Evening News Ass'n v. City of Troy

• Decision Date: 24 October 1983
• Docket Number: No. 7,Docket No. 66268,7
• Citation: 417 Mich. 481,339 N.W.2d 421
• Parties: The EVENING NEWS ASSOCIATION, Plaintiff-Appellant, v. CITY OF TROY and John T. Donovan, Defendants-Appellees, and Troy Police Officers Association, Intervening Defendant-Appellee. Calendar417 Mich. 481, 339 N.W.2d 421
• Court: Michigan Supreme Court

Page 421

339 N.W.2d 421

The EVENING NEWS ASSOCIATION, Plaintiff-Appellant, v.CITY OF TROY and John T. Donovan, Defendants-Appellees and Troy Police Officers Association, Intervening Defendant-Appellee.

Docket No. 66268.

Calendar No. 7.

417 Mich. 481, 339 N.W.2d 421

Supreme Court of Michigan.

Argued March 9, 1983.

Decided Oct. 24, 1983.

Butzel, Long, Gust, Klein & Van Zile by Richard E. Rassel, James E. Stewart, Detroit, for plaintiff-appellant, The Evening News Ass'n.

John J. Martin, III, Asst. City Atty., Troy, for City of Troy.

Butler, Modelski & Bunting by Jeffrey Butler, Lawrence J. Bunting, Pontiac, on brief amicus curiae of the Mich. Ass'n of Chiefs of Police.

WILLIAMS, Chief Justice(for remand ).

This is a case of first impression concerning the Michigan Freedom of Information Act.M.C.L. Sec. 15.231 et seq.;M.S.A. Sec. 4.1801(1) et seq.We are asked to determine whether the identities of two police officers and their incident reports describing the David Prior homicide, which were both requested by the plaintiff newspaper, were properly withheld from disclosure under the FOIA by the City of Troy and its police chief.

Specifically, we must decide, first, whether the Oakland Circuit Court and the Court of Appeals erred in holding that the defendants met their statutory burden of proof in withholding the incident reports and the identities of the two officers involved in the David Prior homicide which were contained in the requested reports from plaintiff under a "generic [blanket] determination" standard.M.C.L. Sec. 15.240(1);M.S.A. Sec. 4.1801(10)(1).Second, we must consider whether the defendants failed to meet their statutory burden in neglecting to separate exempt material from that which was nonexempt.M.C.L. Sec. 15.244(1);M.S.A. Sec. 4.1801(14)(1).We answer both questions in the affirmative, and, therefore, we reverse.

Finally, in considering the appropriate procedures that circuit court should employ in determining whether a requested document and the information contained therein should be withheld from disclosure under the FOIA exemptions, we generally adopt the procedures set forth in Vaughn v. Rosen, 157 U.S.App.D.C. 340, 346-348, 484 F.2d 820(1973), andRay v. Turner, 190 U.S.App.D.C. 290, 587 F.2d 1187(1978).

In considering the issues presented in this case, we look first to the basic policy of the FOIA as expressed in M.C.L. Sec. 15.231(2);M.S.A. Sec. 4.1801(1)(2):

"It 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."

The exemption relied on by the trial court in denying plaintiff's request reads as follows:

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

* * *

"(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."(Emphasis added.)M.C.L. Sec. 15.243(1)(b)(i);M.S.A. Sec. 4.1801(13)(1)(b)(i).

Additionally, M.C.L. Sec. 15.244(1);M.S.A. Sec. 4.1801(14)(1) affirmatively provides that:

"If a public record contains material which is not exempt under section 13, as well as material which is exempt from disclosure under section 13, the public body shall separate the exempt and nonexempt material and make the nonexempt material available for examination and copying."(Emphasis added.)

In the case at bar, the trial court, without the defendants producing particularized reasons against disclosure, nevertheless concluded without particularized reasons that release of the reports as well as the identities of the two officers which were contained in the requested reports would interfere with law enforcement proceedings.The Court of Appeals held that the "generic determination" by the circuit court without a showing by the defendants of particular risk was not erroneous.

First, we hold that the "generic determination" standard used by the trial court and affirmed by the Court of Appeals that release of the reports along with the information contained in them would "interfere with law enforcement proceedings" and "would indeed have a chilling effect on the investigation" did not meet the defendants' statutory burden of proof to sustain their denial.

Second, we hold that the defendants had an affirmative statutory duty under the act to separate exempt material from that which is nonexempt.The defendants in the instant case failed to undertake this duty.

Finally, we reverse the judgments of the trial court and the Court of Appeals and generally adopt the procedures laid down in Vaughn v. Rosen, supra, andRay v. Turner, supra.

FACTS

In the early hours of July 31, 1979, two Troy police officers responded to a radio report concerning an ongoing larceny in a parked van.The owner, David Prior, was inside the van and was armed with a pellet gun.While checking the van, one of the officers shot and killed the owner.After the homicide, the two officers and several investigating officers filed their customary incident reports describing the events leading to the killing.

The plaintiffEvening News Association, publisher of the Detroit News, made oral requests of the City of Troy on July 31 and during each of the three succeeding weeks.On August 22, 1979, plaintiff confirmed its requests in writing.The requests were made pursuant to the procedures established in Michigan'sFOIA. M.C.L. Sec. 15.231 et seq.;M.S.A. Sec. 4.1801(1) et seq.The information requested was copies of the two officers' incident reports and the identities of the two officers involved in the David Prior killing.The identities of the two officers were contained in those reports.The Troy Police Chief and the City of Troy, along with the Oakland County Prosecutor's Office, refused the requests.The plaintiff, on August 27, 1979, therefore, brought an action in the Oakland Circuit Court to compel disclosure under the FOIA.

At a show-cause hearing on September 11, 1979, the defendants asserted that the reports and all the information contained in them were exempt from disclosure under M.C.L. Sec. 15.243(1)(b)(i)-(vi);M.S.A. Sec. 4.1801(13)(1)(b)(i)-(vi).¹However, a witness admitted that some of the material sought was nonexempt.²Plaintiff's witnesses testified that defendants had, in the past, disclosed information of the kind presently being requested and indicated that another police department in Oakland County had also released such information.³

In upholding the defendant's denial of disclosure, the trial court"generically" concluded that the release of this information would "interfere with law enforcement proceedings".M.C.L. Sec. 15.243(1)(b)(i);M.S.A. Sec. 4.1801(13)(1)(b)(i).The court, without requiring the defendants to particularize their position, stated that the testimony at the hearing indicated that disclosure could jeopardize an ongoing criminal investigation.The opinion also stated that release of the information would allow the plaintiff to obtain conflicting statements by the witnesses noted by the officers in their reports and that release would further inflame an emotional public.

About two weeks after the trial court's decision and almost eight weeks after the homicide, the Oakland County Prosecutor's Office on September 24, 1979, released a report entitled "Investigation Concerning the Homicide of David Prior" which exonerated the two officers of criminal responsibility for the killing without ever naming them.At no time have the defendants released the requested information to the plaintiff.

On appeal, the Court of Appeals affirmed the trial court's judgment.101 Mich.App. 650, 300 N.W.2d 667(1980).We granted leave on December 21, 1981.412 Mich. 884.

I.THE PROPRIETY OF A GENERIC DETERMINATION

A.Statutory Interpretation

The threshold issue is whether under the FOIAthe trial court can by a "generic determination" foreclose the right of a citizen ⁴ to know what his government is doing.We hold that a "generic determination" does not satisfy the FOIA.

In reaching our decision, we are called upon to construe three pertinent sections of the FOIA, having in mind that the overall policy of the FOIA is "that all persons are entitled to full and complete information regarding the affairs of government and the official acts of those who represent them", M.C.L. Sec. 15.231(2);M.S.A. Sec. 4.1801(1)(2), ⁵ and that the plaintiff in this case is in the business of enabling all persons to have such full and complete information and is not a defendant seeking early discovery in a suit against it.

The operative language of the exemption reads as follows:

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

* * *

"(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."⁶(Emphasis added.)M.C.L. Sec. 15.243(1)(b)(i);M.S.A. Sec. 4.1801(13)(1)(b)(i).

It is immediately apparent that the exemption from disclosure does not automatically apply to all investigating records ⁷ compiled for law enforcement purposes.There are three limitations that are importantly applicable:

(1)M.C.L. Sec. 15.243(1)(b)(i);M.S.A. Sec. 4.1801(13)(1)(b)(i) itself supplies one important limitation on disclosure:

"only to the extent that disclosure * * * would * * * interfere with law enforcement proceedings".

(2)M.C.L. Sec. 15.244(1);M.S.A. Sec. 4.1801(14)(1), adds another significant limitation:

"If a public record contains material which is not exempt * * * as well as material which is exempt from disclosure * * *, the public body shall...