King v. Oakland Cnty. Prosecutor

• Decision Date: 14 November 2013
• Docket Number: Docket Nos. 305299,305369.
• Citation: 842 N.W.2d 403,303 Mich. App. 222
• Parties: KING v. OAKLAND COUNTY PROSECUTOR.
• Court: Court of Appeal of Michigan — District of US

303 Mich.App. 222

842 N.W.2d 403

KING

v.OAKLAND COUNTY PROSECUTOR.

Docket Nos. 305299, 305369.

Court of Appeals of Michigan.

Submitted Feb. 13, 2013, at Detroit.

Decided Nov. 14, 2013, at 9:00 a.m.

Bowen, Radabaugh & Milton, PC, Troy, (by Lisa T. Milton), for plaintiffs.

Jessica R. Cooper, Prosecuting Attorney, Thomas R. Grden, Appellate Division Chief, and Jeffrey M. Kaelin, Assistant Prosecuting Attorney, for defendant.

Before: MURRAY, P.J., and WILDER and OWENS, JJ.

WILDER, J.

This matter involves two consolidated appeals from two cases that were also consolidated in the lower court.¹Plaintiffs appeal as of right the circuit court's opinion and order denying their motion for reconsideration of the court's denial of their requests under the Freedom of Information Act (FOIA),MCL 15.231 et seq., and dismissing their claims.We affirm in both cases.

These cases arise out of FOIA requests submitted in 2010 to defendant, the Oakland County Prosecutor, for documents regarding Christopher Busch's possible involvement in the abductions and killings of four children in Oakland County in 1976 and 1977, a series of crimes known as the Oakland County Child Killings(OCCK).Plaintiffs, Barry L. King and Christopher K. King, are, respectively, the father and brother of Timothy King, the fourth and final victim of the OCCK.In January and February 1977, after three of the children had been killed, Busch was briefly considered a suspect in the murder of the first OCCK victim, but he was allegedly cleared by law enforcement officials following a polygraph examination.Then, in March 1977, Timothy King was abducted and killed.In November 1978, Busch died in an apparent suicide.The OCCK remain unsolved to this day, but numerous persons other than Busch have been considered as possible suspects over the last 35 years.Defendant denied plaintiffs' FOIArequests for information regarding Busch's possible involvement in the OCCK, and the circuit court upheld the FOIA denials given the existence of an active, ongoing investigation and dismissed the cases.

Plaintiffs argue that the circuit court erred by concluding that the FOIA exception for investigative records, the disclosure of which would interfere with law enforcement proceedings, MCL 15.243(1)(b)( i ), exempted defendant from producing the requested documents and that the circuit court failed to follow the required procedure in making its decision.We disagree.This Court“review[s] for an abuse of discretion a trial court's decision on a motion for reconsideration.A trial court abuses its discretion when it reaches a decision that falls outside the range of principled outcomes.”Luckow Estate v. Luckow,291 Mich.App. 417, 423, 805 N.W.2d 453(2011)(citation omitted).“This Court ... reviews de novo a trial court's legal determination in a FOIA case.”Hopkins v. Duncan Twp.,294 Mich.App. 401, 408, 812 N.W.2d 27(2011).“[T]he clear error standard of review is appropriate in FOIAcases 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., Inc. v. Eastern Mich. Univ. Bd. of Regents,475 Mich. 463, 472, 719 N.W.2d 19(2006).Any discretionary determinations in FOIAcases are reviewed for an abuse of discretion.Id.

The purpose of FOIA is set forth in MCL 15.231(2):

It is the public policy of this state that all persons, except those persons incarcerated in state or local correctional facilities, 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[i.e., FOIA].The people shall be informed so that they may fully participate in the democratic process.

“FOIA provides that ‘a person’ has a right to inspect, copy, or receive public records upon providing a written request to the FOIA coordinator of the public body.”Detroit Free Press, Inc. v. City of Southfield,269 Mich.App. 275, 290, 713 N.W.2d 28(2005).“Under FOIA, a public body must disclose all public records that are not specifically exempt under the act.”

Hopkins,294 Mich.App. at 409, 812 N.W.2d 27.See alsoMCL 15.233(1).

The Legislature codified the FOIA to facilitate disclosure to the public of public records held by public bodies.However, by expressly codifying exemptions to the FOIA, the Legislature shielded some affairs of government from public view.The FOIA exemptions signal particular instances where the policy of offering the public full and complete information about government operations is overcome by a more significant policy interest favoring nondisclosure.In many of these instances, the Legislature has made a policy determination that full disclosure of certain public records could prove harmful to the proper functioning of the public body.[Eastern Mich. Univ. Bd. of Regents,475 Mich. at 472–473, 719 N.W.2d 19(quotation marks and citations omitted).]

MCL 15.243 permits a public body to exempt certain records and information from disclosure.The exemption at issue here is set forth in MCL 15.243(1)(b)( i ), which states:

A public body may exempt from disclosure as a public record under this act any of the following:

* * *

(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.

In Evening News Ass'n v. City of Troy,417 Mich. 481, 486, 339 N.W.2d 421(1983), our Supreme Court held that a generic determination that the release of documents would interfere with law enforcement proceedings is not sufficient to sustain a denial under the law-enforcement-proceedings exemption.Relying on provisions in our FOIA and on federal caselaw interpreting the similar federal FOIA,²the Evening News Court identified six rules that a court should use when analyzing a claimed exemption under FOIA:

1.The burden of proof is on the party claiming exemption from disclosure.

2.Exemptions must be interpreted narrowly.

3.[T]he public body shall separate the exempt and nonexempt material and make the nonexempt material available for examination and copying.

4.[D]etailed affidavits describing the matters withheld must be supplied by the agency.

5.Justification of 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.[Id. at 503, 339 N.W.2d 421(quotation marks and citations omitted; alterations in original).]

The Evening News Court also discussed the procedural difficulties that inhere in determining whether a FOIA exemption applies in light of the asserted confidentiality of the information contained in the requested documents.“Where one party is cognizant of the subject matter of litigation and the other is not, the normal common-law tradition of adversarial resolution of matters is decidedly hampered, if not brought to a complete impasse.”Id. at 514, 339 N.W.2d 421.Again turning to federal caselaw for guidance, the Evening News Court identified a three-step procedure that trial courts should use in analyzing an asserted exemption:

1.The court should receive a complete particularized justification as set forth in the six rules above ...; or

2. the court should conduct a hearing in camera based on de novo review to determine whether complete particularized justification pursuant to the six rules exists; or

3. the court can consider allowing plaintiff's counsel to have access to the contested documents in camera under special agreement whenever possible.[Id. at 516, 339 N.W.2d 421(quotation marks and citations omitted).]

The use of the conjunctive “or” in this three-step process indicates that “a trial court need not use all three of these alternatives in every case before concluding that an FOIA request is properly denied.”Herald Co., Inc. v. Kalamazoo,229 Mich.App. 376, 384 n. 3, 581 N.W.2d 295(1998).

[T]he Michigan Supreme Court did not mandate application of each step of the three-step procedure.Rather, as appropriate in a particular case, a trial court may follow one or more of the three steps.Indeed, the use of step three, allowing a plaintiff's counsel to have access in camera to contested documents, should be strictly limited.[Id. at 391, 581 N.W.2d 295(citation omitted).]

In this case, the record reflects that the circuit court was aware of and followed the proper procedure set forth in Evening News.The circuit court had earlier denied defendant's motion for summary disposition because defendant failed to present admissible evidence that the investigation of Busch was active and ongoing and that release of documents relating to Busch would interfere with the investigation.But later, in connection with plaintiffs' motion for an order to show cause why the requested documents should not be produced, the court ordered that defendant could file affidavits or other documents for the court to review in camera.The court subsequently entered a clarifying order allowing defendant to submit documents for in camera review for the purpose of substantiating statements made in affidavits that defendant had already presented to the circuit court.On December 17, 2010, following its in camera review of the affidavits and documents submitted by defendant, the circuit court issued a written opinion and order noting that defendant had

the burden of demonstrating that disclosure of the requested information would“interfere with law enforcement...