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MICHIGAN’S FREEDOM OF INFORMATION ACT -
BEST PRACTICES FOR APPLYING EXEMPTIONS
PRESENTED BY:
MCGRAW MORRIS P.C.
STACY J. BELISLE
MOST REGULARLY LITIGATED
EXEMPTIONS
1. Personal information
2. Information or records subject to the attorney-client privilege
3. Records or information specifically described and exempted from disclosure by statute
BURDEN OF PROOF AND COURT DETERMINATION
• The burden of proof regarding the application of an exemption is typically on thepublic body.
• When analyzing a public body’s assertion of an exemption under FOIA, a trialcourt should make complete and particularized findings of fact justifying use ofthe exemption; it may conduct an in camera review of the disputed records; or itmay allow plaintiff’s counsel to conduct an in camera review of the disputedrecords whenever possible.
PERSONAL INFORMATION EXEMPTION
• A public body may exempt from disclosure information of a personal nature if public disclosure ofthe information would constitute a clearly unwarranted invasion of an individual's privacy.
• Courts utilize a two-part analysis to determine whether application of this exemption is correct:
1. Whether the information would be personal in nature; and
2. Whether disclosure of the information is a clearly unwarranted invasion of anindividual’s privacy.
• In evaluating whether information falls within the second part of the exemption, the court mustbalance the public interest in disclosure against the interest the Legislature intended the exemption toprotect. Kocher v. Dep't of Treasury, 241 Mich App 378, 382; 615 NW2d 767 (2000).
• The only relevant public interest in disclosure that the court may weigh is the extent to whichdisclosure would contribute significantly to the public understanding of the operations and activitiesof government (which is the core purpose of FOIA).
HOW COURTS DEFINE PERSONAL INFORMATION:
• The Michigan Supreme Court has defined information of a personal nature as “private or confidential information relating to a person, in addition to embarrassing or intimate details ....” A person's name alone is not information of a personal nature.
• However, a person's name associated with other information may be information of a personal nature: “the relevant inquiry is whether the information associated with the name is information of a personal nature.”
• Information linking an individual with a criminal incident is information of a personal nature.
• “[P]eople linked with a crime, whether as a perpetrator, witness, or victim, have an interest in not sharing this information with the public.”
• Other personal identifying information, including home addresses, dates of birth, and telephone numbers, is information of a personal nature within the meaning of the privacy exemption.
• Finally, other information in police reports, including narrative statements or information about evidence, may not be exempt under the privacy exemption if it does not include information of a personal nature.
NAME, ADDRESS, PHONE
NUMBER, ETC.:
• Where material contains the names of an individual, their family, witnesses, as well as the telephone numbers, addresses, identifying information, and medical information about those persons, that information is personal and meets the first prong of the court’s test.
• However, the second prong's balancing test must still be satisfied. Remember, the court balances the public's interest in understanding the workings of government against the private individual's interest in maintaining his or her privacy.
• Where a plaintiff has not identified how the personal information, if released, would help the public understand the workings of the municipality, the information should not be released.
• In a lawsuit regarding police treatment of similarly situated individuals, the court determined that the release of personal information about witnesses, perpetrators and victims would not assist in the public’s understanding of the inner workings of government. The court noted that disclosure of the personal information would shed no light on how the city’s police department treated a person in a particular police situation. The relevant details of the department’s investigation were released to the plaintiff in a redacted police report. The redacted report still contained detailed information about each officer's involvement in the handling of the case. The entire investigation process and the referral to the County Prosecutor's Office were made public. This information added to the public understanding of the department’s inner workings.
• The victim’s name, address, and medical history are entirely unrelated to the “inner working of government.”
• Disclosure of the redacted information would add nothing to the public's understanding of the department’s investigation.
INFORMATION REGARDING DECEASED
INDIVIDUALS IN POLICE
REPORTS
• Redact all personal information – name, address,phone number, drivers license number, injury code,cause of death, medical information.
• Not dependent on whether individual is alive ordeceased.
• The notions of privacy, however small, foundin M.C.L. § 15.243(1)(a) and applied to the deceasedindividuals and their families outweigh thenonexistent public interest in disclosure.
• Accordingly, a trial court did not err in grantingdefendant's motion for summary disposition withregard to the information plaintiff sought aboutdeceased persons.
MEDICAL INFORMATION
IN POLICE REPORTS
• Redact all personal information and details of injuries, etc. Give extraconsideration to information regarding public officials and contact yourattorney for guidance.
• Michigan courts have held that information regarding a death of aprivate individual by traffic accident is indeed information of a personalnature for purposes of FOIA.
• In a particular lawsuit, a law firm sued a municipality that refused torelease personal information contained in police reports relative to trafficaccidents. The law firm’s request had nothing to do with the innerworkings of government, and was instead for the purpose of obtainingcontact information for accident victims so the firm could obtain clients.
• The court determined that the law firm's request for the addresses ofpersons who had been injured, potentially injured, or killed inautomobile accidents would constitute a “clearly unwarranted invasionof privacy,” and, thus, the FOIA exemption for personal informationprotected the city's accident records, even though the deceased personshad no cause of action for invasion of privacy; the firm sought theinformation in order to communicate with potential clients, and fulfillingplaintiff's request would not further the knowledge of the publicconcerning how their government operates.
OTHER INFORMATION
IN POLICE REPORTS
• Prescription Information – Redact for privatecitizens; exception for public officials
• Vehicle Identification Number – Do NotRedact
• Drivers License Number – Redact for all
• Witness Name and Other Information …
WITNESS INFORMATION
IN POLICE REPORTS
• Portion of police incident report, relating to assault that occurred indormitory on state university's campus, containing the names,addresses, or other identifying information of victims, witnesses,and suspects might constitute information of personal nature underFOIA’s privacy exemption.
• Being a victim of or witness to a crime may be as “personal” asbeing involved in an automobile accident and that people linkedwith a crime, whether as a perpetrator, witness, or victim, have aninterest in not sharing this information with the public. Further,releasing the identity and other personal information of the partiescould make them potential targets for retaliation. Therefore, theportion of an incident report containing the names, addresses, orother identifying information of the victims, witnesses, and suspectsmay constitute information of a personal nature (subject to thesecond prong of the court’s test).
• Other information in the police incident report, however, such asthe narrative statements and information relating to physicalevidence, to the extent that it does not identify any of the privateparties involved, may not be personal in nature. Therefore, thisinformation may not be exempt under the privacy exemption.
WITNESS INFORMATION
A plaintiff sought to compel a release of a videorecording, unredacted incident report, and policedepartment internal investigation reports and personnelrecords pertaining to police officer’s alleged assault ofan individual who had been arrested and handcuffed.The court determined that disclosure of the videorecording would serve the core purpose of FOIA, andthat the recording did not fall within the privacyexemption. As for the incident report, while the namesof the citizen and officer were subject to disclosure,home addresses, dates of birth, and telephone numbersmay be withheld from disclosure under the privacyexemption. The internal investigation reports andpersonnel records pertaining to the incident are exemptpursuant to exemption for law enforcement agencyrecords.
BACKGROUND INFORMATION
• Redact all personal information but provide details –public interest in obtaining information about publicemployees and operations of public entity.
EXCEPTION FOR PUBLIC
OFFICIAL INFORMATION
• This Decision is limited to its particular facts. When information like this is at issue, always consult your attorney.
• In this lawsuit, the county medical examiner received a FOIA request for the toxicology report on a local judge who committed suicide. There was a suspicion that he had drugs in his system when he died. The county denied the request on the basis of established case law stating that medical information, even for decedents, is personal.
• The court in this particular case disagreed, in part because information regarding the manner in which the judge died, as well as intoxicants that may have been in his system at the time, was relevant to the inner workings of government, as the information related to the circumstances surrounding the suicide of a public official.
• The circumstances surrounding the alleged suicide of a public figure and Chief Judge of the 36th District Court are matters of legitimate public concern.
• The court's decision with regard to the “personal nature” prong of the exemption rested in large part on the public nature of the deceased individual involved.
PUBLIC EMPLOYEE
INFORMATION
• Names of retired police officers and fire department retirees combined with amount of pension benefits was not information of a personal nature exemptible from FOIA.
• The retirement systems asserted that pensions were drawn from private trust assets; amounts reflected specific governmental decisions regarding retirees' continuing compensation for public service and were, thus, more comparable to public salaries than to private assets, and private trust from which funds were drawn was primarily funded with public money.
• Even if names and amount of pension benefits of police and fire department retirees was information of a personal nature, public officials had no reasonable expectation of privacy in an expense borne by the public, and thus disclosure of retirees' names and pension incomes did not constitute an unwarranted invasion of the retirees' privacy.
CANDIDATEINFORMATION
• Disclosure of the names, current job titles, cities of residence, and ages of the seven final candidates for the job of city fire chief, pursuant to newspaper publisher's FOIA request, was not a clearly unwarranted invasion of any candidate's privacy.
• Disclosure served the policy underlying FOIA by facilitating the public's access to information regarding the affairs of their city government.
SETTLEMENT AGREEMENTS
• Not subject to any exemption under FOIA and must be produced.
• This is true even if the agreement includes a non-disclosure or confidentiality provision.
• This is also true if the document is “maintained” at your attorney’s office and not the municipality.
• In most cases, the municipal governing body must vote to enter into the agreement, thereby defeating any argument in favor of an exemption.
ATTORNEY-CLIENT PRIVILEGE EXEMPTION
• A public body may exempt from disclosure Information or records subject to the attorney-client privilege.
• There has been extensive litigation in the state of Michigan regarding when, whether and how this exemption relates to investigation reports in the possession of a municipality
relative to an attorney-based internal investigation.
• Issues to consider:
• Whether the investigation was conducted by an attorney or whether the municipality’s attorney contracted on its behalf with a non-attorney;
• Whether documents attached to a final report are privileged as well. Have they already been produced in response to another request for non-privileged documents; and
• Has the municipality’s governing body voted to waive the attorney-client privilege as to the document.
ATTORNEY INVESTIGATIONS
The rationale behind the privilege is that “if the client knows that damaging information could more readily be obtained from the attorney following disclosure
than from himself in the absence of disclosure, the client would be reluctant to confide in his lawyer and it would be difficult to obtain fully informed legal advice.
The privilege attaches to confidential communications by the client to its advisor that are made for the purpose of obtaining legal advice.
The purpose of the privilege is to enable a client to confide in an attorney, secure in the knowledge that the communication will not be disclosed.
MICHIGAN LAW ON INTERNAL INVESTIGATION REPORTS AND ATTORNEY-
CLIENT PRIVILEGE …• Subject of an investigation is likely going to be potential wrong-doing by another employee
and the investigation is undertaken as part of an employer’s legal duty to prevent discrimination, retaliation, harassment in the workplace. Employees must be able to speak freely.
• Employees speak freely to an attorney about the issues in an internal investigation not only because of a promise of confidentiality during interviews but also because they were speaking to the employer’s attorneys.
• Even though the report itself and any transcripts of interviews are privileged, the documents may not be privileged if they have already been publicly disseminated, either through FOIA or otherwise.
• This does not apply to investigations conducted by a non-attorney investigator unless the municipality’s attorney engaged the investigator and was the only contact between the investigator and the client.
RECORDS OR INFORMATION SPECIFICALLY DESCRIBED AND EXEMPTED FROM DISCLOSURE
BY STATUTE
• Bullard-Plawecki Employee Right to Know Act
• Michigan Victims Rights Act
• Michigan Open Meetings Act
BULLARD-PLAWECKI EMPLOYEE RIGHT TO KNOW ACT…
• MCL 423.509 Investigation of criminal activity by employer; separate file of information; notice to employee; destruction or notation of final disposition of file and copies; prohibited use of information; release of information to certain law enforcement agencies
• If an employer has reasonable cause to believe that an employee is engaged in criminal activity that might result in loss or damage to the employer's property or disruption of the employer's business operation, and the employer is engaged in an investigation, then the employer may keep a separate file of information relating to the investigation. Upon completion of the investigation or after 2 years, whichever comes first, the employee must be notified that an investigation was or is being conducted of the suspected criminal activity described in this section. Upon completion of the investigation, if disciplinaryaction is not taken, the investigative file and all copies of the material in it must be destroyed.
• An employer that is a criminal justice agency and that is involved in the investigation of an alleged criminal activity or the violation of an agency rule by an employee shall maintain a separate confidential file of information relating to the investigation. Upon completion of the investigation, if disciplinary action is not taken, the employee must be notified that an investigation was conducted. If the investigation reveals that the allegations are unfounded or unsubstantiated or if disciplinary action is not taken, the separate file must contain a notation of the final disposition of the investigation andinformation in the file must not be used in any future consideration for promotion, transfer, additional compensation, or disciplinary action. The employer may release information in the separate file to a prospective employing law enforcement agency if the information is part of a record regarding the reason or reasons for, and circumstances surrounding, a separation of service under section 5 of the law enforcement officer separation of service record act, 2017 PA 128, MCL 28.565. The employer shall release information in the separate file to the Michigan commission on law enforcement standards upon the request of the Michigan commission on law enforcement standards.
BULLARD-PLAWECKI EMPLOYEE RIGHT TO KNOW ACT …
Disclosure to non-law enforcement requestor:Newark Morning Ledger Co v Saginaw County Sheriff, 204 Mich App 215; 514
NW2d 213 (1994). Internal affairs investigation records of a law enforcement agency
constitute personnel records, that are exempt from disclosure unless the public interest in disclosure outweighs the interest in nondisclosure. The mere location of a public record in a personnel file is not determinative as
to its status as a personnel record. In determining what is a “personnel record” under FOIA, the court looked to the definition of that term in the
Bullard-Plawecki Employee Right to Know Act. While the purpose of FOIA and Bullard-Plawecki are different, the Legislature's clearly expressed
intent in Bullard-Plawecki to prohibit access to any internal investigations relating to an employee indicates an intent to not allow public access to
such records.
MICHIGAN VICTIMS RIGHTS ACT …
In addition to the privacy exemption, a victim’s address and telephone number are also exempt from disclosure under this Act.
This includes information in adult and child protective services reportsDomestic violence information
Sexual assault information
Under this exemption, the public body can rely on this statute to support exemption without application of a balancing test as it would under the
privacy exemption.
MICHIGAN OPEN MEETINGS ACT …
Transcript of proceedings of township board of trustees’ closed session to hear testimony regarding recommended discharge of police officer was part of “minutes” of session and
therefore was exempt from disclosure, under FOIA provision allowing public body to withhold from disclosure records specifically described and exempted from disclosure by
statute, and under Open Meetings Act (OMA), absent a court order.
FOIA AND DISCOVERY– THEY ARE NOT THE SAME
FOIA AND DISCOVERY ISSUES…
FOIA
• ANYONE CAN MAKE A REQUEST.
• RESPONSES ARE GUIDED BY STATUTORY PROVISIONS AND BALANCING TEST MAY APPLY.
• THERE IS A STATUTORY PROCEDURE FOR CHALLENGING THE PUBLIC BODY’S EXEMPTION OR DENIAL.
• DOES NOT APPLY IF THE REQUESTOR AND THE PUBLIC BODY ARE ENGAGED IN LITIGATION.
DISCOVERY:
• NO EXEMPTIONS.
• FOIA DOES NOT APPLY.
• EVEN IF PUBLIC BODY IS NOT A PARTY TO A LAWSUIT, IT IS STILL REQUIRED TO RESPOND TO A SUBPOENA.
• MUST COMPLY UNLESS THE COURT DIRECTS OTHERWISE.
• PARTIES CAN AGREE THAT DOCUMENTS PRODUCED ARE SUBJECT TO A PROTECTIVE ORDER TO PREVENT DISCLOSURE TO ANYONE OUTSIDE THE LAWSUIT.
