September 04, 2018
Author: Robin Luce Herrmann
Organization: Butzel Long, P.C.
EXEMPTIONS
MCL 15.243 Exemptions from disclosure; withholding of information required by law or in possession of executive office.
(1) A public body may exempt from disclosure as a public record under this act any of the following:
(a) Information of a personal nature if public disclosure of the information would constitute a clearly unwarranted invasion of an individual's privacy.
(b) Investigating records compiled for law enforcement purposes, but only to the extent that disclosure as a public record would do any of the following:
(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.
(vi) Endanger the life or physical safety of law enforcement personnel.
(c) A public record that if disclosed would prejudice a public body's ability to maintain the physical security of custodial or penal institutions occupied by persons arrested or convicted of a crime or admitted because of a mental disability, unless the public interest in disclosure under this act outweighs the public interest in nondisclosure.
(d) Records or information specifically described and exempted from disclosure by statute.
(e) A public record or information described in this section that is furnished by the public body originally compiling, preparing, or receiving the record or information to a public officer or public body in connection with the performance of the duties of that public officer or public body, if the considerations originally giving rise to the exempt nature of the public record remain applicable.
(f) Trade secrets or commercial or financial information voluntarily provided to an agency for use in developing governmental policy if:
(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.
(g) Information or records subject to the attorney-client privilege.
(h) Information or records subject to the physician-patient privilege, the psychologist-patient privilege, the minister, priest, or Christian Science practitioner privilege, or other privilege recognized by statute or court rule.
(i) A bid or proposal by a person to enter into a contract or agreement, until the time for the public opening of bids or proposals, or if a public opening is not to be conducted, until the deadline for submission of bids or proposals has expired.
(j) Appraisals of real property to be acquired by the public body until either of the following occurs:
(i) An agreement is entered into.
(ii) Three years have elapsed since the making of the appraisal, unless litigation relative to the acquisition has not yet terminated.
(k) Test questions and answers, scoring keys, and other examination instruments or data used to administer a license, public employment, or academic examination, unless the public interest in disclosure under this act outweighs the public interest in nondisclosure.
(l) Medical, counseling, or psychological facts or evaluations concerning an individual if the individual's identity would be revealed by a disclosure of those facts or evaluation, including protected health information, as defined in 45 CFR 160.103.
(m) Communications and notes within a public body or between public bodies of an advisory nature to the extent that they cover other than purely factual materials and are preliminary to a final agency determination of policy or action. This exemption does not apply unless the public body shows that in the particular instance the public interest in encouraging frank communication between officials and employees of public bodies clearly outweighs the public interest in disclosure. This exemption does not constitute an exemption under state law for purposes of section 8(h) of the open meetings act, 1976 PA 267, MCL 15.268. As used in this subdivision, \"determination of policy or action\" includes a determination relating to collective bargaining, unless the public record is otherwise required to be made available under 1947 PA 336, MCL 423.201 to 423.217.
(n) Records of law enforcement communication codes, or plans for deployment of law enforcement personnel, that if disclosed would prejudice a public body's ability to protect the public safety unless the public interest in disclosure under this act outweighs the public interest in nondisclosure in the particular instance.
(o) Information that would reveal the exact location of archaeological sites. The department of history, arts, and libraries may promulgate rules in accordance with the administrative procedures act of 1969, 1969 PA 306, MCL 24.201 to 24.328, to provide for the disclosure of the location of archaeological sites for purposes relating to the preservation or scientific examination of sites.
(p) Testing data developed by a public body in determining whether bidders' products meet the specifications for purchase of those products by the public body, if disclosure of the data would reveal that only 1 bidder has met the specifications. This subdivision does not apply after 1 year has elapsed from the time the public body completes the testing.
(q) Academic transcripts of an institution of higher education established under section 5, 6, or 7 of article VIII of the state constitution of 1963, if the transcript pertains to a student who is delinquent in the payment of financial obligations to the institution.
(r) Records of a campaign committee including a committee that receives money from a state campaign fund.
(s) Unless the public interest in disclosure outweighs the public interest in nondisclosure in the particular instance, public records of a law enforcement agency, the release of which would do any of the following:
(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 active or retired law enforcement officers or agents or a special skill that they may have.
(iv) Disclose the name, address, or telephone numbers of family members, relatives, children, or parents of active or retired 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.
(x) Identify or provide a means of identifying residences that law enforcement agencies are requested to check in the absence of their owners or tenants.
(t) Except as otherwise provided in this subdivision, records and information pertaining to an investigation or a compliance conference conducted by the department under article 15 of the public health code, 1978 PA 368, MCL 333.16101 to 333.18838, before a complaint is issued.
This subdivision does not apply to records or information pertaining to 1 or more of the following:
(i) The fact that an allegation has been received and an investigation is being conducted, and the date the allegation was received.
(ii) The fact that an allegation was received by the department; the fact that the department did not issue a complaint for the allegation; and the fact that the allegation was dismissed.
(u) Records of a public body's security measures, including security plans, security codes and combinations, passwords, passes, keys, and security procedures, to the extent that the records relate to the ongoing security of the public body.
(v) Records or information relating to a civil action in which the requesting party and the public body are parties.
(w) Information or records that would disclose the social security number of an individual.
(x) Except as otherwise provided in this subdivision, an application for the position of president of an institution of higher education established under section 4, 5, or 6 of article VIII of the state constitution of 1963, materials submitted with such an application, letters of recommendation or references concerning an applicant, and records or information relating to the process of searching for and selecting an individual for a position described in this subdivision, if the records or information could be used to identify a candidate for the position. However, after 1 or more individuals have been identified as finalists for a position described in this subdivision, this subdivision does not apply to a public record described in this subdivision, except a letter of recommendation or reference, to the extent that the public record relates to an individual identified as a finalist for the position.
(y) Records or information of measures designed to protect the security or safety of persons or property, whether public or private, including, but not limited to, building, public works, and public water supply designs to the extent that those designs relate to the ongoing security measures of a public body, capabilities and plans for responding to a violation of the Michigan anti-terrorism act, chapter LXXXIII-A of the Michigan penal code, 1931 PA 328, MCL 750.543a to 750.543z, emergency response plans, risk planning documents, threat assessments, and domestic preparedness strategies, unless disclosure would not impair a public body's ability to protect the security or safety of persons or property or unless the public interest in disclosure outweighs the public interest in nondisclosure in the particular instance.
(2) A public body shall exempt from disclosure information that, if released, would prevent the public body from complying with 20 USC 1232g, commonly referred to as the family educational rights and privacy act of 1974. A public body that is a local or intermediate school district or a public school academy shall exempt from disclosure directory information, as defined by 20 USC 1232g, commonly referred to as the family educational rights and privacy act of 1974, requested for the purpose of surveys, marketing, or solicitation, unless that public body determines that the use is consistent with the educational mission of the public body and beneficial to the affected students. A public body that is a local or intermediate school district or a public school academy may take steps to ensure that directory information disclosed under this subsection shall not be used, rented, or sold for the purpose of surveys, marketing, or solicitation. Before disclosing the directory information, a public body that is a local or intermediate school district or a public school academy may require the requester to execute an affidavit stating that directory information provided under this subsection shall not be used, rented, or sold for the purpose of surveys, marketing, or solicitation.
(3) This 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.
(4) Except as otherwise exempt under subsection (1), this act does not authorize the withholding of a public record in the possession of the executive office 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 branch of government that is subject to this act.
History: 1976, Act 442, Eff. Apr. 13, 1977 ;-- Am. 1978, Act 329, Imd. Eff. July 11, 1978 ;--Am. 1993, Act 82, Eff. Apr. 1, 1994 ;-- Am. 1996, Act 553, Eff. Mar. 31, 1997 ;-- Am. 2000, Act 88, Imd. Eff. May 1, 2000 ;-- Am. 2001, Act 74, Imd. Eff. July 24, 2001 ;-- Am. 2002, Act 130, Eff. May 1, 2002 ;-- Am. 2002, Act 437, Eff. Aug. 1, 2002 ;-- Am. 2006, Act 482, Imd. Eff. Dec. 22, 2006
The Troy Case
Two Troy police officers mistakenly shot and killed the owner of a van parked in his own driveway, believing him to be a criminal in the process of stealing from it or vandalizing it. The police department refused to release the officers’ names to media citing an ongoing investigation into the incident.
The Detroit News filed a Freedom of Information request for the officers’ names saying they were public record. Troy officials opposed the release of the names claiming it would “interfere with law enforcement proceedings”.
The case eventually wound up before the Michigan Supreme Court as Evening News Association v City of Troy, 417 Mich 481; 339 NW2d 421 (1983). The decision is one of the most important decisions to be rendered by the court with regard to FOIA.
In construing the “interfere with law enforcement proceedings exemption,” the Court noted that the defendant had only put forth generic assertions that disclosure would harm its investigation, and no particularized evidence existed in the record that disclosure of the reports would have interfered with the investigation. 417 Mich at 486. The Court also noted that:
Critical public reaction is not interference with law enforcement proceedings....Furthermore, public praise and criticism is part of the democratic process that FOIA seeks to promote. 417 Mich at 512.
The Supreme Court set down the following standard for analyzing a claim of exemption from FOIA disclosure:
1. The burden of proof is on the party claiming exemption from disclosure, i.e. the public body.
2. Exemptions must be interpreted narrowly.
3. The public body shall separate the exempt and nonexempt material and make the nonexempt material available for examination and copying.
4. Detailed affidavits describing the matters withheld must be supplied by the agency.
5. Justification of the exemption must be more than “conclusory,” i.e. 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.
6. The mere showing of a direct relationship between records sought and an investigation is inadequate.
Evening News Association, 417 Mich at 502; see also Nicita v Detroit, 194 Mich App 657; 487 NW2d 814 (1992).
Generic denials thus do not satisfy the FOIA. The high court concluded:
“A general claim that records are involved in an ongoing criminal
investigation and that their disclosure would “interfere with law
enforcement proceedings” is not sufficient to sustain an exemption under
FOIA Article 13 (1)(b). A public body must indicate factually and in detail
how a particular document or category of documents satisfies the
exemption; mere conclusory allegations are not sufficient.”
Freedom of Information Act Request
SAMPLE FOIA REQUEST LETTER
(Date) July 4, 2010
(Agency Head) Ms. Jane Mayor
(Title) Township Supervisor
(Location) Harriedperson Twp.
(Address) 69 Last Hope Road
Mukillteo, MI. 5800
Re: Freedom of Information Request
Dear Ms. Mayor
This is a request for information under the Michigan Freedom of Information Act (MCLA 15.231 et seq.) (for Federal requests it would be 5 U.S.C. §552)
I am requesting the following information as permitted by law. (NOTE: Now detail as specifically as possible the records or information you are seeking.) You have five business days under Michigan law to either provide copies of the records or a detailed explanation why the records will not be disclosed. (NOTE: There is no five day provision under federal law, but if you are dealing with a FOI officer and he or she rejects your request you can appeal it to the agency head.) Since this is a matter of public interest we would request that you waive any fees. Absent that please advise me of what the fees specifically are according to statutory guidelines. (NOTE: Alternatively, you could set a dollar limit: If providing the documents responsive to this request will exceed $25.00, please contact me).
If you need to reach me my telephone number is (000-000-0000). Thank you in advance for your cooperation in providing information of interest to Michigan’s citizens.
Sincerely,
Janis Doe
20 W. Main
Mukillteo, MI 58000
SAMPLE FOIA APPEAL LETTER
(Date) August 1, 2010
(Appeal Agency) City Council
(Location) Harriedperson Twp.
(Address) 69 Last Hope Road
Mukillteo, MI. 5800
Re: FOIA Appeal
Dear City Council:
On July 4, 2010, I made a FOIA request for [what was requested]. That request was denied because [for example, under the law enforcement investigations exemption]. This letter serves as an appeal of your decision to withhold these documents in their entirety.
As an initial matter, the burden of demonstrating the applicability of an exemption rests with the public body. Bradley v Saranac County Schs, 455 Mich 285; 565 NW2d 650 (1997).
Moreover, even if the exemptions on which The City relies are applicable, The City must justify how the exemption applies to the particular document(s) at issue. As written, the denial does not meet the requirements laid down by the Supreme Court in The Evening News Association v City of Troy, 417 Mich 481 (1983).
Finally, the City’s Response absolutely ignores its statutory obligation to separate any exempt material from non-exempt material. MCL 15.244.
I respectfully request that you immediately remedy the deficiencies highlighted in this letter.
Sincerely,
Janis Doe
20 W. Main
Mukillteo, MI 58000
Cc: Ms. Jane Mayor, Township Supervisor
FREEDOM OF INFORMATION ACT
Selected Cases
Michigan Federation of Teachers v University of Michigan, 481 Mich. 657 (2008) (modifying Bradley v. Saranac, 455 Mich. 285 (1997)).
In this case, the Michigan Supreme Court determined that the home addresses and telephone numbers of university employees are exempt from disclosure under FOIA’s privacy exemption. In deciding this issue, the Court revisited Bradley, and how FOIA’s privacy exemption should be analyzed. The Court held that: the privacy exemption has two prongs that the information sought to be withheld from disclosure must satisfy. First, the information must be ‘of a personal nature.’ Second, it must be the case that the public disclosure of that information ‘would constitute a clearly unwarranted invasion of an individual's privacy.’” 481 Mich at 675.
As to the first prong, the Court said:
We hold that the Bradley formulation, as far as it goes, is a correct description of what information is “of a personal nature.” Thus, we continue to hold that “intimate” or “embarrassing” details of an individual are “of a personal nature.” However, a case such as this leads us to conclude that “intimate” and “embarrassing” do not exhaust the intended scope of that statutory phrase. Indeed, the Bradley Court itself noted, whether inadvertently or not, that “information of a personal nature” includes more than “intimate” or “embarrassing” details of a person’s life. After articulating its “succinct test,” the Bradley Court expanded it by concluding that “none of the documents [sought in that case] contain information of an embarrassing, intimate, private, or confidential nature.” After careful consideration, we conclude that the observation from Bradley that intimate, embarrassing, private, or confidential information is “of a personal nature” more accurately and fully describes the intended scope of the statutory text as assessed in the first prong of the privacy exemption. Indeed, the words “personal” and “private” are largely synonymous. Thus, private or confidential information relating to a person, in addition to embarrassing or intimate details, is “information of a personal nature.” 481 Mich. at 675-76.
As to the second prong, the Court concluded that the disclosure of employee’ home addresses and telephone numbers does not further a core purpose of FOIA by shedding light on whether the University of Michigan is functioning properly and consistently with its statutory and constitutional mandates. Thus, the Court concluded that public disclosure would constitute a clearly unwarranted invasion of personal privacy. 481 Mich. at 682.
State News v. Michigan State University, 274 Mich. App. 558 (2007), reversed in part on other grounds, 481 Mich. 692 (2008).
Under the law enforcement purpose exemption the public body must show that the particular information would interfere with law enforcement proceedings, deprive a person of the right to a fair trial, or constitute an unwarranted invasion of personal privacy; not merely that it could possibly or potentially interfere with or jeopardize the investigation.
Coblentz v City of Novi, 475 Mich. 558 (2006).
FOIA only requires a description sufficient to permit identification of the requested items – not a precise description of the public record.
FOIA allows public bodies to charge a requesting party only for employees’ labor. Because the attorney who examined and separated the information was not defendant’s employee, the public body could not charge for the attorney’s work.
Taylor v. Lansing Board of Water and Light, 272 Mich. App. 200 (2006).
Case law is clear that initial as well as future uses of information requested under FOIA are irrelevant in determining whether the information falls within exemption, as is the identity of the person seeking the information.
Herald Co., Inc. v. Eastern Michigan University, 475 Mich. 463 (2005).
A document is a “frank communication” if it (1) is a communication or note of an advisory nature made within a public body or between public bodies, (2) covers other than purely factual material, and (3) is preliminary to a final agency determination of policy or action. If the document fails any one of these threshold qualifications, the exemption does not apply.
Detroit Free Press v City of Southfield, 269 Mich. App. 275 (2005).
The names of police officers and their corresponding pension incomes were subject to disclosure under the FOIA. “[A] a public official has no reasonable expectation of privacy in an expense the public bears to pay for income or any other benefit.”
Landry v. City of Dearborn, 259 Mich. App. 416 (2003).
The employment applications of individuals applying for the position of police officer are exemptable from disclosure under the FOIA as law enforcement personnel records
Federated Publications, Inc. v. City of Lansing, 467 Mich. 98 (2002).
The burden of proof is on the public body to show that it is entitled to protect a record from disclosure.
Herald Co. (Bay City Times) v. City of Bay City, 463 Mich. 111 (2000).
Records concerning final candidates for fire chief are subject to FOIA. The fact of application or the typical background information disclosed in such an application is not personal within the meaning of FOIA’s privacy exemption.
Herald Co. v Bay City, 228 Mich App 268; 577 NW2d 696 (1998).
Information about a person being considered as a finalist for a high level public position is not of a “personal nature” for the purposes of the FOIA privacy exemption. Once the list of candidates has been narrowed to those persons to be interviewed, the applicant’s right of privacy is outweighed by the public’s interest in knowing the applicants’ qualifications. Redaction can be used to separate confidential information from non-private information.
Bradley v Saranac Community Schools Board of Education, 455 Mich 285; 565 NW2d 650 (1997).
The Michigan FOIA does not have a specific exemption for personnel records. Thus, the personnel records of non-law enforcement public employees generally are available to the public. Information that falls within one of the exemptions of the FOIA may be redacted. The privacy exemption under 13(1)(a) of the FOIA consists of two elements, both of which must be met in order for an exemption to apply. First, the information must be of a “personal nature.”
Second, the disclosure must be a “clearly unwarranted invasion of privacy.” Performance appraisals, disciplinary actions, and complaints relating to employees’ accomplishments in their public jobs do not reveal intimate or embarrassing details of their private lives and, therefore, they are not records of a “personal nature.”
Performance evaluations of public employees are not counseling evaluations protected from disclosure by the FOIA, §13(1)(m).
Section 13(1)(n) of the FOIA provides an exemption for communications passing within or between public bodies. Documents in the possession of a school district prepared by parents are not within the scope of this exemption. Further, the exemption must be asserted by a public body rather than by a private individual.
Farrell v Detroit, 209 Mich App 7; 530 NW2d 105 (1995).
Computer records are public records that are subject to disclosure pursuant to the FOIA. A public body is required to provide public records in the form requested, not just the information they contain. The providing of a computer printout of the information contained on a computer tape does not satisfy a request for the computer tape itself.
In Re Subpoena Duces Tecum, on remand from the Michigan Supreme Court, 205 Mich App 700; 518 NW2d 522 (1994).
Section 13(1)(n) of the FOIA protects from disclosure communications within or between public bodies of an advisory nature that are other than purely factual and are preliminary to a final agency determination of policy or action. The burden is on the public body to show, in each particular instance, that the public interest in encouraging frank communications between officials and employees of the public body clearly outweighs the public interest in disclosure. It is not adequate to show that the requested document falls within a general category of documents that may be protected.
Newark Morning Ledger Company v Saginaw County Sheriff, 204 Mich App 215; 514 NW2d 213 (1994).
Internal affairs investigation records of a law enforcement agency constitute personnel records which are exempt from disclosure, unless the public interest in disclosure outweighs the public interest in non-disclosure. The mere location of a public record in a personnel file is not determinative as to its status in a personnel record.
Patterson v Allegan County Sheriff, 199 Mich App 638; 502 NW2d 368 (1993)
A booking photograph of a county jail inmate kept in the files of a county sheriff is a public record under the FOIA; such photographs may not be withheld from disclosure on the basis of the privacy exemption found in 13 (1) (a).
Swickard v Wayne County Medical Examiner, 438 Mich 536; 475 NW2d 304 (1991)
In making a determination whether a disclosure of requested information would constitute an invasion of privacy one looks to constitutional law and common law as well as customs, mores, or ordinary views of the community.
The release of autopsy reports and toxicology test results are not unwarranted infringements on the right to privacy of either the deceased or the deceased’s family. The autopsy report and toxicology tests are not within the doctor-patient privilege.
Post-Newsweek Stations, Michigan, Inc v Detroit, 179 Mich App 331; 445 NW2d 529 (1989)
In claiming an exemption under FOIA, for interference with law enforcement proceedings, the burden of proof is on the public body claiming the exemption. The exemption must be interpreted narrowly and the public body must separate exempt material from non-exempt and make non-exempt information available. Exempt information must be described with particularity indicating how the information would interfere with law enforcement proceedings. When analyzing claims of exemption under FOIA a trial court must make sure it receives a complete particularized justification for a denial of a request, or hold in camera hearings to determine whether this justification exists. The court may allow counsel for the requesting party to examine, in camera, under special agreement, the contested material.
Detroit Free Press, Inc v Oakland County Sheriff, 164 Mich App 656; 418 NW2d 124 (1987)
Booking photographs of persons arrested, charged with felonies, and awaiting trial are not protected from release as an unwarranted invasion of personal privacy.
DeMaria Building Co, Inc v Department of Management and Budget, 159 Mich App 729; 407 NW2d 72 (1987)
The exemption found in 13 (1) (n) of the FOIA, for communications and notes within a public body or between public bodies, does not apply to an outside consultant’s report to a public body.
Evening News Association v City of Troy; 417 Mich 481; 339 NW2d 421 (1983)
A general claim that records are involved in an ongoing criminal investigation and that their disclosure would “interfere with law enforcement proceedings” is not sufficient to sustain an exemption under FOIA, § 13 (1)(b). A public body must indicate factually and in detail how a particular document or category of documents satisfies the exemption; mere conclusory allegations are not sufficient.