PRACTICAL POLITICAL CONSULTING INC V SECRETARY OF STATE
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STATE OF MICHIGAN
COURT OF APPEALS
PRACTICAL POLITICAL CONSULTING, INC.,
Plaintiff-Appellee,
v
TERRI LYNN LAND, in her capacity as Michigan
Secretary of State, MICHIGAN DEPARTMENT
OF STATE OFFICE OF THE SECRETARY OF
STATE,
FOR PUBLICATION
March 9, 2010
9:05 a.m.
No. 291176
Ingham Circuit Court
LC No. 08-000706-CZ
Defendants-Appellants.
Before: Borrello, P.J., and Whitbeck and K. F. Kelly, JJ.
WHITBECK, J.
This appeal concerns the provisions of the Freedom of Information Act (FOIA) relating
to public records.1 But the central question here is not the availability of public records. Rather
it is whether the disclosure, or concealment, of these records will lead to, or detract from, the
public’s ability to hold its elected and appointed public officials accountable for carrying out the
law. The Secretary of State and the dissent would have us hold that these records are statutorily
exempt from disclosure and that they are of such a “personal nature” that their public disclosure
would constitute a “clearly unwarranted invasion” of an individual’s privacy. We cannot, and do
not, agree.
The records here relate to the 2008 presidential primary, in which there was to be a
“separate record” kept containing the printed name, address, and qualified voter file number of
each elector and the “participating political party” ballot selected by that elector. The main
“participating” political parties were the Democratic Party and the Republican Party. The 2008
presidential primary in Michigan was conducted amid a swirl of controversy, charge, and
counter-charge. Ultimately, a federal court found the act that authorized that primary to be
unconstitutional on equal protection grounds. But these complexities should not cloud the basic
issue. That issue here is whether we should shield from public disclosure the “separate records”
that contain information as to which ballot—not which candidate—each voter selected in the
1
MCL 15.231 et seq.
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2008 presidential primary. We do not view FOIA and the cases interpreting it as providing such
a shield. We therefore affirm the trial court.
I. Basic Facts And Procedural History
A. The Various Presidential Primary Systems
The law relating to recent presidential primary elections in Michigan falls into three
categories:
•
First, by statute from 1988 to 1995, Michigan had a “closed” presidential primary
system, with certain requirements regarding eligibility to vote in party presidential
primaries.
•
Second, by statute from 1995 to 2007, Michigan had an “open” presidential
primary system that allowed voting in party primaries without the eligibility
requirements that the former election law imposed.
•
Third, by statute in 2008, Michigan had what might reasonably be called a “semiopen” presidential primary, with certain requirements—less onerous than those
that the law imposed in 1988-1995—regarding eligibility to vote in the party
presidential primary.
More specifically, the law in these three categories contained the following provisions:
1988-1995 Closed
Presidential
Primary System:
Declaration of
Party Preference
By Elector
A “registration affidavit” kept at the township, city, or village level
was required to contain a space in a presidential primary election for the
“elector to declare a party preference or that the elector has no party
preference.”2 Even if currently registered to vote, an elector would not
be eligible to vote in a presidential primary election unless the elector
“declare[d] in writing . . . a party preference at least 30 days before the
presidential primary election.”3 Thus, only those electors who declared a
party preference 30 days before the presidential primary election could
vote for the candidates in any of the parties’ respective presidential
primaries.
2
MCL 168.495(1)(k), as amended by 1988 PA 275.
3
MCL 168.495(2)(c); MCL 168.523(3), as amended by 1988 PA 275.
-2-
1995-2007 Open
Presidential
Primary System:
No Declaration of
Party Preference
By Elector
The “registration affidavit” was no longer required to contain the
space for an elector to declare a party preference 30 days (or any other
time period) before the presidential primary election.4 Thus, any elector,
who had otherwise completed a valid registration affidavit, could vote for
the candidates in any of the parties’ respective presidential primaries.
2008 Semi-Open
Presidential
Primary:
Indication of
Which Party Ballot
Elector Wished to
Vote
In order to vote in a presidential primary, an elector was required to
“indicate in writing, on a form prescribed by the secretary of state, which
participating political party ballot he or she wishes to vote when
appearing to vote at a presidential primary.”5 Thus, only the electors who
indicated, at the time they appeared to vote, which participating political
party ballot “he or she wishes to vote” could vote for the candidates in
any of the parties’ respective presidential primary.
There is a significant difference between the three categories. Under the 1988-1995
closed primary system, an elector had to “declare” a “party preference” 30 days in advance in
order to vote in a presidential primary. Under the 1995-2007 open primary system, by contrast,
there were no requirements regarding party preference or ballot selection, by declaration or
otherwise, and any qualified elector could vote in either presidential primary. In 2008, an elector
was not required to “declare” a “party preference” but rather that elector was required to
“indicate” which “participating political party ballot he or she wish[ed] to vote.” And the elector
could indicate his or her choice of ballot when he or she appeared at the polling place to vote at a
presidential primary, rather then 30 days in advance.
B. Record-Keeping Requirements
The three categories also had significantly different record-keeping requirements. In
summary, the law in these three categories contained the following provisions:
1988-1995 Closed
Presidential
Primary System:
Declaration of
Party Preference
By Elector
The clerk of each township, city, and village was required to provide
blank forms, designated as “registration cards,” to be used in the
registration of electors. These “registration cards” were to include an
affidavit designated as a “registration affidavit” to be executed by the
registrant.6 This “registration affidavit” was to contain:
the name of the elector;
the residence address, street and number or rural route and
box number, if any, of the elector;
the birthplace and birth date of the elector;
the driver’s license or state identification card number of the
4
MCL 168.495, as amended by 1995 PA 87.
5
MCL 168.615c(1), as added by 2007 PA 52.
6
MCL 168.493, as amended by 1989 PA 142.
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elector, if available;
a statement that the elector was a citizen of the United States;
a statement that the elector at the time of completing the
affidavit, or on the date of the next election, was not less than
18 years of age;
a statement that the elector has or will have lived in the state
not less than 30 days before the election;
a statement that the elector has or will have established his or
her residence in the township, city, or village in which the
elector is applying for registration not less than 30 days before
the next election;
a statement that the elector is or will be a qualified elector of
the township, city, or village on the date of the next election;
a space in which the elector shall state the place of the
elector’s last registration; and, as mentioned above,
a space for the elector to declare a party preference or that the
elector has no party preference.7
In addition, if authorized by the election commission of the city,
village, or township, the clerk of a city, village, or township was to create
a “registration list,” alphabetically arranged and containing the name,
address, date of birth of the elector and, “for the purpose of voting in a
presidential primary election, the party preference or declaration of no
party preference of the elector, if any.”8
1995-2007 Open
Presidential
Primary
System:
No Declaration of
Party Preference
By Elector
As noted above, the “registration affidavit” no longer contained the
requirement that an elector declare a party preference 30 days (or any
other time period) before the presidential primary election.9 In 2005, the
Legislature repealed MCL 168.501a, relating to registration lists.10 The
other record-keeping requirements remained the same.
7
MCL 168.495(1)(a)-(k), as amended by 1988 PA 275.
8
MCL 168.501a, as amended by 1987 PA 37.
9
MCL 168.495, as amended by 1995 PA 87.
10
2005 PA 71, enacting § 1.
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2008 Semi-Open
Presidential
Primary:
Indication of
Which Party Ballot
Elector Wished to
Vote
The Secretary of State was required to “develop a procedure for city
and township clerks to use when keeping a separate record at a
presidential primary that contained the printed name, address, and
qualified voter file number of each elector and the participating political
party ballot selected by that elector at the presidential primary.”11
Thus, from 1988 to 1995, under the closed presidential primary system, the registration
affidavits contained extensive information about electors, including that elector’s declaration of
party preference (or no preference) for the purpose of voting in a presidential primary. But from
1995 to 2007, under the open presidential primary system, the elector’s declaration of party
preference was no longer kept in the registration affidavits. In 2008, however, there was to be a
“separate record” in the semi-open presidential primary that contained the printed name, address,
and qualified voter file number of each elector and the selection of the participating political
party ballot by that elector.
C. Disclosure Restrictions
The law in these three categories also contained significantly different restrictions upon
disclosure. In summary, the law in these three categories contained the following provisions:
1988-1995 Closed
Presidential
Primary System:
Declaration of
Party Preference
By Elector
1995-2007 Open
Presidential
Primary System:
No Declaration of
Party Preference
By Elector
There were no explicit restrictions on the disclosure of the public
records required to be kept.
In 1995, the Legislature adopted two explicit restrictions with respect
to the disclosure of public records required to be kept (the 1995 FOIA
provision). First, in amended § 495a(1), the Legislature provided that,
If an elector declared a party preference or no party
preference as previously provided under this act for the
purpose of voting in a statewide presidential primary
election, a clerk or authorized assistant may remove that
declaration from the precinct registration file and the
master registration file of that elector and the precinct
registration list, if applicable.[12]
11
MCL 168.615c(3), as added by 2007 PA 52.
12
MCL 168.495a(1), as amended by 1995 PA 213.
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Second, in amended § 495a(2), the Legislature provided that,
Beginning on the effective date of the amendatory act that
added this sentence [November 29, 1995], a person
making a request under the freedom of information act . . .
is not entitled to receive a copy of a portion of a voter
registration record that contains a declaration of party
preference or no party preference of an elector. Beginning
on the [same date], a clerk or any other person shall not
release a copy of a portion of a voter registration record
that contains a declaration of party preference or no party
preference of an elector.[13]
2008 Semi-Open
Presidential
Primary:
Indication of
Which Party Ballot
Elector Wished to
Vote
In 2007, the Legislature repealed the 1995 FOIA provision relating to
the disclosure of public records required to be kept.14 The Legislature
then provided that, “Except as otherwise provided in this section, the
information acquired or in possession of a public body indicating which
participating political party ballot an elector selected at a presidential
primary is confidential, exempt from disclosure under the freedom of
information act . . . and shall not be disclosed to any person for any
reason.”15 The exception to this restriction was the requirement that the
Secretary “provide to the chairperson of each participating political party
a file of the records for each participating political party described under
subsection (3).”16 This “subsection (3)” file contained the “printed name,
address, and qualified voter file number of each elector and the
participating political party ballot selected by that elector at the
presidential primary.”17
As noted, the changes to the election law that the Legislature adopted in 2007 for the
2008 presidential primary repealed the 1995 FOIA provision and substituted an exemption from
disclosure for the information acquired or in possession of a public body that indicated which
participating political party ballot an elector selected at a presidential primary. However, after
the 2008 primary, a federal court declared § 615c of 2007 PA 52 unconstitutional on equal
protection grounds.18 2007 PA 52 contained a non-severability clause.19 Thus, 2007 PA 52
13
MCL 168.495a(2), as amended by 1995 PA 213 (internal citation omitted).
14
2007 PA 52, enacting § 2.
15
MCL 168.615c(4), as added by 2007 PA 52 (internal citation omitted).
16
MCL 168.615c(6), as added by 2007 PA 52.
17
MCL 168.615c(3), as added by 2007 PA 52.
18
Green Party of Michigan v Michigan Secretary of State, 541 F Supp 2d 912, 924 (ED Mich,
2008).
19
2007 PA 52, enacting § 1.
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became null and void in its entirety.20 And, accordingly, the repealer of the 1995 FOIA
provision was also struck down. As the parties agree, following this decision, Michigan election
law, including the 1995 FOIA provision, reverted back to the position that it was in before the
Legislature enacted 2007 PA 52. Thus, amended § 495a(1) and amended § 495a(2) came back
into effect.
D. Practical Political Consulting’s FOIA Request And The Secretary’s Denial
On March 26, 2008, Practical Political Consulting, through Jon Hansen, faxed a
handwritten request to officials of the Secretary’s department requesting “a copy of all vote
history of the 1/15/08 presidential primary including which ballots each voter selected (D or R).”
Practical Political Consulting, again through Jon Hansen, then sent a confirming E-Mail
requesting “all voter history pertaining to that (the January 15, 2008 presidential primary)
election including which ballot, D or R, each voter selected.” Although the language of these
two requests is somewhat different, the substance is essentially the same. Collectively, therefore,
they constitute the March 26, 2008 FOIA request.
On April 17, 2008, the Secretary, through FOIA Coordinator Melissa Malerman, denied
Practical Political Consulting’s request. The Secretary set forth three grounds for this denial.
First, she asserted that the “party preference information collected during the primary” was not a
public record as defined by FOIA. Second, the Secretary asserted that the “party preference
data” was exempt from disclosure under § 13(1)(a) of FOIA, the privacy exemption.21 Third, the
Secretary asserted that the “voter preference information” was exempt from disclosure under §
13(d) of FOIA, the statutory exemption.22
Importantly, the Secretary then went on to offer the release of the names and addresses of
those who voted in the January 15, 2008 primary. She stated:
Although the nature of the Department’s duties have changed as described
above, and under the present circumstances the information you seek does not
meet the definition of a public record under the FOIA, the Department does have
in its possession the names and addresses of those who voted on January 15,
2008. Despite the denial of your request, in the spirit of cooperation, the
Department wishes to extend to you the opportunity to obtain this information.
By extending this opportunity, the Department does not waive any legal positions
that could be asserted in the event of litigation.
20
See John Spry Lumber Co v Sault Savings Bank, Loan & Trust Co, 77 Mich 199, 200-202; 43
NW 778 (1889).
21
MCL 15.243(1)(a).
22
MCL 15.243(1)(d).
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E. The FOIA Litigation
Practical Political Consulting then brought suit against the Secretary, as allowed by
FOIA.23 The Secretary moved for summary disposition, but the trial court denied her motion and
entered judgment against her as well as granting a request for injunctive relief enjoining her from
violating FOIA by “claiming that the records sought in this case are not public records, or
claiming exemptions to the production of the records sought in this case under §12(1)(a) and/or §
13(1)(d) of the FOIA.” However, the trial court granted the Secretary’s request for stay pending
appeal. The Secretary then appealed, asserting that the “records requested by” Practical Political
Consulting were exempt under § 13(1)(a) of FOIA, the privacy exemption, and § 13(d) of FOIA,
the statutory exemption. Significantly, the Secretary dropped her assertion that the records
Practical Political Consulting requested were not public records.
II. The Statutory Exemptions To FOIA
A. Statutory Provisions
Section 13(1)(d)24 of FOIA sets out the “statutory exemption” to disclosure under FOIA
as follows:
(1)
A public body may exempt from disclosure as a public record
under this act any of the following:
***
(d)
Records or information specifically described and exempted from
disclosure by statute.
The specific statutory exemption at issue here, the 1995 FOIA provision, is contained in
amended § 495a of the Michigan Election Law relating to restrictions on disclosure.25 As noted
above, the 1995 FOIA provision contained two new subsections. The first, amended § 495a(1),26
is backward looking in that it pertains to declarations of party preferences “as previously
provided under this act.” This subsection is therefore not at issue here.
The second subsection, amended § 495a(2), of the 1995 FOIA provision is, however,
forward looking and directly relevant. This subsection states:
Beginning on the effective date of the amendatory act that added this
sentence [November 29, 1995], a person making a request under the freedom of
information act . . . is not entitled to receive a copy of a portion of a voter
registration record that contains a declaration of party preference or no party
23
MCL 15.240(1)(b).
24
MCL 15.243(1)(d).
25
MCL 168.495a, as amended by 1995 PA 213.
26
MCL 168.495a(1), as amended by 1995 PA 213.
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preference of an elector. Beginning on the [same date], a clerk or any other
person shall not release a copy of a portion of a voter registration record that
contains a declaration of party preference or no party preference of an elector.”[27]
As noted above, 2007 PA 52 repealed the 1995 FOIA provision. But a federal court later
found § 615c of 2007 PA 52 to be unconstitutional. Because 2007 PA 52 contained a nonseverability clause, the entire act, including the repealer, was null and void. Therefore, the 1995
FOIA provision, including amended § 495a(2), is now back in effect. Under that subsection, the
question before us is twofold. First, was the March 26, 2008 FOIA request a request for a copy
of an identifiable public record specifically described and exempted from disclosure under
amended § 495a(2)? Second, even if the March 26, 2008 FOIA request was not a request for a
copy of an identifiable public record specifically described and exempted from disclosure under
amended § 495a(2), was the information in that public record specifically described and
exempted from disclosure under amended § 495a(2)?
B. The “Separate Record” And Amended § 495a(2)
Section 1 of FOIA28 titles it the “freedom of information act,” and it has been referred to
in that fashion since its enactment. However, in at least some respects, it could more accurately
be described as the “access to public records act.” Indeed, § 3(1) of the FOIA, its basic enabling
section, states:
Except as expressly provided in section 13, upon providing a public
body’s FOIA coordinator with a written request that describes a public record
sufficiently to enable the public body to find the public record, a person has the
right to inspect, copy, or receive copies of the requested public record of the
public body.[29]
Here, the public records in question are the “separate record[s]” created under § 615c(3)
of 2007 PA 5230 for the 2008 presidential primary that contain the printed name, address, and
qualified voter file number of each elector and the participating political party ballot selected by
that elector at the 2008 presidential primary. The Secretary apparently now concedes that these
“separate record[s]” are public records and it is fairly clear, although Practical Political
Consulting’s request was informally worded and not overly precise, that these “separate
record[s]” were also the public records that Practical Political Consulting sought in its March 26,
2008 FOIA request.
But it is also equally clear that these “separate record[s]” are not specifically described
and exempted from disclosure under amended § 495a(2). That subsection refers to “voter
registration record[s].” Presumably, these “voter registration record[s]” include ”registration
27
MCL 168.495a(2), as amended by 1995 PA 213 (internal citation omitted).
28
MCL 15.231.
29
MCL 15.233(1) (emphasis added).
30
MCL 165.615c(3), as added by 2007 PA 52.
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affidavits,” along with considerable other information, declarations of party preference by
electors31 and, if applicable, “registration list[s]”32 that also include, along with other
information, declarations of party preference by electors.
The “voter registration records” that amended § 495a(2) exempts from disclosure are
completely distinct from the “separate record[s]” kept under § 615c(3) of 2007 PA 52. And
there is simply no way of reasonably construing the statutory exemption from disclosure for
“voter registration records” under amended § 495a(2) as specifically describing and exempting
the “separate record[s]” kept under § 615c(3) of 2007 PA 52. These “separate record[s]” are not
“voter registration records” at all. Rather, they are records of the participating political party
ballots—along with the printed name, address, and qualified voter file number of each elector—
that electors selected at their polling places in order to vote in the 2008 presidential primary.
As such, these “separate record[s]” have nothing whatever to do with voter registration.
Again, they are simply the names, addresses, and the qualified voter file number of electors
voting in the 2008 presidential primary along with the participating political party ballot selected
by such electors in that presidential primary. Because they are not “voter registration records,”
they are not exempt from disclosure under amended § 495a(2).
C. The “Information” Kept Under § 615c(3) of 2007 PA 52
There is, however, a more subtle point to be explored. Section 13(1)(d) of FOIA, the
provision that contains the statutory exemption,33 refers not only to records but also to
information, and there is an “or” between these two words. Arguably, the information is a term
to be interpreted separately and distinctly from the term records. Thus, it could be argued—and
the dissent does argue—that amended § 495a(2)34 of the 1995 FOIA provision prohibits the
disclosure of all party preference information in the future.
Section 13(1)(d) of FOIA clearly refers not only to “records” but also to “information.”
But the “information” kept under § 615c(3) of 2007 PA 52 is not an elector’s “declaration of
party preference” (or no preference). And it is only such declarations of party preference that
amended § 495a(2)35 exempts from disclosure. On its face, the only “information” kept under §
615c(3) of 2007 PA 52 is “information” regarding the participating political party ballots—along
with the printed name, address, and qualified voter file number of each elector—that electors
selected in order to vote in the 2008 presidential primary. Such selections by electors are
manifestly not declarations of party preference.
Perhaps the best way of illustrating this rather technical linguistic distinction is by
example. Under the 1988-1995 closed presidential primary system, in order to vote in a
31
See MCL 168.495(1)(a)-(k), as amended by 1988 PA 275.
32
See MCL 168.501a, as amended by 1987 PA 37.
33
MCL 15.243(1)(d).
34
MCL 168.495a(2), as amended by 1995 PA 213.
35
Id.
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presidential primary an elector had to declare a party preference (or that the elector had no party
preference).36 Thus, in effect, the elector was required to declare that he or she was a Democrat,
a Republican, or a member of another party. Alternatively, the elector could declare no party
preference. Only those electors who declared a party preference 30 days before the presidential
primary election could vote for the candidates in any of the parties’ respective presidential
primaries. Thus, without a previous declaration, a Democrat, for example, could not vote in the
Democratic Party’s presidential primary. The declaration of party preference, therefore, had real
meaning. It effectively excluded those persons who were unwilling to make such a declaration at
least 30 days in advance from voting in their respective political parties’ presidential primaries.
By contrast, the “information” kept under § 615c(3) of 2007 PA 52 is “information”
regarding the participating political party ballots—along with the printed name, address, and
qualified voter file number of each elector—that electors selected in order to vote in the 2008
presidential primary. Such “information” is not the “declaration of party preference” (or no
party preference) that amended § 495a(2)37 exempts from disclosure.
To illustrate, again by way of example, in 2008, a Democrat, knowing that the
Democratic Party candidates were choosing not to campaign in the presidential primary in
Michigan, could have selected the ballot for and voted in the Republican Party’s presidential
primary. That Democrat was not making a “declaration” of party preference. Rather, he or she
was simply choosing to vote in the Republican Party’s 2008 presidential primary. This choice—
a ticket to ride obtained at the polling place, good for that day only and not applicable to any
other trains (in the form of future presidential primaries) that might leave the station—is not
voter registration information and it certainly is not a declaration of party preference. Thus,
amended § 495a(2)38 does not exempt from disclosure the “information” regarding party
preference contained in the “separate record[s]” kept under § 615c(3) of 2007 PA 52 because
that information is not a “declaration of party preference” (or no preference). It follows,
therefore, that § 13(1)(d) of FOIA does not apply to that “information,” as no statutory
exemption covers it.
The dissent concedes that the voter registration records protected under § 495a(2) are not
the “exact same records” as the separate records kept under § 615c(3) of 2007 PA 52.39 But the
dissent contends that the information contained in these records is nevertheless the same.40 This
can be so only if a declaration by an elector of a party preference—30 days in advance of a
presidential primary—is the same as a selection by an elector—on the day of the presidential
primary—of a participating political party ballot on which that elector wishes to cast his or her
vote. If we are to assume—and we do—that words have meaning, and if we are required to
operate under the presumption—and we are certainly so required—that the Legislature chooses
36
MCL 168.495(1)(k), as amended by 1988 PA 275.
37
MCL 168.495a(2), as amended by 1995 PA 213.
38
Id.
39
Post at ___.
40
Id.
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the words it uses both purposefully and precisely, then a declaration of a party preference under
§ 495a(2) is not the same as a selection of a ballot under § 615c(3) of 2007 PA 52.
The fact that eligibility to vote was “conditioned”41 both upon a declaration of party
preference, on the one hand, and the selection of a ballot, on the other, does not make the
information collected under § 495a(2) and 615c(3) of 2007 PA 52 the same, or even similar,
information. The distinction in the terminology that the Legislature used is one with a
difference. Accordingly, the phrase “declaration of party preference” does not “plainly and
unambiguously encompass an elector’s selection of a party’s ballot.”42 These are two separate
and distinct acts and, the dissent to the contrary, the information relating to them is similarly
separate and distinct.
III. The Privacy Exemption To FOIA
A. Statutory Provisions
Section 13(1)(a) of FOIA sets out the “privacy exemption” to disclosure under FOIA as
follows:
(1)
A public body may exempt from disclosure as a public record
under this act any of the following:
(a)
Information of a personal nature if public disclosure of the
information would constitute a clearly unwarranted invasion of an individual’s
privacy.[43]
B. Overview
It is well at the outset to be clear about exactly what information is at issue here. First,
the information at issue is not the names and addresses of the persons who voted in the 2008
presidential primary. As the Secretary concedes, she has released the names and addresses of
registered voters in the past. And there is ample precedent, in a number of different contexts, for
the release of names and addresses.44
41
Post at ___.
42
Post at___.
43
MCL 15.243(1)(a) (emphasis added).
44
See, for example, Int’l Union, United Plant Guard Workers of America (UPGWA) v Dep’t of
State Police, 422 Mich 432; 373 NW2d 713 (1985) (list containing names and home addresses of
individuals employed by private security guard agencies was not so personal and private that it
should not be disclosed); Tobin v Michigan Civil Service Comm’n, 416 Mich 661; 331 NW2d
184 (1982) (FOIA does not prohibit disclosure of names and addresses of classified civil service
employees to public employee labor organizations); Michigan State Employees Ass’n v Dep’t of
Management and Budget, 135 Mich App 248; 353 NW2d 496 (1984) (employee’s home
addresses do not fall under privacy exemption of FOIA).
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Second, the information at issue is not simply the listing of the number of votes cast in
any of the parties’ 2008 presidential primaries, with names and addresses redacted. Selfevidently, this information is available to any interested citizen who cares to inspect the publicly
published results of the 2008 presidential primaries. Indeed, that same citizen could quickly
learn how many votes were cast for each candidate of the respective parties in each of the 2008
presidential primaries by inspecting the same publicly published results.
Rather, it is the names and addresses of the persons who voted in the 2008 presidential
primary coupled with the party preference that those persons indicated in order to obtain a ballot
relating to one of the participating political parties. It is this information that the Secretary
asserts is exempt under the privacy exemption to FOIA.
We are to engage in a two-pronged inquiry to ascertain whether the privacy exemption is
applicable. First, we must determine whether the information is “of a personal nature.” Second,
we must determine whether the “public disclosure of that information would constitute a clearly
unwarranted invasion of an individual’s privacy.”45
In interpreting statutes, our goal is to ascertain the Legislature’s intent.46 And in so doing,
our first step is to look at the language that the Legislature used.47 This is so because “the words
of a statute provide ‘the most reliable evidence of [the Legislature’s] intent . . . .’”48 But, here,
the Secretary implies that we should go beyond the words of the statute and consider “a sampling
of public outrage expressed during the 1992 closed presidential election.” She then quotes at
length from newspaper articles, editorials, and letters to the editor concerning the 1992 primary
and suggests, without any supporting authority, that we can take judicial notice of these articles,
editorials, and letters to the editors. We decline to do so. Our inquiry here is, and must be,
limited to the words of the statute.
The dissent similarly relies on the deus ex maxima of public outcry to underpin its
analysis of the enactment of the 1995 FOIA provision.49 The dissent states that, “The
Legislature cited ‘public outrage’ as the reason for changing the primary election system from a
closed system to an open one.”50 The Legislature did no such thing. One legislative analyst
reached that conclusion. That analyst’s views reflected his own opinion, nothing more. Those
45
Michigan Federation of Teachers v Univ of Michigan, 481 Mich 657, 675; 753 NW2d 28
(2008).
46
Shinholster v Annapolis Hosp, 471 Mich 540, 548-549; 685 NW2d 275 (2004).
47
Id. at 549.
48
Sun Valley Foods Co v Ward, 460 Mich 230, 236; 596 NW2d 119 (1999) (1999), quoting
United States v Turkette, 452 US 576, 593; 101 S Ct 2524; 69 L Ed 2d 246 (1981).
49
See post at___, fn 1.
50
Id.
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views may not have been the views of a single legislator, much less of the entire Legislature at
the moment it voted upon the legislation in question.51
Upon this highly suspect basis, the dissent piles a goodly number of imaginary horribles
that it anticipates may occur if the Secretary releases the names and addresses of the persons who
voted in the 2008 presidential primary coupled with the party preference that those persons
ostensibly indicated. The dissent asserts that disclosure “could subject electors to unwanted or
unwarranted attention from peers, colleagues, and neighbors and could result in serious
discomfort amongst family members.”52 And, the dissent states, “[I]n some instances, disclosure
could subject electors to harassment or ridicule from those same groups and could impact a
person’s professional career, especially if that person is employed in a political profession, such
as a public officer or an employee of a non-profit political organization.”53
We can only emphasize that this is pure speculation, with not a speck of evidence—other
than the alleged “public outcry” over disclosure of party declaration information taken whole
cloth from a single legislative analysis by an unknown author—to support it.
Moreover, the future use of the information is irrelevant to determining whether the
privacy exemption applies.54 And, as the Michigan Supreme Court has recently proclaimed, only
the circumstances known to the public body at the time of the request are relevant to whether an
exemption precludes disclosure.55 As Practical Political Consulting did not reveal the purposes
for its March 26, 2008 FOIA request, the Secretary could not have known those purposes at the
time of her denial. And no matter what use Practical Political Consulting may make of the
requested information—even if Practical Political Consulting intends to send unwanted mass
mailings or a deluge of junk mail or make telephone solicitations or personal visits56—such
future use is irrelevant.
We also note the dissent’s reliance57 on the “explicit” provision of 2007 PA 52 that
exempts “information acquired or in the possession of a public body indicating which political
party ballot an elector selected at a presidential primary” from disclosure under FOIA.58 We
agree that such an exemption from disclosure under FOIA existed in 2007 PA 52. But we note
that 2007 PA 52 also contained an explicit non-severability provision.59 Therefore, while it is
51
Frank W Lynch & Co v Flex Technologies, Ltd, 463 Mich 578, 587 n 7; 624 NW2d 180
(2001).
52
Post at ___.
53
Id.
54
State Employees Ass’n v Dep’t of Mgt & Budget, 428 Mich 104, 121; 404 NW2d 606 (1987).
55
State News v Michigan State Univ, 481 Mich 692, 703; 753 NW2d 20 (2008).
56
See post at___.
57
See post at ___.
58
MCL 168.615c(4), as added by 2007 PA 52.
59
2007 PA 52, enacting § 1.
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clear that the Legislature intended to exempt information regarding which participating political
party ballot an elector selected in the 2008 presidential primary from disclosure, it is also clear
that the Legislature intended that if any provision of 2007 PA 52 were to be found invalid, the
remainder of the statute would likewise be “invalid, inoperable, and without effect.”60 And, of
course, that is exactly what happened.
In essence, then, in 2007 PA 52, the Legislature created a structure that was whole and
complete unto itself. But the Legislature also provided that if any component of that structure
were to be removed, the entire edifice would crumble. Therefore, the exemption from disclosure
under the FOIA provision of 2007 PA 52, like all other provisions of the statute, would fall of its
own weight and would henceforth be “invalid, inoperable, and without effect.” Under such
circumstances, there can no other conclusion but that the Legislature clearly intended that
situation would revert to the status quo ante and that § 495a(2)61 would be once again of full
force and effect.
Thus, of necessity, we are left with the language of § 495a(2) as it existed
before the Legislature enacted 2007 PA 52, with the language of the FOIA privacy exemption
itself, and the cases interpreting or relevant to that language. And that is where we should start
our analysis and where we should end it.
C. Information Of A Personal Nature
Although the Secretary and the dissent discount its importance, the decision in Ferency v
Secretary of State62 is of direct relevance to whether the names and addresses of the persons who
voted in the 2008 presidential primary coupled with the party preference that those persons
indicated is information of a personal nature. In deciding a similar—although admittedly not
exactly the same—question, this Court in Ferency stated that:
This (the disclosure of party affiliation) does not violate the secrecy of the ballot,
because there is no legitimate interest by the voter to shield his affiliation from a
party where that voter decides to participate in the party activities and where the
ballot remains secret once the voter gets in the primary election both.[63]
It is helpful to break this quotation down in order to understand it fully. The disclosure of party
affiliation in question was the declaration of party preference that, under the 1988-1995 closed
primary system, an elector had to make 30 days in advance in order to vote in a party’s
presidential primary. As noted, in effect, the elector was then declaring that he or she was a
Democrat, a Republican, or a member of another party.
By contrast, in 2008, an elector was not making a declaration of a party preference.
Rather, that elector was simply indicating the ballot—Democratic, Republican, or a third party—
that he or she wished to vote. Certainly, the indication of a ballot that an elector wished to vote
60
Id.
61
MCL 168.495a(2), as amended by 1995 PA 213.
62
Ferency v Secretary of State, 190 Mich App 398; 476 NW 2d 417 (1991).
63
Id. at 418.
-15-
in the 2008 presidential primary is information of a less personal nature that is a declaration of a
party preference that an elector was required to make, if he or she wished to vote in a presidential
primary, between 1988 and 1995.
It is possible to distinguish Ferency on the ground that it relates to information that was
to be given to a political party rather than, as is the case here, information that is available to the
general public. This is certainly relevant to the party’s interest in conducting its presidential
primaries. But we do not understand how a wider distribution to the general public, as would be
the case here, as contrasted to a more limited distribution to the political parties, as was the case
between 1988 and 1995, makes the information in question here any more personal in nature
than it would otherwise be.
Last, and perhaps most fundamentally, the whole thrust of the sacrosanct concept of
ballot secrecy64 is to protect from disclosure the identity of the candidates for which an elector
voted. This is, after all, why we vote in secret. But, the dissent to the contrary,65 the disclosure
of the ballot—Republican, Democrat, or other—that an elector voted in the 2008 presidential
primary is obviously not the disclosure of the candidate for which that elector voted. As this
Court said in Ferency:
The requirement that a voter publicly register as being affiliated with one party or
the other in order to be eligible to vote in the presidential primary does not itself
directly affect the secrecy of the voter’s ballot. This is, the voter is not required to
disclose which individual candidate he is voting for, but is merely required to
disclose from which group of candidates he is making his selection (i.e., which
party primary he is voting in).[66]
We therefore conclude that the indication of a ballot that an elector wished to vote in the
2008 presidential primary is not information of a personal nature.
D. Clearly Unwarranted Invasion Of An Individual’s Privacy
Even if the disclosure of information regarding the ballots that electors voted in the 2008
presidential primary is the disclosure of personal information, this is not enough to exempt this
information from disclosure. Such disclosure must also constitute a “clearly unwarranted”
invasion of an individual’s privacy.67 This inquiry requires us to
64
See Const 1963, art 2, § 4.
65
See post at___: “Disclosure would reveal that a person voted for particular types of candidates
and an inference could be drawn as to whom an individual voted for based on the makeup of the
ballot.” (Emphasis added). We fail to see how, for example, the disclosure that an individual
selected the Republican ballot as the one on which he or she preferred to vote in the 2008
presidential primary would permit an inference that the individual voted for John McCain rather
than Mitt Romney.
66
Ferency, 190 Mich App at 414.
67
MCL 15.243(1)(a); Michigan Federation of Teachers, 481 Mich at 675.
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balance the public interest in disclosure against the interest [the Legislature]
intended the exemption to protect[.] . . . [T]he only relevant public interest in
disclosure to be weighed in this balance is the extent to which disclosure would
serve the core purposes of the FOIA, which is contributing significantly to public
understanding of the operations or activities of the government.[68]
In Michigan, from 1988 to 1995, there was no restriction upon the release not only of
electors’ names and addresses but also upon their declarations of party preference. This
disclosure of the names and addresses was a warranted invasion of personal privacy because that
disclosure was necessary to inform the general public whether voters were properly registered
and whether they were voting in the proper precinct. Disclosure of such information, if
requested, was necessary to hold government accountable for the integrity and purity of this
state’s elections.
This is the core purpose of FOIA. That purpose is to provide the people of this state with
full and complete information regarding the government’s affairs and the official actions of
government officials and employees.69 As this Court said in State News v Michigan State Univ:70
Central to both the broad policy and the implementing mechanisms of FOIA is the
concept of accountability. FOIA, through its disclosure provisions, allows the
citizens of Michigan to hold public officials accountable for the decisions that
these 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 determined that, except for those limited instances, disclosure
facilitates the process of governing because it incorporates the concept of
accountability.”
The Secretary clearly recognizes the concept of accountability. But she turns away from
that concept when she argues that, assuming the public has an interest in knowing how public
officials performed their tasks associated with the 2008 presidential primary, “the linking of
party preference information with voter name, address, and qualified voter number, does nothing
to inform the public about how local clerks of the Secretary . . . are performing their statutory
and public duties with regard to elections.” To the contrary, we conclude that disclosure of such
information would inform the public to what extent the Secretary and the various local clerks
carried out the requirements of 2007 PA 52. Indeed, there is no other way by which these
individuals can be held accountable for their implementation of a then-valid statute. And, we
emphasize, there is no doubt that the public has a strong and ongoing interest in knowing how
public officials perform the tasks that the law assigns to them.
68
Michigan Federation of Teachers, 481 Mich at 673.
69
MCL 15.231(2); Taylor v Lansing Bd of Water & Light, 272 Mich App 200, 204; 725 NW2d
84 (2006).
70
State News v Michigan State Univ, 274 Mich App 558, 567-568; 735 NW2d 649 (2007), rev’d
in part on other grounds, 481 Mich 692 (2008).
-17-
Thus, there is a strong—not a “virtually non-existent”71—public interest in disclosure.
And, conversely, in order to avoid disclosure, a party must show a “clearly unwarranted”
invasion of an individual’s privacy.72 In a manner of speaking, the Legislature when enacting,
and courts when interpreting, the privacy exemption of FOIA have weighted the scales heavily in
favor of disclosure: the balance to be struck is between the public’s ongoing interest in
governmental accountability, on the one hand, and clearly unwarranted invasions of privacy on
the other. Under this exemption, the scales are not balanced equally at the outset, and for good
reason. In all but a limited number of circumstances, the public’s interest in governmental
accountability trumps an individual’s, or a group of individuals’, expectation of privacy. As
Justice Brandeis stated so many years ago, “Publicity is justly commended as a remedy for social
and industrial diseases. Sunlight is said to be the best of disinfectants; electric light the most
efficient policeman.”73
And, we emphasize, if there ever was an area in which that disinfectant is the most
needed, it is in the conducting of elections. Elections constitute the bedrock of democracy and
the public’s interest in the purity of such elections is of paramount importance. If we cannot
hold our election officials accountable for the way in which they conduct our elections, then we
risk the franchise itself. And we cannot hold our election officials accountable if we do not have
the information upon which to evaluate their actions. We therefore conclude that, even if the
indication of a ballot that an elector wished to vote in the 2008 presidential primary were to be
viewed as being of a personal nature, its disclosure would not be a clearly unwarranted invasion
of that elector’s privacy.
IV. Conclusion
FOIA is a pro disclosure statute that we are to interpret broadly to allow public access.
Conversely, we are to interpret its exemptions narrowly so that we do not undermine its
disclosure provisions.74 Simply put, the core purpose of FOIA is disclosure of public records in
order to ensure the accountability of public officials.75 Here, there is no question that the
“separate record[s]” created under § 615c(3) of 2007 PA 5276 for the 2008 presidential primary
that contain the printed name, address, and qualified voter file number of each elector and the
participating political party ballot selected by that elector at the 2008 presidential primary are
public records. And there is no question that these “separate record[s]” were also the public
records that Practical Political Consulting sought in its March 26, 2008 FOIA request.
As we have outlined above, these “separate record[s]” are not specifically described and
exempted from disclosure under amended § 495a(2). The “voter registration records” that
71
Post at ___.
72
MCL 15.243(1)(a); Michigan Federation of Teachers, 481 Mich at 675.
73
Louis D. Brandeis, Other People’s Money - and How the Bankers Use It 92 (1914).
74
State News, 274 Mich at 567.
75
Id.
76
MCL 165.615c(3), as added by 2007 PA 52.
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amended § 495a(2) exempts from disclosure are completely distinct from the “separate
record[s]” kept under § 615c(3) of 2007 PA 52. Further, “information” kept under § 615c(3) of
2007 PA 52 is not an elector’s “declaration of party preference” (or no preference). And it is
only such declarations of party preference that amended § 495a(2) exempts from disclosure.
With this in mind, we conclude that the statutory exemption to disclosure under FOIA applies
neither to these “separate record[s],” nor to the information contained therein.
Moreover, the disclosure of information regarding the ballots that electors voted in the
2008 presidential primary is not the disclosure of personal information. But even if it were, such
disclosure would not constitute a “clearly unwarranted” invasion of an individual’s privacy.
Thus, we conclude that the privacy exemption to disclosure under FOIA also does not apply to
these “separate record[s]” or to the information contained in them.
Affirmed. No costs, a public question being involved.
/s/ William C. Whitbeck
/s/ Stephen L. Borrello
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