating a motion for summary disposition brought under [MCR
2.116(C)(10)], a trial court considers affidavits, pleadings, depositions,
admissions, and other evidence submitted by the parties in the light most
favorable to the party opposing the motion. Where the proffered evidence fails to
establish a genuine issue regarding any material fact, the moving party is entitled
to judgment as a matter of law. [Maiden v Rozwood, 461 Mich 109, 120; 597
NW2d 817 (1999) (citations omitted).]
Whether a statutory exemption in the FOIA applies to preclude disclosure of a public
record is a question of law that we also review de novo. Larry S Baker, PC v Westland, 245
Mich App 90, 93; 627 NW2d 27 (2001).
2
A review of plaintiff 's second FOIA request demonstrates that the database compiles "such
information as the names and addresses of insurance companies, names and addresses of
complaintants [sic], date of complaint, reason for complaint, type of complaint, action taken on
complaint, the date that action was taken, and any determinations or sanctions relating to those
complaints."
3
It is unclear from the trial court's ruling whether its decision included defendant's complaint
database.
4
The trial court's order did not indicate what subsection of MCR 2.116 supported its grant of
summary disposition. Defendant moved for summary disposition under MCR 2.116(C)(8) and
(10) and to dismiss under MCR 2.116(I)(2). In support of their respective motions, both plaintiff
and defendant attached documentary evidence and affidavits. Because the trial court considered
material beyond the pleadings in evaluating the motions, we review its decision as having been
decided pursuant to MCR 2.116(C)(10). DeHart v Joe Lunghamer Chevrolet, Inc, 239 Mich
App 181, 184; 607 NW2d 417 (1999).
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The Legislature's purpose in enacting the FOIA is clearly stated in MCL 15.231(2):
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.
As our Supreme Court recently observed in Kent Co Deputy Sheriff 's Ass'n v Kent Co
Sheriff, 463 Mich 353, 359; 616 NW2d 677 (2000), the FOIA is "a broadly written statute
designed to open the closed files of government." By mandating the disclosure of information
relating to the affairs of government and the official acts of public officials and employees, the
FOIA facilitates the public's understanding of the operations and activities of government.
Kocher v Dep't of Treasury, 241 Mich App 378, 381; 615 NW2d 767 (2000).
Accordingly, our courts have interpreted the FOIA as an act requiring full disclosure of
public records unless a statutory exemption precludes the disclosure of information. Messenger v
Dep't of Consumer & Industry Services, 238 Mich App 524, 531; 606 NW2d 38 (1999). 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.
Manning v East Tawas, 234 Mich App 244, 248; 593 NW2d 649 (1999).
At issue is the applicability of MCL 15.243, which provides in pertinent part:
(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. [Emphasis supplied.]
To be exempted under ยง 13 of the FOIA, information must be of a personal nature, and
the disclosure of the information must amount to a clearly unwarranted invasion of privacy.
Detroit Free Press, Inc v Dep't of State Police, 243 Mich App 218, 224; 622 NW2d 313 (2000);
Bradley v Saranac Community Schools Bd of Ed, 455 Mich 285, 294; 565 NW2d 650 (1997). In
Bradley, our Supreme Court clarified the first prong of this two-part test, concluding that
information is of a personal nature "if it reveals intimate or embarrassing details of an
individual's private life." Id. Further, this standard is evaluated in accordance with "'"the
'customs, mores, or ordinary views of the community.'"'" Id. quoting Swickard v Wayne Co
Medical Examiner, 438 Mich 536, 547, n 14; 475 NW2d 304 (1991).
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Therefore a threshold inquiry is whether the requested information is of a personal nature.
Information not of a personal nature is subject to disclosure without considering the second
prong of the privacy exemption. Baker, supra at 95; Bradley, supra at 295. Plaintiff argues that
the names and addresses of private citizens is not information of a personal nature and is required
to be disclosed. Underlying plaintiff 's argument is the suggestion that our inquiry should focus
solely on whether the names and addresses of private citizens is information of a personal nature,
and not take into account whether the information in the consumer complaint files and database
is of a personal nature. We reject plaintiff 's line of reasoning because it is not the approach taken
by this Court and our Supreme Court in recent decisions construing the privacy exemption.
For example, in Herald Co v Bay City, 463 Mich 111; 614 NW2d 873 (2000), our
Supreme Court evaluated whether "the names, current job titles, cities of residence and age" of
candidates for the position of Bay City Fire Chief were subject to disclosure under the FOIA. Id.
at 114-116. Rather than considering solely whether the identifying information was of a personal
nature, the Court framed its inquiry in the following manner:
This case requires us to decide whether the fact of application for a
particular public job and information supplied therewith is information of a
personal nature, and if so, whether the disclosure of such information would
constitute a clearly unwarranted invasion of an individual's privacy. [Id. at 123
(internal quotation marks omitted) (emphasis supplied).]
Similarly, in Mager v Dep't of State Police, 460 Mich 134; 595 NW2d 142 (1999), the
plaintiff sought the names and addresses of registered gun owners in Michigan. However, our
Supreme Court did not consider simply whether the names and addresses of registered gun
owners was information of a personal nature as contemplated by the FOIA's privacy exemption.
Rather, the Court narrowed its focus to whether "gun ownership is 'information of a personal
nature.'" Id. at 143. Moreover, in Detroit Free Press, supra at 225, this Court evaluated whether
the fact that an individual was licensed to carry a concealed weapon was information of a
personal nature, declining to isolate its analysis to whether the individual's name and registration
status was information personal in nature.
Consequently, we must decide whether information contained in consumer complaint
files and the database is information of a personal nature. Keeping in mind that this is a " 'highly
subjective area of the law where the Legislature has provided little statutory guidance,' " we are
satisfied that the information sought by plaintiff is information of a personal nature. Mager,
supra at 143, quoting Swickard, supra at 556.
In support of its motion for summary disposition in the lower court, defendant appended
the affidavit of John Schoonmaker, defendant's FOIA coordinator. In his affidavit, Schoonmaker
stated:
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Consumer complaint files contain a vast amount of personal information.
In implementing the FOIA, [defendant] must balance the general goal of making
records available to the public, with the privacy right of the individuals. Sensitive
and detailed personal information is contained in consumer complaint files
stemming from automobile insurance, homeowners' insurance, and health
insurance claims. Examples of sensitive, initmate [sic], and personal information
about private citizens include details about domestic and sexual assaults, drug
abuse, allegations of fraud made by insurers against claimants, surgical
procedures, such as one performed on a woman so she could engage in sexual
intercourse on her honeymoon, and photographs of body parts, including a breast
damaged by a breast implant that burst. Furthermore, a consumer complaint file is
intrinsically based upon personal information. If a consumer complaint file is
open for public inspection, the following information, at the least, would be
revealed: That a person owns or has something of value, typically specific
personal or real property; that a person buys insurance; that the person has bought
insurance from a particular company; that a person has experienced a loss; that the
person has made a claim for the loss against an insurer; that the insurer has denied
the claim in whole or in part; and that the person challenged the claim denial by
coming to [defendant].
In our opinion, the requested public records contain information of a personal nature5
because they include sensitive details pertaining to people's personal lives. For example, the
public records may reveal information regarding the existence and value of specific assets an
individual owns, such as firearms. See Mager, supra. Similarly, the public records may contain
information relating to an individual's private life, such as the denial of an insurance claim or
allegations of fraud. See Bradley, supra at 295. Because the information plaintiff seeks is
embarrassing, intimate, or private in nature, we conclude that the requested records satisfy the
first element of the privacy exemption.
We now turn to whether disclosure of the information would constitute a "clearly
unwarranted invasion of an individual's privacy" within the meaning of MCL 15.243(1)(a). As
5
According to plaintiff, the information in the complaint files is not personal in nature because
defendant allowed plaintiff to review closed complaint files. It appears from the record that the
complaint files plaintiff refers to were inadvertently disclosed. In any event, we are not
convinced that the inadvertent disclosure of some of the complaint files amounts to a private
citizen's relinquishment of their right to privacy. " '[A]n individual's interest in controlling the
dissemination of information of personal matters does not dissolve simply because that
information may be available to the public in some form.' " Detroit Free Press, supra at 227, n
6, quoting United States Dep't of Defense v Federal Labor Relations Authority, 510 US 487, 500;
114 S Ct 1006; 127 L Ed 2d 325 (1994).
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our Supreme Court opined in Herald Co, supra, "[b]y providing that the invasion of privacy must
be clearly unwarranted, the Legislature has unmistakably indicated that the intrusion must be
more than slight, but a very significant one indeed." Herald Co, supra at 126 (emphasis in
original).
The Mager Court articulated the balancing process courts must undertake when
considering if an invasion of privacy is "clearly unwarranted."6 " '[A] court must balance the
public interest in disclosure against the interest [the Legislature] intended the exemption to
protect.' " Mager, supra at 145, quoting United States Dep't of Defense v Federal Labor
Relations Authority, 510 US 487, 495; 114 S Ct 1006; 127 L Ed 2d 325 (1994). As this Court
observed in Detroit Free Press, supra:
[T]he only relevant public interest in disclosure to be weighed in this
balance is the extent to which the disclosure would serve the core purpose of the
FOIA, which is contributing significantly to public understanding of the
operations or activities of the government. [Detroit Free Press, supra at 228,
quoting Mager, supra at 145, in turn quoting United States Dep't of Defense,
supra at 495 (emphasis in original) (internal quotation marks omitted); see also
Kocher, supra at 382.]
We share plaintiff 's view that disclosure of the information in the complaint files and the
database could contribute significantly to public understanding of defendant's operations and
activities. It is this strong public interest in disclosure that we must weigh against the individual
complainant's right to privacy. Because the requested information would contribute significantly
to public understanding of how defendant investigates consumer complaints, we believe it was
properly disclosed.
We do not believe, however, that disclosing the names and addresses of private citizens
who file complaints would likewise illuminate the public's understanding of defendant's
functions. In our opinion, disclosing the names and addresses of private citizens would not
"further the knowledge of the public concerning how their government operates." Baker, supra
at 97-98. Unlike the information in the complaint files and the database, which could potentially
shed light on why defendant chooses to investigate some complaints over others, plaintiff 's
request for the names and addresses of private individuals is "unrelated to how well defendant is
complying with its statutory functions." Kocher, supra at 382-383.
Our conclusion accords with this Court's recent decision in Detroit Free Press, supra.
The Detroit Free Press Court concluded that the public interest in knowing whether public
officials are treated more favorably when applying for concealed weapon permits was adequately
6
Plaintiff argues that under this portion of the privacy exemption analysis we are required to
consider whether defendants would have an actionable claim for invasion of privacy at common
law. An identical argument was rejected by this Court in Detroit Free Press, supra at 227, n 7.
-6-
served by providing access to the applications, while deleting information identifying the
applicants. Detroit Free Press, supra at 230.7 In our opinion, redacting the names and addresses
of the private citizen complainants strikes a balance between preserving "the informative value"
of the records sought and protecting the individual's right to privacy.8 See Bradley, supra at 304;
MCL 15.244.
Affirmed.
/s/ Peter D. O'Connell
/s/ Kirsten Frank Kelly
/s/ Jessica R. Cooper
7
See also Herald Co, supra at 125.
8
We recognize that Michigan law allows the disclosure of individual's names and addresses
under certain circumstances. See, e.g., Int'l Union, United Plant Guard Workers of America v
Dep't of State Police, 422 Mich 432; 373 NW2d 713 (1985) (allowing disclosure of names and
addresses of security guards to the plaintiff union); State Employees Ass'n v Dep't of
Management & Budget, 428 Mich 104; 404 NW2d 606 (1987) (allowing disclosure of
government employees' home addresses); Oakland Press v Pontiac Stadium Building Authority,
173 Mich App 41; 433 NW2d 317 (1988) (allowing disclosure of names and addresses of
licensees who leased suites at sports stadium); Kestenbaum v Michigan State Univ, 414 Mich
510; 327 NW2d 783 (1982) (considering whether disclosure of magnetic tape containing MSU
students' names and addresses was precluded by privacy exemption). In contrast, under the
circumstances of this case, where (1) the disclosure of the names and addresses would do little to
increase public understanding of defendant's performance of its statutory functions, and (2) the
information in the complaint files is very personal in nature, we "'are reluctant to disparage the
privacy of the home, which is accorded special consideration in our Constitution, laws, and
traditions.'" Mager, supra at 146, n 23, quoting United States Dep't of Defense, supra at 501.
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