Opinion
No. 332797
09-19-2017
MANSOUR LAW PC and VICTOR MANSOUR, Plaintiffs-Appellants, v. OAKLAND COUNTY and OAKLAND COUNTY SHERIFF DEPARTMENT, Defendants-Appellees.
UNPUBLISHED Oakland Circuit Court
LC No. 2016-151144-CZ Before: GADOLA, P.J., and CAVANAGH and SWARTZLE, JJ. PER CURIAM.
Plaintiffs filed a Freedom of Information Act (FOIA) request with the Oakland County Sheriff's Department, seeking, among other things, all citizen complaints, grievances, and disciplinary reports concerning five deputies. Only one disciplinary report for one officer's failure to meet timely a monthly training requirement was responsive to this request. The Sheriff's Department refused to release the record, claiming that it was exempt from disclosure under MCL 15.243(1)(s)(ix), which provides that a public body may exempt "personnel records of law enforcement agencies" from disclosure "[u]nless the public interest in disclosure outweighs the public interest in nondisclosure in the particular instance." The Oakland Circuit Court agreed with defendants, and, in an April 13, 2016 order, denied plaintiffs' request to compel production of the document. Plaintiffs now appeal to this Court as of right, and we affirm.
I. BACKGROUND
Plaintiffs served a FOIA request on the Sheriff's Department seeking 16 categories of documents loosely associated with the arrest of one of plaintiffs' clients. Defendants responded to each of the 16 categories of this request by either providing the requested documents, certifying that the requested documents did not exist, or denying the request as exempt from disclosure. As pertinent to this dispute, paragraph 12 of plaintiffs' request sought "[a]ny and all records reflecting citizen complaints, grievances, and disciplinary reports concerning" the five named deputies. Only one record—a written reprimand for one deputy's failure to complete timely a monthly training requirement—was responsive to this request. Defendants declined to produce the document, claiming that it was exempt from disclosure under MCL 15.243(1)(s)(ix), which provides that a public body may exempt "personnel records of law enforcement agencies" from disclosure "[u]nless the public interest in disclosure outweighs the public interest in nondisclosure in the particular instance."
Plaintiffs filed a complaint with the Oakland County Circuit Court seeking to compel production of the document. According to plaintiffs, disclosure of the document was in the public interest because the document could reveal "specific acts where the department has established an officer's malfeasance, misfeasance, or dishonesty" and because disciplinary reports go to "the heart of the democratic process and the public's right to know what the agents of government are up to." Plaintiffs also argued that defendants' response to plaintiffs' FOIA request was inadequate in that defendants denied the entirety of their request under paragraph 12 as being exempt from disclosure, but did not specifically certify that no grievances or citizen complaints existed.
Defendants moved for summary disposition under MCR 2.116(C)(10), arguing that the record was a law enforcement personnel record exempt from disclosure. In support of this motion, defendants provided the affidavit of Robert Smith, Major of Law Enforcement Services for the Oakland County Sheriff's Department. Major Smith attested that revealing the disciplinary report would be detrimental to the Sheriff's Department because:
a. A written reprimand, such as the one at issue here, is an effective tool for addressing minor disciplinary issues. It formally puts the deputy on notice that something must be corrected, which is usually sufficient for correcting the behavior. And if the deputy does not correct the behavior, then the reprimand provides a record of the discipline, which is necessary for accountability and for imposing any serious discipline down the line. However, if written reprimands must be produced under FOIA simply because a deputy made an arrest, then those who are involved in the disciplinary process may be less inclined to issue a written reprimand. This would make it difficult to effectively discipline the deputies.
b. Due to the nature of their job, deputies are frequently subject to embarrassing, harassing, and antagonistic behavior. Public disclosure of a disciplinary record subjects deputies to further embarrassment and harassment in the conduct of their official duties and personal affairs because, once a record is publicly released, the Sheriff's [Department] has no way to control any further
dissemination such as it being published online. This not only harms the morale of the deputy but also the department as a whole. It also creates a disincentive for a deputy with a disciplinary record to participate in an arrest out of embarrassment that any disciplinary action, no matter how minor, will be disclosed in a subsequent FOIA request.As to plaintiffs' argument that defendants' response was inadequate, defendants countered that they could not certify that any citizen complaints, grievances, or disciplinary reports did not exist because one disciplinary report did exist, though that report was exempt as a personnel record.
c. The internal operating policies and procedures of the Sheriff's [Department] are designed to protect public safety, officer safety, and jail security. Publicly releasing information about the internal policies and procedures threatens public safety, officer safety, and jail security because it allows those with improper motives to gain special knowledge about the internal workings of [the Sheriff's Department].
Plaintiffs responded by conceding that "a disciplinary record was presumably part of an officer's personnel file since it may directly influence terms and conditions of employment, including termination." Plaintiffs argued, however, that the public interest in disclosure of the particular record outweighed the public interest in nondisclosure because disclosure would serve the interest of police accountability and argued that Major Smith's "generic language" was not sufficient for defendants to meet their burden to prove otherwise.
The trial court concluded that the record was a personnel record within the meaning of MCL 15.243(1)(s)(ix), and that defendants had met their burden to prove that the public interest in protecting the record from disclosure outweighed the public interest in disclosure for the reasons set forth in Major Smith's affidavit. The trial court further found that defendants' response was not inadequate and dismissed plaintiffs' complaint in its entirety under MCR 2.116(C)(10).
II. ANALYSIS
A. Standard of Review
We review de novo the trial court's grant of summary disposition. Peters v Department of Corrections, 215 Mich App 485, 486; 546 NW2d 668 (1996). Summary disposition is appropriate under MCR 2.116(C)(10) where "[e]xcept as to the amount of damages, there is no genuine issue concerning any material fact, and the moving party is entitled to judgment or partial judgment as a matter of law."
We also review de novo the trial court's legal determinations, including whether a public body is required to certify that no records exist responsive to a FOIA request. Rataj v City of Romulus, 306 Mich App 735, 747; 858 NW2d 116 (2014); Herald Co, Inc v E Michigan Univ Bd of Regents, 475 Mich 463, 471-72; 719 NW2d 19 (2006). "In general, whether a public record is exempt from disclosure under FOIA is a mixed question of fact and law. However, when the facts are undisputed and reasonable minds could not differ, whether a public record is exempt under FOIA is a pure question of law for the court." Rataj, 306 Mich App at 747-748 (internal citations omitted).
We apply the clear error standard of review "in FOIA cases where a party challenges the underlying facts that support the trial court's decision. In that case, the appellate court must defer to the trial court's view of the facts unless the appellate court is left with the definite and firm conviction that a mistake has been made by the trial court." Herald Co, 475 Mich at 472. Finally, we review for an abuse of discretion decisions committed to the trial court's discretion, such as the balancing test required under MCL 15.243(1)(s)(ix), and will not disturb the trial court's decisions unless they fall outside the range of reasoned and principled outcomes. Id. B. The Trial Court's Finding that the Record Was Exempt From Disclosure Was Not an Abuse of Discretion
On appeal, plaintiffs first argue that the trial court abused its discretion by concluding that the disciplinary report was exempt from disclosure under MCL 15.243(1)(s)(ix). We disagree.
"Under the FOIA, an individual has the right to inspect, copy, or receive copies of a public record after providing the 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.' " Detroit Free Press, Inc v City of Southfield, 269 Mich App 275, 280-281; 713 NW2d 28 (2005), citing MCL 15.233(1). A "public record" is defined as "a writing prepared, owned, used, in the possession of, or retained by a public body in the performance of an official function, from the time it is created." MCL 15.232(e).
"Our Supreme Court has repeatedly described FOIA as a 'prodisclosure statute.' " Rataj, 306 Mich App at 748. "Consistent with the FOIA's underlying policies, a public body is required to grant full disclosure of its records, unless they are specifically exempt under MCL 15.243." Detroit Free Press, 269 Mich App at 281. The exemptions under MCL 15.243 are construed narrowly to effectuate the FOIA's pro-disclosure policies. Id.; Rataj, 306 Mich App at 748-749. Accordingly, the burden to prove a public record is exempt from disclosure under MCL 15.243 rests with the party asserting the exemption. Detroit Free Press, 269 Mich App at 281; Rataj, 306 Mich App at 748-749.
Under MCL 15.243(1)(s)(ix), a public body may exempt from disclosure "personnel records of law enforcement agencies" unless "the public interest in disclosure outweighs the public interest in nondisclosure in the particular instance." See also Landry v City Of Dearborn, 259 Mich App 416, 419-420; 674 NW2d 697 (2003). Therefore, to exempt a record from disclosure under MCL 15.243(1)(s)(ix), the public body bears the burden of proving that (1) the record qualifies as a "personnel record," and (2) the public interest in protecting the personnel record from disclosure outweighs the public interest in reviewing the record. Landry, 259 Mich App at 420.
The Record Is a Personnel Record. On appeal, plaintiffs argue that the disciplinary report is not a personnel record. Nonetheless, despite plaintiffs' arguments to the contrary before the trial court and this Court on appeal, plaintiffs conceded in their response to defendants' motion for summary disposition that a disciplinary record is a personnel record.
Yet, even had plaintiffs not made this concession, we would still find that the record is a personnel record. Despite the focus on narrowly construing exceptions to the FOIA's disclosure requirements, this Court has concluded that our "Legislature's use of the term 'personnel' as an adjective [in MCL 15.243(1)(s)(ix)] encompasses all facets of the employment process." Landry, 259 Mich App at 422-423. As defendants note, discipline is an integral part of the employment process affecting not only the employee's work behavior, but also future advancement opportunities, pay, and termination. Accordingly, we conclude that the disciplinary report is a personnel record within the meaning of MCL 15.243(1)(s)(ix).
The Record is Exempt. After concluding that the record qualifies as a personnel record, we must determine whether the trial court abused its discretion in concluding that defendants met their burden to prove that the public interest in protecting the record from disclosure outweighed the public interest in disclosure. See Landry, 259 Mich App at 424 (concluding that a record only becomes "exemptible" upon the trial court's proper conclusion that the record is a personnel record, pending the trial court's resolution of the balancing inquiry). We conclude that the trial court did not abuse its discretion.
Major Smith's affidavit set forth three reasons why the records should not be subject to disclosure: (a) the written reprimand is an effective internal disciplinary tool that supervising officers would be less inclined to utilize if it were subject to public disclosure, (b) public disclosure of the written reprimand, particularly through online platforms, would subject the officer to undue embarrassment, again rendering it unlikely to be utilized by supervising officers, and (c) release of the written reprimand related to an internal training requirement threatens public safety in that it could be used by those attempting to subvert the functions of the Sheriff's Department. Plaintiffs did not counter these assertions with any documentary support but rather cited Seylver v City of Troy, unpublished opinion of the Court of Appeals, issued November 8, 2011 (Docket No. 297573), and Lawrence v City of Troy, unpublished opinion of the Court of Appeals, issued February 14, 2012 (Docket No. 300478), for the proposition that disciplinary reports are never exempt from disclosure.
Generally, reliance on unpublished decisions by parties is disfavored, as those decisions are not binding precedent. MCR 7.215(C)(1). In any event, we find that the decisions cited by plaintiffs do not support their proposition that disciplinary reports are never exempt from disclosure.
In Seyler, unpub op at 5-6, this Court reversed a trial court's ruling that certain disciplinary reports were exempt from disclosure because the defendant police department had "failed to put forth any support" for its assertion that the public interest favored nondisclosure over disclosure. (Emphasis added). Seyler does not stand for the blanket proposition that disciplinary records are never exempt from disclosure and is factually distinct from the instant circumstances where Major Smith's affidavit presents a detailed account of exactly why the records should be protected from disclosure.
In Lawrence, unpub op at 4, the plaintiff sought records pertaining to internal discipline and official disciplinary proceedings for two officers. The Lawrence court distinguished records of internal disciplinary actions from records of disciplinary actions mandated by statute or legal proceeding—the former being generally exempt from disclosure in the public interest, and the latter generally being subject to disclosure in the public interest. Id., unpub op at 4-5. Here, the only record responsive to plaintiffs' request was a record of internal discipline. Therefore, we likewise find Lawrence unavailing to plaintiffs.
With respect to Major Smith's affidavit, plaintiffs have set forth no evidence rebutting its factual assertions. We conclude that several of Major Smith's stated concerns are sufficient to warrant nondisclosure here. Specifically, with regard to the disinclination of supervising officers to issue written reprimands if such reprimands were publicly available, a public reprimand is clearly a more serious punishment than a private reprimand. Although the public does have an interest in ensuring that police departments are operating appropriately, that interest has less weight with regard to the minor infractions typically subject to written reprimands. The public interest in disclosure would have greater weight with more serious forms of discipline, including an internal suspension, demotion, or firing. Relatedly, with public disclosure of a minor infraction, undue embarrassment to the officer would likely follow. Thus, it appears likely that supervising officers would shy away from issuing written reprimands if such reprimands were subject to FOIA disclosure, at the expense of creating a written record available for future discipline. Given these concerns, the public interest in appropriate discipline of officers outweighs disclosure under the circumstances.
Accordingly, we find sufficient evidence in the record to support the trial court's conclusion that the public interest in protecting the disciplinary record outweighed the public interest in disclosure in this particular instance. The trial court did not abuse its discretion by refusing to compel the production of that document and by dismissing that count of plaintiff's complaint under MCR 2.116(C)(10). C. Defendants' Response to Plaintiffs' FOIA Request Was Not Inadequate
Lastly, plaintiffs argue that defendants' response to plaintiffs' FOIA request was inadequate. We disagree.
MCL 15.235 sets the requirements for a public body's response to a FOIA request. Under MCL 15.235(5), the public body denying a request for a record "in whole or in part" must send a written notice to the requester, containing, among other things:
(a) An explanation of the basis under this act or other statute for the determination that the public record, or portion of that public record, is exempt from disclosure, if that is the reason for denying all or a portion of the request.
(b) A certificate that the public record does not exist under the name given by the requester or by another name reasonably known to the public body, if that is the reason for denying the request or a portion of the request.
In this case, defendants responded to plaintiffs' FOIA request by certifying that records pertaining to some categories of requested information did not exist or could not be located, and indicating that other categories of information were privileged under various exceptions. As pertinent to this dispute, defendants denied access to the grievances, citizen complaints, and disciplinary records requested under paragraph 12 because those records were exempt from disclosure as law enforcement personnel records. Plaintiffs take issue with this response, claiming that defendants should have specifically indicated that no citizen complaints or grievances existed. Defendants, however, were not denying the request on the ground that the records did not exist, but on the ground that the records were exempt from disclosure. MCL 15.235(5)(b) requires the public body to certify that the record doesn't exist only when non-existance of the record "is the reason for denying the request or a portion of the request." See also Detroit Free Press, 269 Mich App at 281 ("If a public body denies an FOIA request because it claims that a record does not exist, the public body must send written notice including a certificate that the public record does not exist under the name given by the requester or by another name reasonably known to the public body.") (emphasis added, internal citation and quotation marks omitted).
Moreover, plaintiffs requested all citizen complaints, grievances, and disciplinary reports pertaining to the officers under the same paragraph (12) of a sixteen-paragraph request. Major Smith's affidavit makes clear that there was one record responsive to plaintiffs' request as pertinent to paragraph 12—the written reprimand. Accordingly, it was not possible for defendants to certify that no documents existed responsive to paragraph 12. While it was possible for defendants to, on their own initiative, respond individually to each item presented in each of the 16 paragraphs, plaintiffs' decision to group the three items together in one paragraph indicates that plaintiffs expected a single response to the entire paragraph, rather than an individual response to each individual item. If plaintiffs expected a more individualized response, plaintiffs should have crafted their request accordingly. See MCL 15.235(5)(b) (requiring that the public body certify that the record does not exist "under the name given by the requestor") (emphasis added).
Finally, this Court has determined that the legislative purpose behind MCL 15.235's certification requirement was to prevent a public body from using silence to deny, in effect, a FOIA request for records that actually exist, until the requester files a lawsuit to obtain those records. See Key v Twp of Paw Paw, 254 Mich App 508, 511; 657 NW2d 546 (2002); Hartzell v Mayville Community Sch Dist, 183 Mich App 782, 787; 455 NW2d 411 (1990). This is not a situation in which defendants have hidden documents to avoid their release. Rather, defendants denied the release of documents in apparent good faith, based upon statutory exemptions and attention to the consequences any potential release would have for the Sheriff's Department. This situation simply does not present the kind of harm the Legislature intended to address through MCL 15.235.
For these reasons, we conclude that the trial court properly denied plaintiffs' claim regarding the certification requirements of MCL 15.235.
Affirmed.
/s/ Michael F. Gadola
/s/ Mark J. Cavanagh
/s/ Brock A. Swartzle