STATE NEWS V MICHIGAN STATE UNIVERSITY
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STATE OF MICHIGAN
COURT OF APPEALS
STATE NEWS,
FOR PUBLICATION
March 6, 2007
9:15 a.m.
Plaintiff-Appellant,
v
No. 271433
Ingham Circuit Court
LC No. 06-000674-CZ
MICHIGAN STATE UNIVERSITY,
Defendant-Appellee.
Official Reported Version
Before: Whitbeck, C.J., and Bandstra and Schuette, JJ.
PER CURIAM.
Plaintiff State News appeals as of right the trial court's order dismissing its action against
defendant Michigan State University (MSU) brought under the Freedom of Information Act
(FOIA).1 State News filed a FOIA request for a copy of a police incident report related to an
assault that occurred in a dormitory on MSU's East Lansing campus. MSU denied the request
under FOIA's privacy exemption2 and its law-enforcement-purpose exemption.3 The trial court
agreed that the incident report was exempt from disclosure under these provisions and dismissed
the complaint. We remand this matter to the trial court to determine whether there are
nonexempt portions of the incident report that can be separated from exempt material and
released to State News.
I. FACTS
A. The Request by State News
On March 2, 2006, State News requested from MSU its "police incident report" detailing
an incident on February 23, 2006, involving the arrest of three men in connection with an alleged
1
MCL 15.231 et seq.
2
MCL 15.243(1)(a).
3
MCL 15.243(1)(b).
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assault that occurred in Hubbard Hall, a student dormitory on MSU's East Lansing campus. Two
of the assailants were nonstudents and the other was a student, as was one of the victims. In a
news story dated February 27, 2006 (which is part of the record before us), before it made its
FOIA request to MSU, State News had already identified the three arrested men as "MSU
student Albert Robinson, a general business administration and pre-law freshman, and
nonstudents Roy Holt and Joel Hamlar . . . ." According to the FOIA complaint that State News
later filed with the trial court, this incident followed a shooting in the parking lot near Hubbard
Hall in September 2005, and there was also a "racially motivated confrontation" at Hubbard Hall
in that period.
B. The Police Incident Report
According to an affidavit that MSU's FOIA officer later filed with the trial court, the
police incident report contained the following types of information:
a. Incident report persons sheets: These documents contain 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).
b. Narrative incident reports: These documents consist of statements
from the responding officers, witnesses, victims, defendants, and a third party.
c.
Physical evidence documents:
These documents consist of
photographs of evidence, property sheets, property inventory form, crime scene
photographs, laboratory evidence documents, and advice of rights forms.
d. Inmate profiles/booking photographs: These documents are inmate
booking sheets and inmate profile documents, including photographs.
e. CCH/LEIN [criminal history and Law Enforcement Information
Network] information.
C. The MSU Denial
On March 24, 2006, MSU's FOIA officer denied State News's FOIA request. Citing the
privacy exemption and the law-enforcement-purpose exemption, MSU's FOIA officer denied the
request in its entirety, without any reference to MSU's obligation under § 14(1) of FOIA4 to
separate exempt material from nonexempt material and make the nonexempt material available
for examination and copying.
4
MCL 15.244(1).
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D. The State News Appeal
On March 29, 2006, State News filed an administrative appeal of the denial by way of a
letter to MSU's FOIA officer. However, this appeal was answered not by MSU's FOIA officer,
but by MSU President Lou Anna K. Simon. In a letter dated April 6, 2006, President Simon
determined that "the police records at issue were properly withheld." Like MSU's FOIA officer,
President Simon did not refer to MSU's obligation under § 14(1) of FOIA to separate exempt
material from nonexempt material and make the nonexempt material available for examination
and copying. We note that, according to the February 27, 2006, State News story, Robinson,
Holt, and Hamlar had previously been arraigned on charges of home invasion, felonious assault,
and possession of a firearm during the commission of a felony. Thus, at least some information
about these individuals was already part of the public record. We also note, however, that the
same story indicated that the Ingham County chief assistant prosecutor would not release the
names of any victims.
President Simon closed her April 6 denial letter by stating:
Finally, I note that in cases where law enforcement proceedings are
pending, the University must carefully weigh the applicability of Section 13(1)(b)
of the FOIA [MCL 15.243(1)(b)] so that it does not disclose information that
would interfere with an ongoing criminal investigation, interfere with ongoing
action by the Ingham County Prosecutor's Office, or deprive any person of the
right to a fair trial.
Counsel for State News on May 1, 2006, wrote to President Simon to request that she reconsider
her decision to withhold release of the police incident reports. However, on May 8, 2006,
counsel for MSU responded by asserting, among other things, that "release of the police report
does not serve the core purpose of FOIA because the report would not 'significantly contribute'
to the public's understanding of University operations."
E. The State News FOIA Complaint
State News filed its original FOIA complaint in the Oakland Circuit Court on May 19,
2006. However, that court granted MSU's change-of-venue motion, and, on May 31, 2006, State
News refiled its complaint in the Ingham Circuit Court and moved for an order to direct MSU to
show cause why it should not be ordered to comply with State News's FOIA request. State News
also moved for summary disposition under MCR 2.116(C)(9) and (10). At the time the
complaint was filed, the preliminary examinations of two of the criminal defendants were
scheduled for June 9, 2006, and the other defendant was already scheduled for trial in the
Ingham Circuit Court.
F. The Trial Court Decision
The trial court held a hearing on the motion to show cause on June 8, 2006. The trial
court concluded that MSU had met its burden to show that the requested records were exempt
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from disclosure under the privacy exemption and the law-enforcement-purpose exemption, and
dismissed State News's complaint with prejudice.
The trial court noted that the incident report included the names, addresses, criminal
histories, and other identifying information of the parties involved. It reasoned that the victims
and witnesses were "private citizens" who were "innocently involved in something for which
they could and would suffer embarrassment if their names and/or other information are
divulged." It concluded that disclosure of this personal information would constitute a clearly
unwarranted invasion of privacy because it "is not related to the workings of government, and
would not contribute significantly to the public's understanding of the workings of government,"
and that MSU had shown with sufficient particularity that release of the report would interfere
with law enforcement proceedings and deprive the criminal defendants of a fair trial.
The trial court refused to consider State News's request to determine whether there was
nonexempt information in the report that could be separated from the exempt information,
stating, "I can't conclude that any of this information would shed light on the functioning of
government, much less contribute significantly to the public's understanding of the functioning
of government." On the record before us, it is clear that the trial court did not conduct an in
camera review of the police incident report. Rather, the trial court simply determined, without
reviewing the report's contents, that nothing in it should be disclosed. This appeal then ensued.
II. GENERAL MATTERS
A. The Effect of the Passage of Time
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
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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 lawenforcement-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,5 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 requiring the disclosure of
nonexempt public records so as to ensure accountability.
B. The Concept of Accountability
Under FOIA, it is the public policy of Michigan that all persons, except prisoners, "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 . . . . The people shall be
informed so that they may fully participate in the democratic process."6
We note in this regard that FOIA therefore is a "prodisclosure statute."7 We interpret its
disclosure provisions broadly to allow public access, and we interpret its exceptions narrowly so
that we do not undermine its disclosure provisions.8 Central to both the broad policy and the
implementing mechanisms of FOIA is the concept of accountability.9 FOIA, through its
disclosure provisions, allows the citizens of Michigan to hold public officials accountable for the
decisions that those officials make on their behalf. By shifting the balance away from restricted
access to open access in all but a limited number of instances, the Legislature necessarily
5
MRE 201.
6
MCL 15.231(2); see also Larry S Baker, PC v Westland, 245 Mich App 90, 93; 627 NW2d 27
(2001).
7
Herald Co v Bay City, 463 Mich 111, 119; 614 NW2d 873 (2000) (noting that "FOIA is a
prodisclosure statute" and that its exemptions are narrowly construed).
8
Kent Co Deputy Sheriffs' Ass'n v Kent Co Sheriff, 238 Mich App 310, 313; 605 NW2d 363
(1999).
9
See, e.g., Detroit Free Press, Inc v City of Warren, 250 Mich App 164, 168-169; 645 NW2d
71 (2002) ("Under . . . FOIA, citizens are entitled to obtain information regarding the manner in
which public employees are fulfilling their public responsibilities."); Manning v East Tawas, 234
Mich App 244, 248; 593 NW2d 649 (1999) (noting that FOIA is a manifestation of the state's
public policy recognizing the need that public officials be held accountable for the manner in
which they perform the duties); Thomas v New Baltimore, 254 Mich App 196, 201; 657 NW2d
530 (2002) (explaining that FOIA was enacted "recognizing the need for citizens to be informed
so that they may fully participate in the democratic process and thereby hold public officials
accountable for the manner in which they discharge their duties").
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determined that, except in those limited instances, disclosure facilitates the process of governing
because it incorporates the concept of accountability.
III. STATUTORY LANGUAGE
A. The Privacy Exemption
Section 13(1)(a)10 of FOIA states that a public body may exempt from disclosure
"[i]nformation of a personal nature if public disclosure of the information would constitute a
clearly unwarranted invasion of an individual's privacy."
B. The Law-Enforcement-Purpose Exemption
Section 13(1)(b)11 of FOIA states that a public body may exempt from disclosure
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.
(iii) Constitute an unwarranted invasion of personal privacy.
(iv) Disclose the identity of a confidential source, or if the record is
compiled by a law enforcement agency in the course of a criminal investigation,
disclose confidential information furnished only by a confidential source.
(v) Disclose law enforcement investigative techniques or procedures.
(vi) Endanger the life or physical safety of law enforcement personnel.
IV. STANDARD OF REVIEW
A. Levels of Review
The Michigan Supreme Court recently clarified the standards of review that govern FOIA
appeals, setting out a three-level standard of review:
First, we continue to hold that legal determinations are reviewed under a
de novo standard. Second, we also hold that the clear error standard of review is
10
MCL 15.243(1)(a).
11
MCL 15.243(1)(b).
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appropriate in FOIA cases where a party challenges the underlying facts that
support the trial court's decision. In that case, the appellate court must defer to
the trial court's view of the facts unless the appellate court is left with the definite
and firm conviction that a mistake has been made by the trial court. Finally, when
an appellate court reviews a decision committed to the trial court's discretion,
such as the balancing test at issue in this case, we hold that the appellate court
must review the discretionary determination for an abuse discretion and cannot
disturb the trial court's decision unless it falls outside the principled range of
outcomes.[12]
B. Legal Standards
Under FOIA, a public body must disclose all public records that are not specifically
exempt.13 To meet its burden when claiming an exemption, the public body "should provide
complete particularized justification, rather than simply repeat statutory language."14 In Evening
News Ass'n v City of Troy,15 the Michigan Supreme Court set forth the following rules that
should be used in analyzing a claim of exemption from disclosure under FOIA:
1. The burden of proof is on the party claiming exemption from
disclosure.
2. Exemptions must be interpreted narrowly.
3. "[The] public body shall separate the exempt and nonexempt material
and make the nonexempt material available for examination and copying."
4. "[D]etailed affidavits describing the matters withheld" must be
supplied by the agency.
5. Justification of exemption must be more than "conclusory", i.e., simple
repetition of statutory language. A bill of particulars is in order. Justification must
indicate factually how a particular document, or category of documents, interferes
with law enforcement proceedings.
12
Herald Co, Inc v Eastern Michigan Univ Bd of Regents, 475 Mich 463, 471-472; 719 NW2d
19 (2006); see also Larry S Baker, supra at 93 ("Whether a public record falls within a statutory
exemption under FOIA is a question of law that we review de novo.").
13
MCL 15.233(1); Larry S Baker, supra at 94.
14
Detroit Free Press, Inc v City of Warren, supra at 167.
15
Evening News Ass'n v City of Troy, 417 Mich 481, 503; 339 NW2d 421 (1983) (citations
omitted).
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6. The mere showing of a direct relationship between records sought and
an investigation is inadequate.[16]
V. ANALYSIS
A. Overview
In this case, the parties advocate diametrically opposing views. State News argues that
all the records and reports in the criminal matter must be disclosed and that none of the
information is private. MSU, on the other hand, would declare that even the name of a defendant
after a public arraignment is personal and, therefore, private information prohibited from
disclosure. We find both parties' arguments to be untenable.
B. The Law-Enforcement-Purpose Exemption
(1) The Arguments of the Parties
State News argues that the trial court erroneously concluded that the incident report was
exempt under FOIA's law-enforcement-purpose exemption. As noted earlier, this exemption in
relevant part allows a public body to exempt from disclosure investigating records compiled for
law enforcement purposes, but only to the extent that disclosure would interfere with law
enforcement proceedings, deprive a person of the right to a fair trial, or constitute an
unwarranted invasion of personal privacy.17 State News further argues that MSU offered only
conclusory statements in support of its contention that disclosure of the police incident report
would interfere with the law enforcement proceedings and jeopardize the right of the criminal
defendants to a fair trial, and that the trial court erred by merely accepting these statements rather
than making its own particularized findings.
Again, we note that a public body seeking to withhold information because disclosure
would interfere with law enforcement proceedings must establish particularized justification for
the claim.18 The public body must show how disclosure would interfere with a pending
investigation by more than conclusory statements, i.e., "simple repetition of statutory
language."19 Grounds for preventing disclosure in connection with an ongoing criminal
investigation include fears of revealing evidence, witnesses, prospective testimony, the
16
Although these rules were primarily directed to the Evening News Court's analysis of the lawenforcement-purposes exemption, with the exception of rule 6, we find them generally
applicable to any claim of exemption from disclosure under FOIA.
17
MCL 15.243(1)(b)(i), (ii), and (iii).
18
Evening News, supra at 493-494; Herald Co, Inc v City of Kalamazoo, 229 Mich App 376,
384; 581 NW2d 295 (1998).
19
Evening News, supra at 497, 503.
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transactions being investigated, the direction of the investigation, governmental strategy,
prospective new defendants, and the scope and limits of the government's investigation.20
(2) MSU's Proposed Justification
In the affidavits that MSU presented to the trial court, there were a number of grounds
asserted to support the contention that the police incident report should not be disclosed. MSU's
police chief, James Dunlap, averred that release of the police incident report would interfere with
his department's ongoing investigation by revealing witness identities and new leads, alerting
potential new witnesses and prospective new defendants, and revealing the direction of the
investigation. Additionally, Ingham County Assistant Prosecutor Linda Maloney asserted that
the report was subject to exemption because witnesses and victims were fearful of retaliation by
the criminal defendants, and their cooperation would be negatively affected by the release of
their personal information; release of the defendants' personal information would provide an
opportunity for the victims to retaliate; and release of the parties' narrative statements would
deprive the defendants of their right to a fair trial, including disseminating inadmissible evidence
to the jury pool and altering the testimony of witnesses.
(3) The Trial Court's Decision
With respect to the requirement of particularized justification, the trial court reasoned:
I do recognize that with respect to [the law-enforcement-purpose]
exemption, there is a requirement of a particularized showing that it would
interfere with law enforcement proceedings, or deprive a person of a fair trial.
And in this Court's view there has been a particularized showing by the affidavit
of the Chief Assistant Prosecutor and Chief Dunlap in that they have established
that there is a potential for retaliation, of witness names and other information
about witnesses to be released. There is that potential. Witnesses do not get
police reports and do not have that information available to them, and to release it
to the public creates the possibility of retaliation by anyone who has an interest in
retaliating. Also, the name and addresses of the accused can cause potential for
retaliation, and also allow inadmissible evidence to be publicly disseminated to
potential jurors and also interfere with law enforcement and the administration of
justice by allowing witnesses to know what other witnesses said by tainting their
testimony as well as interfering with the Prosecutor's ability to assess the witness'
credibility and to argue a witness' credibility effective in front of the jury.
(4) MCL 15.243(1)(b)(i) and (ii): Interference With Law Enforcement Proceedings and
Deprivation of the Right to a Fair Trial
20
Id. at 511; Herald Co, Inc v City of Kalamazoo, supra at 386 n 6.
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As mentioned, MSU presented a number of grounds to support the contention that the
police incident report should not be disclosed. But the trial court primarily relied on two
interlocking assertions. The first was Maloney's assertion that disclosing the narrative
statements in the police incident report "will provide an opportunity" for the criminal defendants
to retaliate against the victims and vice versa. The trial court picked up on this assertion and
spoke several times to the "potential" or the "possibility" of retaliation. The second assertion on
which the trial court relied was Maloney's statement that release of the police incident report
would deprive the criminal defendants of their right to a fair trial. Relying on that assertion, the
trial court concluded that
the name and addresses of the accused can . . . allow inadmissible evidence to be
publicly disseminated to potential jurors and also interfere with law enforcement
and the administration of justice by allowing witnesses to know what other
witnesses said by tainting their testimony as well as interfering with the
Prosecutor's ability to assess the witness' credibility and to argue a witness'
credibility effective in front of the jury. [Emphasis added.]
Without more particularized reasons articulated on the record, however, the trial court's rationale
is insufficient to uphold the trial court's conclusion that the entire report is exempt from
disclosure.
The law-enforcement-purpose exemption is positive.21 Therefore, it was MSU's duty to
show, and the trial court's duty to find, that the particular information that State News wanted
"would . . . [i]nterfere with law enforcement proceedings[,] . . . [d]eprive a person of the right to
a fair trial [, or] [c]onstitute an unwarranted invasion of personal privacy," not merely that it
could possibly or potentially interfere with or jeopardize the investigation.22 Witnesses' fear of
retaliation, if substantiated, can provide "a plausible reason not to reveal their testimony."23
However, the trial court's findings fail to satisfy the requisite standard.24 We therefore conclude
that by failing to find with sufficient particularity that MSU specifically justified its claim of
exemption, the trial court erred in its determination that MSU met its statutory burden.25
(5) MCL 15.243(1)(b)(iii): Unwarranted Invasion of Personal Privacy
21
Evening News, supra at 506.
22
MCL 15.243(1)(b) (emphasis added); Evening News, supra at 506; Herald Co, Inc v City of
Kalamazoo, supra at 379-382.
23
Evening News, supra at 506.
24
Evening News, supra at 506-508.
25
See Payne v Grand Rapids Police Chief, 178 Mich App 193, 200; 443 NW2d 481 (1989).
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Given the similarities between the federal FOIA,26 and the Michigan FOIA, this Court
deems federal decisions persuasive in the construction of the Michigan act.27 Thus, we find it
significant that in Dep't of Justice v Reporters Comm for Freedom of Press,28 the United States
Supreme Court considered the scope of the federal law-enforcement-purpose exemption,29
commonly known as "Exemption 7(C)," and held that release of a criminal record, or "rap sheet,"
would be a prohibited invasion of the personal privacy of the person to whom the document
referred. Accordingly, to the extent that the police incident report contains the names, addresses,
or other identifying information of the suspects, such information may be exemptible.
C. The Privacy Exemption
(1) The Arguments of the Parties
State News argues that the information in the police incident report is not exempt because
it is not personal in nature and its disclosure would not constitute an unwarranted invasion of
privacy. MSU, on the other hand, argues that involvement in a crime constitutes personal
information and that disclosure is not warranted because it would not contribute significantly to
public understanding of how the government operates.
(2) Interpreting the Privacy Exemption
As we noted earlier, under the privacy exemption, a public body may exempt from
disclosure as a public record "[i]nformation of a personal nature if public disclosure of the
information would constitute a clearly unwarranted invasion of an individual's privacy."30
Accordingly, the privacy exemption consists of two distinct elements, both of which must be
satisfied for the exemption to apply. "'First, the information must be of a "personal nature," and,
second, the disclosure of such information must constitute a "clearly unwarranted" invasion of
privacy.'"31 Information that is not of a personal nature is subject to disclosure without
considering the second prong of the exemption.32
26
5 USC 552.
27
Pennington v Washtenaw Co Sheriff, 125 Mich App 556, 563; 336 NW2d 828 (1983), quoting
Bredemeier v Kentwood Bd of Ed, 95 Mich App 767, 771; 291 NW2d 199 (1980).
28
Dep't of Justice v Reporters Comm for Freedom of the Press, 489 US 749, 780; 109 S Ct 1468;
103 L Ed 2d 774 (1989).
29
5 USC 552(b)(7)(C).
30
MCL 15.243(1)(a).
31
Mager v Dep't of State Police, 460 Mich 134, 140; 595 NW2d 142 (1999), quoting Booth
Newspapers, Inc v Univ of Michigan Bd of Regents, 444 Mich 211, 232; 507 NW2d 422 (1993).
32
Bradley v Saranac Community Schools Bd of Ed, 455 Mich 285, 295; 565 NW2d 650 (1997);
Detroit Free Press v City of Warren, supra at 167-168.
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Information is of a personal nature "'if it reveals intimate or embarrassing details of an
individual's private life.'"33 "Whether a detail is intimate or embarrassing is evaluated in terms of
the customs, mores, or ordinary views of the community."34 If a court determines that the
requested information is of a personal nature, it must then determine whether disclosure of the
information would constitute a clearly unwarranted invasion of an individual's privacy.35 To do
so, the court must balance the public interest in disclosure against the interest the exemption is
intended to protect.36 "'[T]he only relevant public interest in disclosure to be weighed in this
balance is the extent to which disclosure would serve the core purpose of the FOIA, which is
contributing significantly to public understanding of the operations or activities of the
government.'"37
(3) The Trial Court's Decision
As we stated earlier, the trial court, noting that the incident report included the names,
addresses, criminal histories, and other identifying information of the parties involved, reasoned
that the victims and witnesses were "private citizens" who were "innocently involved in
something for which they could and would suffer embarrassment if their names and/or other
information are divulged." It concluded that disclosure of this personal information would
constitute a clearly unwarranted invasion of privacy because it "is not related to the workings of
government, and would not contribute significantly to the public's understanding of the workings
of government."
(4) "Information of a Personal Nature"
We agree that being a victim of or witness to a crime may, at least hypothetically, be as
"personal" as being involved in an automobile accident38 and that people linked with a crime,
whether as a perpetrator, witness, or victim, have an interest in not sharing this information with
the public. Further, releasing the identity and other personal information of the parties could
make them potential targets for retaliation.39 Therefore, we observe that, as a hypothetical
matter, the portion of the incident report containing the names, addresses, or other identifying
33
Mager, supra at 142, quoting Bradley, supra at 294.
34
Larry S Baker, supra at 95.
35
Mager, supra at 144.
36
Id. at 144-145; see also Detroit Free Press, Inc v Southfield, 269 Mich App 275, 282; 713
NW2d 28 (2005).
37
Mager, supra at 145 (emphasis and citation omitted).
38
See Larry S Baker, supra at 95 (holding that disclosure of accident reports merely for the
identification of potentially injured individuals is an unwarranted invasion of privacy).
39
See Mager, supra at 143 (noting that disclosure of the names of gun owners might make them
targets of theft).
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information of the victims, witnesses, and suspects may constitute information of a personal
nature. We note, however, 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.
Other information in the police incident report, however, such as the narrative statements
and information relating to physical evidence, to the extent that it does not identify any of the
private parties involved, may not be personal in nature. Therefore, this information may not be
exempt under the privacy exemption.
(5) "Clearly Unwarranted" Invasions
But this does not end the inquiry. With regard to information that is of a personal nature,
such information is exempt only if disclosure would constitute a "'clearly unwarranted invasion
of privacy.'"40 As stated above, the second prong of the privacy exemption requires the court to
balance the public interest in disclosure against the interest the exemption is intended to
protect.41 State News argues that the police incident report would shed light on issues of public
concern, such as MSU's security policies and the government's response to criminal activity.
MSU responds that, while the police incident report might shed some light on the workings of
government, its disclosure would not satisfy the requirement of Mager that disclosure contribute
"significantly" to the public's understanding of government operations.
As stated in Mager, the purpose of FOIA "'is not fostered by disclosure of information
about private citizens that is accumulated in various governmental files but that reveals little or
nothing about an agency's own conduct.'"42 Unlike the public body in Mager, however, MSU
has not demonstrated that the release of the police incident report would shed no light on its
conduct as a public body. For example, the police incident report might shed light on campus
security practices with regard to nonstudents or on the thoroughness of the police investigation.43
And the release of the police incident report might contribute "significantly" to public
understanding of how the government operates, not merely shed some light on it.44
The police incident report is not part of the record before us. Without reading it, we
cannot measure the degree to which the public interest might be served by disclosure. Further,
although disclosure of personal information about the parties involved, such as their names,
40
See Bradley, supra at 295 (citation omitted).
41
Mager, supra at 144-145.
42
Id. at 145, quoting Reporters Comm for Freedom of the Press, supra at 773.
43
See Detroit Free Press, Inc v Dep't of Consumer & Industry Services, 246 Mich App 311, 320;
631 NW2d 769 (2001).
44
Mager, supra at 145.
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addresses, and dates of birth (if this information is not already in the public domain), might not
add to the public's understanding of the workings of government, any exempt information can be
separated so that the nonexempt portions of the report can be released. As discussed in more
detail below, FOIA requires such separation.45
D. In Camera Review
In Evening News, the Michigan Supreme Court set forth a three-step procedure for trial
courts reviewing the denial of a FOIA request: (1) receive a complete particularized justification,
or (2) conduct an in camera hearing with review de novo to determine whether there is
particularized justification for the exemption or (3) allow the plaintiff 's counsel in camera access
to the contested documents.46 Explaining this procedure, the Supreme Court said:
The objective, of course, is to secure disclosure of all pertinent
information that is not exempt. If the government and the court are mutually
aware of the six rules [set forth at 417 Mich 503 and quoted earlier in this
opinion] and the government is prepared to act accordingly, the matter should
normally be resolved under the first step. Where the government for whatever
reason is reluctant or antagonistic, or the court is in doubt, the trial court may
have to proceed to the second step. If the matter is relatively clear and not too
complex, the court, or the court with a master, may, within acceptable expenditure
of judicial energy, be able to resolve the matter in camera. However, if the matter
is not clear or simple, the court may have to consider employment of plaintiff 's
counsel under special agreement in order to resolve the matter.[47]
By using the word "or," the Supreme Court did not require a trial court to conduct an in camera
review when considering the law-enforcement-purpose exemption. However, the Evening News
Court did state that if the government is "reluctant or antagonistic, or the court is in doubt," it
may be necessary to review the requested information in camera.48 Here, given its position at the
trial level and on appeal, MSU is most certainly "reluctant or antagonistic."
A public body is required to separate exempt and nonexempt material to the extent
practicable and make the nonexempt material available to the requesting party.49 At least some
of the information in the police incident report may be nonexempt. For example, the report
contains booking photographs, and this Court has held that the disclosure of booking
45
MCL 15.244; Herald Co, Inc v Eastern Michigan Univ Bd of Regents, supra at 482.
46
Evening News, supra at 516.
47
Id.
48
Id.
49
MCL 15.244; Herald Co, Inc v Eastern Michigan Bd of Regents, supra at 482.
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photographs does not constitute an unwarranted invasion of privacy.50 It is of pivotal importance
here that the trial court refused to review the police incident report in camera. Absent such a
review, it is self-evident that the trial court could not, for example, have engaged in the
necessary balancing analysis under the "clearly unwarranted" invasion of privacy prong of the
privacy exemption to weigh the public interest in disclosure against the interest the exemption is
intended to protect. Under these circumstances, the trial court abused its discretion.
Accordingly, we conclude that the matter should be remanded to the trial court with instructions
to review the police incident report and, to the extent practicable, separate the exempt
information (if any currently exists) and the nonexempt information and make the nonexempt
information available to State News.
VI. CONCLUSION
In sum, we conclude that:
(1) The trial court erred in its determination that the entire police incident report was
exempt from disclosure under the privacy exemption.
(2) Because the application of the privacy exemption involves a balancing test, the trial
court abused its discretion when it failed to review the police incident report in camera.
(3) Although the trial court may have been correct that portions of the police incident
report could be withheld on the basis of the law-enforcement-purpose exemption, this exemption
may no longer apply to the entire report, or even to any portion of it, depending on the current
status of the investigation and criminal trials.
(4) On remand, the trial court shall consider, in the process of its in camera review and its
subsequent decision, that the justification for applying the law-enforcement-purpose exemption
must be more than conclusory; instead, a justification must "indicate factually how a particular
document, or category of documents, interferes with law enforcement proceedings."51
(5) On remand, the trial court shall consider, in the process of its in camera review and its
subsequent decision, whether any information withheld should now be made available in light of
the passage of time and the current status of the investigation.52
50
Detroit Free Press, Inc v Oakland Co Sheriff, 164 Mich App 656, 657, 669; 418 NW2d 124
(1987).
51
Evening News, supra at 503.
52
See Herald Co, Inc v City of Kalamazoo, supra at 387.
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(6) On remand, the trial court shall consider, in the process of its in camera review and its
subsequent decision, whether some of the identifying information in the police incident report
can be redacted to protect the privacy interests of the involved parties, if necessary.53
We remand for further proceedings consistent with this opinion. We do not retain
jurisdiction.
/s/ William C. Whitbeck
/s/ Richard A. Bandstra
/s/ Bill Schuette
53
See, e.g., Detroit Free Press, Inc v Dep't of Consumer & Industry Services, supra at 321.
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