HERALD CO INC V EASTERN MICH UNIV BD OF REGENTSAnnotate this Case
STATE OF MICHIGAN
COURT OF APPEALS
HERALD COMPANY, INC., d/b/a BOOTH
NEWSPAPERS, INC., and d/b/a, ANN ARBOR
February 10, 2005
EASTERN MICHIGAN UNIVERSITY BOARD
Washtenaw Circuit Court
LC No. 04-000117-CZ
Official Reported Version
Before: Whitbeck, C.J., and Sawyer and Saad, JJ.
I. NATURE OF THE CASE
The Michigan Constitution confers enormous responsibility and authority on the
governing boards of public universities: our Constitution grants to boards of public universities
the "supervision of the institution and the control and direction of all expenditures from the
institution's funds." Const 1963, art 8, § 6. In furtherance of this constitutional mandate, our
Legislature similarly invests university boards with this significant oversight role. MCL 390.551
Consistent with its constitutional and statutory role, the Board of Regents (Board) of
Eastern Michigan University (University) investigated expenditures for the president's residence
at the University, and, as part of its investigation, the Board, through one of its members, Jan
Brandon, asked an immediate subordinate of the then-president of the University, Vice President
of Finance Patrick Doyle, for his written opinion of the president's role in this project. In
furtherance of its investigation, the Board also sought the assistance of an outside-certified public
accounting firm, and asked Deloitte & Touche, LLP (Deloitte), to conduct a comprehensive audit
"A board of control shall have general supervision of its institution, the control and direction of
all funds of the institution, and such other powers and duties as may be prescribed by law."
relating to the expenditures for the president's residence. Deloitte ultimately issued a
"voluminous and exhaustive"2 report on the subject, which the Board made public and gave to
the press. Upon receiving a Freedom of Information Act (FOIA), MCL 15.231 et seq., request
from the Ann Arbor News3 for documents relating to the president's residence, the University,
through its FOIA director, cited the "frank communications" exemption and identified, but
declined to disclose, the Doyle-to-Brandon letter. Herald filed suit and asked the court to order
disclosure and argued that the public had the right to know the contents of the Doyle letter. The
Board responded that the Doyle letter clearly falls within the frank communications exemption
because the public interest in fostering candid appraisals by subordinates of their supervisors at
the highest level of the University administration is necessary to the Board's effective
investigative and oversight role. The trial court reviewed the disputed letter in camera, balanced
the public interests in disclosure versus nondisclosure and, in a written opinion, concluded that
the frank communication exemption under these facts "clearly outweighs the public interest in
disclosure."4 Because our Supreme Court has ruled that we are to grant deference to trial courts,
which have the difficult task of balancing the public interests under the FOIA, because our
Supreme Court has specifically held that we are to uphold a trial court's "balancing" judgment
unless the trial court committed clear error, and because we find that the trial court did not
clearly err in its ruling, we affirm the trial court's holding.
II. FACTS AND PROCEDURAL HISTORY
As part of the Board's investigation into alleged overexpenditures for the president's
residence, in the summer of 2003, Jan Brandon, a member of the Board, requested a letter from
University Vice President of Finance Patrick Doyle regarding the construction of the president's
house. In particular, Brandon desired to learn more about the University president's role in the
construction project. There was a controversy regarding construction costs, and the Board
needed information to aid it in determining the appropriate course of action. Doyle's letter, dated
September 3, 2003, contained his candid appraisal of the conduct of the president regarding the
On September 10, 2003, Herald sent the Board an FOIA request for documents relating to
the construction of the president's residence. Citing MCL 15.243(1)(m), the Board's FOIA
coordinator provided the following written explanation for the Board's refusal to provide a copy
of the Doyle letter in response to Herald's FOIA request:
Please be advised that [EMU] has identified one other document which
may be within the scope of your September 10, 2003 [FOIA] request. The
document is a September 3, 2003 letter from Patrick Doyle to EMU Regent Jan
Brandon. Pursuant to [MCL 15.243(1)(m)] of the Michigan FOIA, EMU is
Trial Court Opinion and Order, March 12, 2004, p 4.
Plaintiff Herald Company, Inc, (Herald) owns the Ann Arbor News.
Trial Court Opinion and Order, supra, p 4
denying your request for this letter as the letter is a communication/note within
the public body EMU of an advisory nature covering other than purely factual
material and preliminary to a final agency decision. Further, EMU has
determined that in this particular instance the public interest in encouraging frank
communications between officials and employees of EMU clearly outweighs the
public interest in disclosure.
Thereafter, Herald brought this suit and asked the trial court to review the Doyle letter in camera
and order its disclosure. Herald claimed, among other things, that the claimed public interest in
encouraging frank communications between public officials and employees did not clearly
outweigh the public interest in disclosure because "the Doyle letter speaks to critical issues
involving the President's financial accountability and his management style."
In its response to Herald's motion, the Board indicated that the Doyle letter was requested
by Regent Brandon "to assist her in determining the appropriate course of action for [the Board]
to take during the early stages of the controversy," and that the letter was "used as part of the
deliberative process that [the Board] engaged in, through its individual members, to determine its
course of action in the University House matter."
In light of these facts, the Board argued that the Doyle letter should be considered exempt
from disclosure under MCL 15.243(1)(m) because it was an advisory communication from a
subordinate regarding a superior, preliminary to a "final determination of action" by the Board,
and the public interest in encouraging frank communication between officials and employees of
the University clearly outweighed the public interest in disclosure.5 The Board also argued that
its publication of "a voluminous and exhaustive report on the investigation into the University
House controversy," prepared by an independent auditing firm, Deloitte, weighed against
disclosure of the Doyle letter. The Board asserted that all the facts had been released and were
part of the public record, but that the opinions and personal views of Doyle, which were part of
the deliberative process of the Board, should be protected from disclosure.
The trial court held a hearing, reviewed the Doyle letter in camera, denied Herald's
motion to compel disclosure of the Doyle letter and granted summary disposition in favor of the
Board, and held that the letter fell within the FOIA exemption provided by MCL 15.243(1)(m).
The trial court stated:
In the opinion of the Court, Defendant has sufficiently articulated a
particularized justification for exemption under [MCL 15.243(1)(m)]. Based on
its in camera review of the letter, the Court finds that: (1) the contents are of an
advisory nature and cover other than purely factual materials; (2) the
communication was made between officials and/or employees of public bodies;
The Board also emphasized that the Doyle letter includes "opinions and comments that could
reflect on Mr. Doyle's immediate superior, the University president," and that if Doyle had
known the letter would be made public, "he would be much more likely to be circumspect and
cautious in his communication."
and (3) the communication was preliminary to a final agency determination of
policy or action.
Although the document contains some "factual material," it is primarily a
summary of events from Doyle's perspective. Any factual material contained in
the letter is not easily severable. Doyle clearly exercised judgment in selecting
the factual material, evaluating its relative significance, and using it to facilitate
the impact of his opinions. See, Montrose Chemical Corp v Train, 491 F2d 63
(DC Cir, 1974) (Federal Court held that two factual summaries of evidence
developed at a hearing before the Administrator of the EPA were exempt under a
parallel provision of the federal FOIA). Further, under recent persuasive
Michigan authority, a court may determine that a particular document that
contains substantially more opinion than fact" falls within the exemption. Barbier
v. Basso, 2000 WL 33521028 [; 2000 Mich App LEXIS 2560].
The trial court further ruled that the letter was exempt from disclosure under "the
parameters set forth in Herald Co, Inc v Ann Arbor Pub Schools"6 and made the following
(1) The letter contains substantially more opinion than fact, and the factual
material is not easily severable from the overwhelming majority of the comments:
Doyle's views concerning the President's involvement with the University House
(2) The letter is preliminary to a final determination of policy or action.
The communication was between officials of public bodies. The letter concerns
[the Board's] investigation and ultimate determination of what action, if any,
would be taken regarding the University House controversy.
(3) The public interest in encouraging frank communications within the
public body or between public bodies clearly outweighs the public interest in
disclosure. [Herald's] specific need for the letter, apparently to "shed light on the
reasons why a respected public official resigned in the wake of [the University]
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 [the Board's] interest
in maintaining the quality of its deliberative and decision-making process.
(4) [The Board] conducted an investigation and recently published a
"voluminous and exhaustive report" concerning its findings regarding the
University House project, a copy of which was furnished to [Herald].
This Court denied Herald's motion for peremptory reversal, but granted its motion for
immediate consideration and ordered this appeal to be expedited. This Court also directed the
Herald Co, Inc v Ann Arbor Pub Schools, 224 Mich App 266; 568 NW2d 411 (1997).
Board to file a copy of the Doyle letter with this Court and the Clerk to "suppress the letter from
public view upon receipt."7
III. STANDARD OF REVIEW
Our Supreme Court's decision in Federated Publications,8 provides the rule of law and
the rationale for the appropriate level of deference we are to give to trial courts that conduct the
difficult and fact-sensitive balancing tests under the FOIA. In an opinion authored by Justice
Markman, our Supreme Court observed that the standard of review for FOIA cases is not
contained in the legislation itself, but in "our case law."9 Specifically, the Court held that:
Exemptions involving discretionary determinations, such as application of
the instant exemption requiring a circuit court to engage in a balancing of public
interests, should be reviewed under a deferential standard. We therefore hold
that the clearly erroneous standard of review applies to the application of
exemptions requiring determinations of a discretionary nature. A finding is
"clearly erroneous" if, after reviewing the entire evidence, the reviewing court is
left with a definite and firm conviction that a mistake has been made. [Federated
Publications, supra at 106-107 (emphasis added).]
Our Supreme Court in Federated Publications emphasized that as trial courts carry out
the "public interest balancing," each case, with its special facts, will implicate "differing public
interest considerations."10 Equally important, our Supreme Court ruled that "in undertaking this
balancing, however, the circuit court must consider the fact that the inclusion of a record within
an exemptible class . . . implies some degree of public interest in the non-disclosure of such a
record."11 The Court further observed:
That is, some attribute of these records has prompted the Legislature to
designate them as subject to disclosure only upon a finding that the public interest
in disclosure predominates. [Id.]
In other words, our Supreme Court in Federated reasoned that although the FOIA's
disclosure policy serves the public interest in good governance, our Legislature made clear in the
same legislation that the public interest in good governance may also be served by the
nondisclosure policy illustrated by specific exemptible classes of records:
Unpublished order, entered April 20, 2004 (Docket No. 254712).
Federated Publications, Inc v City of Lansing, 467 Mich 98; 649 NW2d 383 (2002).
Federated Publications, supra at 106.
Id. at 109.
And, here, with respect to the frank communication exemption, the public interest in frank
communication must "clearly outweigh" the public interest in disclosure. MCL 15.243(1)(m).
[I]n performing the requisite balancing of public interests, the circuit court
should remain cognizant of the special consideration that the Legislature has
accorded an exemptible class of records. [Id. at 110.]
Accordingly, the relevant inquiry under Federated Publications is whether the trial
court's ruling constitutes clear error.
Under federal and state freedom of information acts (FOIAs), the public has a broad right
to inspect government documents, and the general policy promoted is one of "full disclosure."
Swickard v Wayne Co Medical Examiner, 438 Mich 536, 543; 475 NW2d 304 (1991). This right
to review documents under FOIAs promotes the public interest in good government.13 Yet, our
Legislature clearly determined that there are certain circumstances where revealing information
would undermine rather than further good governance.14 Hence, the public's right to view
government documents is conditional, and FOIAs contain specific exemptions that qualify, and
in certain cases, override the right to disclosure.
A. THE PURPOSE OF THE FRANK COMMUNICATIONS EXEMPTION
The quality of a governmental decision is only as good as the information that informs it,
and, accordingly, it is widely recognized that the public has a strong interest in promoting frank
communications between government officials, as evidenced by numerous federal and state laws
that contain exemptions for information falling into this category.15
One example is the federal FOIA, which contains a broad exemption for "inter-agency or
intra-agency memorandums or letters which would not be available by law to a party other than
an agency in litigation with the agency . . . ." 5 USC 552(b)(5). The United States Supreme
Court articulated the reason for the frank communications exemption:
That Congress had the Government's executive privilege specifically in
mind in adopting Exemption 5 is clear. The precise contours of the privilege in
the context of this case are less clear, but may be gleaned from expressions of
legislative purpose and the prior case law. The cases uniformly rest the privilege
on the policy of protecting the "decision making processes of government
agencies," . . . . The point, plainly made in the Senate Report, is that the "frank
See Dep't of Justice v Reporters Comm for Freedom of Press, 489 US 749, 770-773; 109 S Ct
1468; 103 L Ed 2d 774 (1989).
"In contrast with the universe of public records that are non-exemptible, the Legislature has
specifically designated [certain] classes of records as exemptible." Federated Publications,
supra at 109.
See Anno: What constitutes preliminary drafts or notes provided by or for state or local
governmental agency, or intra-agency memorandums, exempt from disclosure or inspection
under state freedom of information acts, 26 ALR4th 639.
discussion of legal or policy matters" in writing might be inhibited if the
discussion were made public; and that the "decisions" and "policies formulated"
would be the poorer as a result. As a lower court has pointed out, "there are
enough incentives as it is for playing it safe and listing with the wind," and as we
have said in an analogous context, "[h]uman experience teaches that those who
expect public dissemination of their remarks may well temper candor with a
concern for appearances . . . to the detriment of the decisionmaking process."
[Nat'l Labor Relations Bd v Sears, Roebuck & Co, 421 US 132, 150-151; 95 S Ct
1504; 44 L Ed 2d 29 (1975) (citations omitted).]
State courts have expressed similar reasoning. The "deliberative process" exemption to
New York's FOIA "was enacted to foster open and candid discussion among public officials and
to protect uninhibited recommendations, made within the family, from being scrutinized by those
affected and by the public." In the Matter of Shaw.16 In Shaw, the plaintiff, a high school
referee, sued to obtain rating reports that had been compiled on him by high school coaches. The
court held that the reports fell within the exemption and, thus, did not have to be disclosed:
It is not only preferable but imperative that the individual ratings remain
private because disclosure would be extremely detrimental to the public interest.
A public dissemination of the ratings would temper an honest and free evaluation
with fear of reprisals and animosity and deter a proper decision.
In the instant case the rating process provides useful advisory opinions
which would become meaningless or nonexistent if the cloak of confidentiality
were to be removed. The coaches and officials would hesitate to participate in any
rating process which would be made public and any rating made under such
circumstances would reflect more concern for its public acceptance than for its
actual truth. The inevitable result would be an interference with the true
sportsmanship of scholastic events and a detrimental impact upon the public's
interest and participation in public high school functions. The potential harm to
the public interest far outweighs any possible benefit to the single participant. If
disclosure is more harmful to the public than nondisclosure is harmful to the
person seeking the information, the scales of justice must tip toward
nondisclosure. Public welfare is more important than public knowledge. [Shaw,
supra at 261-262 (citations omitted; emphasis added).]
B. THE MICHIGAN FRANK COMMUNICATIONS EXEMPTION
Michigan also recognizes that the public has a strong interest in promoting frank
communications between government officials.
In the Matter of Shaw, 112 Misc 2d 260, 261; 446 NYS2d 855, 856 (1981).
The Michigan Legislature determined that the public's interest in promoting frank
communications necessary to the proper functioning of government may, at times, outweigh the
disclosure policy of the FOIA, and thus included a specific exemption in the FOIA for:
Communications and notes within a public body or between public bodies
of an advisory nature to the extent that they cover other than purely factual
materials and are preliminary to a final agency determination of policy or action.
This 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.
. . . [MCL 15.243(1)(m).]
This exemption explicitly recognizes that there are special cases in which nondisclosure better
serves the public's interest in good governance. The exemption forces courts to view the big
picture and ask whether the public interest in the disclosure of a particular piece of information
may be clearly outweighed by certain decision-making realities in which the disclosure would
ultimately frustrate the goal of good governance.17
We note also that Michigan's frank communications exemption is narrower than the
federal exemption. The federal exemption contains an implicit presumption that the value of
promoting frank communications is such that it outweighs the public's right to know. However,
the Michigan exemption is more limited: in order to prevent disclosure, the government must not
only show that disclosure would inhibit frank communications, it must articulate why the
promotion of frank communications, "in the particular instance," "clearly" outweighs the public's
right to know.
Therefore, to conduct its analysis under MCL 15.243(1)(m), the trial court will ask and
answer these questions: (1) did the public body show that the requested document covers "other
than purely factual materials"; (2) did the public body show that the document is "preliminary to
a final agency determination of policy or action"; and (3) did the public body "establish that the
public interest in encouraging frank communications within the public body or between public
bodies clearly outweighs the public interest in disclosure." Ann Arbor Pub Schools, supra at
274, quoting in part MCL 15.243(1)(m). Herald concedes the first and second points, but
challenges the University's position and the trial court's ruling on the third point.
C. THE "CLEARLY OUTWEIGHS" STANDARD
In the context of discovery, Michigan also recognizes a privilege for "'confidential intraagency
advisory opinions,' based on a policy of protecting 'open, frank discussion' concerning
governmental action." Ostoin v Waterford Twp Police Dep't, 189 Mich App 334, 338; 471
NW2d 666 (1991), quoting Kaiser Aluminum & Chemical Corp v United States, 157 F Supp 939,
946 (Ct Cl, 1958).
In McCartney,18 this Court balanced the applicable public interests and applied the
"clearly outweighs" standard. In McCartney, the plaintiff sought the release of memoranda
prepared by the Attorney General's staff regarding the Governor's negotiations with Indian tribes
over casino rights. The defendant argued, among other things, that the memoranda were
protected by the frank communications exemption. The Court agreed, and specifically affirmed
the following argument:
"The large number of assistants and divisions, the diverse location of the
divisions, the vast number of matters under consideration at any given moment,
the pressure of court imposed deadlines, and the need to fully consider and
evaluate various concerns make it absolutely essential that the Department of
Attorney General utilize written memoranda as a means of communication to
assist in decision making.
"The release to the public of the internal memoranda of the type at issue in
this case would discourage the preparation of such memoranda and would impact
negatively on the quality of the department's decision-making process with
detrimental effect on the legal services provided to state agencies as well as on the
public's interest." [Id. at 734-735.]
This Court, in Favors v Dep't of Corrections, 192 Mich App 131; 480 NW2d 604 (1991),
also applied the clearly outweighs standard. The plaintiff, an inmate, sought to obtain a review
form, which was used to determine disciplinary credits. The form contained a sheet used to
record the committee's comments, which were then used to make a final decision. This Court
The comment sheet is designed to allow the committee members to state
their candid impressions regarding the inmate's eligibility for disciplinary credits.
Release of this information conceivably could discourage frank appraisals by the
committee and, thus, inhibit accurate assessment of an inmate's merit or lack
thereof. [Id. at 135.]
This Court held that the public interest in nondisclosure clearly outweighed the interest in
[T]he public interest in encouraging frank communications within the
Department of Corrections clearly outweighs the public interest in disclosure of
these worksheet forms. The public has a clear interest in encouraging the
members of disciplinary credit committees within the department to communicate
frankly with a warden with regard to the issue of inmate disciplinary credit, an
issue that affects the length of an inmate's incarceration. The public has a far
greater interest in insuring that these evaluations are accurate than in knowing
the reasons behind the evaluations. [Id. at 136 (emphasis added).]
McCartney v Attorney General, 231 Mich App 722; 587 NW2d 824 (1998).
When, as here, the public body makes the proper showing that good governance is better
served by nondisclosure than by disclosure, it will not be required to release the information. To
make the proper showing, the public body must show that the information falls within the frank
communications exemption and that nondisclosure clearly outweighs the public's interest in
McCartney demonstrates how and why this balancing of public interests may favor
nondisclosure. The goal of the communications in McCartney was the provision of accurate
legal advice, undeniably a matter of great importance. Likewise, the nature of the
communications, legal advice, is a sensitive subject that normally requires confidentiality.
Because the communications in McCartney were of a type generally recognized as requiring
confidentiality and were directed toward an important goal, the public interest in nondisclosure
greatly outweighed the interest in disclosure. Favors also shows how the specific nature of a
communication can justify nondisclosure. If the committee members knew that the inmates
would view their comments, they would understandably be less candid in their appraisal of the
Furthermore, their candid comments were invaluable to the warden's final
determination: the warden could not be expected to keep track of and evaluate every inmate
himself, thus he relied on the candid comments of the committee members.
Another jurisdiction that uses a "clearly outweighs" standard is California. The
California FOIA contains a provision the allows a public body to withhold disclosure of a
document if "on the facts of the particular case the public interest served by not making the
record public clearly outweighs the public interest served by disclosure of the record." West's
Ann Cal Gov Code 6255. The court analyzed this frank communications exemption in Times
Mirror Co.19 The plaintiff sought to obtain copies of the Governor's appointment schedules.
The Governor argued that disclosure would interfere with his decision-making process because
"disclosure of the records in question, which identify where, when and with whom he has met,
would inhibit access to the broad spectrum of persons and viewpoints which he requires to
govern effectively." Id. at 1339. The California Supreme Court first noted that the public had a
strong interest in the disclosure of the schedules. "In politics, access is power in its purest form.
Entrance to the executive office is the passport to influence in the decisions of government. The
public's interest extends not only to the individual they elect as Governor, but to the individuals
their Governor selects as advisors." Id. at 1344. The court also noted that public exposure could
expand, rather than limit, the variety of people the Governor met with. Id. at 1345. With the
goal of promoting good government, the court ultimately concluded:
The answer to these arguments is not that they lack substance, but
pragmatism. 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 likely receive it.
Times Mirror Co v Sacramento Co Superior Court, 53 Cal 3d 1325; 283 Cal Rptr 893; 813
P2d 240 (1991).
Politics is an ecumenical affair; it embraces persons and groups of every
conceivable interest: public and private; popular and unpopular; Republican and
Democratic and every partisan stripe in between; left, right and center. To disclose
every private meeting or association of the Governor and expect the decision
making process to function effectively, is to deny human nature and contrary to
common sense and experience. [Id. (emphasis added).]
Thus, the court held that "the public interest in nondisclosure clearly outweighs the public
interest in disclosure." Id.
3. Application to the Doyle Letter
Because the goal of both the FOIA and its exemptions is good government, not disclosure
for disclosure's sake, our Legislature, by placing the frank communications exemption within the
FOIA, made the policy judgment that "public welfare is more important than public
knowledge."20 That is, the public has a far greater interest in ensuring that boards of public
universities provide effective oversight of the administration's expenditure of public funds than
knowing the opinions of one administrator about another. The Board needed more than cold and
dry data to do its job, it needed the unvarnished candid opinion of insiders to make policy
judgments and, particularly, to conduct sensitive investigations of top administrators. And, when
a high-level administrator is asked to give his opinion of the highest ranking official in the
administration, the president, his immediate superior, whose favor he needs for job security, the
insider may be naturally reluctant to trust the outsider and to trust the confidentiality of the
communication. Also, not unimportantly, the outside board member, in assessing the
advisability of conducting further and more exhaustive investigations into alleged overexpenditures for the president's residence, must assess the reliability, credibility, and validity of
such communications. In other words, these frank communications are essential to an outside
board's ability to discharge its vital constitutional oversight function on behalf of the public.
There is a substantial risk that these vital sources of candid opinions would dry up were insiders
justifiably fearful that their candid appraisals would make front-page headlines. This is
especially true where, as here, the Board is investigating potential misconduct of a high-ranking
official and seeks the insight of other high-ranking officials who work for and side-by-side with
the target of the investigation. 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:
The point, plainly made in the Senate Report, is that the "frank discussion
of legal or policy matters" in writing might be inhibited if the discussion were
made public; and that the "decisions" and "policies formulated" would be the
poorer as a result. As a lower court has pointed out, "there are enough incentives
as it is for playing it safe and listing with the wind," and as we have said in an
analogous context, "[h]uman experience teaches that those who expect public
In the Matter of Shaw, supra at 262.
dissemination of their remarks may well temper candor with a concern for
appearances. . . to the detriment of the decisionmaking process." [Sears, Roebuck
& Co, supra at 150 (internal citations omitted).]
To make Doyle's letter public would likely hurt, not advance, the public interest. It
would, in this context, kill the goose that laid the golden egg, because, to paraphrase the
California Supreme Court, if the public and the Board are entitled to receive exactly the same
information, then neither would likely receive it. See Times Mirror Co, supra at 1345.
Also important to our decision is the uncontroverted fact that the Board acted in
fulfillment, not in derogation, of its constitutional role. That is, the Board investigated and
reported to the public, it did not conceal and sweep the issue under the rug.21 Had this been a
case in which the president himself concealed documents to hide his alleged misconduct, with
the complicity of the Board, then the balancing of public policy interests and the calculus of
decision making would clearly weigh in favor of disclosure. But, where, as here, a board needs
insiders' opinions to investigate other insiders to protect the use of public funds and, where that
board honorably discharges its obligations, the public interest in nondisclosure clearly
predominates. Indeed, this factual scenario strikes us as the prototype the Legislature had in
mind when it adopted the frank communications exemption in the FOIA. The express
recognition by the Legislature of the need for candor and its vital role in internal decision making
and internal investigations22 gave birth to the frank communications exemption, and, were we to
hold this exemption inapplicable under these facts, this may very well sound the death knell of
this vital tool for board members to discharge their oversight roles for the benefit of the public.
D. THE "CLEARLY ERRONEOUS" STANDARD OF REVIEW
Because we agree with the trial court that the public interest in protecting frank
communications clearly outweighs the interest in disclosure, a fortiori, we conclude that the trial
court did not commit clear error by so ruling. And because our Supreme Court instructs us to
use the clearly erroneous standard when we review a trial court's balancing judgment, we hold
that the trial court did not clearly err in ruling that the public interest in nondisclosure
predominates here. Indeed, 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. Federated Publications, supra at 105-107. There is often a delicate balance
between the public interest in disclosure and the public interest in nondisclosure. The trial court
must make a careful appraisal of the special circumstances and all relevant facts to ensure that
In a case involving the federal FOIA, the United States Court of Appeals for the District of
Columbia held that the availability of the facts in question from another source was a factor
weighing against disclosure. "[O]ur case here is to be distinguished from a situation in which the
only place certain facts are to be is in the administrative assistants' memoranda. Here all the
facts are in the public record." Montrose Chemical, supra at 70.
Indeed, arguably, the need for candor is even greater with respect to internal investigations of
allegations of wrongdoing than it is for day-to-day policymaking.
the correct balance is struck.23 Because the trial court is in a better position to hear testimony
and review documents in camera and appraise the multiple factors that influence this balance, its
determination should be accorded the appropriate deference reflected in a "clearly erroneous"
standard of review. Id. at 107.24
The United States Supreme Court has given the following description of the application
of the clearly erroneous standard of review:
Although the meaning of the phrase "clearly erroneous" is not
immediately apparent, certain general principles governing the exercise of the
appellate court's power to overturn findings of a district court may be derived
from our cases. The foremost of these principles, as the Fourth Circuit itself
recognized, is that "[a] finding is 'clearly erroneous' when although there is
evidence to support it, the reviewing court on the entire evidence is left with the
definite and firm conviction that a mistake has been committed." This standard
plainly does not entitle a reviewing court to reverse the finding of the trier of fact
simply because it is convinced that it would have decided the case differently. The
reviewing court oversteps the bounds of its duty under [F R Civ P] 52(a) if it
undertakes to duplicate the role of the lower court. "In applying the clearly
erroneous standard to the findings of a district court sitting without a jury,
appellate courts must constantly have in mind that their function is not to decide
factual issues de novo." If the district court's account of the evidence is plausible
in light of the record viewed in its entirety, the court of appeals may not reverse it
even though convinced that had it been sitting as the trier of fact, it would have
weighed the evidence differently. Where there are two permissible views of the
evidence, the fact finder's choice between them cannot be clearly erroneous.
[Anderson v Bessemer City, 470 US 564, 573-574; 105 S Ct 1504; 84 L Ed 2d 518
(1985) (citations omitted; emphasis added)].
Also, in colorful language adopted from the United States Court of Appeals for the
Seventh Circuit, the Michigan Supreme Court has stated: "To be clearly erroneous, a decision
must strike us as more than just maybe or probably wrong; it must . . . strike us as wrong with the
force of a five-week old, unrefrigerated dead fish." People v Cheatham, 453 Mich 1, 30 n 23;
551 NW2d 355 (1996), quoting Parts & Electric Motors, Inc v Sterling Electric, Inc, 866 F2d
228, 233 (CA 7, 1988).
V. RESPONSE TO THE DISSENT
Perhaps this is why our Supreme Court in Federated Publications held that these
"determinations of a discretionary nature" should be "reviewed under a deferential standard."
Federated Publications, supra at 107 (emphasis added).
Furthermore, there is a steady stream of FOIA requests made at every level of government,
and it would be an inefficient use of judicial resources to require appellate courts to review de
novo every challenge.
Among the many misstatements, misapprehensions, and mischaracterizations contained
in the dissent, the most glaring flaw in the dissent's reasoning is the dissent's failure to properly
apply the principles regarding the standard of review, enunciated by our Supreme Court in
Federated Publications, to the trial court's role in the balancing of public interests required by
MCL 15.243(1)(m). While inaccurately accusing the majority of ignoring the "clearly
outweighs" standard to determine when disclosure prevails over nondisclosure, the dissent
ignores our Supreme Court's express review limitations articulated in Federated Publications.
That is, our Supreme Court in Federated made it abundantly clear that, not simply in that case,
but in any case in which a trial court makes "discretionary determinations" involving "balancing
of public interests," we are not to disturb the trial court's findings simply because we may
disagree (as the dissent clearly does). Rather, we may overrule the trial court only when the trial
court "clearly" errs. The dissent overstates the clearly outweighs standard under the FOIA
beyond its intended meaning to accomplish the dissent's purpose of overruling the trial court
because it disagrees with the trial court. At the same time, to accomplish the dissent's purposes
here, the dissent relegates our Supreme Court's mandated "clearly erroneous" standard to
something much less than our Supreme Court intended. In doing so, the dissent falsely accuses
the majority of positing a balance between disclosure for disclosure's sake and good government.
This is simply wrong. Rather, the majority simply makes the observation that it was not we, but
our Legislature, that, by creating the frank communications exemption, determined that good
governance in limited cases may be better served by nondisclosure than by disclosure in order to
encourage the very kind of successful investigation that we witness here. Moreover, the dissent
mistakenly accuses the majority of conflating the clearly erroneous standard with the abuse of
discretion standard. The simple answer is that we do not conflate or confuse the two standards.
Instead, we simply note the concrete fact that it was not we, but our Legislature, that determined
that there are clear exceptions to disclosure when nondisclosure clearly outweighs the public
interest in disclosure. And, equally important and compelling to our analysis is our Supreme
Court's holding and teaching in Federated that "exemptions involving discretionary
determinations . . . requiring a circuit court to engage in a balancing of public interests, should be
reviewed under a deferential standard."25 It is this admonition that the dissent ignores. And,
contrary to the dissent's hyperbolic accusations, we do not invent this standard of review.
Rather, our Supreme Court simply articulated the appropriate standard of review in Federated.
Simply because the balancing here requires the trial court to find that one interest "clearly"
outweighs another does not render meaningless the obvious proposition that the trial court's
job—weighing one interest against another in light of all the facts of the particular case—
remains one of conducting a balancing test. That the frank communications exemption carries
with it a "clearly outweighs" mandate, which is obvious, nonetheless leaves the trial court with
the discretionary job of weighing public interests and leaves us, as a reviewing court, with the
obligation to review the trial court's ruling using what Federated tells us is a "deferential
standard." As our Supreme Court makes clear in Federated, "some attribute of these records,"
here records that fall within the category of frank communications, prompted our Legislature to
give them "special consideration"—to make them subject to special treatment (unlike public
records falling outside any exemptible class) as an "exemptible class of records." We observe
Federated Publications, supra at 106-107.
that, throughout the dissent, the dissent prefers to minimize the "clearly" in the clearly erroneous
standard of review and to inflate the "clearly" in the clearly outweighs of the FOIA to effectuate
the dissent's objectives.
Moreover, the dissent, again inaccurately and unfairly, accuses the trial court and the
majority of balancing the public interests and reviewing the trial court's balancing decision,
respectively, contrary to the legislative mandate, by ignoring the language, "in the particular
instance." To support this unfair characterization, the dissent accuses the majority of speculating
about facts (which we do not) while the dissent itself speculates about the meaning of some of
Doyle's statements in his letter (speculation that is, in our view, naive).
Again, the dissent is simply wrong. The trial court and this Court each makes its
respective ruling with the particular facts of this case at the center of the analysis. Indeed, in its
opinion, the trial court said that defendant articulated "a particularized justification." Further, the
trial court specifically details its reasoning and its basis for its holding "in this particular
instance." Significantly, we conduct our review of the trial court's ruling with special emphasis
on this particular instance. Unlike the dissent, we cannot and do not speculate 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. This is for the
constitutionally mandated board to sort out, not for us. The Michigan Constitution gives the
Board, not judges, the very difficult job of protecting the public interests by ensuring that public
funds are properly spent. And here, there is no question that the Board was able to discharge its
duty in no small part because of its ability to obtain the opinions and assessments of insiders
about other insiders, a perspective that the Board may not have obtained absent the frank
communications exception. The management of this very sensitive mix of an outside board,
insiders' opinions about other insiders, and the weighing of motivations and credibility in a
delicate balancing of investigations is the constitutional charge of the Board, not judges. It is this
delicate balancing of interests that creates the unique "particular instance" here that informed the
trial court's well-reasoned, correct, and most certainly not "clearly erroneous" decision under the
frank communications exemption.
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.
For all the foregoing reasons, we hold that the trial court properly granted summary
disposition in favor of defendant.
Sawyer, J., concurred.
/s/ Henry William Saad
/s/ David H. Sawyer