Mager v. State, Dept. of State Police

• Decision Date: 22 June 1999
• Docket Number: Docket No. 111589
• Citation: 460 Mich. 134,595 N.W.2d 142
• Parties: Fred MAGER, Plaintiff-Appellee, v. State of Michigan, DEPARTMENT OF STATE POLICE and John L. McCarthy, Defendants-Appellants.
• Court: Michigan Supreme Court

Page 142

595 N.W.2d 142

460 Mich. 134

Fred MAGER, Plaintiff-Appellee, v. State of Michigan, DEPARTMENT OF STATE POLICE and John L.

McCarthy, Defendants-Appellants.

Docket No. 111589.

Supreme Court of Michigan.

June 22, 1999.

Daniel Bambery, DeWitt, for plaintiff.

Frank J. Kelley, Attorney General, Thomas L. Casey, Solicitor General, and Thomas Quasarano, Assistant Attorney General, Lansing, for defendants-appellants.

Opinion

PER CURIAM.

Plaintiff requested that the State Police provide the names and addresses of persons who own registered handguns. The State Police denied the request on the ground that plaintiff was seeking private information that could be withheld under an exemption found in the Freedom of Information Act. When plaintiff sued, the circuit court granted summary disposition in favor of the State Police. The Court of Appeals reversed, but we reinstate the judgment of the circuit court.

I

As indicated, this case arises under the Michigan Freedom of Information Act. ¹ The issue is whether the Department of State Police is required by the FOIA to disclose the names and addresses of persons who have complied with the statutory ² requirement that handguns be registered.

Plaintiff assertedly has a legitimate political interest in the information--he is said to advocate a change in Michigan law regarding the carrying of firearms, and he wants to recruit other gun owners to his cause.

In February 1996, plaintiff made his request to the State Police:

Please provide the names addresses and phone numbers[ ³] of the persons who have recently been issued a pistol safety certificate. I understand that only the most recent information is on computer and easily retrievable. Please provide the information as far back as your computer records go, on 3.5"' diskette, comma delimited, ASCII format.

The State Police denied the request in early March 1996. In doing so, the department cited the privacy exemption found in M.C.L. § 15.243(1)(a); MSA 4.1801(13)(1)(a). ⁴ That provision allows a public body to exempt from disclosure as a public record

[i]nformation of a personal nature where the public disclosure of the information would constitute a clearly unwarranted invasion of an individual's privacy.

A revised request from plaintiff in May 1996 was denied by the State Police several days after it was received.

In June 1996, plaintiff filed this FOIA action in circuit court. He also moved for summary disposition under MCR 2.116(C)(10). ⁵ Defendant responded to that motion by requesting summary disposition under MCR 2.116(I)(2). ⁶

In August 1996, the circuit court denied plaintiff's motion for summary disposition, but granted summary disposition in favor of the State Police. The court ruled that the requested names and addresses are "information of a personal nature," and that disclosure in these circumstances would constitute "a clearly unwarranted invasion of privacy."

On appeal, plaintiff persuaded the Court of Appeals to reverse the grant of summary disposition to the State Police. ⁷ The Court of Appeals disagreed with the circuit court's conclusions, holding that the requested information was not "of a personal nature" and that disclosure would not be "a clearly unwarranted invasion of privacy." The Court of Appeals remanded the case to the circuit court with the instruction that the court enter summary disposition in favor of plaintiff.

The Department of State Police has applied to this Court for leave to appeal.

II

The privacy exemption of the FOIA has provided this Court with a number of challenging cases involving persons who sought lists of names and addresses.

The plaintiff in Kestenbaum v. Michigan State Univ., 414 Mich. 510, 327 N.W.2d 783 (1982), wanted a copy of the computer tape used to produce the MSU student directory. The case was decided shortly after the death of Justice BLAIR MOODY, JR., and the remaining six justices split three to three with regard to whether disclosure was required.

Tobin v. Civil Service Comm., 416 Mich. 661, 331 N.W.2d 184 (1982), was a "reverse FOIA" case in which an agency was sued by persons who sought to prevent the disclosure of information. ⁸ The plaintiffs were five state employees who wanted the court to order the Civil Service Commission not to provide several labor organizations with the names and addresses of classified civil service employees. Since the privacy exemption does not require a public body to withhold information and the commission was willing to disclose, this Court did not reach the question whether the information sought falls within the exemption.

The Evening News Ass'n v. City of Troy, 417 Mich. 481, 339 N.W.2d 421 (1983), concerned a different exemption (relating to law enforcement proceedings). Evening News is generally helpful for its instruction that exemptions in the Michigan FOIA can be understood with reference to parallel exemptions in the federal FOIA. ⁹ 417 Mich. at 494-495, 339 N.W.2d 421. With regard to the present case, however, we observe that the state privacy exemption ¹⁰ and the federal privacy exemption ¹¹ have significant differences in wording.

In Int'l Union, United Plant Guard Workers of America v. Dep't of State Police, 422 Mich. 432, 373 N.W.2d 713 (1985), the plaintiff union filed an FOIA request for the names and addresses of guards employed by certain security guard agencies. The justices of this Court divided two-two-two-one on the proper analysis, with a majority finding that the privacy exemption did not authorize the State Police to withhold the requested information.

Home addresses of government employees were again at issue in State Employees Ass'n v. Dep't of Management & Budget, 428 Mich. 104, 404 N.W.2d 606 (1987). Dividing three-one-one-one (with one justice not participating), this Court determined that the privacy exemption did not authorize nondisclosure of the information.

The privacy exemption was examined in a different context in Swickard v. Wayne Co. Medical Examiner, 438 Mich. 536, 475 N.W.2d 304 (1991). The Chief Judge of the 36th District Court apparently had committed suicide, and there were reports that drug paraphernalia were found in the home where the death occurred. A reporter for the Detroit Free Press wanted access to the autopsy report and the toxicology test results. The Wayne County Medical Examiner refused. ¹² Noting that privacy rights often perish with the individual, 438 Mich. at 556-557, 475 N.W.2d 304 this Court held that disclosure of the autopsy report and toxicology test results would not amount to a clearly unwarranted invasion of the privacy of the deceased judge or his family. 438 Mich. at 556-558, 562, 475 N.W.2d 304. In the course of the analysis, this Court observed that this is "a highly subjective area of the law where the Legislature has provided little statutory guidance on the notion of privacy contained in the FOIA." 438 Mich. at 556, 475 N.W.2d 304.

The privacy exemption was again considered in Booth Newspapers, Inc. v. Univ. of Mich. Bd. of Regents, 444 Mich. 211, 507 N.W.2d 422 (1993). The plaintiff newspapers sought travel records that would shed light on the process by which the University of Michigan selected a president in 1987 and 1988. Building on Swickard, this Court explained that the privacy exemption has two elements:

As evident from the statute, under a plain-meaning analysis of [MCL 15.243(1)(a); MSA 4.1801(13)(1)(a) ], two factors must exist to exempt information from public exposure. 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. Swickard, supra. [444 Mich. at 232, 507 N.W.2d 422.]

This Court concluded that the requested travel records were not information of a "personal nature." 444 Mich. at 231-234, 507 N.W.2d 422. We explained that the exemptions are narrowly construed, 444 Mich. at 232, 507 N.W.2d 422 and, per Swickard, that the sense of the community is applied in determining what is of a personal nature, 444 Mich. at 232-233, 507 N.W.2d 422. In the end, we held that "[t]here exists no custom, mores, or ordinary view of the community that would warrant a finding that the travel expense records of a public body constitute records of a personal nature." 444 Mich. at 233, 507 N.W.2d 422.

Most recently, we decided Bradley v. Saranac Community Schools, Bd. of Ed., 455 Mich. 285, 565 N.W.2d 650 (1997), an opinion resolving two unrelated cases. In one, the father of a public school student sought access to the personnel file of his child's teacher. In the other, a group of parents wanted copies of written performance evaluations for nine principals employed by a school district. ¹³

In Bradley, we noted again the two-part nature of the inquiry, and elaborated on the first element of the test:

The privacy exemption consists of two elements, both of which must be present for the exemption to apply. First, the information must be of a "personal nature." Second, the disclosure of such information must be a "clearly unwarranted, invasion of privacy."

In the past, we have used two slightly different formulations to describe "personal nature." The first defines "personal" as "[o]f or pertaining to a particular person; private; one's own.... Concerning a particular individual and his intimate affairs, interests, or activities; intimate...." We have also defined this threshold inquiry in terms of whether the requested information was "personal, intimate, or embarrassing." Combining the salient elements of each description into a more succinct test, we conclude that information is of a personal nature if it reveals intimate or embarrassing details of an individual's private life. We evaluate this standard in terms of "the 'customs, mores, or ordinary views of the community'...." [455 Mich. at 294, 565 N.W.2d 650 (bracketed material in original).]

Applying that standard, we determined that the personnel...