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
TERRI LYNN LAND, in her capacity as Michigan
Secretary of State, MICHIGAN DEPARTMENT
OF STATE OFFICE OF THE SECRETARY OF
STATE,
No. 291176
Ingham Circuit Court
LC No. 08-000706-CZ
Defendants-Appellants.
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 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 insure 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 Dep’t of State, Michigan Presidential Primary Facts & Statistics,
October 16, 2006. Historically, Michigan has employed either a “closed” or “open” primary
election system; generally, the former system requires voters to disclose their political preference
before they are eligible to vote in the election, while the latter allows electors to vote in the
primary without disclosing any 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 as
a republican, for example, would be eligible to vote only for republican candidates, as well as
non-partisan 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
1
A House Legislative 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 upon 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 timehonored tradition of the secret ballot. The bill, by re-establishing an open
primary, would fulfill that desire. [House Legislative 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 Michigan Federation of Teachers v Univ of Michigan, 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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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
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. A number of additional amendments were made to Michigan’s 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.
2
The 2007 election law amended 7 provisions of the existing election law, added three new
sections, and contained two enactments.
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Rather, voters arriving at the polls were required to indicate in writing on a form provided by the
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 168.615(c)(3).
Significantly, the 2007 election statute also included a non-severability 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).]
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 U.S. Constitution’s Equal Protection Clause
in Green Party of Michigan v Michigan Secretary of State, 541 F Supp 2d 912, 924 (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 non-severable unconstitutional statute fall together, leaving the old 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 old
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, submitted a FOIA request to defendants. Specifically, plaintiff
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requested “all voter history [of the 2008 presidential primary election] including which ballot,
[democratic or republican], each voter selected.” This information was the information collected
pursuant to 2007 election law.
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.
3
On appeal, defendants no longer contend that the records are not “public records.”
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II. STANDARDS OF REVIEW
Whether a public record is exempt from disclosure pursuant to the FOIA is a question of
law reviewed de novo. Herald Co v Eastern Michigan 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 Services, ___
Mich App ___, ___ ; ___ NW2d ___ (2009). Further, to the extent this Court must engage in
statutory construction, review is, again, de novo. Michigan Federation of Teachers v Univ of
Michigan, 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 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; ___ NW2d ___ (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
Michigan State Univ, 274 Mich App 558, 567; 735 NW2d 649 (2007) (State News I), rev’d in
part on other grounds 481 Mich 692; 753 NW2d 20 (2008).
III. THE FOIA
The purpose of Michigan’s FOIA statute is to provide the people of Michigan with full
and complete information regarding the government’s affairs and the official actions of
government 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 government accountability and is imperative to a democracy; full disclosure of
government 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 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 City of East Tawas, 234 Mich App 244, 248; 593 NW2d 649 (1999) (noting that
FOIA is a manifestation of the state’s public policy recognizing the need that public officials be
held accountable for their official actions and citizens be informed); Thomas v City of New
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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Baltimore, 254 Mich App 196, 201; 657 NW2d 530 (2002) (explaining that FOIA was enacted
“recognizing the need for citizens to be informed so that they may fully participate in the
democratic process and thereby hold public officials accountable for the manner in which they
discharge their duties”). Accordingly, Michigan’s FOIA statute requires a public body to
disclose public records to individuals who 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 Schools 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 future use of the information. State Employees Ass’n v Dep’t of
Mgt & Budget, 428 Mich 104, 121; 404 NW2d 606 (1987). 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 Michigan State Univ, 481 Mich 692, 703; 753 NW2d 20
(2008) (State News II). Further, because the FOIA’s core purpose is 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): 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 “records or information specifically described” in order for this exemption to
apply. Significantly, the provision uses the conjunction “or” between the words “records” 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,
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the FOIA’s statutory exemption, MCL 15.243(1)(d), protects from disclosure both 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:
(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 prior to 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
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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.
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 records” 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) specifically protects from disclosure through the FOIA an elector’s
“declaration of party preference . . . .” A “declaration” is a “proclamation, 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 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 § 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 § 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) and is therefore exempt under the FOIA’s statutory exemption.
MCL 15.243(1)(d).
V. MCL 15.243(1)(a): 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
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records that would result in an unwarranted invasion of an individual’s privacy.
15.243(1)(a) states:
MCL
(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.
In Michigan 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,
the information must (1) 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
Medical Examiner, 438 Mich 536, 547; 475 NW2d 304 (1991); see also Bradley v Saranac Bd of
Eduction, 455 Mich 285, 294; 565 NW2d 650 (1997). 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.
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 Michigan Federation of Teachers must be applied to the facts of
the present matter consistently with these overarching principles.
5
Indeed, after over a century since Justices Warren and Brandeis recognized the individual’s
common law claim to a right of privacy, see Warren and Brandeis, The right to privacy, 4 Harv L
Rev 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 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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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 . . . .” Michigan 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 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. Michigan
Federal 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 political convictions and in his
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 based on 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-over 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
voters’ typical political party choices. This is precisely because the release of the information
(continued…)
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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 non-profit 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 or opposition to a particular
candidate can create arguments and result in heated debates. The majority’s refusal to recognize
these common sense 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 attached to defendant’s
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”).
(…continued)
would tend to erode the protections guaranteed by the right to a secret ballot in all elections.
Mich 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 conscience without fear of reprisal or retaliation is imperative to a wellfunctioning democracy. McIntyre v Ohio Elections Comm’n, 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
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, as privacy with regard to
one’s political preference is fundamental to a free society.
-12-
• Mitzelfeld, Requirement of 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
case ballots.”).
• 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 Michigan
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 lend 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 1996 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 House Legislative 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 in the future. MCL 168.495a, as amended by 1996 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
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under the [FOIA], and shall not be disclosed to any person for any reason. [MCL
168.615c(4), as added by 2007 PA 52.]
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 Michigan Federation of Teachers, supra at 677 n 59
(noting recent legislative changes as indicative of 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 Legislative 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 morals, 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, is some evidence of the community’s values, morals, and is 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 House Legislative 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 public and that it simply amended the election law
randomly. Rather, the clear inference is that the Legislature’s amendment at that particular point
in time, amidst the public debate, was in reaction to the public’s concerns. The majority displays
its opinion in a vacuum. I would conclude, based on 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 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 Michigan Federation of Teachers, our Supreme Court, noting the “checkered history” of
conflicting jurisprudence on the issue of 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.” Michigan 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. Based on 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.
-14-
Similarly, in United States Dep’t of Defense v Federal Labor Relations Authority, 510
US 487, 500-501; 114 S Ct 1006; 127 L Ed 2d 325 (1994), the United States Supreme Court
considered 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 non-existent 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 Michigan 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 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
-15-
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 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.
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, created by 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 581-582. The state of California
asserted voters’ right to privacy as a compelling interest in an attempt to justify Proposition 198.
Id. at 582. 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 581-582. 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-
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
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 than 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 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 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
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 of the information and to hold the government accountable
for its actions which 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 it to
disclosure in every other circumstance.” Michigan 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 Michigan Federation of Teachers that must considered: whether public disclosure
of the party preference information coupled with voter’s names and addresses would constitute a
“clearly unwarranted invasion” of an individual’s privacy. Michigan 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 purposes of the FOIA, which is contributing significantly to public understanding of the
operations or activities of the government.” Id. at 673 citing Mager, supra at 145 (quotation
-17-
marks omitted); see also United States Dep’t of Defense, supra at 495. Under the 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 his interest in the information
is irrelevant, as is the requester’s initial and future use of that information. State Employees
Ass’n, supra at 121.
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
Michigan 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, 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 or not the Secretary of
State’s office actually performed the task required of them under 2007 PA 52. This result,
however, could just as easily be obtained by releasing redacted versions of the records, i.e., by
blacking-out 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
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 individual’s 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.
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reveals little or nothing about an agency’s own conduct [would not advance the core purpose of
FOIA].” Mager, supra at 145. 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; 744 NW2d 123
(2007) (Cavanagh, J., dissenting).
Finally, weighing this virtually non-existent 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
political non-profit. 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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