Detroit Free Press, Inc. v. DEPT. OF STATE POLICE

• Decision Date: 28 December 2000
• Docket Number: Docket No. 221772.
• Citation: 622 N.W.2d 313,243 Mich. App. 218
• Parties: DETROIT FREE PRESS, INC., Plaintiff-Appellant, v. DEPARTMENT OF STATE POLICE, Wayne County Clerk and Ingham County Clerk, Defendants-Appellees.
• Court: Court of Appeal of Michigan — District of US

622 N.W.2d 313

243 Mich. App. 218

DETROIT FREE PRESS, INC., Plaintiff-Appellant, v. DEPARTMENT OF STATE POLICE, Wayne County Clerk and Ingham County Clerk, Defendants-Appellees.

Docket No. 221772.

Court of Appeals of Michigan.

Submitted July 11, 2000, at Detroit.

Decided November 3, 2000, at 9:25 a.m.

Released for Publication December 28, 2000.

Honigman Miller Schwartz and Cohn (by Herschel P. Fink and Cynthia G. Thomas), Detroit, for the plaintiff.

Jennifer M. Granholm, Attorney General, Thomas L. Casey, Solicitor General, and Thomas Quasarano, Assistant Attorney General, for the Department of State Police.

Cohl, Stoker & Toskey, P.C. (by Ruth E. Mason and Richard D. McNulty), Lansing, for the Ingham County Clerk.

Edward Ewell, Jr., Wayne County Corporation Counsel, and Harnetha W. Jarrett, Assistant Corporation Counsel, Detroit, for the Wayne County Clerk.

Before BANDSTRA, C.J., and GAGE and WILDER, JJ.

BANDSTRA, C.J.

In Mager v. Dep't of State Police, 460 Mich. 134, 595 N.W.2d 142 (1999), the Supreme Court held that information regarding whether private citizens own guns is information of a personal nature, the disclosure of which would constitute a clearly unwarranted invasion of privacy for purposes of an exemption from the disclosure requirements under Michigan's Freedom of Information Act (FOIA), M.C.L. § 15.231 et seq.; MSA 4.1801(1) et seq. We conclude that the same analysis applies here with respect to information regarding concealed weapons permits issued to state legislators and other public officials and affirm the trial court's order granting defendants' motion for summary disposition.

Facts

This case involves FOIA requests made by plaintiff, the Detroit Free Press, Inc.¹ Initially, the Free Press requested from defendant Department of State Police that it be allowed "to inspect and copy records that indicate whether the attached list of Michigan state legislators have concealed weapons permits, and, if so, the type of permit, any relevant restrictions, and the reason for requesting or granting the permit." The requests to defendants Wayne County Clerk and Ingham County Clerk sought permission "to inspect and copy records reflecting all currently valid concealed weapons permits issued by [the] County, including, but not limited to, the name, occupation and reason for requesting or granting of the permit." Following the Supreme Court's decision in Mager, in a supplemental brief filed in the trial court, the Free Press attempted to narrow its request to the counties by specifying that it no longer sought the names of concealed weapons permit holders who are "private citizens [and] not public officials."² Both counties responded to the FOIA requests by indicating that they would release the information to the extent it would not reveal the identity of the permit holders involved. The Department of State Police responded by denying the FOIA request altogether.

The Free Press filed this action alleging that defendants had thus violated the FOIA. Upon cross-motions for summary disposition, the trial court concluded that the requested information was exempt from the FOIA's disclosure requirements and ruled in favor of defendants.

Standard of Review and Relevant FOIA Provisions

Recently, in Herald Co. v. Bay City, 463 Mich. 111, 117-119, 614 N.W.2d 873 (2000), our Supreme Court stated the standard of review and summarized the FOIA provisions applicable to this case:³

The trial court granted summary disposition for defendants on the basis of its interpretation of the Freedom of Information Act, M.C.L. § 15.231 et seq.; MSA 4.1801(1) et seq. ... This Court reviews the grant or denial of summary disposition de novo. Maiden v. Rozwood, 461 Mich. 109, 118, 597 N.W.2d 817 (1999). Similarly, we review questions of statutory construction de novo as a question of law. Donajkowski v. Alpena Power Co., 460 Mich. 243, 248, 596 N.W.2d 574 (1999); Mager [supra at 143, n. 14, 595 N.W.2d 142]. Because our judicial role precludes imposing different policy choices than those selected by the Legislature, our obligation is, by examining the statutory language, to discern the legislative intent that may reasonably be inferred from the words expressed in the statute. People v. McIntire, 461 Mich. 147, 152-153, 599 N.W.2d 102 (1999). If the language of a statute is clear and unambiguous, the plain meaning of the statute reflects the legislative intent and judicial construction is not permitted. Tryc v. Michigan Veterans' Facility, 451 Mich. 129, 135, 545 N.W.2d 642 (1996). We must give the words of a statute their plain and ordinary meaning. MCL 8.3a; MSA 2.212(1); Turner v. Auto Club Ins. Ass'n, 448 Mich. 22, 27, 528 N.W.2d 681 (1995).

* * *

Subsection 1(2) of the FOIA declares that

"[i]t is the public policy of this state that all persons ... 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." [MCL 15.231(2); MSA 4.1801(1)(2) (emphasis added).]

Consistent with this broadly declared legislative policy, the FOIA's specific provisions generally require the full disclosure of public records in the possession of a public body:

"(1) Upon an oral or written request which describes the 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 a public record of a public body....

"(2) 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....

"(3) This act does not require a public body to make a compilation, summary, or report of information....

"(4) This act does not require a public body to create a new public record, except as required in sections 5 and 11, and to the extent required by this act for the furnishing of copies, or edited copies pursuant to section 14(1), of an already existing public record." [MCL 15.233; MSA 4.1801(3).]

The FOIA provides, in § 13, several exemptions which, if applicable, permit a public body to deny a request for disclosure of public records. On its express terms, the FOIA is a prodisclosure statute, and the exemptions stated in § 13 are narrowly construed. Mager, supra at 143, 595 N.W.2d 142; Bradley v. Saranac Community Schools Bd. of Ed., 455 Mich. 285, 293, 565 N.W.2d 650 (1997); Swickard v. Wayne Co. Medical Examiner, 438 Mich. 536, 544, 475 N.W.2d 304 (1991). The burden of proof rests on the party asserting the exemption. Bradley, supra at 293, 565 N.W.2d 650; Swickard, supra at 544, 475 N.W.2d 304.

At issue in the instant case is the following FOIA exemption:

"A public body may exempt from disclosure as a public record under this act:

"(a) Information of a personal nature where the public disclosure of the information would constitute a clearly unwarranted invasion of an individual's privacy." [MCL 15.243(1); MSA 4.1801(13)(1).]

Analysis

By its terms, § 13 requires that two factors must exist to exempt information from public disclosure. "First, the information sought must be of a `personal nature,' and, second, the disclosure of such information must constitute a `clearly unwarranted,' invasion of privacy." Booth Newspapers, Inc. v. Univ. of Michigan Bd. of Regents, 444 Mich. 211, 232, 507 N.W.2d 422 (1993).

Regarding the first of these factors, the Supreme Court has held that "the fact of gun ownership" is "`information of a personal nature.'" Mager, supra at 143, 595 N.W.2d 142. Applying the standard announced in Bradley, supra at 294, 565 N.W.2d 650, that "`information is of a personal nature if it reveals intimate or embarrassing details of an individual's private life,'" the Mager Court reasoned:

The ownership and use of firearms is a controversial subject, as to which partisans of many stripes hold strong views. Further, knowledge that a household contains firearms may make that house a target of thieves, and thus endanger its occupants. As the State Police warned in the application filed in this Court, "Disclosure under the FOIA to the world at large of the names and addresses of citizens who possess registered handguns would create a virtual shopping list for anyone bent on the theft of handguns, interested, for malicious reasons, in the identities and addresses of citizens who own handguns, and whatever else the criminal mind might evoke."

... A citizen's decision to purchase and maintain firearms is a personal decision of considerable importance. We have no doubt that gun ownership is an intimate or, for some persons, potentially embarrassing detail of one's personal life. [Mager, supra at 143-144, 595 N.W.2d 142.]

Although this case involves public officials, not private citizens, and information about concealed weapons permits, not just gun ownership, we conclude that the same analysis applies here.⁴ If anything, the fact that a person has requested or secured permission to carry a concealed weapon is an even more intimate and potentially embarrassing detail of one's private life, compared with the mere fact of gun ownership. Further, while a citizen meeting the statutory criteria may own a gun, he need not articulate any specific purpose for doing so in order to comply with statutory registration requirements. In contrast, the concealed weapons statute requires applicants to show a particularized need for personal protection before a permit is issued. MCL 28.426(5); MSA 28.93(5). This information is no less private, intimate, or potentially embarrassing because it concerns state legislators or other public officials.

The safety concerns the Supreme Court noted in Mager apply here with even greater force. In contrast to what...