Herald Co., Inc. v. EMU BD. OF REGENTS

• Decision Date: 29 March 2005
• Docket Number: Docket No. 254712.
• Citation: 693 N.W.2d 850,265 Mich. App. 185
• Parties: HERALD COMPANY, INC., d/b/a Booth Newspapers, Inc., and d/b/a, Ann Arbor News, Plaintiff-Appellant, v. EASTERN MICHIGAN UNIVERSITY BOARD OF REGENTS, Defendant-Appellee.
• Court: Court of Appeal of Michigan — District of US

693 N.W.2d 850

265 Mich. App. 185

HERALD COMPANY, INC., d/b/a Booth Newspapers, Inc., and d/b/a, Ann Arbor News, Plaintiff-Appellant, v. EASTERN MICHIGAN UNIVERSITY BOARD OF REGENTS, Defendant-Appellee.

Docket No. 254712.

Court of Appeals of Michigan.

Submitted September 8, 2004, at Lansing.

Decided February 10, 2005, at 9:05 a.m.

Released for Publication March 29, 2005.

Soble & Rowe, L.L.P. (by Jonathan D. Rowe), Ann Arbor, for the plaintiff.

Plunkett & Cooney, P.C. (by Mary Massaron Ross and Michael S. Bogren), Detroit, for the defendant.

Before: WHITBECK, C.J., and SAWYER and SAAD, JJ.

SAAD, J.

I. NATURE OF THE CASE

The Michigan Constitution confers enormous responsibility and authority on the governing boards of public universities: our Constitution grants to boards of public universities the "supervision of the institution and the control and direction of all expenditures from the institution's funds." Const. 1963, art. 8, § 6. In furtherance of this constitutional mandate, our Legislature similarly invests university boards with this significant oversight role. M.C.L. § 390.551 et seq.¹

Consistent with its constitutional and statutory role, the Board of Regents (Board) of Eastern Michigan University (University) investigated expenditures for the president's residence at the University, and, as part of its investigation, the Board, through one of its members, Jan Brandon, asked an immediate subordinate of the then-president of the University, Vice President of Finance Patrick Doyle, for his written opinion of the president's role in this project. In furtherance of its investigation, the Board also sought the assistance of an outside-certified public accounting firm, and asked Deloitte & Touche, LLP (Deloitte), to conduct a comprehensive audit relating to the expenditures for the president's residence. Deloitte ultimately issued a "voluminous and exhaustive"² report on the subject, which the Board made public and gave to the press. Upon receiving a Freedom of Information Act (FOIA), M.C.L. § 15.231 et seq., request from the Ann Arbor News³ for documents relating to the president's residence, the University, through its FOIA director, cited the "frank communications" exemption and identified, but declined to disclose, the Doyle-to-Brandon letter. Herald filed suit and asked the court to order disclosure and argued that the public had the right to know the contents of the Doyle letter. The Board responded that the Doyle letter clearly falls within the frank communications exemption because the public interest in fostering candid appraisals by subordinates of their supervisors at the highest level of the University administration is necessary to the Board's effective investigative and oversight role. The trial court reviewed the disputed letter in camera, balanced the public interests in disclosure versus nondisclosure and, in a written opinion, concluded that the frank communication exemption under these facts "clearly outweighs the public interest in disclosure."⁴ Because our Supreme Court has ruled that we are to grant deference to trial courts, which have the difficult task of balancing the public interests under the FOIA, because our Supreme Court has specifically held that we are to uphold a trial court's "balancing" judgment unless the trial court committed clear error, and because we find that the trial court did not clearly err in its ruling, we affirm the trial court's holding.

II. FACTS AND PROCEDURAL HISTORY

As part of the Board's investigation into alleged overexpenditures for the president's residence, in the summer of 2003, Jan Brandon, a member of the Board, requested a letter from University Vice President of Finance Patrick Doyle regarding the construction of the president's house. In particular, Brandon desired to learn more about the University president's role in the construction project. There was a controversy regarding construction costs, and the Board needed information to aid it in determining the appropriate course of action. Doyle's letter, dated September 3, 2003, contained his candid appraisal of the conduct of the president regarding the construction.

On September 10, 2003, Herald sent the Board an FOIA request for documents relating to the construction of the president's residence. Citing M.C.L. § 15.243(1)(m), the Board's FOIA coordinator provided the following written explanation for the Board's refusal to provide a copy of the Doyle letter in response to Herald's FOIA request:

Please be advised that [EMU] has identified one other document which may be within the scope of your September 10, 2003 [FOIA] request. The document is a September 3, 2003 letter from Patrick Doyle to EMU Regent Jan Brandon. Pursuant to [M.C.L. § 15.243(1)(m)] of the Michigan FOIA, EMU is denying your request for this letter as the letter is a communication/note within the public body EMU of an advisory nature covering other than purely factual material and preliminary to a final agency decision. Further, EMU has determined that in this particular instance the public interest in encouraging frank communications between officials and employees of EMU clearly outweighs the public interest in disclosure.

Thereafter, Herald brought this suit and asked the trial court to review the Doyle letter in camera and order its disclosure. Herald claimed, among other things, that the claimed public interest in encouraging frank communications between public officials and employees did not clearly outweigh the public interest in disclosure because "the Doyle letter speaks to critical issues involving the President's financial accountability and his management style."

In its response to Herald's motion, the Board indicated that the Doyle letter was requested by Regent Brandon "to assist her in determining the appropriate course of action for [the Board] to take during the early stages of the controversy," and that the letter was "used as part of the deliberative process that [the Board] engaged in, through its individual members, to determine its course of action in the University House matter."

In light of these facts, the Board argued that the Doyle letter should be considered exempt from disclosure under M.C.L. § 15.243(1)(m) because it was an advisory communication from a subordinate regarding a superior, preliminary to a "final determination of action" by the Board, and the public interest in encouraging frank communication between officials and employees of the University clearly outweighed the public interest in disclosure.⁵ The Board also argued that its publication of "a voluminous and exhaustive report on the investigation into the University House controversy," prepared by an independent auditing firm, Deloitte, weighed against disclosure of the Doyle letter. The Board asserted that all the facts had been released and were part of the public record, but that the opinions and personal views of Doyle, which were part of the deliberative process of the Board, should be protected from disclosure.

The trial court held a hearing, reviewed the Doyle letter in camera, denied Herald's motion to compel disclosure of the Doyle letter and granted summary disposition in favor of the Board, and held that the letter fell within the FOIA exemption provided by M.C.L. § 15.243(1)(m). The trial court stated:

In the opinion of the Court, Defendant has sufficiently articulated a particularized justification for exemption under [M.C.L. § 15.243(1)(m)]. Based on its in camera review of the letter, the Court finds that: (1) the contents are of an advisory nature and cover other than purely factual materials; (2) the communication was made between officials and/or employees of public bodies; and (3) the communication was preliminary to a final agency determination of policy or action.

Although the document contains some "factual material," it is primarily a summary of events from Doyle's perspective. Any factual material contained in the letter is not easily severable. Doyle clearly exercised judgment in selecting the factual material, evaluating its relative significance, and using it to facilitate the impact of his opinions. See, Montrose Chemical Corp. v. Train, 491 F.2d 63 (D.C.Cir., 1974)

(Federal Court held that two factual summaries of evidence developed at a hearing before the Administrator of the EPA were exempt under a parallel provision of the federal FOIA). Further, under recent persuasive Michigan authority, a court may determine that a particular document that contains "substantially more opinion than fact" falls within the exemption. Barbier v. Basso, 2000 WL 33521028.

The trial court further ruled that the letter was exempt from disclosure under "the parameters set forth in Herald Co, Inc v. Ann Arbor Pub Schools"⁶ and made the following findings:

(1) The letter contains substantially more opinion than fact, and the factual material is not easily severable from the overwhelming majority of the comments: Doyle's views concerning the President's involvement with the University House project.

(2) The letter is preliminary to a final determination of policy or action. The communication was between officials of public bodies. The letter concerns [the Board's] investigation and ultimate determination of what action, if any, would be taken regarding the University House controversy.

(3) The public interest in encouraging frank communications within the public body or between public bodies clearly outweighs the public interest in disclosure. [Herald's] specific need for the letter, apparently to "shed light on the reasons why a respected public official resigned in the wake of [the University] being caught misleading the public as to the true cost of the President's house," or the public's general interest in disclosure, is outweighed by [the Board's] interest in maintaining the quality of its deliberative and decision-making process.

(4) [The Board] conducted an investigation and recently published a

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