The public policy behind passage of Michigan's Freedom of Information Act ("FOIA"), Mich. Comp. Laws Ann. §§ 15.231-.246, is set forth in its first section:
It is the public policy of this state that all persons, except those persons incarcerated in state or local correctional facilities, are entitled to full and complete information regarding the affairs of government and the official acts of those who represent them as public officials and public employees, consistent with this act. The people shall be informed so that they may fully participate in the democratic process.
Mich. Comp. Laws Ann. § 15.231. This section was amended twice, in 1994 and 1997, before which it stated that FOIA's purpose was to provide all persons with information regarding "governmental decision making" and, before that, information regarding "the affairs of government and the official acts of those who represent them." It is not clear that these changes in FOIA's purpose have directly affected how courts interpret the statute, although a few key judicial decisions since those amendments have evidenced a disturbing disregard of FOIA’s historical breadth.
The state's tradition of giving the public the broadest possible access to its records did not begin with the enactment of the FOIA in 1977. Michigan courts throughout the state's history have both expressed and implemented the fundamental principle that the records of government belong to the public and not to the government officials who are their custodians. The public's access and ability to inspect are a matter of fundamental right. The public does not have the burden of justifying the requested inspection but, to the contrary, the custodian has the duty to facilitate inspections and the heavy burden of justifying any exemptions, restrictions, or delays he or she may attempt to impose. Nowack v. Auditor Gen., 243 Mich. 200, 219 N.W. 749 (1928) (common law); Burton v. Tuite, 78 Mich. 363, 44 N.W. 282 (1889); Booth Newspapers, Inc. v. Muskegon Probate Judge, 15 Mich. App. 203, 166 N.W.2d 546 (1968); Booth Newspapers, Inc. v. Univ. of Mich. Bd. of Regents, 444 Mich. 211, 507 N.W.2d 422 (1993) (FOIA). Nowack, a leading case both in Michigan and nationally, enforced a newspaper's right of inspection by the extraordinary remedy of mandamus, and contains one of the more noteworthy statements of this fundamental principle:
If there be any rule of the English common law that denies the public the right of access to public records, it is repugnant to the spirit of our democratic institutions. Ours is a government of the people. Every citizen rules . . . . Undoubtedly, it would be a great surprise to the citizens and taxpayers of Michigan to learn that the law denied them access to their own books for the purpose of seeing how their money was being expended and how their business was being conducted. There is no such law and never was either in this country or in England.
The court then cites the 1889 case Burton v. Tuite as an example of Michigan's historical commitment to the principle of free access, concluding, "There is no question as to the common-law right of the people at large to inspect public documents and records. The right is based on the interest which citizens necessarily have in the matter to which the records relate." 219 N.W. at 750 (citing Burton v. Tuite, 78 Mich. at 374 ("I do not think that any common law ever obtained in this free government that would deny to the people thereof right of free access to, and public inspection of, public records.")). This principle was affirmed in Muskegon Probate Judge, which enforced a newspaper's right of inspection by the extraordinary remedy of superintending control:
The fundamental rule in Michigan on the matter before us, first enunciated in the case of Burton v. Tuite, (1889), 78 Mich. 363, is that citizens have the general right of free access to, and public inspection of, public records . . . . The Nowack decision has "placed Michigan at the vanguard of those states holding that a citizen's accessibility to public records must be given the broadest possible effect."
166 N.W.2d at 547-48 (quoting 1961-62 Op. Att'y Gen. 581, 587).
More recently, in Swickard v. Wayne County Medical Examiner, 438 Mich. 536, 475 N.W.2d 304 (1991), the Michigan Supreme Court declared that these same policies apply to FOIA:
One of the reasons prompting the legislation was concern over abuses in the operation of government. A policy of full disclosure underlies the FOIA . . . . In construing the provisions of the act we keep in mind that the FOIA is intended primarily as a prodisclosure statute and the exemptions to disclosure are to be narrowly construed.
475 N.W.2d at 307.
As discussed below, Michigan's FOIA also provides a procedure and remedy for improper governmental refusal to disclose public records, including the award of reasonable attorney’s fees and actual and punitive damages. Mich. Comp. Laws Ann. §§ 15.240 (6) and (7).
Since at least 1851, the policy of open access to public records also has been expressed and implemented by other Michigan statutes. For example, the Michigan Penal Code provides that "[a]ll official books, papers or records created by or received in any office or agency of the state of Michigan or its political subdivisions, are declared to be public property, belonging to the people of the state of Michigan." Mich. Comp. Laws Ann. § 750.491. The next section enforces the policy:
Any officer having the custody of any county, city or township records in this state who shall when requested fail or neglect to furnish proper and reasonable facilities for the inspection and examination of the records and files in his office and for making memoranda of transcripts therefrom during the usual business hours, which shall not be less than 4 hours per day, to any person having an occasion to make examination of them for any lawful purpose shall be guilty of a misdemeanor, punishable by imprisonment in the county jail not more than 1 year, or by a fine of not more than $500.00; Provided, that the custodian of said records and files may make such reasonable rules and regulations with reference to the inspection and examination of them as shall be necessary for the protection of said records and files, and to prevent interference with the regular discharge of the duties of such officer.
Mich. Comp. Laws Ann. § 750.492.
Open Meetings. Michigan's Open Meetings Act ("OMA"), Mich. Comp. Laws Ann. § 15.261, et seq., discussed in detail, infra, also reinforces the state's policy of insuring open access to government operations by providing for open access to public meetings. In Booth Newspapers, Inc. v. University of Michigan Board of Regents, for example, the Michigan Supreme Court stated:
“Legislators hailed [the OMA] as ‘a major step forward in opening the political process to public scrutiny.’ During this period, lawmakers perceived openness in government as a means of promoting responsible decision making. Moreover, it also provided a way to educate the general public about policy decisions and issues. It fostered belief in the efficacy of the system . . . . To further the OMA's legislative purposes, the Court of Appeals has historically interpreted the statute broadly, while strictly construing its exemptions and imposing on public bodies the burden of proving that an exemption exists.”
507 N.W.2d at 427-28 (citations and footnote omitted).
Unlike Michigan's Freedom of Information Act, which complements existing laws, the OMA, Mich. Comp. Laws Ann. § 15.261, et seq., was, in part, intended to resolve conflicting provisions of law and expressly provides that it "shall supersede all local charter provisions, ordinances, or resolutions which relate to requirements for meetings of local public bodies to be open to the public." Id. § 15.261(2).
The OMA also provides that public officials who intentionally violate the OMA have committed misdemeanors for which they can be fined and potentially imprisoned. Further, unlike FOIA, which provides for recovery of reasonable attorney’s fees to a prevailing plaintiff, OMA provides for the recovery of actual attorney’s fees. Id. § 15.271(4).
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The FOIA provides that "[e]xcept as expressly provided in [Mich. Comp. Laws Ann. § 15.243], upon providing a public body's FOIA coordinator with a written request that describes a public record sufficiently to enable the public body to find the public record, a person has a right to inspect, copy, or receive copies of the requested public record of the public body." Mich. Comp. Laws Ann. § 15.233(1) (emphasis added). Mich. Comp. Laws Ann. § 15.232 defines a "person" as an "individual, corporation, limited liability company, partnership, firm, organization, association, governmental entity, or other legal entity." Id. § 15.232(g). However, "person" does not include "an individual serving a sentence of imprisonment in a state or county correctional facility in this state or any other state, or in a federal correctional facility." Id.; see also Proctor v. White Lake Twp. Police Dep't, 248 Mich. App. 457, 639 N.W.2d 332 (2001) (FOIA prisoner exclusion not a constitutional deprivation). Before a 1996 amendment to the FOIA, oral requests were permissible.
The FOIA, in keeping with Michigan's historical tradition, does not impose upon the public any obligation to "justify" access to public records. The FOIA does not require the requester to reveal why it needs or wants the information — purpose is irrelevant. State Emps. Ass'n v. Dep't of Mgmt. & Budget, 428 Mich. 104, 404 N.W.2d 606 (1987).
The particular use to which a person plans to put requested information is not restricted by the FOIA; "[t]he initial as well as future uses of the requested information are irrelevant." State Emps. Ass'n v. Dep't of Mgmt. & Budget, 404 N.W.2d 606, 616 (1987); see also Mullin v. Detroit Police Dep't, 133 Mich. App. 46, 348 N.W.2d 708 (1984). Likewise, “[t]he future use of the information is irrelevant to determining whether the privacy exemption of Mich. Comp. Laws 15.243(1)(a) applies.” Prac. Pol. Consulting v. Sec’y of State, 287 Mich. App. 434, 789 N.W.2d 178 (2010).
"Public bodies" are the entities regulated by the FOIA: "A public body shall furnish a requesting person a reasonable opportunity for inspection and examination of its public records, and shall furnish reasonable facilities for making memoranda or abstracts from its public records during the usual business hours." Mich. Comp. Laws Ann. § 15.233(3). Mich. Comp. Laws Ann. § 15.232 defines various public bodies which are described in the following sections.
The definition of a "public body" includes "[a] state officer, employee, agency, department, division, bureau, board, commission, council, authority, or other body in the executive branch of the state government, but does not include the governor or lieutenant governor, the executive office of the governor or lieutenant governor, or employees thereof." Mich. Comp. Laws Ann. § 15.232(h)(i). Therefore, FOIA does not require the Executive Office of the Governor to disclose records pursuant to a FOIA request. See McCartney v. Att'y Gen., 231 Mich. App. 722, 730, 587 N.W.2d 824, 828 (1998) (noting copies of letters sought by a FOIA plaintiff from the Attorney General could not have been obtained through the Governor’s office).
However, the act specifically does not authorize:
[T]he withholding of a public record in the possession of the executive officer of the governor or lieutenant governor, or an employee of either executive office, if the public record is transferred to the executive office of the governor or lieutenant governor, or an employee of either executive office, after a request for the public record has been received by a state officer, employee, agency, department, division, bureau, board, commission, council, authority, or other body in the executive bench of government subject to this act.
Mich. Comp. Laws Ann. § 15.243(4). The definition of a "public body" also includes "[a] county, city, township, village, intercounty, intercity, or regional governing body, council, school district, special district, or municipal corporation, or a board, department, commission, council, or agency thereof." Id. § 15.232(h)(iii). This includes corporations formed under The Summer Resort Owners Corporation Act. 1997 Op. Att'y Gen No. 6942 (1997). It does not include private, voluntary unincorporated associations of lake property owners. Id.
Agencies, boards, commissions, or councils in the legislative branch of the state government are included in the FOIA's definition of "public body." Mich. Comp. Laws Ann. § 15.232(h)(ii). State legislators themselves are exempted from its provisions. 1985-86 Op. Att'y Gen. No. 6390 (1986).
"[T]he judiciary, including the office of the county clerk and employees thereof when acting in the capacity of clerk to the circuit court, is not included in the definition of public body." Mich. Comp. Laws Ann. § 15.232(h)(iv).
The definition of "public body" includes "[a]ny other body which is created by state or local authority or which is primarily funded by or through state or local authority." Mich. Comp. Laws Ann. § 15.232(h)(iv); see also Detroit News v. Policemen & Firemen Ret. Sys., 252 Mich. App. 59, 651 N.W.2d 127 (2002) (municipally chartered retirement system is a public body subject to FOIA). One example of a body which has been held to be included in this definition is the President's Council of State Colleges and Universities, which is wholly funded by state universities and colleges. 1979-80 Op. Att'y Gen. 255, 262 (1979). But see Kubick v. Child & Fam. Servs. of Mich. Inc., 171 Mich. App. 304, 429 N.W.2d 881 (1988) (government funding that amounts to less than half the total funding of a corporation does not amount to primary funding and such entity is not a public body for FOIA purposes). Also included is a state-funded university, such as the University of Michigan. Booth Newspapers, Inc. v. Univ. of Mich. Bd. of Regents, 444 Mich. 211, 507 N.W.2d 422, 431 (1993). But see Mich. Comp. Laws Ann. § 15.243(x) (exemption for documents concerning certain universities' presidential searches).
A public body under the FOIA also includes anybody that is "primarily funded" by or through a state or local authority. Jackson v. E. Mich. Univ. Found., 215 Mich. App. 240, 544 N.W.2d 737 (1996). This is true regardless of whether the funding comes from one source or several. Scalfani v. Domestic Violence Escape, 255 Mich. App. 683, 660 N.W.2d 97 (2003) (legislative use of the word "authority" in the statute embraces the plural form as well). The term "funded" has been held not to include public monies paid in exchange for goods provided or services rendered. Breighner v. Mich. High Sch. Athletic Ass'n, 471 Mich. 217, 683 N.W.2d 639 (2004) (private, nonprofit association of state high schools financed in part by public monies in exchange for scheduling and event hosting services not a public body subject to FOIA); see also State Defender Union Emps. v. Legal Aid & Defender Ass'n of Detroit, 230 Mich. App. 426, 584 N.W.2d 359 (1998) (private, nonprofit corporation established to provide legal services to indigent persons not a public body subject to FOIA); Howell Educ. Ass’n v. Howell Bd. of Educ., 287 Mich. App. 228, 789 N.W.2d 495 (2010) (teachers’ emails regarding their union activities had nothing to do with their official governmental capacity and therefore were not covered by FOIA).
The definition of "public body" includes "intercounty, intercity, or regional governing body, council, school district, special district, or municipal corporation, or a board, department, commission, council, or agency thereof." Mich. Comp. Laws Ann. § 15.232(h)(iii).
The definition of a "public body" includes "[a] state officer, employee, agency, department, division, bureau, board, commission, council, authority, or other body in the executive branch of the state government, but does not include the governor or lieutenant governor, the executive office of the governor or lieutenant governor, or employees thereof." Mich. Comp. Laws Ann. § 15.232(h)(i). The definition also includes "[a] county, city, township, village, intercounty, intercity, or regional governing body, council, school district, special district, or municipal corporation, or a board, department, commission, council, or agency thereof." Id. § 15.232(h)(iii).
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"Public records" which must be disclosed are defined in Mich. Comp. Laws Ann. § 15.232(i) as follows: "'Public record' means 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. Public record does not include computer software." The FOIA separates public records into two classes: (a) those which are exempt from disclosure under Mich. Comp. Laws Ann. § 15.243 and (b) "all public records not exempt from disclosure under [Mich. Comp. Laws Ann. § 15.243] and which are subject to disclosure . . . ." Id. Recordings that are created by third parties and received by a government body are “public records” and are subject to disclosure. See Amberg v. City of Detroit, 497 Mich. 28 (2014). Whether hand-written notes by government officials are “public records” may depend on whether the notes are for personal or official use. Compare Hopkins v. Duncan Twp., 294 Mich. App. 401 (2011) (a board member’s handwritten notes taken for personal use are not public records subject to disclosure) with Progress Mich. v. Palmer, No. 357610, 2022 WL 2081071 (Mich. Ct. App. June 9, 2022) (a board member’s handwritten notes taken for the purpose of fulfilling an official functions are public records subject to disclosure).
State agencies are also required to create certain records: final orders or decisions in contested cases, promulgated rules, and "other written statements that implement or interpret laws, rules, or policy, including but not limited to guidelines, manuals, and forms with instructions, adopted or used by the agency in the discharge of its functions." Mich. Comp. Laws Ann. § 15.241 (1)(c).
It should be noted that the definition of "public record" refers to "writings." "Writing" is defined to include:
[H]andwriting, typewriting, printing, photostating, photographing, photocopying, and every other means of recording, and includes letters, words, pictures, sounds, or symbols, or combinations thereof, and papers, maps, magnetic or paper tapes, photographic films or prints, microfilm, microfiche, magnetic or punched cards, discs, drums, hard drives, solid state storage components, or other means of recording or retaining meaningful content.
Mich. Comp. Laws Ann. § 15.232(l).
Stenographer notes, tape recordings, or dictaphone records have been held to qualify as writings under this section, and therefore, such methods of recording municipal meetings are public records under FOIA. 1979-80 Op. Att'y Gen. 255, 264 (1979); see also Payne v. Grand Rapids Police Chief, 178 Mich. App. 193, 443 N.W.2d 481 (1989) (tape recording of emergency 911 call to police department was "public record" under FOIA). The requester must be permitted to inspect the original document if he or she wishes; providing copies is insufficient. Hubka v. Pennfield Twp., 443 Mich. 864, 504 N.W.2d 183 (1993). But see Lapeer Cty. Abstract & Title v. Lapeer Cty. Reg. of Deeds, 264 Mich. App. 167, 691 N.W.2d 11 (2004) (county register not required by FOIA to provide requester with microfilm copies rather than paper copies of the records at issue).
“[V]ideo recordings are ‘writings’ within the meaning of FOIA.” Amberg v. City of Detroit, 497 Mich. 28, 859 N.W.2d 674, 676 (2014).
In addition, when a requester seeks a copy of computer records, a public body cannot satisfy the request by providing hard copies of the requested information. Farrell v. City of Detroit, 209 Mich. App. 7, 530 N.W.2d 105 (1995) (newspaper entitled to computer records used to generate lists of taxpayers and their properties; public body could not satisfy request by providing printout of information contained in computer records). The court in Farrell explicitly held that the computer records "constitute public records subject to disclosure under the FOIA." Id. at 14.
However, computer software developed by and in the possession of a public body has been held not to be a record under the FOIA, since computer software is an instructional form which is an integral part of computer operation and not a writing used to record information or ideas. 1979-80 Op. Att'y Gen. 255, 264-65 (1979); see also Farrell, 209 Mich. App. at 17 (noting that the requested computer records did not require the public body's software to be "utilized or released"). In 1996, after the decision of Farrell, the Michigan legislature incorporated its interpretation into statute. See Mich. Comp. Laws Ann. § 15.232(i), as amended by 1996 P.A. 553 ("Public record does not include computer software."). But see City of Warren v. City of Detroit, 261 Mich. App. 165, 680 N.W.2d 57 (2004) (formula for calculating water rates kept by city on computer disk is not software and therefore is not exempt under FOIA).
Photographs such as mug shots are also public records. Patterson v. Allegan Cty. Sheriff, 199 Mich. App. 638, 502 N.W.2d 638 (1993). Telephone bills for calls to and from the mayor's home and office, even though prepared by a private company, are public records. Detroit News, Inc. v. City of Detroit, 204 Mich. App. 720, 516 N.W.2d 151 (1994). Likewise, tapes containing tax information developed by a municipality and used in performing the government's official function of property tax billing, are public records subject to FOIA disclosure, even though they are in the possession of a third-party contractor. MacKenzie v. Wales Twp., 247 Mich. App. 124, 635 N.W.2d 335 (2001).
"The custodian of a public record shall, upon written request, furnish a requesting person a certified copy of a public record." Mich. Comp. Laws Ann. § 15.233(6). No section of the FOIA limits the availability of these records any further and a public body may not impose a more restrictive schedule for access to its public records for certain persons than it does for the public generally, based solely on the purpose for which the records are sought. 2001 Op. Att'y Gen. No. 7095 (2001). Moreover, the fact that public records being sought under this section are voluminous does not excuse the public body from permitting inspection of the public record or from providing copies thereof upon payment of a reasonable fee as provided in Mich. Comp. Laws Ann. § 15.234. 1979-80 Op. Att'y Gen. 255, 267 (1979).
In Booth v. Dep’t of Corrections, Case Nos. 331807, 332014, 2016 WL 7042020 (Mich. Ct. App. Dec. 1, 2016), the court required production of “a log indicating what DOC employees listened to the [prisoner] telephone call[s].”
Where a computer record exists, a requester generally has the right to the record in that form. See Farrell v. City of Detroit, 209 Mich. App. 7, 530 N.W.2d 105 (1995) ("In Michigan, these computer records constitute public records subject to disclosure under the FOIA."); Payne v. Grand Rapids Police Chief, 178 Mich. App. 193, 443 N.W.2d 481 (1989) (plaintiff entitled to copy of tape recording of 911 emergency calls, even where city offered to provide transcript of tape). But see Lapeer Cty. Abstract & Title v. Lapeer Cty. Reg. of Deeds, 264 Mich. App. 167, 691 N.W.2d 11 (2004) (public bodies are not required by the FOIA to provide microfilm copies rather than paper copies of the records at issue, even when the public body keeps the records on mircrofilm); see also Mich. Comp. Laws Ann. § 15.232(j) (software — which is not a public record — excludes "computer-stored information or data, or a field name if disclosure of that field name does not violate a software license").
There are no decisions regarding whether a requester can obtain a customized search of computer databases to fit its particular needs. According to Ellison v. Dep’t of State, 320 Mich. App. 169, 906 N.W.2d 221 (2017), however, "[a] FOIA request need only be descriptive enough that a defendant can find the records containing the information that the plaintiff seeks." This may suggest that a court would not be adverse to more specific requests. 320 Mich. App. at 180.A computerized database is, however, a writing. See Mich. Comp. Laws Ann. § 15.232(l) (“‘Writing’ means . . . hard drives, solid state storage components, or other means or recording or retaining meaningful content.”). For example, an insurance database maintained by the Michigan Department of State, which contained names, addresses, vehicle ID numbers, registration and insurance audit information was a writing and therefore a public record subject to disclosure under FOIA. However, the individual seeking the information must still pay the fee associated with obtaining the file. See Ellison, 320 Mich. App. 169.
Information in electronic format is subject to disclosure under the FOIA. See Farrell v. City of Detroit, 209 Mich. App. 7, 530 N.W.2d 105 (1995); see also Mich. Comp. Laws Ann. § 15.232(j) (definition of software, which is not a public record, excludes "computer-stored information or data, or a field name if disclosure of that field name does not violate a software license"); City of Warren v. City of Detroit, 261 Mich. App. 165, 680 N.W.2d 57 (2004) (formula for calculating water rates kept on computer disk is not software and is therefore not exempt from disclosure).
Where a computer record exists, a requester generally has the right to the record in that form. See Farrell v. City of Detroit, 209 Mich. App. 7, 530 N.W.2d 105 (1995) ("In Michigan, computer records constitute public records subject to disclosure under the FOIA"); Payne v. Grand Rapids Police Chief, 178 Mich. App. 193, 443 N.W.2d 481 (1989) (plaintiff entitled to copy of tape recording of 911 emergency calls, even where city offered to provide transcript of tape). But see Lapeer Cty. Abstract & Title v. Lapeer Cty. Register of Deeds, 264 Mich. App. 167, 691 N.W.2d 11 (2004) (public bodies are not required by the FOIA to provide microfilm copies rather than paper copies of the records at issue, even when the public body keeps the records on mircrofilm). See also Mich. Comp. Laws Ann. § 15.232(f) (software — which is not a public record — excludes "computer-stored information or data, or a field name if disclosure of that field name does not violate a software license.").
There are no decisions regarding whether a requester can obtain a customized search of computer databases to fit its particular needs. A computerized database is, however, a writing. For example, an insurance database maintained by Department of State, which contained names, addresses, vehicle ID numbers, registration and insurance audit information was a writing and therefore a public record subject to disclosure under FOIA. However, the individual seeking the information must still pay the fee associated with obtaining the file. See Ellison v. Dep't of State, 320 Mich. App. 169 (2017).
Information in electronic format is subject to disclosure under the FOIA. See Farrell, supra. See also Mich. Comp. Laws Ann. § 15.232(f) (definition of software, which is not a public record, excludes "computer-stored information or data, or a field name if disclosure of that field name does not violate a software license."); City of Warren v. City of Detroit, 261 Mich. App. 165, 680 N.W.2d 57 (2004) (formula for calculating water rates kept on computer disk is not software and is therefore not exempt from disclosure).
Not specifically addressed.
At least one unpublished decision has directly confirmed that “[t]he FOIA definition of ‘writing’ is broad enough to include electronic recording of meaningful content, including email.” Edwards v. Oakland Twp., No. 320133, 2015 WL 1277009 , at *30 (Mich. Ct. App. Mar. 19, 2015) (unpublished). No published decision has ever held otherwise, and in fact, several have evaluated requests for the production of emails by assuming they are “writings” and moving on to examine the applicability of other defenses. See, e.g., Howell Educ. Ass’n v. Howell Bd. of Educ., 287 Mich. App. 228, 238, 789 N.W.2d 495 (2010) (noting that “E-mail has in essence replaced mailboxes and paper memos in government offices,” and focusing instead on whether the emails at issue were public or private records). Nevertheless, the courts have also implored the legislature to clarify the application of FOIA to emails, complaining that the issues related to email “could not have been foreseen” when FOIA was last updated, id. at 234, resulting in a “situation akin to that of a court being asked to apply the laws governing transportation adopted in a horse and buggy world to the world of automobiles and air transportation.” Id. at 235. The Howell decision was that personal emails are not public records, however, merely because the emails are retained by the public body computer system, “at least . . . [when the agency’s acceptable use policy] does not expressly provide that e-mails are subject to FOIA.” Id. at 231.
Text messages and instant messages are likely records subject to FOIA. Although there is no published case law on the subject, the Wayne County Circuit Court issued an order in a FOIA case requiring a third-party service provider to produce the text messages that eventually caused the resignation and conviction of Detroit Mayor Kwame Kilpatrick. Detroit Free Press, Inc. v. City of Detroit, No. 08-100214-CZ (Wayne Cty. Cir. Ct. June 26, 2008). But cf. Howell Educ. Ass'n MEA/NEA v. Howell Bd. of Educ., 287 Mich. App. 228, 245, 789 N.W.2d 495, 505 (2010) (noting that, in denying leave to appeal in Detroit Free Press, Inc. v. City of Detroit, “the Supreme Court did not rule that the text messages themselves were public records”) (citing Detroit Free Press, Inc. v. City of Detroit, 480 Mich. 1079, 744 N.W.2d 667 (2008).
Whether social media postings and messages are subject to disclosure under the FOIA is still a nascent area of law. In a recent case, direct messages sent to or received by a mayor over Facebook were treated much like e-mails or written notes and were held not to be subject to disclosure as public records if they “were not owned, used, in the possession of, or retained by the [mayor’s] office in the performance of an official function.” Blackwell v. City of Livonia, No. 357469, 2021 WL 5977221, at *6 (2021) (publication in Mich. App. and N.W.2d reporters pending). In deciding that the messages were not related to an official function for the purposes of FOIA disclosure, the court took into consideration that the Facebook profile that sent and received the messages at issue was utilized as a campaign page and was not an official page for the office of mayor. Id. at *5.
Computer software is exempt from the definition of public record under Mich. Comp. Laws 15.232(i). The statute and case law do not specifically address metadata.
A public body need not create or compile a new record at a FOIA requester’s request. Mich. Comp. Laws Ann. 15.233(5). A request for a compiled list of information, however, has been held not to be a creation of a new record. See Detroit Free Press, Inc. v. City of Southfield, 269 Mich. App. 275, 713 N.W.2d 28 (2005) (holding request for “a list of the individuals who receive the 20 largest pension payout” was not creation of new record because the request could be fulfilled by printing out the entire roster of pensioners and redacting all but the 20 individuals requested).
The FOIA allows public bodies to charge fees for a public record search, the necessary copying of a public record for inspection, or for providing copies of public records. These fees are to be limited to actual costs of mailing and the actual incremental cost of duplication or publication, "including labor, the cost of search, examination, review, and the deletion and separation of exempt from nonexempt information." Mich. Comp. Laws Ann. § 15.234(1). This is so even when the labor is performed by a public employee during business hours and does not add extra costs to the public body's normal budget. 2001 Op. Att'y Gen. No. 7083 (2001).
But a court must first determine whether the person retrieving the information is an employee or independent contractor since section 15.234(1) does not mention independent contractors. Coblentz v. City of Novi, 475 Mich. 588, 719 N.W.2d 73 (2006). The FOIA also provides that:
A fee . . . shall not be charged for the cost of search, examination, review, and the deletion and separation of exempt from nonexempt information . . . unless failure to charge a fee would result in unreasonably high costs to the public body because of the nature of the request in the particular instance, and the public body specifically identifies the nature of these unreasonably high costs.
Mich. Comp. Laws Ann. § 15.234(3).
The fee limitation, however, does not apply to the costs incurred in the necessary copying or publication of a public record for inspection, or for providing a copy of a public record and mailing the copy. 2001 Op. Att'y Gen. No. 7083 (2001). The phrase "unreasonably high" prohibits a public body from charging a fee for the costs of a search unless the costs incurred by a public body for those activities in the particular instance would be excessive and beyond the normal or usual amount for those services. Id. The Michigan Court of Appeals has held that the “key factor in determining whether the costs are unreasonably high is the extent to which the particular request differs from the usual request.” Bloch v. Davison Cmty. Sch., No. 296003, 2011 WL 1564645, , at *6 (Mich. Ct. App. Apr. 26, 2011). Also, “nothing in the language of Mich. Comp. Laws 15.243(2) suggests that the determination of whether costs incurred are unreasonably high is to be determined according to the public body’s operating budget.” Id.
The 2015 amendment requires that a public body establish procedures and guidelines to implement the FOIA and create specific procedures and guidelines relevant to the public regarding fee information. Mich. Comp. Laws Ann. § 15.234. The summary shall be in writing and at a minimum will include: how to make a request, how to understand the public body’s written response, what the fees are and how they are calculated, when deposits are required, what the fee appeals process looks like, and a standard form to itemize the FOIA charges. Id. If a public body fails to establish procedures and guidelines, has not created a written summary, or has not made these items publicly available it must still comply with the other requirements of the FOIA and “shall not require deposits or charge fees otherwise permitted under this act until it is in compliance.” Id.
Labor costs incurred in duplication, mailing, separation of material, etc., are to be calculated at no more than "the hourly wage of its lowest-paid employee capable of searching for, locating, and examining the public records in the particular instance. . . ." Mich. Comp. Laws Ann. § 15.234(1)(a). After the 2015 amendment, labor costs are calculated hourly and should be billed and estimated in 15 minute increments with partial time being rounded down. Id. § 15.234(1)(b). If the public body contracts out labor work, the maximum hourly rate cannot exceed 6 times the minimum wage. Id. Additionally, a fee shall not be charged for the cost of “search, examination, review and deletion and separation of exempt and nonexempt information . . . unless a failure to charge a fee would result in unreasonably high costs to the public body . . . and the public body specifically identifies the nature of these unreasonably high costs.” Id. § 15.234(3) (emphasis added).
Further, public bodies are charged to "utilize the most economical means available for providing copies." Id. § 15.234(1)(d); see also Tallman v. Cheboygan Area Schs., 183 Mich. App. 123, 454 N.W.2d 171, 174-75 (1990) (school district not permitted to employ its own method of computing copying charges to save money, even if reasonable, because a public body may not on its own deviate from computation method set forth in FOIA).
If there is an act or statute specifically authorizing the sale of public records, including the amount of the fee for providing a copy of the public record, the FOIA fee provisions do not apply. Title Off. Inc. v. Van Buren Cty. Treasurer, 469 Mich. 516, 676 N.W.2d 207 (2004) (holding that the fees for copies of property tax records requested from a county treasurer are to be computed according to the fee schedule provided in the Transcripts and Abstracts of Records Act). Additionally,
A public body shall utilize the most economical means available for providing copies of public records. A fee shall not be charged for the cost of search, examination, review, and the deletion and separation of exempt from nonexempt information as provided in section 14 unless failure to charge a fee would result in unreasonably high costs to the public body because of the nature of the request in the particular instance, and the public body specifically identifies the nature of these unreasonably high costs.
See Tallman, 183 Mich. App. at 128.
The FOIA provides for fee waivers for both searches and copies in at least two circumstances:
a. Where the public body "determines that a waiver or reduction of the fee is in the public interest because searching for or furnishing copies of the public record can be considered as primarily benefiting the general public." Mich. Comp. Laws Ann. § 15.234(2); see also Kearney v. Dep’t of Mental Health, 168 Mich. App. 406, 425 N.W2d 161, 162 (1988) (mental health patient not entitled to receive copy of his 800-page treatment record without charge because such disclosure not a matter of public interest); and
b. Where an individual submits an affidavit stating that he or she is receiving public assistance or otherwise shows inability to pay the cost because of indigency. In such cases, the statute provides that a copy of the public record shall be furnished without charge for the first $20.00 of the fee for each request. Mich. Comp. Laws Ann. § 15.234(l). But see Kearney, 425 N.W.2d at 162-63 (because patient failed to attach indigency affidavit to his request, charging $80 copying fee was not improper; at best, patient was entitled to a $20 waiver). However, the individual is ineligible for a fee reduction if the individual has received discounted copies of public records twice during the calendar year or if the individual is making the request on behalf of another individual who is not indigent. Mich. Comp. Laws Ann. § 15.234(2).
The FOIA provides that the fee structure set forth in Mich. Comp. Laws Ann. § 15.234 does not apply "to public records prepared under an act or statute specifically authorizing the sale of those public records to the public, or if the amount of the fee for providing a copy of the public record is otherwise specifically provided by an act or statute." Id. § 15.234(4). In Grebner v. Clinton Charter Twp., 216 Mich. App. 736, 550 N.W.2d 265 (1996), the Michigan Court of Appeals ruled that the Michigan Election Law, Mich. Comp. Laws Ann. § 16.522(1), did not specifically authorize the sale of voter registration rolls, and therefore held that the usual FOIA fee structure applied to requests for voter registration rolls.
A public body may request a "good faith deposit" from the person requesting a record if the fee will exceed $50.00, so long as the deposit does not exceed half of the total fee. Mich. Comp. Laws Ann. § 15.234(8). If the public body does not receive a required deposit within 45 days from receipt by the requesting person of notice that a deposit is required, and if the requesting person has not filed an appeal of the deposit amount, then the request is considered abandoned and the public body is no longer required to fulfill the request. Id. § 15.234(14). In addition, a public body may require that its fees be paid in full prior to actual deliveries of copies. Id. However, a public body may not refuse to process a subsequent FOIA request on the ground that the requester failed to pay fees charged for a prior FOIA request. Id. But, the public body can require 100 percent of the estimated fee paid up front if a previous fee was not paid by the requestor and if all of the following apply:
Mich. Comp. Laws Ann. (“MCLA”) § 15.234(11).
However, a full deposit cannot be required if the requestor shows proof of prior payment made in full, the public body was paid, or 365 days have passed since the individual made the written request. Id. § 15.234(12).
In addition, the public body may require payment in full where another statute covering release of the same records requires payment in full before the request may be processed. See Buckmaster v. Dep't of State, 327 Mich. App. 469, 934 N.W.2d 59 (2019) (holding Michigan Department of State could require advance payment of the fee for production of motor vehicle records under FOIA where the Michigan Vehicle Code required that a fee be paid prior to any release of records).
If a public body responded to a FOIA request by stating that the “request is granted as to existing, non-exempt records in the possession of the [public body] that fall within the scope of the request,” and requests a deposit based on the estimated labor costs for separating exempt from nonexempt material, then the response is considered a “denial in part” for the purpose of a FOIA appeal. See Arabo v. Mich. Gaming Control Bd., 310 Mich. App. 370, 384–85, 872 N.W.2d 223, 232 (2015). However, “a final determination is not required until plaintiff has paid the deposit required by the Board.” Id. at 388 (“The deposit required ‘at the time the request is made’ must therefore be made before the public body becomes obligated to process the request to enable it to formally respond with a final determination.”). Accordingly, the court will dismiss a FOIA appeal where the plaintiff has failed to pay the good faith deposit. Id. at 388-89.
Some public bodies have attempted to impose prohibitive fees to discourage requesters. These attempts can take the form of a high copying fee or a high labor rate, among other means. Although Michigan courts have not definitely resolved what rate for copying is acceptable, requesters are advised to take the position that any charge in excess of 10-15 cents per page is unreasonable, as this is comparable to the charges that would be incurred through a commercial copying source where a labor charge is also being paid.
In one case, where the requester sought a computer tape of driving license records, the public body asserted that the requester would have to pay a transaction fee for each record under an allegedly applicable state statute. The fee would have totaled almost $50 million. A state circuit court held that the statute was not applicable, and that the requester would have to pay only for the required computer tape and programming needed to provide non-exempt information — a fee totaling a few thousand dollars. Gilmore v. Sec'y of State, Oakland County Circuit Court Case No. 92-432519 CZ, affirmed in an unpublished decision May 16, 1997, Michigan Court of Appeals, No. 188313.
However, it should be noted that the 1996 amendment to Mich. Comp. Laws Ann. § 15.234(3), which permits a public body to charge no more than the hourly wage of the "lowest paid public body employee capable of retrieving the information necessary to comply with a request" may give public bodies the authority to charge a higher search fee than would have been permitted under the previous version of Mich. Comp. Laws Ann. § 15.234(3). Courts have interpreted this provision to allow a city attorney to conduct the FOIA review. Coblentz v. City of Novi, 264 Mich. App. 450, 691 N.W.2d 22 (2004) (city attorney was lowest paid employee capable of retrieving the information when it was necessary to determine whether requested material is exempt under the law). Additionally, "public employee" has been extended to include independent contractors hired by a public body. Id.
To combat excessive fees which discourage requesters, FOIA explicitly provides that "[a] fee shall not be charged for the cost of search, examination, review, and the deletion and separation of exempt from nonexempt information . . . unless failure to charge a fee would result in unreasonably high costs to the public body because of the nature of the request in the particular instance, and the public body specifically identifies the nature of these unreasonably high costs." Mich. Comp. Laws Ann. § 15.234(3). Notwithstanding that provision, many public bodies have been routinely assessing search fees for every request, ignoring the "unreasonably high costs" language. The Michigan Attorney General has opined that such routine labor charges are illegal. The opinion is binding on state government departments. 2001 Op. Att'y Gen. No. 7083 (2001).
If a public body requires a fee that exceeds the amount permitted under its publicly available procedures under § 15.234, the requesting party has options to challenge the fee. If the public body provides for fee appeals to the head of the body in its procedures and guidelines, the requesting party may submit to the head a written appeal for a fee reduction that specifically states “appeal” and identifies how the fee exceeds the guidelines. Mich. Comp. Laws Ann. § 15.240a(a). Or the requesting party may commence an action in the court of claims for a decision of a state public body within 45 days of receiving the notice of required fee. Mich. Comp. Laws Ann. § 15.240a(b). The public body is not obligated to complete the processing of the written request until after the court resolves the fee issue. Id. An action may not be filed under § 15.240a unless one of the following applies: (i) the public body does not provide for appeals, (ii) the head of the public body failed to respond to a written appeal, or (iii) the head of the public body issued a determination to a written appeal. Within 10 days of receiving a written appeal, the head of the body shall either waive the fee, reduce the fee, uphold the fee, or issue a notice extending the period of decision for no more than 10 days. Mich. Comp. Laws Ann. § 15.240. If a court determines that a fee is excessive it shall reduce the fee to a permissible amount. Moreover, if the requesting party receives a reduction of 50% or more of the fee, the court may award reasonable attorney fees and costs.
The requesting person is the only party which may bring an action under the FOIA. See Mich. Comp. Laws Ann. § 15.240(1)(b) (the requesting party may commence an action in the circuit court to compel the public body's disclosure of the public records within 180 days after a public body's final determination to deny a request).
The Attorney General plays no role in the enforcement of the FOIA.
The FOIA does not provide for an ombudsman.
There is no commission or agency enforcement of the FOIA.
"The court shall award reasonable attorney’s fees, costs, and disbursements" to a requesting person that prevails under the FOIA. Mich. Comp. Laws Ann. § 15.240(6). If the requesting person only prevails in part, "the court may, in its discretion, award all or an appropriate portion of reasonable attorney’s fees, costs, and disbursements." Id. Moreover, under the 2015 amendment, “[i]f the court determines . . . that a public body willfully and intentionally failed to comply with this act or otherwise acted in bad faith, the court shall order the public body to pay, in addition to any other award or sanction, a civil fine of not less than $2,500.00 or more than $7,500.00 for each occurrence.” Mich. Comp. Laws Ann. § 15.240b.
Within five business days of receiving a FOIA request, MCL 15.235(2) requires the public body to do one of the following: (a) grant the request; (b) issue a written notice denying the request; (c) grant the request in part and issue a written notice denying the request in part; or (d) issue a notice extending the time to respond to the request for not more than ten business days. Id. The public body may not issue more than one notice of extension for a particular request. MCL 15.235(2)(d). If the public body issues a notice extending the period of time to respond, it must specify the reasons for the extension and the date by which the public body will respond. MCL 15.235(7). In addition, the public body and the requestor may agree in writing to a different response time. MCL 15.235(2).
Failure to respond to the request pursuant to MCL 15.235(2) within five business days constitutes a final determination to deny a request if either: (a) the failure was willful and intentional; or (2) the request included language conveying a request for information within the first 250 words of the correspondence, or the envelope or subject line specifically included words such as “FOIA” or “freedom of information.” Id.
Within five business days of receiving a FOIA request, MCL 15.235(2) requires the public body to do one of the following: (a) grant the request; (b) issue a written notice denying the request; (c) grant the request in part and issue a written notice denying the request in part; or (d) issue a notice extending the time to respond to the request for not more than ten business days. Id. The public body may not issue more than one notice of extension for a particular request. MCL 15.235(2)(d). If the public body issues a notice extending the period of time to respond, it must specify the reasons for the extension and the date by which the public body will respond. MCL 15.235(7). In addition, the public body and the requestor may agree in writing to a different response time. MCL 15.235(2).
Failure to respond to the request pursuant to MCL 15.235(2) within five business days constitutes a final determination to deny a request if either: (a) the failure was willful and intentional; or (2) the request included language conveying a request for information within the first 250 words of the correspondence, or the envelope or subject line specifically included words such as “FOIA” or “freedom of information.” Id.
Not specifically addressed.
FOIA also does not contain any provisions explicitly requiring a public body to maintain a public document for any length of time. The Michigan Court of Appeals has held, however, that once a public body receives a FOIA request for a record, “FOIA inherently includes the duty to preserve and maintain such records until access has been provided or a court executes an order finding the record to be exempt from disclosure.” Walloon Lake Water Sys., Inc. v. Melrose Twp., 163 Mich. App. 726, 732, 415 N.W.2d 292, 295 (1987). In addition, FOIA gives a person the “right to subscribe to future instances of public records that are created, issued, or disseminated on a regular basis.” M.C.L. § 15.233(1). A subscription is valid for up to 6 months. Id. If a public document is subject to a valid subscription, it must also be preserved until it is disclosed or found to be exempt. See Farrell v. City of Detroit, 209 Mich. App. 7, 16, 530 N.W.2d 105, 110 (1995) (holding that where plaintiff requested a subscription for future copies of a report, the defendant had to maintain regularly created printer backup tapes containing the report until it complied with the requests).
Failure to respond to the request pursuant to MCL 15.235(2) within five business days constitutes a final determination to deny a request if either: (a) the failure was willful and intentional; or (2) the request included language conveying a request for information within the first 250 words of the correspondence, or the envelope or subject line specifically included words such as “FOIA” or “freedom of information.” Id.
The exemptions are specific. Items exempt from disclosure are listed in Mich. Comp. Laws Ann. § 15.243. Beyond the listed exemptions, the FOIA provides that a public body may "make reasonable rules necessary to protect its public records and to prevent excessive and unreasonable interference with the discharge of [its] functions." Id. § 15.233(3). Further, the 1996 amendments to the FOIA specifically direct public bodies to "protect public records from loss, unauthorized alteration, mutilation or destruction." Id. For example, where an individual sought to examine extremely large quantities of documents, a rule limiting her free use of the university's viewing and copying equipment, personnel, and office space to a period of two weeks, thereafter requiring her to cover her own expenses, was upheld as a reasonable means of limiting undue interference with the day-to-day operations of the university. Cashel v. Regents of the Univ. of Mich., 141 Mich. App. 541, 367 N.W.2d 841 (1985). This general rule-making authority does not, however, allow public bodies to create new exemptions under the Act. Cashel v. Smith, 117 Mich. App. 405, 324 N.W.2d 336, 338 (1982) (rule allegedly promulgated by the University of Michigan which stated that "[t]he idly or maliciously curious need not be accommodated" under the FOIA was invalid because it purported to create an exemption under the FOIA which the legislature had not chosen to include).
The exemptions in Mich. Comp. Laws Ann. § 15.243(1) are discretionary. They do not render confidential the types of information listed, but only authorize a public body to decline disclosure of exempt material if it so chooses. 1979-80 Op. Att'y Gen. 468, 469 (1979). The Michigan Supreme Court has held that the FOIA authorizes, but does not require, nondisclosure of public records which fall within the enumerated exemptions. Tobin v. Mich. Civil Serv. Comm’n, 98 Mich. App. 604, 296 N.W.2d 320 (1980), aff'd, 416 Mich. 661, 331 N.W.2d 184 (1982). In cases where public bodies do, in their discretion, choose to claim exemptions from disclosure, the Michigan Supreme Court has established the following guidelines for use in analyzing such claims:
(1) The burden of proof is on the public body claiming exemption from disclosure;
(2) Exemptions must be interpreted narrowly;
(3) The public body must separate the exempt and nonexempt material and make the nonexempt material available for inspection and copying;
(4) Detailed affidavits describing the matter withheld must be supplied by the public body;
(5) Justification for a claimed exemption must be more than conclusory, i.e., more than a simple repetition of statutory language. A bill of particulars is in order. Justification must indicate factually how a particular document, or category of documents, interferes with law enforcement proceedings; and
(6) The mere showing of a direct relationship between records sought and an investigation is inadequate.
Evening News Ass'n v. City of Troy, 417 Mich. 481, 339 N.W.2d 421, 431-32 (1983). The same guidelines apply to all exemptions. Id.
The Evening News court also established a three-step procedure to be used to determine whether a sufficient justification for exemption exists:
(1) The court should receive a complete particularized justification as set forth in the six above rules; or
(2) The court should conduct a hearing in camera based on de novo review to determine whether a complete particularized justification pursuant to the six rules exists; or
(3) The court can consider allowing plaintiff's counsel to have access to the contested documents in camera under special agreement whenever possible. Id. at 432; see also Post-Newsweek Stations, Mich. Inc. v. City of Detroit, 179 Mich. App. 331, 445 N.W.2d 529, 532 (1989) (remanding case to trial court because its order permitting city to redact material rather than making full disclosure of requested police report "clearly falls far short of the standards given in Evening News . . . . The order is wholly conclusory."); Payne v. Grand Rapids Police Chief, 443 N.W.2d 481 (1989) (trial court should have appointed master at plaintiff's expense to review requested tape recordings to protect them and to prevent interference with police department's functions); Nicita v. City of Detroit, 194 Mich. App. 657, 487 N.W.2d 814 (1992) (Evening News does not require court to proceed to in camera review and the dispute should usually be resolved under step one). But see Detroit News v. Policemen & Firemen Ret. Sys., 252 Mich. App. 59, 651 N.W.2d 127 (2002) (court remanded to the trial court so that it could determine in camera whether the exemption applied).
When ruling that an exemption under the FOIA prevents disclosure of particular documents, a trial court must make particularized findings of fact indicating why the claimed exemption is appropriate. Messenger v. Mich. Dep't of Consumer & Indus. Servs., 238 Mich. App. 524, 606 N.W. 2d 35 (1999). If a trial court cannot determine whether the claimed exemption is appropriate without reviewing the documents, then it must conduct an in camera review. Rotta v. City of Manistee, No. 342776, 2019 WL 1780673, at *6 (Mich. Ct. App. Apr. 23, 2019).
Michigan’s exemptions are generally more narrow than the exemptions found in the federal FOIA. But for the Michigan exemptions that are similar to the exemptions found in the federal FOIA, Michigan courts have analogized to federal cases interpreting the federal act in interpreting the Michigan statute. Evening News Ass'n, 339 N.W.2d at 428; see also Kestenbaum v. Mich. State Univ., 97 Mich. App. 5, 294 N.W.2d 228, 235 (1980), aff'd, 414 Mich. 510, 327 N.W.2d 783 (1982). However, in some circumstances, courts have noted that the exemptions in the Michigan FOIA differ from those in the federal FOIA. See, e.g., Mich. Fed’n of Teachers & Sch. Related Personnel v. Univ. of Mich., 481 Mich. 657, 753 N.W.2d 28 (2008) (noting that a federal exemption covers personnel and medical files, whereas the corresponding Michigan exemption covers information of a personal nature).
The Michigan Supreme Court remained divided on the issue for a number of years. In International Union, United Plant Guard Workers of America (UPGWA) v. Dep’t of State Police, 422 Mich. 432, 373 N.W.2d 713 (1985), the court declined to determine whether the FOIA requires courts to balance the benefits of disclosure against the intrusion of privacy, or to simply measure the nature and extent of the asserted privacy invasion, because the information requested in that case did not constitute a clearly unwarranted invasion of privacy under either approach. 373 N.W.2d at 715.
However, an evenly divided court considered the question in State Employees Ass’n v. Dep’t of Mgmt. & Budget, 428 Mich. 104, 404 N.W.2d 606 (1987). In an opinion by Justice Cavanagh with two justices concurring, the court held that the legislature did not intend a balancing of interests to occur in judicial evaluations of the privacy exemption. They reasoned that the legislature specifically indicated five exemptions where it intended a balancing of interests to occur (Mich. Comp. Laws Ann. §§ 15.243(c), (l), (n), (o), and (t)) and the privacy exemption is not among those exemptions. Id. at 118. The court held that, in determining whether to withhold information under the privacy exemption, the agency should not consider the requester's identity or evaluate the purpose for which the information would be used. Id. at 119-20 . The sole issue in the case was whether disclosure of the home addresses of various public employees would constitute a clearly unwarranted invasion of privacy. That inquiry was guided by common law and constitutional principles:
“The legislature made no attempt to define the right of privacy. We are left to apply the principles of privacy developed under the common law and our constitution. The contours and limits are thus to be determined by the court, as the trier of fact, on a case-by-case basis in the tradition of the common law. Such an approach permits, and indeed requires, scrutiny of the particular facts of each case, to identify those in which ordinarily impersonal information takes on ‘an intensely personal character’ justifying nondisclosure under the privacy exemption.”
Id. at 123 (footnotes omitted).
The court concluded that disclosure in that case would not constitute a clearly unwarranted invasion of privacy. Id. at 124-25.
The judicial balancing test advocated by three other justices in State Employees is the one proposed by Justice Ryan in Kestenbaum, and has two parts. First, it must be determined whether the requested information is "of a personal nature" which thereby gives rise to a cognizable privacy interest. If the information is of a personal nature, then the public's interest in disclosure is balanced against the privacy interest to determine whether disclosure would amount to a "clearly unwarranted invasion of an individual's privacy" within the meaning of the privacy exemption. When applying this test, the court must balance the public interest against the privacy interest with a tilt in favor of disclosure. The court is obligated to remember that the alleged invasion of privacy must be clearly unwarranted. Id. at 107.
Analyses of the privacy exemption have evolved into a two part inquiry: (1) whether the information is of a "personal nature" and (2) whether the disclosure of such information would be a "clearly unwarranted invasion of privacy." Bradley v. Saranac Cmty. Sch., 455 Mich. 285, 565 N.W.2d 650 (1997). If the information is not of a "personal nature," the inquiry ends. Id. In cases interpreting the privacy exemption, the Michigan Supreme Court has fleshed out what courts should look at in determining whether information is of a "personal nature." In Swickard v. Wayne County Medical Examiner, 438 Mich. 536, 475 N.W.2d 304 (1991), the Michigan Supreme Court held that in determining whether information withheld is of a "personal nature," "the customs, mores, or ordinary views of the community" must be taken into account. Id. at 547. Applying this standard, courts have held that autopsy reports and toxicology test results of a deceased judge, travel expense reports of a public body, business documents submitted to a public body in connection with a redevelopment proposal, and the names of elected officials and public employees for whom the city was paying attorney’s fees related to a grand jury investigation were not records of a "personal nature." See Swickard; Booth Newspapers, Inc. v. Univ. of Mich. Bd. of Regents, 444 Mich. 211, 507 N.W. 2d 422 (1993); Nicita v. City of Detroit, 216 Mich. App. 746, 550 N.W.2d 269 (1996); Detroit Free Press v. City of Warren, 250 Mich. App. 164 (2002).
In Bradley, the Michigan Supreme Court succinctly stated the test: "[W]e conclude that information is of a personal nature if it reveals intimate or embarrassing details of an individual's private life. We evaluate this standard in terms of the customs, mores, or ordinary views of the community." 455 Mich. at 294 (internal quotations omitted). A mere "deleterious effect" on the individual who is the focus of the requested record is not equivalent to the disclosure of "intimate or embarrassing details." Detroit Free Press, 250 Mich. App. at 170. Further, the fact that the disclosure of information "could conceivably lead to the revelation of personal information is not sufficient to satisfy the "personal nature" exemption. Booth Newspapers, 444 Mich. at 233; Nicita, 550 N.W.2d at 273.
Analogizing to the federal FOIA, the Michigan Supreme Court in Booth Newspapers, Inc. v. University of Michigan Board of Regents held that Mich. Comp. Laws Ann. § 15.243(1)(a) is "directed at threats to privacy interests more palpable than mere possibilities." 444 Mich. at 233 (quoting Dep’t of Air Force v. Rose, 425 U.S. 352, 380 n. 19 (1976)). More recently, the Michigan Supreme Court held that “private or confidential information, including embarrassing or intimate details, is information of a personal nature. Mich. Fed’n of Teachers v. Univ. of Mich., 481 Mich. 657, 753 N.W.2d 28 (2008).
As to the second prong, whether disclosure would be a "clearly unwarranted invasion of privacy," the Michigan Supreme Court stated in Bradley that "[p]rinciples of common-law privacy do come into play when the court is determining whether information of a personal nature constitutes a clearly unwarranted invasion of an individual's privacy." 455 Mich. at 302. Further, in Mager v. Dep’t of State Police, 460 Mich. 134, 595 N.W.2d 142 (1999), the court looked to federal decisions concerning the federal FOIA and found that "a court must balance the public interest in disclosure against the interest [the Legislature] intended the exemption to protect.'" 460 Mich. at 140-45 (quoting U.S. Dep’t of Def. v. Fed. Labor Relations Auth., 510 U.S. 487, 495 (1994)). The court further held that the relevant "public interest" to be weighed in this balance "is the extent to which disclosure would serve the core purpose of the FOIA, which is contributing significantly to public understanding of the operations or activities of the government." 460 Mich. at 145 (quoting Dep’t of Def., 510 U.S. at 495). The court held that fulfilling a request for personal information concerning private citizens, where the request was "entirely unrelated to any inquiry regarding the inner workings of government," would constitute a clearly unwarranted invasion of privacy. 460 Mich. at 146. The Michigan Court of Appeals held in Rataj v. City of Romulus that disclosure of a video recording of an officer assaulting a citizen was not an unwarranted invasion of privacy even though the assault victim requested that the video not be disclosed. 306 Mich. App. 735, 749 (2015). The court determined that the names of the citizen and the officer were subject to disclosure because they are not information of personal nature, but the home addresses, dates of birth, and telephone numbers of the individuals were exempt. Id. at 753-54.
Previously, Michigan decisions had rejected the "core purpose" requirement in applying the privacy exception. But the Michigan Federation court affirmatively held that the Mager core purpose test should be applied under the second prong (and Bradley should be applied under the first prong). 481 Mich. at 675. Moreover, in Practical Political Consulting v. Secretary of State, the Michigan Supreme Court held that the test articulated in Michigan Federation must be applied consistently with the overarching principles found in common and constitutional law.287 Mich. 434, 789 N.W.2d 178 (2010).
Information held to be exempt under the privacy exemption includes salaries paid to university employees, Penokie v. Mich. Tech. Univ., 93 Mich. App. 650, 287 N.W.2d 304 (1979); retirement and pension information of retired employees, 1979-80 Op. Att'y Gen. 255, 273 (1979); disciplinary memos in an employee's personnel file, 1979-80 Op. Att'y. Gen. at 272-73; a crime victim's past sexual history, address, and telephone number, Pennington v. Washtenaw Cty. Sheriff, 125 Mich. App. 556, 336 N.W.2d 828 (1983); identity of a teacher charged with allegations of sexual misconduct, but not documents related to the charges, with the teacher's name redacted, Booth Newspapers, Inc. v. Kalamazoo Sch. Dist., 181 Mich. App. 752, 450 N.W.2d 286, 289 (1989); addresses of donors to university, Clerical-Tech. Union of Mich. State Univ., 190 Mich. App. 300, 475 N.W.2d 373, 375 (1991); names and addresses of persons who owned registered handguns, Mager; addresses of persons who had unclaimed property, Kocher v. Dep’t of Treasury, 241 Mich. App. 378, 615 N.W. 2d 767 (2000); municipal information regarding the death of private citizens by traffic accident, Larry S. Baker, P.C. v. City of Westland, 245 Mich. App. 90, 627 N.W.2d 27 (2001); and names and addresses of people who receive lottery winnings over $10,000 by assignment, Stone Street Capital, Inc. v. Mich. Bureau of State Lottery, 263 Mich. App. 683, 689 N.W.2d 541 (2004).
Information held not to qualify under this exemption, and therefore required to be disclosed under the FOIA, includes home addresses of various public employees, State Emps. Ass'n, 404 N.W.2d at 607 and Tobin, 331 N.W.2d at 327; the arrest records of someone eventually convicted of the crime in question, 1979-80 Op. Att'y. Gen. at 203; mug shots of persons charged with bank robbery, Detroit Free Press v. Oakland Cty. Sheriff, 164 Mich. App. 656, 418 N.W.2d 124 (1987); the names and addresses of persons who leased suites at Pontiac Stadium, Oakland Press v. Pontiac Stadium Building Auth., 173 Mich. App. 41, 433 N.W.2d 317, 319 (1988); business records submitted to a public body in connection with a redevelopment proposal, Nicita, 487 N.W.2d at 819; records regarding taxes paid by hotels and motels in Kent County, Booth Newspapers, Inc. v. Kent Cty. Treasurer, 175 Mich. App. 523, 438 N.W.2d 317, 320 (1989); school file of minor student requested by his mother, Lepp v. Cheboygan Area Sch., 190 Mich. App. 726, 476 N.W.2d 506, 509-10 (1991); autopsy reports and toxicology test results regarding a deceased district court judge, Swickard, 475 N.W.2d at 313; travel expense records of public bodies, Booth Newspapers, Inc. v. Univ. of Mich. Regents; names, current employment, age and residence of candidates for fire chief, Herald Co. v. Bay City, 463 Mich. 111, 614 N.W. 2d 873 (2000); consumer complaints filed with a state agency against property insurers, Detroit Free Press v. Dep't of Consumer & Industry, 246 Mich. App. 311, 631 N.W.2d 769 (2001) (names and addresses of private individuals required to be redacted); information concerning a police deputy's psychological counseling and treatment, Herald Co. v. Kent Cty. Sheriff's Dep't, 261 Mich. App. 32, 680 N.W.2d 529 (2004); personnel records of public employees, other than law enforcement agencies, including disciplinary records, are public records subject to FOIA, Bradley; Herald Co. v. Ann Arbor Pub. Sch., 224 Mich. App. 266, 568 N.W.2d 411 (1997); and names of donors to village police funds, Bitterman v. Vill. of Oakley, 309 Mich. App. 53, 868 N.W.2d 642 (2015).
Pension benefits of retired police officers and firemen were not of personal nature despite the fact that they were drawn from private assets; these amounts reflected the government’s decision-making and hence were more comparable to public salaries. Detroit Free Press v. City of Southfield, 269 Mich. App. 275, 713 N.W. 2d 28 (2005).
(i) Interfere with law enforcement proceedings;
(ii) Deprive a person of the right to a fair trial or impartial administrative adjudication;
(iii) Constitute an unwarranted invasion of personal privacy;
(iv) Disclose the identity of a confidential source or, if the record is compiled by a law enforcement agency in the course of a criminal investigation, disclose confidential information furnished only by a confidential source;
(v) Disclose law enforcement investigative techniques or procedures; or
(vi) Endanger the life or physical safety of law enforcement personnel.
To establish that this exemption applies, “the public body must show that (1) an investigation was open and ongoing, and (2) release of the requested documents ‘would’ interfere with law enforcement proceedings.” Cox v. Grosse Ile Twp., No. 341518, 2018 WL 6252546, at *2 (Mich. Ct. App. Nov. 29, 2018) (citing King v. Oakland Cty. Prosecutor, 303 Mich. App. 222, 231, 842 N.W.2d 403 (2013)).
The Michigan Court of Appeals has held that these exemptions for investigative records are to be construed narrowly and "must be supported by substantial justification and explanation, not merely by conclusory assertions." Pennington v. Washtenaw Cty. Sheriff, 125 Mich. App. 556, 336 N.W.2d 828 (1983) (quoting Penokie v. Mich. Tech. Univ., 93 Mich. App. 650, 658-59, 287 N.W.2d 304, 308 (1979)). The Michigan Court of Appeals reaffirmed this principle: the “justification of [an] exemption must be more than conclusory, i.e., simple repetition of statutory language.” State News v. Mich. State Univ., 274 Mich. App. 558, 570, 735 N.W.2d 649, 658 (2007), rev’d in part on other grounds. Specifically, “a bill of particulars is in order.” Id. The Michigan Supreme Court has likewise interpreted the law enforcement exemptions strictly. Evening News Ass'n v. City of Troy, 417 Mich. 481, 486, 339 N.W.2d 421, 423 (1983) (error to use "generic determination" standard that release of police reports along with the information contained in them would "interfere with law enforcement proceedings" and would have a "chilling effect on the investigation,” without a showing by defendants of particular risk); Payne, 443 N.W.2d at 481 (error to deny request to review tape recording of 911 emergency calls made to police department on grounds that, unless names, addresses and telephone numbers of the callers were deleted, disclosure could interfere with law enforcement procedures or disclose the identity of confidential sources because trial court failed to find with sufficient particularity that defendant had justified its claimed exemption); Herald Co. v. City of Kalamazoo, 229 Mich. App. 376, 581 N.W.2d 295 (1998) (an open investigation cannot be construed to continue until the expiration of the applicable period of limitation for criminal prosecution without actual, ongoing law enforcement investigation); Herald Co. v. Kent Cty. Sheriff's Dep't, 261 Mich. App. 32, 680 N.W.2d 529 (2004) (internal affairs investigation records not exempt because not compiled for law enforcement purposes and disclosure would not interfere with an ongoing investigation). However, this exemption is not limited in application to police investigations of criminal matters, and can apply to investigations of sexual harassment. Yarbrough v. Dep't of Corr., 199 Mich. App. 180, 501 N.W.2d 207 (1993).
“ . . . from a policy standpoint, a blanket exemption should apply for requests by inmates for information about other inmates under the prison security exemption . . . That approach is consistent with the high public interest in maintaining security of penal institutions and the relatively low interest in disclosure when the requested documents do not pertain to the inmate making the request, but rather to other inmates.”
Mackey v. Dep’t of Corr., 205 Mich. App. 330, 333, 517 N.W.2d 303, 305 (1994).
“(i) The information is submitted upon a promise of confidentiality by the public body.
(ii) The promise of confidentiality is authorized by the chief administrative officer of the public body or by an elected official at the time the promise is made.
(iii) A description of the information is recorded by the public body within a reasonable time after it has been submitted, maintained in a central place within the public body, and made available to a person upon request. This subdivision does not apply to information submitted as required by law or as a condition of receiving a governmental contract, license, or other benefit.”
Mich. Comp. Laws Ann. § 15.243(1)(f) (formerly Mich. Comp. Laws Ann. § 15.243(1)(g)). The Michigan Supreme Court interpreted section 15.243(1)(f)(iii) in Coblentz v. City of Novi: “Whether the time it takes to record a description of the material is reasonable is measured from the date the material is submitted. It is not measured from the date the parties designate it as confidential. Reasonableness is a discretionary determination.” 475 Mich. 588, 719 N.W.2d 73 (2006).
The trade secrets exemption does not apply to information submitted as required by law or as a condition of receiving a governmental contract, license or other benefit. Blue Cross & Blue Shield v. Ins. Bureau Hearing Officer, 104 Mich. App. 113, 304 N.W.2d 499 (1981). Information submitted to the insurance bureau in support of a request for a rate hike is not subject to exemption from public disclosure under FOIA as a trade secret where competitors of the party seeking nondisclosure can acquire the information sought to be exempted “without substantial difficulty by direct contract” with the individual subscriber groups covered by policies issued by the party seeking nondisclosure. Id. at 131.
Further, this section specifically states that it does not constitute an exemption under state law for purposes of section 8(h) of Michigan's Open Meetings Act (Mich. Comp. Laws Ann. § 15.268(h)), which allows public bodies to meet in closed session "[t]o consider material exempt from discussion or disclosure by state or federal statute." Thus, information which is exempt from disclosure under Mich. Comp. Laws Ann. § 15.243(1)(m) may not for that reason be discussed in closed session under Mich. Comp. Laws Ann. § 15.268(h). Also, the phrase "determination of policy or action" includes determinations relating to collective bargaining, "unless the public record is otherwise required to be made available under [Mich. Comp. Laws Ann. § 423.201-.217, which are labor regulations governing public employees]." Mich. Comp. Laws Ann. § 15.243(1)(m); see also McCartney v. Attorney Gen., 231 Mich. App. 722, 587 N.W.2d 824 (1998) (internal memoranda written by Assistant Attorney General exempt from disclosure); Herald Co. v. Ann Arbor Pub. Sch., 224 Mich. App. 266, 568 N.W.2d 411 (1997) (significant public interest in disclosing a memorandum that contains public observations of a teacher who has been convicted of carrying a concealed weapon not outweighed by public interest in encouraging frank communications within a public body); Mich. Prof’l Emps. Soc’y v. Dep’t of Natural Res., 192 Mich. App. 483, 482 N.W.2d 460 (1991) (request by employee who was an unsuccessful candidate for promotion for all screening and interview documents, including handwritten interview notes and evaluations regarding him were properly denied because any personal benefit to plaintiff through disclosure was greatly outweighed by the public interest in protecting the discretionary employment decision-making process and encouraging frank communications regarding employment of public officers); Favors v. Dep’t of Corr., 192 Mich. App. 131, 480 N.W.2d 604 (1991) (request by prisoner for copy of worksheet used by disciplinary credit committee to determine whether to recommend good-time credits was properly denied because release of document could discourage frank appraisals by the committee and thus inhibit accurate assessment of inmate's merits); 1979 Op. Att'y Gen. 5500, 275-76, 287-88 (1979) (observation sheets used by state police that contained review board members' candid impressions of candidates for promotion exempt from disclosure); Traverse City Record Eagle v. Traverse City Area Pub. Sch., 184 Mich. App. 609, 459 N.W.2d 28 (1990) (tentative collective bargaining agreement between school district and unions exempt from disclosure because it was message from school board and union representatives to their respective bodies, advisory in nature, and because premature disclosure would have negative impact on negotiation process); Herald Co. v. E. Mich. Univ. Bd. of Regents, 265 Mich. App. 185, 204, 693 N.W.2d 850 (2005) (letter from university VP to a Regent regarding expenditures at the university president's home exempt because disclosure "would likely hurt, not advance, the public interest").
(i) Identify or provide a means of identifying an informant;
(ii) Identify or provide a means of identifying a law enforcement undercover officer or agent or a plain clothes officer as a law enforcement officer or agent;
(iii) Disclose the personal address or telephone number of law enforcement officers or agents or any special skills that they may have;
(iv) Disclose the name, address, or telephone numbers of family members, relatives, children, or parents of law enforcement officers or agents;
(v) Disclose operational instructions for law enforcement officers or agents;
(vi) Reveal the contents of staff manuals provided for law enforcement officers or agents;
(vii) Endanger the life or safety of law enforcement officers or agents or their families, relatives, children, parents, or those who furnish information to law enforcement departments or agencies;
(viii) Identify or provide a means of identifying a person as a law enforcement officer, agent, or informant;
(ix) Disclose personnel records of law enforcement agencies. See, e.g., Kent Cty. Deputy Sheriff's Ass'n v. Kent Cty. Sheriff, 463 Mich. 353 (2000) (union's request for copies of reports on which sheriff based disciplinary decisions properly denied because the public interest in meaningful arbitration of grievances did not outweigh public interest in nondisclosure to preserve sheriff's department's ability to effectively conduct such investigations); Landry v. City of Dearborn, 259 Mich. App. 416, 674 N.W.2d 697 (2003) (employment applications for all individuals applying for the position of police officer are exempt); Sutton v. City of Oak Park, 251 Mich. App. 345, 650 N.W.2d 404 (2002) (internal investigation records of a police officer constitute personnel records and are exempt where public interest favors nondisclosure). But see Herald Co. v. Kent Cty. Sheriff's Dep't, 261 Mich. App. 32, 680 N.W.2d 259 (2004) (internal affairs investigation report not exempt as personnel record when the document "shed[s] light on the official acts and workings of the government"); Rudd v. City of Norton Shores, No. 343759, 2019 WL 2517404, at *4 (Mich. Ct. App. June 18, 2019) (noting that the “location of a document is not determinative of the applicability of the personnel records exemption” and holding that citizen complaints located in a “personnel file” are not exempt under the personnel records exemption) (citing Newark Morning Ledger Co. v. Saginaw Cty. Sheriff, 204 Mich. App. 215, 219, 514 N.W.2d 213 (1994)); or,
(x) Identify or provide a means of identifying residences which law enforcement agencies are requested to check in the absence of their owners or tenants. See Haskins v. Oronoko Twp. Supervisor, 172 Mich. App. 73, 431 N.W.2d 210 (1988) (prisoner's request for all police reports regarding his case properly denied as to documents protected by various subsections of this exemption).
The Michigan Court of Appeals held that a plaintiff, under Mich. Comp. Laws 15.243(1)(s)(ix), should have been given an opportunity to show at the trial level that public interest in disclosure outweighed the public interest in nondisclosure. Liddell v. Wayne Cty. Records, No. 283839, 2009 WL 2170663 (Mich. Ct. App. July 21, 2009). The Michigan Supreme Court held that “in light of this language . . . 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.” Federated Publ’ns v. City of Lansing, 467 Mich. 98, 110, 649 N.W. 2d 383, 389 (2002) abrogated on other grounds by Herald Co. v. E. Mich. Univ. Bd. of Regents, 475 Mich. 463, 719 N.W.2d 19 (2006).
(i) the fact that an allegation has been received, the date the allegation was received, and the fact that an investigation is being conducted;
(ii) the fact that an allegation was received by the department of consumer and industry services, the fact that the department did not issue a complaint for the allegation, and the fact that the allegation was dismissed. Mich. Comp. Laws Ann. § 15.243(1)(t) (formerly Mich. Comp. Laws Ann. § 15.243(1)(u)).
Additionally, "[a] public body shall be exempt from disclosure of information that, if released, would prevent the public body from complying with section 444 of subpart 4 of part C of the General Education Provisions Act, Title IV of Public Law 90-247, 20 U.S.C. 1232(g), commonly referred to as the Family Educational Rights and Privacy Act of 1974." Mich. Comp. Laws Ann. § 15.243(2) (formerly Mich. Comp. Laws Ann. § 15.243(1)(e)). Under that act, "an educational institution may not disclose the education records or any personally identifiable information contained in the record other than directory information to any third parties without the written consent of the student's parents, . . . or the written consent of the student when the student attends an institution of post-secondary education . . . ." Connoisseur Commcn’s of Flint v. Univ. of Mich., 230 Mich. App. 732, 735, 584 N.W.2d 647 (1998).
Mich. Comp. Laws Ann. § 15.243(3) provides that “[t]his act does not authorize the withholding of information otherwise required by law to be made available to the public or to a party in a contested case under the administrative procedures act of 1969, 1969 PA 306, MCL 24.201 to 24.328.” Mich. Comp. Laws Ann. § 15.243(4) makes it clear that an employee or public body subject to the FOIA cannot withhold a public record that would not otherwise be exempt by transferring the public record "to the executive office of the governor or lieutenant governor, or an employee of either executive office, after a request for the public record has been received" by the employee or public body.
The FOIA creates a broad right of access to all public records "except as expressly provided in [Mich. Comp. Laws Ann. § 15.243]." Mich. Comp. Laws Ann. § 15.233(1). Mich. Comp. Laws Ann. § 15.243 includes in its list of exemptions a broad "catch-all" exemption that incorporates by reference other statutes which expressly exempt records or information from disclosure. Id. § 15.243(1)(d).
Mich. Comp. Laws Ann. §§ 15.243(l)(g) and (1)(h) also exempt records subject to the attorney-client privilege, physician-patient privilege, and other privileges "recognized by statute or court rule." See Swickard v. Wayne Cty. Med. Examiner, 438 Mich. 536, 547 (1991) (regarding physician-patient privilege).