April 17, 2007
Michigan Court of Appeal Remands Case to Trial Court on FOIA Request By College Newspaper
The State News, Michigan State University's college newspaper, filed a FOIA request concerning information about an arrest in "connection with an alleged assault that occured" at one of the university's student dormitories in 2006. MSU's president Lou Anna K. Simon, not the school's FOIA officer, responded to the request, saying that "the police records at issue were properly withheld." The State News' attorney requested a reconsideration of the denial; when that was denied, the State News filed a complaint in Oakland County Circuit Court. The university requested a change of venue to Ingham County, where the university is located; change of venue was granted.
The trial court "concluded that MSU had met its burden to show that the requested records were exempt from disclosure under the privacy exemption and the law enforcement purpose exemption, and dismissed the State News's complaint with prejudice. The trial court noted that the incident report included ...identifying information of the involved parties. It reasoned that the victimes and witnesses were "private citizens" who were "innocently involved in something for which they could and would suffer embarrassment if their names and/or other information are divulged." It concluded that disclosure of this personal information would constitute a clearly unwarranted invasion of privacy because it "is not related to the workings of government, and would not contribute significantly to the public's understanding of the workings of government" and that MSU had shown with significant particularity that release of the report would interfere with law enforcement proceedings and deprive the criminal defendants of a fair trial. The trial court refused to consider the State News's request to determine whether there was nonexempt information in the report that could be segregated from the exempt information...."
The appeals court considered the effect of the passage of time. "We know from the record that before it made its FOIA request...the State News had already identified the three men arrested....Thus, at least the names of these men and some identifying information...were in the public domain.We know from the record that at the time President Simon issued her...denial, these men had already been arraigned on charges of home invasion, felonious assault, and felony firearm. Further information...might therefore have been in the public domain....Rather obviously, public bodies and trial courts can only make decisions on FOIA matters on the basis of the information that is before them at the time, and it is not the function of appeallate courts to second-guess those decisions....We do observe, however, that the subsequent availability of information as a result of later court proceedings...may well strengthen or weaken the arguments of the parties...as to the applicability of the privacy exemption and the law enforcement purpose exemption. As a practical matter, we suspect that this subsequent information...will weaken MSU's position and strengthen the State News's position. But ironically, the newsworthiness of the information contained in the police incident report may also have decreased over time. However, the FOIA is not concerned with newsworthiness. Rather, it is concerned with requiring the disclosure of nonexempt public records so as to ensure accountability."
After examining the statute and the exemptions, the court went on to determine the standard of review required. The Michigan Supreme Court recently clarified that standard for FOIA appeals in a case called Herald Co. v. Eastern Michigan University Board of Regents, 475 Mich. 463 (2006), which it held that "legal determinations are reviewed under a de novo standard...we also hold that the clear error standard of review is appropriate in FOIA cases where a party challenges the underlying facts that support the trial court's decision. In that case, the appellate court must defer to the trial court's views of the facts unless the appellate court is left with the definite and firm conviction that a mistake has been made....Finally, when an appellate court reviews a decision committed to the trial court's discretion...we hold that the appellate court must review the discretionary determination for an abuse ciscretion and cannot disturb the trial court's decision unless it falls outside the principled range of outcomes."
The appellate court pointed out that "[u]nder the FOIA, a public body must disclose all public records that are not specifically exempt." It noted that the parties in the case took diametrically opposing positions, the State News claiming that none of the material was exempt, and MSU claiming exactly the opposite. It also noted that the burden was on the party claiming the exemption (MSU) to justify it. "MSU's police chief...averred that release of the police incident report would interfere with his department's ongoing investigation by revealing witness identities and new leads, alerting potential new witnesses and prospective new defendants, and revealing the direction of the investigation...." MSU and the Ingham County assistant prosecutor also asserted that release of the report would jeopardize the defendants' right to a fair trial. The appellate court stated that "[w]ithout more particularized reasons articulated...the trial court's rationale is insufficient to uphold the...conclusion that the entire report is exempt from disclosure."
As to the invasion of personal privacy claim, the appellate court considered that such information might be exemptible. The State News contended that it was not, because it was not personal information. The appellate court agreed that "being a victim or witness to a crime may, at least hypothetically, be as "personal" as being involved in an automobile accident....Further, releasing the identity and other personal information...could make them potential targets....We note, however, that the passage of time...may have rendered some...of this information matters of public knowledge....Other information in the...report such as the narrative statement...to the extent that they do not identify any of the...parties involved, may not be personal....Therefore, this information may not be exempt...."
The court found that it could not measure the "degree to which the public interest might be served by disclosure" since it did not have the police incident report before it. Finally, the court referred to another Michigan Supreme Court case, Evening News Association v. City of Troy, 417 Mich. 481 (1983) which sets out three alternatives for a trial court reviewing the denial of a FOIA request. It can "receive a complete particularized justification...conduct a hearing in camera...or...allow the plaintiff's counsel access to the contested documents in camera."
The appellate concluded that the trial court "erred in its determination that the entire police incident report was exempt from disclosure...since the application of the privacy exemption involves a balancing test, the trial court abused its discretion...although the trial court may been correct that portions of the police incident report could be withheld based on the law enforcement purpose exemption, this exemption may no longer apply to the entire report, or even any portion of it...."
Read the entire opinion here.
April 17, 2007 | Permalink
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