HERALD COMPANY INC V KENT COUNTY SHERIFFS DEPARTMENT
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STATE OF MICHIGAN
COURT OF APPEALS
HERALD COMPANY, INC., d/b/a GRAND
RAPIDS PRESS, and TRIBUNE TELEVISION
HOLDINGS, INC., d/b/a WXMI-TV FOX 17,
Plaintiffs-Appellees,
v
KENT COUNTY SHERIFF 'S DEPARTMENT,
UNPUBLISHED
January 27, 2004
APPROVED FOR
PUBLICATION
March 2, 2004
9:10 a.m.
No. 243400
Kent Circuit Court
LC No. 02-005767-CZ
Defendant-Appellant,
and
Updated Copy
May 21, 2004
MICHIGAN STATE POLICE,
Defendant.
Before: Markey, P.J., and Murphy and Talbot, JJ.
PER CURIAM.
This Freedom of Information Act (FOIA), MCL 15.231 et seq., case comes to us on
remand from the Michigan Supreme Court. We are required to determine whether the circuit
court properly weighed the public interest concerns in the disclosure of records of a county
sheriff department's internal affairs investigation into the alleged misconduct of one of its
deputies. We affirm and remand the case to the circuit court with instructions.
I. Facts and Procedural History
On May 2, 2002, a Kent County Sheriff 's Deputy and a Michigan State Police Trooper1
were among sixteen men arrested for soliciting sexual acts from two female Grand Rapids Police
Department decoys participating in a prostitution sting operation. While the other fourteen men
1
The Michigan State Police and its trooper are not part of this appeal.
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spent the night in jail and received citations the following morning, the deputy and the trooper
did not. Rather, they were released after their arrest with instructions to contact their superiors.
On May 3, 2002, the Kent County Sheriff 's Department commenced an internal affairs
investigation to determine whether the deputy's conduct merited discipline. The deputy signed a
Garrity2 declaration, acknowledging that he was ordered to submit to an interview as a condition
of continued employment.
Plaintiff Herald Company, Inc., doing business as Grand Rapids Press, responded to an
anonymous tip and its investigation confirmed that the deputy and the trooper had been arrested
in the sting operation. On May 5, 2002, the newspaper published a news article about the arrests.
Plaintiffs alleged that because it was not until the following day that the two men were charged
with solicitation, plaintiffs suspected that the two men received preferential treatment and that
their alleged misconduct would have been "whitewashed" or "covered up" were it not for the
anonymous tip the newspaper received and the resulting news report.3 Plaintiffs learned that the
internal affairs investigations conducted by defendant agencies revealed that the two men had
had previous contacts with known prostitutes under suspicious circumstances. Plaintiffs wanted
to know whether defendant agencies knew of the prior misconduct of their respective employees
and, if so, whether they promptly took the appropriate actions against the men. Accordingly,
plaintiffs made FOIA requests for copies of relevant documents from the two men's personnel
files and for the reports of the internal affairs investigations. Defendant agencies denied the
requests, asserting that the records were exempt from disclosure pursuant to MCL 15.243(1)(a)
(personal information constituting invasion of individual's privacy), MCL 15.243(1)(s)(ix)
(personnel records of law enforcement agencies), and MCL 15.243(1)(b)(iii).4
Plaintiffs filed suit and the circuit court reviewed the requested documents in camera.
The court ordered the release of several documents. Defendant Kent County Sheriff 's
Department appealed. A different panel of this Court granted defendant's motion for peremptory
reversal. This Court directed the circuit court to redact all documents except for (1) the incident
report prepared by the undercover officer who acted as a decoy prostitute, (2) any factual
statement in the documents reflecting the manner in which the Grand Rapids Police Department
handled the incident, and (3) any factual statement explaining why the Grand Rapids police
officers involved in the sting operation decided not to detain the deputy in jail. Herald Co, Inc v
Kent Co Sheriff's Dep't, unpublished order of the Court of Appeals, entered October 4, 2002
(Docket No. 243400). In lieu of granting leave to appeal, our Supreme Court vacated this
Court's order and remanded the case for plenary consideration. 468 Mich 911 (2003). The
Supreme Court directed this Court to apply a "clearly erroneous" standard of review pursuant to
2
Garrity v New Jersey, 385 US 493; 87 S Ct 616; 17 L Ed 2d 562 (1967).
3
Documentary evidence presented by defendant indicates that the deputy was charged on the
afternoon of May 3, 2002, the day after he was arrested and two days before the newspaper
article was published.
4
Only the first two exemptions are part of this appeal.
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the decision in Federated Publications, Inc v City of Lansing, 467 Mich 98; 649 NW2d 383
(2002).
II. Standard of Review
Our Supreme Court recently clarified the appropriate standards of review we must follow
in reviewing the circuit court's FOIA determinations pursuant to MCL 15.243(1)(s), as follows:
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
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. [Federated
Publications, Inc, supra at 101.]
The question whether documents were exempt from disclosure under MCL
15.243(1)(s)(ix) requires discretionary determinations. Id. at 106-107. Thus, the extent of our
review of this question is to determine whether the circuit court clearly erred in determining that
the public interest in disclosure outweighed the public interest in nondisclosure. Id. at 105-107.
"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." Id. at 107.
III. Analysis
We note that defendant's first argument on appeal is vague and difficult to decipher. It
appears defendant argues that there was no basis for plaintiffs' FOIA request and no public
interest for the disclosure of the documents. Thus, defendant asserts that the circuit court clearly
erred when it conducted the public interest balancing test of MCL 15.243(1)(s)(ix).
The FOIA provides for the disclosure of the public records of a public body unless those
records are exempted under the act. Kent Co Deputy Sheriffs Ass'n v Kent Co Sheriff, 463 Mich
353, 360; 616 NW2d 677 (2000). Such disclosure effects the state's policy of providing "full and
complete information regarding the affairs of government and the official acts of those who
represent the people as public officials and public employees." MCL 15.231(2). The FOIA
provides for the public disclosure of the personnel records of a law enforcement agency when
"the public interest in disclosure outweighs the public interest in nondisclosure in the particular
instance." MCL 15.243(1)(s)(ix).
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The requested documents consist of the deputy's personnel file and the internal affairs
investigation report, which the Michigan Supreme Court has deemed included in the exemption.
Kent Co Deputy Sheriffs Ass'n, supra at 366-367. The burden of proof is with defendant "to
demonstrate why it is entitled to protect a record from disclosure." Federated Publications, Inc,
supra at 108.
Defendant specifically argues that plaintiffs created a public interest from "speculation,
innuendo, and baseless allegation." Defendant first contends that the deputy was charged with
solicitation for prosecution two days before plaintiff Grand Rapids Press published its May 5,
2002, news article and maintains that plaintiffs did not dispute the affidavits defendant
submitted, which expressly explain the process for conducting internal affairs investigations and
establish that immediate action was taken in this case. Second, defendant maintains that the
public responses to the Grand Rapids Press news coverage indicated that the public considered
the newspaper's news coverage as "disgraceful and unwarranted." Third, defendant asserts that
plaintiffs improperly bolstered their public interest theory with a baseless argument that they had
reason to believe that the deputy and the trooper knew that they were safe soliciting prostitution
because they believed they were immune from arrest. Defendant maintains that the trial court
should not have included the above allegations in its public interest balancing test.
Our review of the circuit court's written opinion indicates that the court did not address
defendant's claim that plaintiffs' FOIA request was groundless. There is nothing in the opinion
to show that the circuit court relied on the above in its public interest balancing test. Defendant
fails to articulate how these matters would bar the disclosure of documents that serve the core
purpose of the FOIA, which is to contribute significantly to the public's understanding of the
operations or activities of the government. Defendant does not contend that plaintiffs failed to
properly adhere to the FOIA procedures in making their request for the documents. Further,
defendant does not support its argument with any authority that provides that a circuit court must
first make a determination about the merits of an FOIA request, as defendant appears to assert,
before applying the procedures set forth in MCL 15.243(1)(s)(ix). Thus, defendant fails to meet
its burden of proof.
Defendant next argues that that the circuit court failed to weigh the potential harm that
may result from disclosing the internal affairs investigative report.5 We disagree. Such analysis
"is clearly not applicable to those investigations in which it was determined that the employee
had engaged in wrongdoing." Federated Publications, Inc, supra at 111 n 8 (quotation omitted).
5
Again, we are unable to understand exactly what defendant argues on appeal. It appears that
defendant argues that the potential harm from the disclosure is similar to that found in Kent Co
Deputy Sheriffs' Ass'n v Kent Co Sheriff, 238 Mich App 310; 605 NW2d 363 (1999), aff 'd 463
Mich 353; 616 NW2d 677 (2000). In that case, the requested documents were barred from
disclosure on the ground that (1) internal affairs investigations are inherently difficult because of
the reluctance of employees to give statements, (2) employees will not be candid in the
investigations if they know that their statements will be made public, (3) disclosure could be
detrimental to some employees and, (4) disclosure will destroy the public body's ability to
effectively conduct internal affairs investigations. Id. at 331-332.
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Defendant does not assert that the internal affairs investigation in this case had concluded that
the allegations of misconduct were unfounded. Therefore, we find no error.
In this case, the circuit court weighed the public interest considerations and determined
that the internal affairs investigative reports should be disclosed on several grounds. First, the
court determined that the requested records were not exempt as "investigative records compiled
for law enforcement purposes" pursuant to MCL 15.243(1)(b) because the records were not
compiled for "law enforcement purposes." Rather, the court found that the reports were
compiled for employment purposes. The court determined that although the conduct being
investigated was also a violation of law, it "does not transmogrify the investigation into one for
law enforcement purposes." Second, the court determined that the report at issue will not result
in either a criminal prosecution or a civil lawsuit and, therefore, may be disclosed. See
Yarbrough v Dep't of Corrections, 199 Mich App 180, 185; 501 NW2d 207 (1993). Third, the
court found that the disclosure of the records would not interfere with an ongoing investigation.
Id.
We conclude that the circuit court was correct. In this case, the court placed the
documents it had ordered to be disclosed in a sealed envelope for appellate review. We have
reviewed the documents. It is apparent that the documents relate directly to the specific areas of
concern that the court identified as containing significant enough public interest to support
disclosure, as follows:
Portions of the [internal affairs investigation] records at issue contain
information directly bearing on the issue of preferential treatment. This Court is
not saying that those records establish preferential treatment [and is not] saying
that those records disprove preferential treatment. It is simply saying that in the
[internal affairs investigation] records . . . there is some information from which
the public could draw conclusions one way or the other about preferential
treatment of police officers by other police officers. And, one page of [the]
traditional personnel file speaks to the issue of how the State Police deal with offduty misconduct, thereby implicating the issue of a double standard, i.e., equality
before the law. There are, therefore, a pair of public interests, one general and
one very specific, in the disclosure of those records.
From the above and from our review of the record, we do not find any clear error in the
circuit court's decision to release these documents.
Defendant next argues the circuit court erroneously disclosed information concerning the
deputy's psychological counseling and treatment, his home address, telephone number, driver's
license number, Social Security number, the home phone numbers of police officers and
addresses of private citizens. We agree with defendant's argument that the deputy's home
address, phone number, and other such personal information should be redacted from the
documents that are subject to the August 26, 2002, order because such information does not
serve to advance the purposes of the act. On remand to the circuit court: (1) the deputy's home
address should be redacted from the citation, (2) the deputy's home address and home phone
number should be redacted from the first page of the internal affairs investigative report, and (3)
the document generated by the Kent County Sheriff 's Department, titled "Jacket Activity,"
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should also be redacted to eliminate the deputy's personal information related to his home
address, Social Security number, height, weight, and date of birth. With respect to the other
claims raised by defendant, we find no error in the circuit court's determination to include
references that the deputy admitted he needed psychological treatment and, contrary to
defendant's claim, we find nothing in the redacted documents related to the names and addresses
of private citizens.
Defendant next argues that the disclosure of the documents would invade the deputy's
privacy. The FOIA allows a public body to exempt from disclosure "[i]nformation of a personal
nature where the public disclosure of the information would constitute a clearly unwarranted
invasion of an individual's privacy." MCL 15.243(1)(a). The analysis for this exemption
consists of a two-part test. First, the information must be "'of a personal nature,'" and second, the
disclosure of the information must constitute a "'clearly unwarranted invasion of privacy.'"
Mager v Dep't of State Police, 460 Mich 134, 141; 595 NW2d 142 (1999), quoting Bradley v
Saranac Community Schools Bd of Ed, 455 Mich 285, 294; 565 NW2d 650 (1997).
"[I]nformation is of a personal nature if it reveals intimate or embarrassing details of an
individual's private life." Bradley, supra at 294. Further, this standard should be evaluated in
terms of "the customs, mores, or ordinary views of the community." Id. (quotation omitted). In
this case, it is undisputed that the requested documents contain information of a personal nature.
Therefore, the question is whether disclosure would constitute a "clearly unwarranted invasion of
privacy."
As previously discussed in this opinion, we find that the circuit court's identification of
the public interest is correct. The released documents shed light on the official acts and
workings of the government. The court correctly ruled that the documents contained some
information from which the public could make a determination with respect to whether the
deputy was given preferential treatment and whether the sheriff 's department should have
inquired about the deputy's alleged prior misconduct. See Detroit Free Press, Inc v Dep't of
Consumer & Industry Services, 246 Mich App 311, 320-321; 631 NW2d 769 (2001).
Accordingly, the court correctly determined the matter.
We affirm and remand the case to the circuit court. On remand, the circuit court is
directed to redact, as previously discussed in this opinion, the deputy's personal information from
three documents, after which the entire documents that are subject to the August 26, 2002, order
are to be released to plaintiffs. We do not retain jurisdiction.
/s/ Jane E. Markey
/s/ William B. Murphy
/s/ Michael J. Talbot
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