Payne v. Grand Rapids Police Chief
| Decision Date | 16 August 1989 |
| Docket Number | Docket No. 105758 |
| Parties | Gregory PAYNE and Connie Payne, Plaintiffs-Appellants, v. GRAND RAPIDS POLICE CHIEF and Grand Rapids Police Department, Defendants-Appellees. |
| Court | Court of Appeal of Michigan — District of US |
Steven J. Vander Ark, Grand Rapids, for plaintiffs-appellants.
Daniel A. Ophoff, Grand Rapids, for defendants-appellees.
Before MAHER, P.J., and HOLBROOK and NOBLE, * JJ.
Plaintiffs appeal as of right from an order granting summary disposition to defendants upholding their denial of a request brought by plaintiffs under the Michigan Freedom of Information Act, M.C.L. Sec. 15.231 et seq.; M.S.A. Sec. 4.1801(1) et seq., to review a tape recording of emergency calls made to the Grand Rapids Police Department.
In its opinion, the lower court aptly summarized the pertinent facts as follows.
This is a complaint brought by the plaintiffs against the Grand Rapids Chief of Police and the police department under the provisions of the Freedom of Information Act. On or about May 26, 1986, at approximately 5:00 a.m., the plaintiffs' daughter, Cheri Ann Winowiecki, died of carbon monoxide poisoning under circumstances originally ruled a suicide and later determined to have been accidental. It is alleged in the complaint that the exact circumstances of the death are, as of yet, undetermined. For the purposes of this motion, it is sufficient to say that the police department is convinced that the death was suicide and the parents suspect foul play. The plaintiffs requested the right to listen to all emergency calls received by the Grand Rapids Police Department between the hours of 12:00 midnight and 5:00 a.m. on May 26, 1986. This request was made under Sec. 5 of the FOIA, M.C.L. Sec. 15.235; M.S.A. Sec. 4.1801(5). On May 5, 1987, William G. Hegarty, Chief of Police, wrote a final determination letter to Mr. Steven J. Vander Ark, the attorney for the plaintiffs, denying their request for unedited copies of the incoming call tapes, and also denying them an opportunity to review those tapes. The information was claimed to be exempt from disclosure pursuant to Sec. 13 of the FOIA, M.C.L. Sec. 15.243(1)(b)(i), (iii) and (iv); M.S.A. Sec. 4.1801(13)(1)(b)(i), (iii) and (iv); specifically, that the disclosure requested would represent an unwarranted invasion of privacy, could interfere with law enforcement procedures, or could disclose the identity of confidential sources. After further negotiations between the attorney for the plaintiffs and the Grand Rapids City Attorney, on July 22, 1987, the City of Grand Rapids, through the city attorney, offered to make available typewritten transcripts of all the incoming telephone calls to the Grand Rapids Police Department between the hours of 12:00 midnight and 5:00 a.m., on May 26, 1986, deleting only the information which the city claimed to be exempt under the provisions of Sec. 13 of the act, subsections (1)(b)(i), (iii) and (iv). Such a transcript was prepared deleting therefrom only the names, telephone numbers, and addresses of incoming callers and the street number of certain addresses given in the course of conversations which might allow a reader to identify the caller's location or home address.
The plaintiffs rejected this offer and offered a compromise: that the tapes would be made available for review by a Michigan State Police lieutenant who is a trained law enforcement officer and a close personal friend of the plaintiffs. The plaintiffs' contention is that their daughter, in the past, has called the emergency number, and that they feel that their daughter may have called the police sometime during the hours indicated asking for help, which call was either missed or ignored. Plaintiffs further claim that the Michigan State Police lieutenant (their friend) is able to recognize their daughter's voice and might pick up a call which was otherwise missed by a transcriber. They further claim that he is skilled or trained, and would be able to tell if the tape has been edited or deleted in any way.
On July 31, 1987, the trial court initially ruled that it would appoint a master to listen to the tapes as requested by plaintiffs. However, it appears that a master was never appointed. Apparently, the trial court reconsidered its ruling and on November 23, 1987, issued an opinion granting summary disposition in favor of defendants. The trial court held that disclosure of names and addresses on the tapes would interfere with law enforcement proceedings and the names and addresses were therefore exempt under Sec. 13(1)(b)(i) of the FOIA. The court determined that the only practical way to meet plaintiffs' request was to furnish transcripts of the tapes from which names, addresses, and telephone numbers of the callers were deleted.
On appeal, plaintiffs claim that the trial court erred in holding that defendants met their statutory burden of proof in withholding the requested tapes under the claimed exemptions. The exemption relied on by the trial court in denying plaintiffs' request reads as follows:
A public body may exempt from disclosure as a public record under this act:
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(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 The Evening News Ass'n v. City of Troy, 417 Mich. 481, 503, 339 N.W.2d 421 (1983), our Supreme Court set forth the following rules which should be used in analyzing a claim of exemption from disclosure under the FOIA:
1. The burden of proof is on the party claiming exemption from disclosure. M.C.L. Sec. 15.240(1); M.S.A. Sec. 4.1801(10)(1).
2. Exemptions must be interpreted narrowly. Vaughn v. Rosen, 157 U.S.App.D.C. 340, 343, 484 F.2d 820, 823 (1973).
3. "[T]he public body shall separate the exempt and nonexempt material and make the nonexempt material available for examination and copying." M.C.L. Sec. 15.244(1); M.S.A. Sec. 4.1801(14)(1); Vaughn v. Rosen, 157 U.S.App.D.C. 345, 484 F.2d at p. 825.
4. "[D]etailed affidavits describing the matters withheld" must be supplied by the agency. Ray v. Turner, 190 U.S.App.D.C. 290, 317, 587 F.2d 1187, 1214 (1978).
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. Campbell v. Dep't of Health & Human Services, 221 U.S.App.D.C. 1, 4-6, 10-11, 682 F.2d 256, 259-261, 265-266 (1982); Vaughn v. Rosen, 157 U.S.App.D.C. 347, 484 F.2d at p. 827.
6. The mere showing of a direct relationship between records sought and an investigation is inadequate. Campbell v. Dep't of Health & Human Services, 221 U.S.App.D.C. 8-9, 682 F.2d at p. 263-264.
Defendants argue that sufficient justification for denial of plaintiffs' request was provided in Grand Rapids Police Chief Hegarty's affidavit. Chief Hegarty's affidavit states, in relevant part:
4. That affiant routinely promises confidentiality to persons and groups he meets and speaks to regarding the use of Grand Rapids Police Department emergency telephone lines. 1
5. That affiant believes the effectiveness of the 911 emergency line service and the Grand Rapids Police Department will be substantially impaired if affiant's promises of confidentiality are breached.
6. That affiant believes individuals will not report crimes or request police assistance if public disclosure of their names, addresses and telephone numbers is made.
7. That affiant believes the tape recordings of incoming emergency telephone calls sometimes contain confidential sources of information generated for law enforcement purposes.
8. That affiant believes many of the callers to the Grand Rapids Department emergency line disclose matters which are of a highly personal or embarrassing nature. [Emphasis added.]
In reviewing the affidavit, we find that the statements are at best conclusory statements of opinion, not of factually based reasons, the type which were deemed to be improper in Evening News, supra, 417 Mich. at pps. 506-507, 339 N.W.2d 421. The above statements, together with evidence presented at the hearing on the summary disposition motion, do not satisfy statutory requirements to sustain defendants' burden for exemption from disclosure. Evening News, supra, pp. 497, 506-507, 339 N.W.2d 421.
We also find that the circuit court failed to find with sufficient particularity that defendants had specifically justified their claimed exemption.
In its opinion, the circuit court stated:
It doesn't take a genius to figure out that [publication of names and addresses] might have a chilling effect on citizens who have legitimate complaints or concerns which should be communicated to the police department. The person complaining about a possible criminal violation on the part of a neighbor may very well be deterred from calling if he or she is aware that the neighbor, under the Freedom of Information Act, might be able to identify the caller and seek retribution.
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The Court feels that the "interference with police proceedings" can prevent a disclosure which may deter the public's use of the emergency lines to report potential crimes. There is a real reluctance on the part of people to call police and report crimes or to become involved if they feel they are somehow actually going to be involved. This reluctance could be greatly increased if they were subject to the realization that their names and addresses could be published for any persons who asked for them under the Freedom of Information Act. [Emphasis added.]
As the Court in Evening News stated, "the statute is...
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