State News v. Msu
| Decision Date | 06 March 2007 |
| Docket Number | Docket No. 271433. |
| Citation | 735 N.W.2d 649,274 Mich. App. 558 |
| Parties | STATE NEWS, Plaintiff-Appellant, v. MICHIGAN STATE UNIVERSITY, Defendant-Appellee. |
| Court | Court of Appeal of Michigan — District of US |
Honigman Miller Schwartz and Cohn LLP (by Herschel P. Fink and Brian D. Wassom), Detroit, for the plaintiff.
Theresa Kelley, East Lansing, for the defendant.
Debra A. Kowich, Ann Arbor, Eileen Jennings, Mt. Pleasant, Kenneth McKanders, Ypsilanti, Marvin Krislov, Ann Arbor, Carol L.J. Hustoles, Kalamazoo, Louis A. Lessem, Detroit, and Victor A. Zambardi, Rochester Hills, for the boards of regents of the University of Michigan and Eastern Michigan University; the boards of trustees of Central Michigan University, Western Michigan University, and Oakland University; and the Wayne State University Board of Governors, for Amici Curiae.
Bernardi, Ronayne & Glusac (by John J. Ronayne, III; and Katherine W. MacKenzie), Plymouth, for the Michigan Association of Broadcasters and the Michigan Press Association.
Before: WHITBECK, C.J., and BANDSTRA and SCHUETTE, JJ.
Plaintiff State News appeals as of right the trial court's order dismissing its action against defendant Michigan State University (MSU) brought under the Freedom of Information Act (FOIA).1 State News filed a FOIA request for a copy of a police incident report related to an assault that occurred in a dormitory on MSU's East Lansing campus. MSU denied the request under FOIA's privacy exemption2 and its law-enforcement-purpose exemption.3 The trial court agreed that the incident report was exempt from disclosure under these provisions and dismissed the complaint. We remand this matter to the trial court to determine whether there are nonexempt portions of the incident report that can be separated from exempt material and released to State News.
On March 2, 2006, State News requested from MSU its "police incident report" detailing an incident on February 23, 2006, involving the arrest of three men in connection with an alleged assault that occurred in Hubbard Hall, a student dormitory on MSU's East Lansing campus. Two of the assailants were nonstudents and the other was a student, as was one of the victims. In a news story dated February 27, 2006 (which is part of the record before us), before it made its FOIA request to MSU, State News had already identified the three arrested men as "MSU student Albert Robinson, a general business administration and pre-law freshman, and nonstudents Roy Holt and Joel Hamlar. . . ." According to the FOIA complaint that State News later filed with the trial court, this incident followed a shooting in the parking lot near Hubbard Hall in September 2005, and there was also a "racially motivated confrontation" at Hubbard Hall in that period.
According to an affidavit that MSU's FOIA officer later filed with the trial court, the police incident report contained the following types of information:
a. Incident report persons sheets: These documents contain personally identifiable information about the victims, witnesses, responding police officers, and defendants (such as name, address, sex, race, weight, height, date of birth, driver's license number, student number, criminal history, and other personal and sensitive information).
b. Narrative incident reports: These documents consist of statements from the responding officers, witnesses, victims, defendants, and a third party.
c. Physical evidence documents: These documents consist of photographs of evidence, property sheets, property inventory form, crime scene photographs, laboratory evidence documents, and advice of rights forms.
d. Inmate profiles/booking photographs: These documents are inmate booking sheets and inmate profile documents, including photographs.
e. CCH/LEIN [criminal history and Law Enforcement Information Network] information.
On March 24, 2006, MSU's FOIA officer denied State News's FOIA request. Citing the privacy exemption and the law-enforcement-purpose exemption, MSU's FOIA officer denied the request in its entirety, without any reference to MSU's obligation under § 14(1) of FOIA4 to separate exempt material from nonexempt material and make the nonexempt material available for examination and copying.
On March 29, 2006, State News filed an administrative appeal of the denial by way of a letter to MSU's FOIA officer. However, this appeal was answered not by MSU's FOIA officer, but by MSU President Lou Anna K. Simon. In a letter dated April 6, 2006, President Simon determined that "the police records at issue were properly withheld." Like MSU's FOIA officer, President Simon did not refer to MSU's obligation under § 14(1) of FOIA to separate exempt material from nonexempt material and make the nonexempt material available for examination and copying. We note that, according to the February 27, 2006, State News story, Robinson, Holt, and Hamlar had previously been arraigned on charges of home invasion, felonious assault, and possession of a firearm during the commission of a felony. Thus, at least some information about these individuals was already part of the public record. We also note, however, that the same story indicated that the Ingham County chief assistant prosecutor would not release the names of any victims.
President Simon closed her April 6 denial letter by stating:
Finally, I note that in cases where law enforcement proceedings are pending, the University must carefully weigh the applicability of Section 13(1)(b) of the FOIA [MCL 15.243(1)(b)] so that it does not disclose information that would interfere with an ongoing criminal investigation, interfere with ongoing action by the Ingham County Prosecutor's Office, or deprive any person of the right to a fair trial.
Counsel for State News on May 1, 2006, wrote to President Simon to request that she reconsider her decision to withhold release of the police incident reports. However, on May 8, 2006, counsel for MSU responded by asserting, among other things, that "release of the police report does not serve the core purpose of FOIA because the report would not `significantly contribute' to the public's understanding of University operations."
State News filed its original FOIA complaint in the Oakland Circuit Court on May 19, 2006. However, that court granted MSU's change-of-venue motion, and, on May 31, 2006, State News refiled its complaint in the Ingham Circuit Court and moved for an order to direct MSU to show cause why it should not be ordered to comply with State News's FOIA request. State News also moved for summary disposition under MCR 2.116(C)(9) and (10). At the time the complaint was filed, the preliminary examinations of two of the criminal defendants were scheduled for June 9, 2006, and the other defendant was already scheduled for trial in the Ingham Circuit Court.
The trial court held a hearing on the motion to show cause on June 8, 2006. The trial court concluded that MSU had met its burden to show that the requested records were exempt from disclosure under the privacy exemption and the law-enforcement-purpose exemption, and dismissed State News's complaint with prejudice.
The trial court noted that the incident report included the names, addresses, criminal histories, and other identifying information of the parties involved. It reasoned that the victims and witnesses were "private citizens" who were "innocently involved in something for which they could and would suffer embarrassment if their names and/or other information are divulged." It concluded that disclosure of this personal information would constitute a clearly unwarranted invasion of privacy because it "is not related to the workings of government, and would not contribute significantly to the public's understanding of the workings of government," and that MSU had shown with sufficient particularity that release of the report would interfere with law enforcement proceedings and deprive the criminal defendants of a fair trial.
The trial court refused to consider State News's request to determine whether there was nonexempt information in the report that could be separated from the exempt information, stating, "I can't conclude that any of this information would shed light on the functioning of government, much less contribute significantly to the public's understanding of the functioning of government." On the record before us, it is clear that the trial court did not conduct an in camera review of the police incident report. Rather, the trial court simply determined, without reviewing the report's contents, that nothing in it should be disclosed. This appeal then ensued.
We note at the outset that the passage of time may have affected aspects of this appeal and that, while we can make some observations based on the record, there are other aspects about which we can only speculate. We know from the record that before it made its FOIA request to MSU, State News had already identified the three men arrested at Hubbard Hall. Thus, at least the names of these men and some identifying information about them were in the public domain. We know from the record that when President Simon issued her April 6, 2006, denial, these men had already been arraigned on charges of home invasion, felonious assault, and felony-firearm. Further information about these men might therefore have been in the public domain at that time, but the record before us does not disclose what that information might be. We also know from the record that when the trial court issued its June 8, 2006, decision, one of these men had been scheduled for trial and the preliminary examinations for the remaining two were...
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