PRACTICAL POLITICAL CONSULTING INC V SECRETARY OF STATE
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STATE OF MICHIGAN
COURT OF APPEALS
PRACTICAL POLITICAL CONSULTING, INC.,
FOR PUBLICATION
March 9, 2010
Plaintiff-Appellee,
v
SECRETARY OF STATE, MICHIGAN
DEPARTMENT OF STATE OFFICE OF THE
SECRETARY OF STATE,
Defendants-Appellants.
No. 291176
Ingham Circuit Court
LC No. 08-000706-CZ
Advance Sheets Version
Before: BORRELLO, P.J., and WHITBECK and K. F. KELLY, JJ.
K. F. KELLY, J. (dissenting).
I respectfully dissent from my distinguished colleagues’ conclusion that the requested
records are not exempt from disclosure under the statutory and privacy exemptions of the
Freedom of Information Act (FOIA), MCL 15.231 et seq. In my view, the information collected
during the 2008 presidential primary is information protected by statute and its disclosure would
constitute a “clearly unwarranted invasion” of an individual’s privacy, and thus is exempt from
disclosure under the FOIA.
I. HISTORICAL BACKGROUND AND PROCEDURAL HISTORY
Michigan’s election law governs the selection of public officials to public office and is
meant to ensure the purity and integrity of elections. 1954 PA 116, enacting MCL 168.1 et seq.;
Taylor v Currie, 277 Mich App 85, 96; 743 NW2d 571 (2007). A particular set of rules applies
to presidential primary elections, by which voters of political parties determine which nominees
will run in the general presidential election. See O’Hara v Wayne Co Clerk, 238 Mich App 611,
614-615; 607 NW2d 380 (1999). The presidential primary election rules control the selection of
nominees for each party, the choice of delegates, and voting requirements for individuals voting
in the primary. Michigan Department of State, Bureau of Elections, Michigan Presidential
Primary Facts & Statistics (October 16, 2006). Historically, Michigan has employed either a
“closed” or an “open” primary election system; generally, the former system requires voters to
disclose their political party preference before they are eligible to vote in the election, while the
latter allows electors to vote in the primary without disclosing any party preference beforehand.
Because an overview of Michigan’s primary election system informs my viewpoint, I briefly
discuss the relevant history below.
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A. MICHIGAN’S 1988 PRIMARY ELECTION LAW
In 1988, Michigan used a closed primary system. MCL 168.495(1)(k), as amended by
1988 PA 275 (1988 election law). In order to vote in the primary, individuals were required to
declare their party preference on their registration record at least 30 days before the primary.
MCL 168.523(3), as amended by 1988 PA 275. An individual who properly declared himself or
herself as a Republican, for example, would be eligible to vote only for Republican candidates,
as well as nonpartisan candidates. The converse would be true for a Democrat. Voters who did
not declare a preference were not eligible to vote in the presidential primaries. For voters who
did submit a declaration, the information regarding the voters’ party preference was captured,
recorded, and maintained on their registration files with the Secretary of State. MCL 168.495a,
as added by 1988 PA 275. The 1988 election law did not address whether this information,
including voters’ identifying information and party preference information, was disclosable to
the general public or whether this information could be deleted from a voter’s file.
B. MICHIGAN’S PRIMARY ELECTION LAW BETWEEN 1995 AND 2003
The requirement that voters declare a political preference, and the lack of protection as to
that information, caused a public outcry.1 In response to the public’s concern over the privacy of
their political preferences, the Legislature amended the election law to require open primaries.
MCL 168.495, as amended by 1995 PA 87. Under this system, it was no longer necessary for
electors to disclose their party preferences in order to vote in the primary. Rather, voters arriving
at the polls on the day of the primary election were given access to both parties’ ballots. The
1
A Senate Fiscal Agency Bill Analysis cited “public outrage” as a reason for changing the
primary election system from a closed system to an open one. Specifically, it reasoned:
It has become clear that while some voters will register their party
preference before voting, many feel that it is an intrusion on their right to a secret
ballot, and simply will not divulge that information in order to be allowed to
vote. . . . While [changes to party rules allowing undeclared voters to vote] made
it less likely that a registered voter would be turned away at the polls, the fact
remained that an examination of voting records would reveal [the] party’s primary
in which the person voted. What the voters of Michigan want is a return to the
time-honored tradition of the secret ballot. The bill, by re-establishing an open
primary, would fulfill that desire. [Senate Fiscal Agency Bill Analysis, HB 4435,
May 30, 1995.]
While Legislative history is not relevant in construing the meaning of a statute, amendments to
legislation are relevant in the context of the FOIA’s privacy exemption. When FOIA
exemptions are at issue, Legislative enactments may be considered as some evidence of the
community’s mores and values. See Mich Federation of Teachers v Univ of Mich, 481 Mich
657, 677 n 59; 753 NW2d 28 (2008) (noting recent legislative changes as indicative of a
community’s customs).
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voter would then, in the privacy of the election booth, select the party primary in which he or she
wanted to participate. The ballot the voter selected was not recorded by voting officials and no
reference whatsoever to a voter’s selection was created, or maintained, in a voter’s registration
file. Nonetheless, for voters who previously voted in a closed primary, their prior political
declarations remained on file as a public record.
Also in 1995, the Legislature further amended the election law to provide that voters’
declarations of party preferences are not disclosable through the FOIA. MCL 168.495a, as
amended by 1995 PA 213 (the 1995 FOIA provision). Specifically, that provision provided:
(1) 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 to the clerk may
remove that declaration from the precinct registration file and the master
registration file of that elector and the precinct registration list, if applicable.
(2) Beginning on [November 29, 1995], a person making a request under
the freedom of information act, Act No. 442 of the Public Acts of 1976, being
sections 15.231 to 15.246 of the Michigan Compiled Laws, 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 effective date of the amendatory act that added this sentence, 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.
[MCL 168.495a, as amended by 1995 PA 213.]
In other words, as of 1995, Michigan employed an open primary system that did not require a
declaration of, and did not record, electors’ political preferences, and which also prohibited the
disclosure through the FOIA of voter registration records containing any such political
preference. Between 1995 and 2007, a number of additional amendments were made to
Michigan’s presidential primary election law, the last in 2003, but none of these affected the
election system’s status as an open primary system that prohibited disclosure of voter registration
records containing political preferences. See 1999 PA 72; 2003 PA 13.
C. MICHIGAN’S 2007 PRIMARY ELECTION LAW
Before the 2008 presidential primary, the Legislature again amended Michigan’s election
law to employ a semi-closed primary process. See MCL 168.615c, as added by 2007 PA 52
(2007 election statute). Under this new amendatory act,2 there was no requirement that a voter
declare a party preference 30 days ahead of time in order to vote in the presidential primary.
Rather, voters arriving at the polls were required to indicate in writing on a form provided by the
2
The 2007 election law amended seven provisions of the existing election law, added three new
sections, and contained two enactments.
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Secretary of State’s office which ballot they preferred, Democratic or Republican. MCL
168.615c(1). When the voter selected his or her ballot, city or township clerks were required to
capture this information in a separate record, which contained the printed name, address,
qualified voter file number of each voter, and the political party ballot the voter had selected.
MCL 168.615c(3).
Significantly, the 2007 election statute also included a nonseverability clause. 2007 PA
52, enacting § 1. That provision provided:
If any portion of this amendatory act or the application of this amendatory
act to any person or circumstances is found invalid by a court, it is the intent of
the legislature that the provisions of this amendatory act are nonseverable and that
the remainder of the amendatory act shall be invalid, inoperable, and without
effect.
In addition, the 2007 election statute repealed certain sections of Michigan’s election law,
including the 1995 FOIA provision, MCL 168.495a. 2007 PA 52, enacting § 2 (the repealer). In
its place, the 2007 election law provided its own FOIA provision, which provided:
(4) Except as otherwise provided in this section, the information acquired
or in the possession of a pubic body indicating which participating political party
ballot an elector selected at a presidential primary is confidential, exempt from
disclosure under the [FOIA], and shall not be disclosed to any person for any
reason. [MCL 168.615c(4), as added by 2007 PA 52.]
The 2007 election statute went into effect on September 4, 2007.
D. THE 2008 PRESIDENTIAL PRIMARY
The 2008 primary election was carried out according to the 2007 election statute.
However, shortly after the 2008 primary, a federal district court declared § 615c of the 2007
election statute unconstitutional as a violation of the United States Constitution’s Equal
Protection Clause in Green Party of Mich v Mich Secretary of State, 541 F Supp 2d 912, 924
(ED Mich, 2008). Accordingly, because of the 2007 election law’s non-severability clause, the
entire amendatory act fell together and it became null and void. See, e.g., John Spry Lumber Co
v Sault Savings Bank Loan & Trust Co, 77 Mich 199, 200-202; 43 NW 778 (1889) (concluding
that all provisions of a nonseverable unconstitutional statute fall together, leaving the prior law
intact); M & S Builders v Dearborn, 344 Mich 17, 19-20; 73 NW2d 283 (1955) (finding that a
repeal became invalid with the rest of an amendment that was declared invalid, thus reviving the
prior law). Thus, the repealer was struck down, as was the 2007 election law’s FOIA provision.
As a result, and as the parties agree, Michigan’s prior election law, as it stood in 2003, applies to
this matter.
E. PLAINTIFF’S FOIA REQUEST
On March 26, 2008, the same day the federal court announced its decision, plaintiff,
Practical Political Consulting, Inc., submitted a FOIA request to defendants. Specifically,
plaintiff requested “all voter history [of the 2008 presidential primary election] including which
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ballot, [Democratic or Republican], each voter selected.” This information was the information
collected pursuant to the 2007 election statute.
On April 17, 2008, defendants denied the FOIA request, reasoning that the requested
documents were not public records and were exempt from disclosure under the statutory
exemption of the FOIA, MCL 15.243(1)(d), which provides:
(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.
Defendants also reasoned that the party preference information was exempt under the FOIA’s
privacy exemption, which states:
(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. [MCL
15.243(1)(a).]
More specifically, defendants posited that the information was protected from disclosure under
either the 2007 election statute’s FOIA provision or its predecessor provision, the 1995 FOIA
provision, MCL 168.495a; and, further, that the records contained information of a personal
nature, the disclosure of which would not provide meaningful insight into the workings of the
government, and would be a clearly unwarranted invasion of individuals’ privacy.
As a result of defendants’ denial, plaintiff sought a judgment in the trial court declaring
defendants to be in violation of the FOIA. On the parties’ cross-motions for summary
disposition, the trial court ruled in plaintiff’s favor. It found that the records created were public
records and that neither exemption applied.
Defendants appeal as of right, asserting that the records, and the information contained
therein, are exempt under the FOIA.3 Disclosure of the requested records was stayed pending
the outcome of this appeal.
II. STANDARDS OF REVIEW
3
On appeal, defendants no longer contend that the records are not “public records.”
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Whether a public record is exempt from disclosure pursuant to the FOIA is a question of
law reviewed de novo. Herald Co, Inc v Eastern Mich Univ Bd of Regents, 475 Mich 463, 471472; 719 NW2d 19 (2006). In addition, review of the trial court’s decision on the parties’
motions for summary disposition is also de novo.4 Campbell v Dep’t of Human Servs, 286 Mich
App 230, 234-235; 780 NW2d 586 (2009). Further, to the extent that this Court must engage in
statutory construction, review is, again, de novo. Mich Federation of Teachers v Univ of Mich,
481 Mich 657, 664; 753 NW2d 28 (2008). The goal in interpreting a statute is to ascertain the
Legislature’s intent. Shinholster v Annapolis Hosp, 471 Mich 540, 548-549; 685 NW2d 275
(2004). The first step in doing so is looking to the language used. Id. at 549. Effect must be
given to each word, reading provisions as a whole, and in the context of the entire statute. Green
v Ziegelman, 282 Mich App 292, 301-302; 767 NW2d 660 (2009). If the language is clear and
unambiguous, the statute must be applied as written. Beattie v Mickalich, 284 Mich App 564,
570; 773 NW2d 748 (2009). In such instances, judicial construction is neither necessary nor
permitted. Id. Further, because the FOIA is a prodisclosure statute, “its disclosure provisions
[are interpreted] broadly to allow public access, and . . . its exceptions [are interpreted] narrowly
so that . . . its disclosure provisions [are not undermined].” State News v Mich State Univ, 274
Mich App 558, 567; 735 NW2d 649 (2007) (State News I), rev’d in part on other grounds 481
Mich 692 (2008).
III. THE FOIA
The purpose of Michigan’s FOIA statute is to provide the people of Michigan full and
complete information regarding the government’s affairs and the official actions of governmental
officials and employees. MCL 15.231(2); Taylor v Lansing Bd of Water & Light, 272 Mich App
200, 204; 725 NW2d 84 (2006). Disclosure of this information is designed to promote
governmental accountability and is imperative to a democracy; full disclosure of governmental
activity informs the citizenry so that they may fully participate in the democratic process. See
MCL 15.231(2); State News I, supra at 567-568. Stated differently, the FOIA functions to allow
the citizenry to hold public officials accountable for the decisions they make on behalf of those
citizens. 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 the FOIA is a manifestation
of the state’s public policy recognizing the need that public officials be held accountable for their
official actions and citizens be informed); Thomas v New Baltimore, 254 Mich App 196, 201;
657 NW2d 530 (2002) (explaining that the 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”). Accordingly,
Michigan’s FOIA statute requires a public body to disclose public records to individuals who
4
Because the trial court considered information outside the pleadings, I consider the court’s
decision to be based on MCR 2.116(C)(10). A motion under this subrule is properly granted if
there is no genuine issue of material fact and judgment is proper as a matter of law. Farm
Bureau Ins Co v Abalos, 277 Mich App 41, 43-44; 742 NW2d 624 (2007).
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request to inspect, copy, or receive copies of its public records. MCL 15.233; Scharret v City of
Berkley, 249 Mich App 405, 411-412; 642 NW2d 685 (2002).
However, certain public records need not be disclosed if they are exempt from disclosure
under one of the exemptions articulated in MCL 15.243. If the requested public records fall
within one of these exceptions, it is within the public body’s discretion whether to release the
information. Bradley v Saranac Community Sch Bd of Ed, 455 Mich 285, 293; 565 NW2d 650
(1997). In determining whether an exemption applies, the identity of the requester is irrelevant,
as is the initial and the future use of the information. State Employees Ass’n v Dep’t of Mgt &
Budget, 428 Mich 104, 121; 404 NW2d 606 (1987) (opinion by CAVANAGH, J.). Moreover, only
the circumstances known to the public body at the time of the request are relevant to whether an
exemption precludes disclosure. State News v Mich State Univ, 481 Mich 692, 703; 753 NW2d
20 (2008) (State News II). Further, because the FOIA’s core purpose is the disclosure of public
records, the courts of this state have narrowly construed the FOIA’s exemptions in favor of
disclosure. State News I, supra at 567.
IV. MCL 15.243(1)(d): THE FOIA’S STATUTORY EXEMPTION
On appeal, defendants first argue that the trial court erred by determining that the
information collected at the 2008 primary election was not exempt from disclosure under the
FOIA’s statutory exemption. I would agree.
The FOIA’s statutory exemption provides:
(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. [MCL 15.243(1)(d) (emphasis added).]
By its terms, this exemption incorporates statutes that specifically exempt certain records or
information from disclosure through the FOIA. Accordingly, there must be a statute specifically
exempting the “[r]ecords or information specifically described” in order for this exemption to
apply. Significantly, the provision uses the conjunction “or” between the words “[r]ecords” and
“information.” The term “or” is to be interpreted literally unless it renders a statute dubious; the
word “or” denotes a choice or alternative. Random House Webster’s College Dictionary (1997);
see Amerisure Ins Co v Plumb, 282 Mich App 417, 429; 766 NW2d 878 (2009). Thus, a statute
may specifically describe records that are exempt from disclosure or may specifically describe
information that is exempt from disclosure. The term “record” means information preserved in
writing or some other documentary medium, whereas “information” denotes knowledge
communicated or received. Random House Webster’s College Dictionary (1997). Accordingly,
the FOIA’s statutory exemption, MCL 15.243(1)(d), protects from disclosure records that are
specifically described by statute or information that is specifically described by statute.
Here, the relevant statutory provision, the 1995 FOIA provision, states:
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(1) 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 to the clerk may
remove that declaration from the precinct registration file and the master
registration file of that elector and the precinct registration list, if applicable.
(2) Beginning on [November 29, 1995], a person making a request under
the freedom of information act, Act No. 442 of the Public Acts of 1976, being
sections 15.231 to 15.246 of the Michigan Compiled Laws, 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 effective date of the amendatory act that added this sentence, 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.
[MCL 168.495a, as amended by 1995 PA 213 (emphasis added).]
It is plaintiff’s contention that when these subsections are read together, subsection (2)
only applies to voter registration records created before the 1995 FOIA provision. I disagree.
Subsection (1) of this provision permits a clerk or other authorized person to remove, in his or
her discretion, “a party preference or no party preference as previously provided under this act
for the purpose of voting in a statewide presidential primary election . . . .” This subsection
specifically references removal of party preference information that was previously captured and
recorded pursuant to previous versions of the election law.
Comparatively, subsection (2) prohibits disclosure through the FOIA of “a copy of a
portion of a voter registration record that contains a declaration of party preference or no party
preference of an elector” from November 29, 1995, on and forward. Importantly, subsection (2),
unlike subsection (1), makes no reference whatsoever to whether the party preference
information was collected under the previous election law; it merely forbids disclosure of “a
copy of a portion of a voter registration record that contains a declaration of party preference,”
effective November 29, 1995. The phrase “as previously provided under this act,” or other
limiting language on how party preference information was obtained, is specifically absent from
subsection (2).
Given the plain language of these two provisions, it is my view that the Legislature
intended to accomplish two things through the 1995 FOIA provision. First, under subsection (1),
it permits the removal of all party preference information previously captured. Clearly, this
position does not diverge from the majority’s view on this point. Second, it prohibits the
disclosure of party preference information in the future. The Legislature did not intend to limit
subsection (2)’s terms to political preference information collected under the prior law because
the Legislature explicitly chose not to use the phrase “as previously provided under this act,” or
other similar limiting language. See cf. Houghton Lake Area Tourism & Convention Bureau v
Wood, 255 Mich App 127, 151; 662 NW2d 758 (2003) (explaining doctrine of expressio unius
est exclusio alterius). Thus, contrary to plaintiff’s argument, the protection from disclosure
provided by subsection (2) applies to all portions of voter registration records containing a party
declaration, including those records created in the future. It is in the application of this provision
to the present matter that my viewpoint diverges from the majority’s opinion.
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The majority agrees with plaintiff that § 495a(2) does not apply to the records created in
the 2008 primary because neither the records nor the information specifically described is the
same as that protected by the 1995 FOIA provision, § 495a(2). While it may be true that the
“voter registration record[s]” protected by § 495a(2) are not the exact same records in form that
are specifically described, the substance, or the information specifically described by § 495a(2)
and contained in those records, is the same.
Section 495a(2), the 1995 FOIA provision, specifically protects from disclosure through
the FOIA an elector’s “declaration of party preference . . . .” A “declaration” is a
“proclamation,” an “announcement,” or an “act of declaring” something. Random House
Webster’s College Dictionary (1997). “Preference” is defined as “something preferred [or given
priority]; choice; [or] selection.” Random House Webster’s College Dictionary (1997). Clearly,
an elector arriving at the polls for the 2008 primary had to proclaim which party he or she
preferred to vote for in order to vote, just as voters who voted in previous closed primaries had to
declare which party they wished to vote for in order to vote. In both instances, eligibility to vote
was conditioned upon a party preference declaration. In my view, this information is specifically
described and protected by the 1995 FOIA provision, § 495a(2).
The majority, however, like plaintiff, attempts to draw a distinction between a voter’s
“declaration of party preference” in the closed primaries and a voter’s selection of a party ballot
in the semi-closed primary of 2008, to conclude that the information described is not protected
by the 1995 FOIA provision, § 495a(2). Stated more succinctly, the majority posits that the
selection of a party ballot is not synonymous with a declaration of party preference. This is an
exercise in semantics and, in my view, the “distinction” created is one without a difference.
Whether the information was collected during the closed primaries of 1988-1995 or during the
2008 primary election is immaterial. In each instance, the information captured, although
collected by a different procedure, is the same: an elector wishing to vote in the primary was
required to “proclaim” the party’s primary he or she “preferred” to vote in. In both instances,
voters made a “declaration” of party preference. Further, I would point out that the Legislature
deliberately chose to use the phrase “declaration of party preference” without any conditional
limiting language, such as “declaration of party preference made 30 days before the primary
election.” The majority’s reading of the 1995 FOIA provision, § 495a(2), equates its language
with the latter. In my view, such a reading is inapposite to our judicial role. The Legislature
chose to use the broad phrase, “declaration of party preference,” which plainly and
unambiguously encompasses an elector’s selection of a party’s ballot. Accordingly, I would
conclude that the requested information is protected from disclosure by MCL 168.495a(2), as
amended by 1995 PA 213, and is therefore exempt under the FOIA’s statutory exemption. MCL
15.243(1)(d).
V. MCL 15.243(1)(a): THE FOIA’S PRIVACY EXEMPTION
I would also conclude, contrary to the majority’s position, that the requested records are
exempt under the FOIA’s privacy provision. That exemption excludes from disclosure public
records that would result in an unwarranted invasion of an individual’s privacy. MCL
15.243(1)(a) states:
(1) A public body may exempt from disclosure as a public record under
this act any of the following:
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(a) Information of a personal nature if public disclosure of the information
would constitute a clearly unwarranted invasion of an individual’s privacy.
In Mich Federation of Teachers, supra at 675, the Michigan Supreme Court articulated
the applicable test under this provision as a two-pronged inquiry. To satisfy the test, (1) the
information must be “of a personal nature” and (2) “it must be the case that the public disclosure
of that information would constitute a clearly unwarranted invasion of an individual’s privacy.”
Id. (quotation marks omitted).
Before engaging in this analysis, I note that this notion of the right to privacy embodied
by MCL 15.243(1)(a) is not defined by the Legislature. In recognition of the nebulous nature of
that term,5 our Supreme Court has indicated that the courts of this state may “look to the
common law and constitutional law to guide [them] in determining whether disclosure of the
requested information would violate any privacy rights under the FOIA.” Swickard v Wayne Co
Med Examiner, 438 Mich 536, 547; 475 NW2d 304 (1991); see also Bradley, supra at 294. In
doing so, “[t]he contours and limits [of privacy under MCL 15.243(1)(a)] are . . . to be
determined by the court, as the trier of fact, on a case-by-case basis in the tradition of the
common law.” State Employees Ass’n, supra at 123 (opinion by CAVANAGH, Jr.). Further, in
applying this provision, the courts of this state have looked to federal law for guidance. Mager v
Dep’t of State Police, 460 Mich 134, 144; 595 NW2d 142 (1999).6 Thus, in my view, the test
articulated in Mich Federation of Teachers must be applied to the facts of the present matter
consistently with these overarching principles.
A. PERSONAL NATURE
As already stated, the first prong of the test is satisfied if the requested information is of a
“personal nature.” Information is of a personal nature if it is “intimate, embarrassing, private, or
confidential . . . .” Mich Federation of Teachers, supra at 676 (emphasis omitted). The inquiry
must be guided by, and evaluated in light of, “the customs, mores, or ordinary views of the
5
Indeed, after over a century since Samuel D. Warren and future Supreme Court Justice Louis
D. Brandeis recognized the individual’s common-law claim to a right of privacy, see Warren &
Brandeis, The right to privacy, 4 Harv L R 193 (1890), the concept remains problematic and
unwieldy. The concept is often equated with personal autonomy, e.g., the right to be free from
unwarranted searches and seizures and the right to reproductive freedom, and courts have
struggled to define its contours with exactness.
6
The federal FOIA privacy exemption is worded differently than Michigan’s sister provision. It
states that the federal FOIA does not apply to “personnel and medical files and similar files the
disclosure of which would constitute a clearly unwarranted invasion of personal privacy.” 5
USC 552(b)(6). The only significant distinction between the federal statute and the Michigan
statute, is the federal provision’s use of the terms, “personnel and medical files and similar files.”
The Michigan statute simply uses the phrase “personal nature.” Despite this difference, the
second part of the analysis requiring a balancing of the public’s interest against individuals’
privacy interests is largely the same.
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community . . . .” Herald Co v Bay City, 463 Mich 111, 123-124; 614 NW2d 873 (2000)
(quotation marks and citations omitted). In considering the information in this context, it is
important to recognize that simply because the information may be disclosed in one public
sphere, does not necessarily mean that the information is not of a personal nature. Mich
Federation of Teachers, supra at 680. Moreover, an individual’s ability to control the
dissemination of the information, for example, by choosing to withhold it from disclosure despite
the fact that it may be available elsewhere, is indicative of whether the information is of a
personal nature. Id.
Oddly, in determining whether the subject information is of a personal nature, the
majority ignores this well-established jurisprudence and relies entirely on the language of the
1995 FOIA provision, § 495a(2), and a single case interpreting that provision in an unrelated
context. I cannot make sense of, let alone agree with, such a myopic application of the law. In
any event, an application of these well-established rules dictates the conclusion that the
information is of a personal nature. Specifically, the information requested implicates two
separate privacy interests—an individual’s privacy interest in his or her political convictions and
an individual’s privacy interest in his or her personal identifying information—each of which is
discussed separately.
i. PRIVACY INTEREST IN POLITICAL CONVICTIONS
Here, the party preference information, if disclosed, would reveal to the general public
that an individual voted on a strictly Republican, or strictly Democratic, ballot in the 2008
presidential primary election. 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 on the basis of
the makeup of the ballot. It is not difficult to see why an elector might consider this information
“intimate, . . . private, or confidential” and would want to keep this information confidential.
Envision a situation, for example, where an elector votes inconsistently with his or her normal
political preference.7 Obviously, some voters would not wish to disclose this fact to third parties.
In such instances, public disclosure of party preference information could subject electors to
unwanted or unwarranted attention from peers, colleagues, and neighbors and could result in
serious discomfort amongst family members. Many electors would undoubtedly avoid
disclosing which primary they voted in to avoid these same unpleasant ramifications.8 Further,
7
Electors cross political boundaries for any number of reasons, not limited to: voting for a
friend, voting for a preferred candidate, or voting for a weak rival candidate.
8
I note in passing that the release of this information could also have a chilling effect on some
voters’ decisions to cross political boundaries and vote for a candidate not associated with the
voters’ typical political party choices. This is precisely because the release of the information
would tend to erode the protections guaranteed by the right to a secret ballot in all elections.
Const 1963, art 2, § 4; Belcher v Ann Arbor Mayor, 402 Mich 132, 134; 262 NW2d 1 (1978).
Electors’ votes would no longer be fully cloaked by the shroud of secrecy. A voter’s ability to
vote his or her conscience without fear of reprisal or retaliation is imperative to a wellfunctioning democracy. McIntyre v Ohio Elections Comm, 514 US 334, 343; 115 S Ct 1511;
131 L Ed 2d 426 (1995). Disclosure of the records in this case would denigrate the protections
-11-
in 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 nonprofit political organization.
It is not difficult to imagine that some individuals may interpret a particular elector’s vote as a
personal affront or a betrayal.
Having listed these possible ramifications as reasons why a person may consider their
political preference to be private, I must object to the majority’s accusation that such concerns
are based on pure speculation, are “imaginary horribles,” and are invented out of “whole cloth.”
First, these concerns are based on plain and simple common sense. It is not surprising, given this
nation’s political history, that politics, political speech, and support for or opposition to a
particular candidate can create arguments and result in heated debates. The majority’s refusal to
recognize these commonsense concerns and the historical and social context in which a FOIA
privacy analysis must be undertaken is baffling.
Second, the newspaper articles, editorials, and letters to the editor referred to in
defendants’ reply brief on appeal reinforce my position. These articles show that a great deal of
discussion was generated regarding the revealing of electors’ political preferences during the
1992 presidential primary election. A sampling of these articles include:
•
Simon, State primary law an invasion of political privacy, Detroit News
(March 24, 1992) (“The ACLU offices were besieged on primary day with
calls from voters complaining about . . . having their political party
affiliation made a permanent and publicly accessible part of their voting
record.”).
•
Roelofs and Brandt, Closed primary shaping up to get a vote of no
confidence, Grand Rapids Press (November 18, 1991) (citing opinions of
constituents complaining that closed primary system constituted an
“infringement of my privacy”).
•
Keep it open primary preference a private decision, Lansing State Journal
(January 12, 1992) (characterizing system as “traumatic” because it
requires a declaration of party preference “for all the world—most
particularly friends, neighbors, and political hacks—to hawk and herald”).
•
Mitzelfeld, Requirement to list party angers, turns away voters, Detroit
News (March 18, 1992) (“Voters were so angry Tuesday over Michigan’s
new party declaration requirement that many stormed out of polling places
and refused to cast ballots.”).
that the right to a secret ballot is meant to protect and could subject voters to reprisal. As Chief
Justice Burger recognized in Buckley v Valeo, 424 US 1, 237; 96 S Ct 612; 46 L Ed 2d 659
(1976) (Burger, C.J., concurring in part and dissenting in part), the advent of the secret ballot as a
universal practice was one of our nation’s greatest political reforms, because privacy with regard
to one’s political preference is fundamental to a free society.
-12-
•
Weeks, March 17 primary turns off voters who don’t want to find their
names on either party’s list, Detroit News (January 23, 1992) (“State law
has the outrageous requirement that the declaration be made 30 days
before the election.”).
•
Waldmeir, Unless something’s done soon, state’s closed primary could be
the most embarrassing ever, Detroit News (February 9, 1992) (“Voters are
rebelling at being forced to announce to the world—30 days before an
election, yet—exactly where they stand . . . .”).
While it would not be appropriate for this Court to take judicial notice of these articles for the
truth of the matters asserted therein, see People v McKinney, 258 Mich App 157, 161 n 4; 670
NW2d 254 (2003), I would take judicial notice of the fact that a plethora of articles were
published and that strong sentiments were in fact expressed. The clear conclusion to be drawn is
that the public was, indeed, concerned about the privacy of their political convictions and that
their concerns were very real. This evidence discredits the majority’s contention that no
evidence exists to support the public’s concern over the privacy of their political information.
But further, these articles are not the only evidentiary measure by which to determine
whether the information requested is of a personal nature. Legislative changes are also
indicative of the customs, mores, and ordinary views of the community. See Mich Federation of
Teachers, supra at 677 n 59. It is not difficult to understand why the caselaw has adopted
consideration of legislative changes as an indicator of what a community considers to be
important: it is a basic principle of the separation of powers doctrine that the people speak
through their elected representatives, not through the courts.
Here, a review of relevant legislative changes lends additional credence to my view, and
is additional evidence, that an individual’s party preference information is of a personal nature.
Michigan’s election law has protected this particular information from disclosure for nearly 15
years, since the 1995 FOIA provision was added to the statute. See MCL 168.495a, as amended
by 1995 PA 213; MCL 168.615c(4), as added by 2007 PA 52. Equally significant is the fact that
the Legislature amended the election law in 1995 from a closed primary system to an open
primary system in response to the public’s concern regarding the privacy of their political
convictions. MCL 168.495, as amended by 1995 PA 87; see also Senate Fiscal Agency Bill
Analysis, HB 4435, May 30, 1995. And, just a few months later, the Legislature added the 1995
FOIA provision in order to protect from disclosure party preference information, previously
collected or collected in the future. MCL 168.495a, as amended by 1995 PA 213. The 1995
FOIA provision remained the law until the 2007 election statute repealed it and replaced it with
its own version that continued to protect party preference information from disclosure through
the FOIA. The 2007 election statute provided:
Except as otherwise provided in this section, the information acquired or
in the possession of a pubic body indicating which participating political party
ballot an elector selected at a presidential primary is confidential, exempt from
disclosure under the [FOIA], and shall not be disclosed to any person for any
reason. [MCL 168.615c(4), as added by 2007 PA 52.]
-13-
Given these unequivocal legislative amendments and the Legislature’s explicit decision to
continue protecting from disclosure party preference information, there can be no clearer signal
that the customs, mores, and ordinary views of the community regard party preference as
information of a “personal nature.” See Mich Federation of Teachers, supra at 677 n 59 (noting
recent legislative changes as indicative of a community’s mores).
As I have pointed out, the majority’s opinion largely ignores this analysis and asserts that
I have wrongly considered a 1995 Senate Fiscal Agency Bill Analysis in support of my
conclusion that the Legislature changed the law in reaction to the public’s outrage. However, the
majority overlooks, or chooses to ignore, the fact that this analysis is not one of statutory
interpretation, where the traditional rules of construction would apply, and would generally
preclude the consideration of a legislative bill analysis, but rather is an analysis whether certain
information should be considered of a personal nature under the FOIA’s privacy exemption.
And, our Supreme Court has directed that this inquiry be undertaken with the mores, values, and
ordinary customs of the community in mind, which may include a consideration of legislative
changes. Thus, in my view, the legislative changes, the legislative bill analysis, and the various
news articles, are some evidence of the community’s values and mores, and are indicative of its
ordinary customs.
I must emphasize that the majority has taken a “hear no evil, see no evil” approach to this
matter by ignoring the social and historical context in which these legislative changes were
made. It is true that a Senate Fiscal Agency Analysis reflects the opinion of one legislative
analyst, not the Legislature. However, it does not logically follow that the Legislature had deaf
ears to the ongoing discussion occurring in the public and that it simply amended the election
law randomly. Rather, the clear inference is that the Legislature’s amendment at that particular
time, amidst the public debate, was in reaction to the public’s concerns. The majority displays
its opinion in a vacuum. I would conclude, on the basis of the foregoing, that an individual’s
political preference information is of a personal nature.
ii. PRIVACY INTEREST IN PERSONAL IDENTIFYING INFORMATION
The second privacy interest implicated in this matter is the individual’s interest in
protecting his or her personal identifying information. Of initial importance is the fact that
information regarding a voter’s political preference would be coupled with a voter’s name and
home address. In Mich Federation of Teachers, our Supreme Court, noting the “checkered
history” of conflicting jurisprudence on the issue whether home addresses and telephone
numbers are of a personal nature, held that personal identifying information, including “home
addresses and telephone numbers[,] constitute private information about individuals.” Mich
Federation of Teachers, supra at 677 n 58. The Court stated, “The potential abuses of an
individual’s identifying information, including his home address and telephone number, are
legion.” Id. at 677. As examples, the Court cited unwelcome masses of junk mail and telephone
solicitations. Id. On the basis of this reasoning, the Court determined that university employees’
addresses and phone numbers was information of a personal nature, even though employees had
voluntarily provided the university that information, and that that information was not
disclosable to the general public through the FOIA. Id. at 682-683.
Similarly, in United States Dep’t of Defense v Fed Labor Relations Auth, 510 US 487,
500-501; 114 S Ct 1006; 127 L Ed 2d 325 (1994), the United States Supreme Court considered
-14-
the names and home addresses of nonunion employees to be private information of which the
employees had “some nontrivial privacy interest in [its] nondisclosure. . . .” In that case, several
unions were seeking the names and home addresses of nonunion employees through the federal
FOIA statute. Id. at 489-490. The Court noted the innumerous and unwanted intrusions into the
home that disclosure would result in, including unwanted mail and possibly visits, and reasoned
that it was “reluctant to disparage the privacy of the home, which is accorded special
consideration in our Constitution, laws, and traditions.” Id. at 501. Ultimately, the Court did not
release the records in light of the public’s nonexistent interest in the records. Id. at 502.
The same concerns are at play in the instant case. Disclosure of electors’ names, party
preferences, and home addresses would subject many individuals to unwanted mass mailings and
a deluge of junk mail. Anyone in the general public, including commercial vendors and other
special interest groups, would be able to access the information and would be able to solicit
electors through the mail or in person by going door-to-door. Many individuals would find this
intrusion into their homes to be an unwanted annoyance and a hassle. It is also not difficult to
see, as I have already discussed, how the party preference information in particular could subject
some individuals to unwanted attention, discomfort, harassment, or retaliation. Given the
foregoing, and the Court’s decision in Mich Federation of Teachers as well as the Supreme
Court’s decision in United States Dep’t of Defense, I would hold that voters’ names and home
addresses, when coupled with their party preferences in the 2008 primary election, is personal
information that is intimate and private, and is undoubtedly of a “personal nature.”
iii. FERENCY v SECRETARY OF STATE
I also disagree with the majority’s conclusion, relying on dicta from Ferency v Secretary
of State, 190 Mich App 398; 476 NW2d 417 (1991), that the requested information is not of a
personal nature because an individual has no privacy expectation in his or her party affiliation
voluntarily disclosed in a primary election. I respectfully submit that the majority’s reliance on
Ferency is misplaced.
In Ferency, the plaintiff sued alleging that Michigan’s 1988 election law violated several
provisions of Michigan’s Constitution. Relevant to this appeal was the plaintiff’s argument that
the 1988 election law violated the secrecy of the ballot, Const 1963, art 2, § 4, because the 1988
election law required voters to declare their party preference in order to vote in the primary.
Ferency, supra at 413. The Ferency Court disagreed. It reasoned that electors’ exact votes
could not be ascertained by knowledge of an elector’s party preference declaration and therefore
there was no violation of the right to a secret ballot. Id. at 414. It further stated, in passing:
[P]rimaries remain primarily party functions and thus there is a legitimate
state interest in restricting access by voters to the primary elections and, more to
the point, in requiring voters to publicly identify their party affiliation in order to
be eligible to vote in a primary election. That is, because primary elections are
primarily party functions, it is not unreasonable to expect the voter to be willing to
disclose his party affiliation in order to participate in that party’s internal
operations, such as the selection of its nominee for a particular office. This 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
-15-
in the party activities and where the ballot remains secret once the voter gets in
the primary election booth. [Id. at 418 (emphasis added).]
The Ferency Court’s statements, while largely dicta, indicate that electors have no
privacy interest in their party preference when they voluntarily decide to disclose it to their party.
These statements further suggest that the individual’s privacy interest must be balanced against a
party’s legitimate interest in restricting voter access to its primary elections, e.g., by preventing
nonparty members from hijacking the party by voting for the weaker party candidate. Id. This
latter concern implicates political parties’ freedom of association in the context of primary
elections and balances that interest against electors’ interest in the secrecy of the ballot. See,
e.g., California Democratic Party v Jones, 530 US 567, 583-585; 120 S Ct 2402; 147 L Ed 2d
502 (2000).9 It is important to note, however, that Ferency’s statements are not central to its
holding regarding the secrecy of the ballot.
I have no quarrel with the proposition that Ferency stands for. However, Ferency does
not address Michigan’s FOIA statute. Instead, it addresses entirely different claims and concepts
9
California Democratic Party, which plaintiff also relies on, was a First Amendment case that
applied an analysis similar to Ferency. In that case, several Californian political parties brought
suit alleging that California’s “blanket” primary system violated their right to freedom of
association under the First Amendment. California Democratic Party, supra at 571. This
system, adopted by initiative Proposition 198, allowed all Californian voters to vote on a ballot
containing all the primary candidates from all the political parties. Id. at 570. On certiorari to
the United States Supreme Court, the Court found that Proposition 198 violated political parties’
freedom of association by forcing association with unaffiliated voters and was unconstitutional
unless it was narrowly tailored to advance a compelling state interest. Id. at 584-585. The state
of California asserted voters’ right to privacy as a compelling interest in an attempt to justify
Proposition 198. Id. at 584. The Supreme Court, however, concluded that voters’ privacy
interests in their party affiliations when voting in a primary is not a compelling interest that
would justify California’s “blanket” primary system. Id. at 584-585. In determining that voters’
privacy did not constitute such a compelling interest, the Court stated:
As for the protection of privacy: The specific privacy interest at issue is
not the confidentiality of medical records or personal finances, but confidentiality
of one’s party affiliation. Even if (as seems unlikely) a scheme for administering
a closed primary could not be devised in which the voter’s declaration of party
affiliation would not be public information, we do not think that the State’s
interest in assuring the privacy of this piece of information in all cases can
conceivably be considered a “compelling” one. If such information were
generally so sacrosanct, federal statutes would not require a declaration of party
affiliation as a condition of appointment to certain offices. [Id. at 585.]
Thus, like the Ferency case, California Democratic Party considers electors’ privacy interests in
primary elections, but only through the lens of the First Amendment.
-16-
than those advanced in this case. Ferency addressed whether Michigan’s 1988 election law
violated the secrecy of the ballot protected by the Michigan Constitution. It is true that voters’
“privacy” interests were implicated; however, it arose as an issue ancillary to the main thrust of
the litigants’ claims and it was viewed in the context of, and balanced against, political parties’
right to freedom of association. As such, how privacy conceptually relates to the underlying
claims in Ferency is entirely different from how that concept relates to the claim in this case.
This is because the interests at stake in Ferency are not at stake in the instant matter; political
parties’ interests in controlling who votes in their primaries are not implicated under the FOIA.
Thus, Ferency is simply not instructive on whether an elector has a legitimate privacy interest in
shielding political party preference information from the general public at large and is not
indicative, under a FOIA analysis, whether such information is of a personal nature. Thus, it is
my view that Ferency is not controlling in the present matter and is largely irrelevant.
However, to the limited extent that Ferency is instructive, its rationale does not support a
conclusion that voters have no privacy interest in their political preferences declared for purposes
of voting in a primary. Ferency balanced voters’ privacy interests against political parties’
interests in controlling the type of voters who vote in their primaries. It also indicated that voters
have no privacy interest when they consent to disclosure of their political party preferences to
their parties. Let me be clear that I agree with this statement; certainly, a voter’s name, home
address, and party preference is not of a private nature when the voter consents to its disclosure
to his or her party of choice. However, this does not translate to mean that a voter has no
legitimate privacy interest in preventing the disclosure of that same information to others or to
the general public. Here, it is the public’s right to know the information and to hold the
government accountable for its actions that must be balanced against individuals’ privacy
interests. A voter may, understandably, refuse to disclose that information to an employer, a
friend, or even a family member. “The disclosure of information of a personal nature into the
public sphere in certain instances does not automatically remove the protection of the privacy
exemption and subject the information to disclosure in every other circumstance.” Mich
Federation of Teachers, supra at 680; see also United States Dep’t of Defense, supra at 500 (“An
individual’s interest in controlling the dissemination of information regarding personal matters
does not dissolve simply because that information may be available to the public in some
form.”). This nuance is one that the majority has overlooked. I would conclude that the
information requested is of a personal nature.
B. UNWARRANTED INVASION OF PRIVACY
But simply because the information sought is of a personal nature does not necessarily
compel the conclusion that its disclosure is prohibited. Rather, it is the second prong of the test
announced in Mich Federation of Teachers that must be considered: whether public disclosure of
the party preference information coupled with voters’ names and addresses would constitute a
“clearly unwarranted invasion” of an individual’s privacy. Mich Federation of Teachers, supra
at 675. This inquiry requires “balanc[ing] the public[’s] 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
purpose of the FOIA, which is contributing significantly to public understanding of the
operations or activities of the government.” Id. at 673 quoting Mager, supra at 145, quoting
United States Dep’t of Defense, supra at 495 (quotation marks omitted). Under the
-17-
circumstances of this case, special emphasis must be placed on the fact that it is the public’s
interest that is to be weighed against individuals’ privacy interests—the special interests of the
requester puts it in no better position than a member of the general public. See United States
Dep’t of Defense, supra at 499-500. In other words, the identity of the requester and the
requester’s interest in the information is irrelevant, as is the requestor’s initial and future use of
that information. State Employees Ass’n, supra at 121 (opinion by CAVANAGH, J.).
Here, defendants concede that the Secretary of State’s office has released the names and
addresses of registered voters. And, although this information is of a personal nature, see Mich
Federation of Teachers, supra at 677 n 58, it is clear that disclosure of these names and
addresses alone is a warranted invasion of personal privacy. Namely, disclosure of that
information is necessary to inform the general public whether voters are properly registered and
whether they are voting in the proper local precinct. Disclosure of such information, if
requested, is necessary to hold the government accountable for the integrity and purity of this
state’s elections.
However, the public’s interest in the disclosure of voters’ names and addresses coupled
with their party preference information is negligible. Contrary to the majority’s conclusion, I
simply fail to see how disclosure of this information in this form is necessary to shed light on the
government’s operations. Indeed, disclosure would reveal whether the Secretary of State’s office
actually performed the task required of it under 2007 PA 52. This result, however, could just as
easily be obtained by releasing redacted versions of the records, i.e., by redacting voter’s names
and addresses and releasing the ballot selections alone.10 Given the foregoing, it is likely that
plaintiff is not asking for the records to find out “what the government is up to” but to obtain the
names and addresses of individuals affiliated with particular political parties for its business
purposes. The requester’s identity and special interests are completely irrelevant to a FOIA
analysis. State Employees Ass’n, supra at 121. Further, “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 [would not advance the core purpose of FOIA].” Mager, supra at 145
10
The majority asserts that disclosure of the requested information “would inform the public to
what extent the Secretary and the various local clerks carried out the requirements of 2007 PA
52.” It then states, “[T]here is no other way by which these individuals can be held accountable
for their implementation of a then-valid statute.” (Emphasis added.) This position is simply
wrong. Logistically, the same goal can be accomplished without intruding on individual’s
privacy. The Secretary of State’s office has already released the names and addresses of those
individuals who voted in the 2008 primary. This information allows the general public to make
certain that the state ensured that individuals voted in the proper precinct, but it would not show,
for example, whether the number of voting Democrats matches the number reported, and vice
versa for Republicans. However, the release of the same records, containing redacted names and
addresses but showing the party ballot selected, would have the result of showing that the
correct, or incorrect, numbers voted in each primary. Ultimately, the same goal is reached
without violating individuals’ privacy—the general public would be able to know whether
election officials properly carried out their task under 2007 PA 52. Nothing additional would be
gained by releasing the information in the form requested.
-18-
(quotation marks and citation omitted). And, in the absence of any compelling public interest in
the information in the form requested, “supplying lists of voters to private parties . . . [smacks of]
an abuse of the elective franchise.” Grebner v Michigan, 480 Mich 939, 944 (2007)
(CAVANAGH, J., dissenting).
Finally, weighing this virtually nonexistent public interest in disclosure against electors’
interests in controlling their personal information dictates the conclusion that disclosure would
be an unwarranted invasion of voters’ privacy. Because the public’s interest in the information is
small, even a very slight privacy interest would suffice to outweigh the public’s interest in the
records. Thus, it is not necessary to quantify the privacy interest involved. However, I would go
so far as to surmise that the interest involved is, at the very least, a moderate to strong one. As I
have already discussed, electors have an interest in avoiding harassment, reprisal, or retaliation
that may result from public disclosure of such information. Obviously, some electors will have a
more heightened interest in keeping this information private than others. For example,
disclosure could potentially be particularly damaging to a public official or to an employee of a
nonprofit political organization. Moreover, many voters may wish to avoid the perceived
annoyance and hassle of receiving large amounts of junk mail and solicitations that would result
from the disclosure of their particular political convictions. Indeed, the privacy interest
implicated here is far from insubstantial in consideration of the fact that the information would
be accessible to all members of the public, including commercial advertisers and other solicitors.
I would follow the lead of the United States Supreme Court and avoid a decision that would
disparage the privacy of the home. United States Dep’t of Defense, supra at 501. Accordingly, I
would conclude that the public’s interest is outweighed by the privacy interest the Legislature
intended to protect under MCL 15.243(1)(a).
I would reverse.
/s/ Kirsten Frank Kelly
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