Michigan Supreme Court Lansing, Michigan 48909 ____________________________________________________________________________________________ C hief Justice Justices Maura D. Cor rigan Michael F. Cavanagh
Opinion Elizabeth A. Weaver Marilyn Kelly Clifford W. Taylor Robert P. Young, Jr. Stephen J. Markman
____________________________________________________________________________________________________________________________
FILED JULY 25, 2002
FEDERATED PUBLICATIONS, INC, doing business as
THE LANSING STATE JOURNAL,
Plaintiff-Appellee,
v No. 118184
CITY OF LANSING,
Defendant-Appellant,
and
CAPITOL CITY LODGE NO. 141 OF THE FRATERNAL
ORDER OF POLICE LABOR PROGRAM, INC, and
Jane Doe, and John Doe,
Intervening Defendants.
________________________________
v No. 118186
Defendant,
ORDER OF POLICE LABOR PROGRAM, INC,
Intervening Defendant-Appellant.
BEFORE THE ENTIRE BENCH
MARKMAN, J.
In this Freedom of Information Act (FOIA) matter, we are
called upon to consider whether the circuit court erred in
concluding that city police department records regarding
citizen-initiated investigations were not exempt from
disclosure while records regarding department-initiated
investigations were exempt from disclosure under MCL
15.243(1)(s)(ix). We take this opportunity to clarify the
appropriate standards of appellate review of the circuit
court’s determination in a FOIA dispute and the method by
which the circuit court is required to perform its analysis
under § 243(1)(s) of the FOIA.
First, we hold that the application of exemptions
requiring legal determinations are reviewed under a de novo
standard, while application of exemptions requiring
determinations of a discretionary nature, such as the one
presented here, are reviewed under a clearly erroneous
standard. Second, we hold that MCL 15.240(4) of the FOIA
specifically places the burden of proof on the public body to
show that the public record is exempt from disclosure. Third,
in applying the public interest balancing test, the circuit
court should consider the fact that records have been made
exemptible under § 243(1)(s). Fourth, the “particular
instance” language set forth in § 243(1)(s) requires the
circuit court to analyze the FOIA request to determine whether
further categorization of the requested records is required in
order to determine whether the public interest in disclosure
outweighs the public interest in nondisclosure. If further
categorization is required to perform the balancing test, the
circuit court should direct the public body to assist it in
reasonably categorizing the sought-after records.
Because the city released the records regarding citizen
initiated complaints, that issue has been rendered moot.
Further, with regard to the department-initiated complaints,
we remand this matter to the Court of Appeals for
reconsideration in light of the principles expressed in this
opinion.
I. FOIA OVERVIEW
The Michigan Legislature enacted FOIA, MCL 15.231 et
seq., to provide for the “disclosure of ‘public records’ in
the possession of a ‘public body.’” Kent Co Deputy Sheriff’s
Assoc v Kent Co Sheriff, 463 Mich 353, 360; 616 NW2d 677
(2000), quoting Bradley v Saranac Comm Schs Bd of Ed, 455
Mich 285, 292; 565 NW2d 650 (1997). Affording such public
disclosure effects the state’s policy of providing “full and
complete information regarding the affairs of government and
the official acts of those who represent the people as public
officials.” MCL 15.231(2).
When a party desires to inspect or receive a copy of a
public record, it “shall make a written request [of the public
body] for the public record . . . .”1 MCL 15.235(1). After
receiving a FOIA request, a public body may grant, deny,
grant in part, deny in part, or issue a notice extending (for
not more than ten business days) the period for responding to
the FOIA request. MCL 15.235(2)(a), (b), (c), (d). If a
public body denies the request, in full or in part, it must
explain the basis, under the FOIA or another statute, for its
denial. MCL 15.235(4)(a). A denial may be based upon a
record’s inclusion in one of the enumerated classes of
exemptible records set forth in § 243.
Once a public body denies a FOIA request, the requesting
party may either submit a written appeal to the head of that
public body or commence an action in circuit court. MCL
15.240(1)(a), (b). If the requesting party appeals the matter
to the head of the public body, the public body must either
reverse its denial of disclosure, issue a written notice
1 A public record is statutorily defined as a “writing
prepared, owned, used, in the possession of, or retained by a
public body in the performance of an official function, from
the time it is created.” MCL 15.232(e).
upholding the denial of disclosure, reverse the denial of
disclosure in part and issue a written notice upholding the
denial of disclosure in part, or issue a notice extending the
period of response for a period not exceeding ten days. MCL
15.240(2)(a), (b), (c), (d). If the public body upholds its
decision to deny the request, in full or in part, the
requesting party may then seek judicial review. MCL
15.240(3).
At issue in the instant case is the FOIA exemption
applicable to personnel records of a law enforcement agency,
§ 243(1)(s)(ix), which provides as follows:
(1) A public body may exempt from disclosure as
a public record under this act:
* * *
(s) Unless the public interest in disclosure
outweighs the public interest in nondisclosure in
the particular instance, public records of a law
enforcement agency, the release of which would do
any of the following:
(ix) Disclose personnel records of law
enforcement agencies.
II. FACTS AND PROCEEDINGS
In 1998, plaintiff, Federated Publications (doing
business as The Lansing State Journal), submitted a FOIA
request to defendant, city of Lansing, requesting disclosure
of
any reports or other documents regarding complaints
investigated by the Lansing Police Department
5 Internal Affairs Bureau for the time period of
January 1, 1997 through December 31, 1997. To the
extent you believe the officers’ identities may be
subject to a privacy exemption, the names of the
officers may be concealed, though the content of
the reports and complaints themselves must be
provided.
The city denied plaintiff’s request, asserting that the
records were exempt from disclosure pursuant to §
243(1)(s)(ix), among other provisions of law.2 Instead, the
city voluntarily disclosed a “statistical summary of internal
affairs investigations for the year 1997.” In response to
the city’s denial of its FOIA request, plaintiff filed an
administrative appeal with the city council president. MCL
15.240(1)(a). Plaintiff argued that the public interest in
the subject matter of its request required disclosure of the
records that it had sought. In response, the city provided
a more detailed explanation of its position in opposition to
plaintiff’s FOIA request.
Plaintiff subsequently sued under FOIA for disclosure,
and both parties unsuccessfully moved for summary disposition.
The circuit court observed that it must, first, determine
whether the records were indeed law enforcement personnel
2 In a letter from defendant to plaintiff, the city also
contended that the requested records were exempt pursuant to
MCL 15.243(d) (citing MCL 423.501, Employee Right to Know
Act). The circuit court and the Court of Appeals rejected
this argument below, and this Court limited its review to FOIA
issues, specifically those relating to § 243(1)(s)(ix).
records, and, second, weigh the public interest in disclosure
against the public interest in nondisclosure “in each
particular instance.”3
Upon consideration of the various interests at stake, the
court ordered the release of all internal affairs
investigation records, except those relating to department
generated complaints. Shortly after the circuit court’s
decision, the city, as well as intervening defendant Capital
City Lodge, filed an emergency motion in the Court of Appeals
for a stay of the circuit court proceedings. After initially
granting the motion, the Court of Appeals vacated its order.
Without taking any further action, the city then released the
non-exempt citizen-generated complaint records to plaintiff.
The Court of Appeals subsequently affirmed the circuit
court’s decision in part and reversed in part. After
observing that “FOIA embodies this state’s strong public
policy favoring public access to government information,” the
Court stated that defendants failed to satisfy their statutory
burden of producing evidence explaining why the public
interest in nondisclosure of the records outweighed the public
interest in disclosure. Consequently, it ruled that all the
3 Before renewing these motions for summary disposition,
defendant Capitol City Lodge No 141 of the Fraternal Order of
Police was granted permission to intervene in the present
lawsuit.
requested records were subject to disclosure. Unpublished
opinion per curiam, issued November 14, 2000 (Docket Nos.
218331, 218332).
Defendants filed separate applications for leave to
appeal in this Court. We granted leave, limited to “whether
the requested files were exempt from disclosure under
§ 243(1)(s)(ix) . . . .” 465 Mich 910 (2001).
III. STANDARD OF REVIEW
We are required in this case to determine whether the
circuit court properly applied § 243(1)(s)(ix) in determining
that the department-initiated records were exempt and that the
citizen-initiated investigation records were not exempt under
the FOIA. This Court has not had prior occasion to enunciate
the specific standard of review applicable to this inquiry.4
We conclude that a circuit court’s decision regarding the
applicability of exemptions to public records does not
automatically require de novo review.
Although the FOIA expressly addresses the standard that
governs a circuit court’s review of a public body’s own
4 This Court has, without elaboration, applied a de novo
standard of review in some FOIA cases. In cases applying a de
novo standard, this Court has either assumed that the
application of a FOIA exemption is purely an issue of
statutory interpretation, see, e.g., Bradley, supra at 293, or
has reviewed the matter in the context of a summary
disposition motion, see, e.g., Herald Co v Bay City, 463 Mich
111, 117; 614 NW2d 873 (2000).
determination of what public records must be disclosed,5 it is
silent regarding the standard that governs appellate review
of the circuit court’s decision. Therefore, we turn to our
case law to determine the appropriate standard of review. As
stated above, questions of law are reviewed de novo. Factual
findings and matters of discretion, on the other hand, are
generally reviewed either for clear error or an abuse of
discretion. See, e.g., People v Barrera, 451 Mich 261, 269;
547 NW2d 280 (1996).
Several statutory exemptions exist in the FOIA.
Depending on the particular language of an exemption, judicial
determinations of its applicability may implicate different
standards of appellate review. We hold that the application
of exemptions involving legal determinations are reviewed
under a de novo standard. Lincoln v General Motors Corp, 461
Mich 483, 489-490; 607 NW2d 73 (2000). Exemptions involving
discretionary determinations, such as application of the
instant exemption requiring a circuit court to engage in a
5 Section 240(4) provides in relevant part:
In an action commenced under subsection
(1)(b), a court that determines a public record is
not exempt from disclosure shall order the public
body to cease withholding or to produce all or a
portion of a public record wrongfully withheld,
regardless of the location of the public record.
The circuit court . . . has venue over the action.
The court shall determine the matter de novo
. . . .
balancing of public interests, should be reviewed under a
deferential standard. We therefore hold that the clearly
erroneous standard of review applies to the application of
exemptions requiring determinations of a discretionary nature.
A finding is “clearly erroneous” if, after reviewing the
entire evidence, the reviewing court is left with the definite
and firm conviction that a mistake has been made. In re
Miller, 433 Mich 331, 337; 445 NW2d 161 (1989).
IV. DISCUSSION
As stated on numerous occasions by this Court, the
primary goal of judicial interpretation of statutes is to
discern and give effect to the intent of the Legislature.
This Court discerns that intent by examining the specific
language of a statute. If the language is clear, this Court
presumes that the Legislature intended the meaning it has
plainly expressed and the statute will be enforced as written.
Pohutski v City of Allen Park, 465 Mich 675, 683; 641 NW2d 219
(2002). Unless otherwise defined in the statute, or
understood to have a technical or peculiar meaning in the law,
every word or phrase of a statute will be given its plain and
ordinary meaning. See MCL 8.3a.
A. BURDEN OF PROOF
Defendant urges this Court to embrace its position that
the FOIA requester carries the burden of proving that the
public interest in the disclosure of public records outweighs
the public interest in nondisclosure. Specifically, defendant
argues that the public body is required initially only to
establish that public records sought under the FOIA fall
within one of the exemptible categories, in this instance,
that the records were “personnel records of law enforcement
agencies.” Once established, defendant contends that the
burden of demonstrating that the public interest in disclosure
outweighs that of nondisclosure shifts to the requester. In
support of its view, defendant focuses on the following
language in § 243(1)(s): “[u]nless the public interest in
disclosure outweighs the public interest in nondisclosure in
the particular instance.” Plaintiff, in response, argues
that § 240(4) places the burden of proof on the public body.
Further, plaintiff maintains that the language in § 243(1)(s)
neither conflicts with nor alters the burden of proof set
forth in § 240(4). We agree with plaintiff.
First, § 240(4) provides:
In an action [in the circuit court to compel
disclosure under the FOIA], . . . [t]he court shall
determine the matter de novo and the burden is on
the public body to sustain its denial. [Emphasis
added.]
This language plainly states that the burden of proof is on
the public body to demonstrate why it is entitled to protect
a record from disclosure.
Second, the language of § 240(4) is consistent with that
of § 243(1)(s). The latter provision merely sets forth the
public interest balancing test. When read together with the
introductory language in § 243(1), this provision states that
a public body may exempt from disclosure a class of public
records identified in § 243(1)(s), unless the “public interest
in disclosure outweighs the public interest in nondisclosure”
in the particular instance. In light of the express language
of § 240(4), we do not view § 243(1)(s) as allocating the
burden of proof in FOIA matters; rather, it merely prescribes
a balancing test for determining whether a class of records
is exemptible.
In sum, in determining which party bears the burden of
proof regarding the applicability of a FOIA exemption, we have
no reason to depart from the settled principle that the burden
of proof is on the party asserting that a record is exempt
under the FOIA.6 Accordingly, we hold that the language set
forth in § 240(4) controls and places the burden of proof on
the public body to show that it is entitled to protect a
record from disclosure.
B. “PUBLIC INTEREST ”
In carrying out its public interest balancing under §
6 See, e.g., Herald Co, supra at 119; Bradley, supra at
293; Evening News Ass’n v Troy, 417 Mich 481, 503; 339 NW2d
421 (1983).
243(1)(s), a circuit court is confronted in each case with
differing public interest considerations. In undertaking this
balancing, however, the circuit court must consider the fact
that the inclusion of a record within an exemptible class
under § 243(1)(s) implies some degree of public interest in
the nondisclosure of such a record. In contrast with the
universe of public records that are non-exemptible, the
Legislature has specifically designated these classes of
records as exemptible. That is, some attribute of these
records has prompted the Legislature to designate them as
subject to disclosure only upon a finding that the public
interest in disclosure predominates. However, we emphasize
that these records are merely exemptible and not exempt, and
that exemption is not automatic. Nonetheless, in performing
the requisite balancing of public interests, the circuit court
should remain cognizant of the special consideration that the
Legislature has accorded an exemptible class of records .
C. “PARTICULAR INSTANCE ”
As stated previously, a public body may exempt from
disclosure certain classes of records, including law
enforcement personnel records, “[u]nless the public interest
in disclosure outweighs the public interest in nondisclosure
in the particular instance . . . .” MCL 15.243(1)(s)
(emphasis added). In the emphasized phrase at issue, the
first significant word is “particular,” which means
“pertaining to a single or specific person, thing, group . .
. not general.” Random House Webster’s College Dictionary
(2001). Next, there is “instance,” which means “a case or
occurrence of something.” Id. In light of this language, we
believe that public records reviewed under the FOIA balancing
test must be organized within reasonably specific categories
that enable the circuit court to weigh similar competing
aspects of the public interest. In some cases, it may be
clear that the FOIA request is comprised of a sufficiently
precise or narrow category of records that the circuit court
can adequately balance the public interests at stake without
the need of further “particular instance” categorization.7
See, e.g., Kent Co, supra at 399, which involved a narrow
request for records on which disciplinary decisions regarding
two prison guards were based.
Conversely, a FOIA request may be general and entail a
request for records relating to varied subjects, arguably
implicating several different aspects of the public interest.
In such cases, the circuit court may be required to conduct
a “particular instance” categorization of records to enable
it to identify and weigh similar aspects of the public
A FOIA request must “sufficiently” describe the
sought-after records. MCL 15.233.
interest in favor of disclosure or nondisclosure.8
The circuit court is charged with balancing the records
sought by a FOIA requester. The more general or complicated
the request, however, the more likely the court is to require
the assistance of the parties, in particular that of the
public body because it has custody of the sought-after
records. Schiffer v FBI, 78 F3d 1405, 1408 (CA 9 1996). The
requester may be unaware of what records the public body
8 For example, in Newark Morning Ledger Co v Saginaw Co
Sheriff, 204 Mich App 215, 216; 514 NW2d 213 (1994), the Court
of Appeals determined that, although an exemption may apply to
a category of records, “any category must be clearly described
and ‘drawn with sufficient precision so that all documents
within a particular category are similar in nature.’” Id. at
226, quoting Anderson v Dep’t of Health & Human Services, 907
F2d 936, 944 (CA 10, 1990). The Court of Appeals emphasized
that drafting categories with sufficient precision is required
because it enables the circuit court to properly balance the
competing public interests:
The difficulty with the court’s treatment of
the internal affairs investigatory records as a
single category is that public interest in
disclosure and nondisclosure may vary depending on
the circumstances of an investigation, and the
nature of the documents produced. For example, the
court’s analysis of the public interest in
nondisclosure is focused on the potential harm that
may result from disclosing information about
unfounded allegations of misconduct. That analysis
is clearly not applicable to those investigations
in which it was determined that the employee had
engaged in wrongdoing. Yet, in determining the
applicability of the exemption, the court did not
distinguish between investigations in which the
allegations were determined to be clearly
unfounded, and those that even the department found
warranted disciplinary action. [Newark, supra at
225.]
15 possesses, how such records have been categorized, or the
precise nature of their contents. Such a disparity in
information suggests that the public body will often be in the
best position to categorize the information sought to be
disclosed. Vaughn v Rosen, 157 US App DC 340, 343-344; 484
F2d 820 (1973).9
Therefore, if because of the diverse nature of the
records sought, the circuit court is unable to apply the
statutory public interest balancing test, the court should
direct the public body to assist it in reasonably categorizing
the sought-after records.
V. APPLICATION
A. CITIZEN -INITIATED COMPLAINTS
As stated above, the city released the citizen-initiated
complaints to plaintiff. Therefore, we must determine whether
a claimed exemption for those records was rendered moot by
their release.
The principal duty of this Court is to decide actual
cases and controversies. Anway v Grand Rapids R Co, 211 Mich
592, 610; 179 NW 350 (1920). To that end, this Court does not
reach moot questions or declare principles or rules of law
that have no practical legal effect in the case before us
unless the issue is one of public significance that is likely
See also Evening News Ass’n, supra at 503.
to recur, yet evade judicial review. Id.; see also In re
Midland Publishing, 420 Mich 148, 152, n 2; 362 NW2d 580
(1984).
Applying these principles to the present case, we hold
that any existing “controversy” regarding whether the citizen
complaint records were properly ordered to be disclosed was
rendered moot by their release.10 A decision from this Court
regarding the released records would have no practical legal
effect. Defendants are advocating the nondisclosure of the
citizen complaint records; they want to ensure that these
records remain secret. Yet, because the city has already
publicly released these records, they are obviously no longer
“secret.” No decision by this Court can transform disclosed
records into nondisclosed records.
Further, this case does not present an issue that is
likely to recur yet regularly evade judicial review. Quite
simply, all that the city would have had to do here to secure
review of this issue was to appeal the disclosure order to
this Court. A similar course of action is open to a public
body that finds itself situated in the city’s circumstances
in the future.
10 See, e.g., Regional Mngt Corp Inc v Legal Services Corp,
186 F3d 457 (CA 4, 1999).
B. DEPARTMENT -INITIATED COMPLAINTS
The Court of Appeals, not having had the benefit of this
opinion clarifying the appropriate standards of review
applicable to this FOIA matter, engaged in a de novo review
of the circuit court’s determination that the department
initiated investigation records were exempt from disclosure
under § 243(1)(s)(ix). Because we hold today that the clearly
erroneous standard of review applies to exemptions involving
discretionary determinations, we believe that it is necessary
to remand this matter to the Court of Appeals for
reconsideration of its determination that the circuit court
erred in holding that the department-initiated internal
affairs investigation files were exempt from disclosure.
Should the Court of Appeals on remand find that it is not
“left with the definite and firm conviction that a mistake has
been made,” Miller, supra at 337, it must affirm the circuit
court’s grant of summary disposition.
VI. CONCLUSION
We hold that: (1) Depending on the language of the
particular FOIA exemption at issue, the circuit court may be
entitled to a level of deference that is not accorded to legal
issues. Where, as here, application of the statutory
exemption requires the circuit court to exercise discretion,
the appellate court must apply a clearly erroneous standard
of review. (2) The public body has the burden of establishing
that records are exempt from disclosure under the FOIA. (3)
In applying the public interest balancing test pursuant to
§ 243(1)(s), the circuit court should consider the fact that
the records have been designated as exemptible by the
Legislature. (4) The “particular instance” language set forth
in § 243(1)(s) requires the trial court to analyze the FOIA
request to determine whether further categorization is needed
to conduct the proper balancing of the public interests
involved.
We therefore remand this matter to the Court of Appeals
for reconsideration in light of the principles expressed in
this opinion. We do not retain jurisdiction.
CORRIGAN , C.J., and CAVANAGH , KELLY , TAYLOR , and YOUNG , JJ.,
concurred with MARKMAN , J.
S T A T E O F M I C H I G A N
SUPREME COURT
FEDERATED PUBLICATIONS, INC, doing business as THE LANSING STATE JOURNAL,
CAPITOL CITY LODGE NO. 141 OF THE FRATERNAL ORDER OF POLICE LABOR PROGRAM, INC, and Jane Doe, and John Doe,
Intervening Defendants. ________________________________
FEDERATED PUBLICATIONS, INC, doing business as THE LANSING STATE JOURNAL,
CAPITOL CITY LODGE NO. 141 OF THE FRATERNAL ORDER OF POLICE LABOR PROGRAM, INC, Intervening Defendant-Appellant. ________________________________
WEAVER, J. (concurring). I concur in the result of the majority opinion, but write
separately to make clear that the inclusion of certain classes
of records within those exemptible under MCL 15.243(1)(s)
creates no presumption of exemption.
The Legislature has not indicated that the mere inclusion
of a record within an exemptible class of records is to be
accorded weight in favor of nondisclosure where the statute
requires a balancing of the public interest in disclosure
versus the public interest in nondisclosure. The inclusion
of a record within an exemptible class means that the record
may be, under certain circumstances, exempt from disclosure.
It remains incumbent upon the public body to “sustain its
denial” of disclosure of exemptible records. MCL 15.240(4).
Thus, I do not agree with the majority suggestion that the
“circuit court must consider the fact that the inclusion of
a record within an exemptible class under § 243(1)(s) implies
some degree of public interest in the nondisclosure . . . .”
Slip op at 13.
It is the policy of the Freedom of Information Act to
afford the public “full and complete information regarding the
affairs of government . . . .” MCL 15.231(2). In light of
this express policy, one would assume that the Legislature
intended that the balancing of the public interest in
disclosure versus its interest in nondisclosure under MCL
15.243(1)(s) at least be conducted on level ground. According
weight to nondisclosure because of the Legislature’s mere
inclusion of a class of records among those that are
exemptible tips the scale in favor of nondisclosure and is,
therefore, inconsistent with a fair balancing of the public
interest.