Stone Street Capital, Inc. v. Bureau of State Lottery, Docket No. 248822.

• Decision Date: 10 November 2004
• Docket Number: Docket No. 248822.
• Citation: 689 N.W.2d 541,263 Mich. App. 683
• Parties: STONE STREET CAPITAL, INC., Plaintiff-Appellant, v. MICHIGAN BUREAU OF STATE LOTTERY, Defendant-Appellee.
• Court: Court of Appeal of Michigan — District of US

689 N.W.2d 541

263 Mich. App. 683

STONE STREET CAPITAL, INC., Plaintiff-Appellant, v. MICHIGAN BUREAU OF STATE LOTTERY, Defendant-Appellee.

Docket No. 248822.

Court of Appeals of Michigan.

Submitted July 13, 2004, at Lansing.

Decided September 30, 2004, at 9:00 a.m.

Released for Publication November 10, 2004.

Law Offices of Cunningham & Associates (by Douglas C. Cunningham), Lansing, for the plaintiff.

Michael A. Cox, Attorney General, Thomas L. Casey, Solicitor General, and Thomas Quasarano, Assistant Attorney General, for the defendant.

Before: BANDSTRA, P.J., and FITZGERALD and HOEKSTRA, JJ.

PER CURIAM.

In this action pursuant to Michigan's Freedom of Information Act (FOIA), MCL 15.231 et seq., to compel disclosure of public records and other information by defendant Michigan Bureau of State Lottery, plaintiff Stone Street Capital, Inc., appeals as of right the trial court's order denying its motion for summary disposition, granting summary disposition in favor of defendant, and dismissing plaintiff's complaint with prejudice. We affirm.

Plaintiff is engaged in the business of purchasing at discount rates lottery prize payments from the assignees of lottery prize winners. In order to identify individuals that are assignees, plaintiff requested from defendant, pursuant to the FOIA, certain documents that would likely reveal personal information of lottery prize assignees. Defendant responded by sending to plaintiff numerous documents, including court orders, judgments, letters, disclosure statements, a writ of garnishment, and even an unpublished opinion of this Court, among other things. However, defendant had redacted from the documents all personal information about prize winners and their assignees.

Plaintiff objected to the redactions within the documents that defendant sent in response to plaintiff's FOIA request and requested that defendant disclose the redacted information. In response to this request, defendant advised plaintiff that the information redacted is exempt from public disclosure under MCL 432.25(9) and MCL 15.243(1)(d) and (w). Plaintiff then filed the instant action requesting disclosure of the redacted portions of the documents that pertained to lottery prize assignees. Defendant answered the complaint and asserted affirmative defenses and demanded that plaintiff answer the affirmative defenses. After a period of legal maneuvering, the trial court entered an order directing plaintiff to file a response to defendant's affirmative defenses. However, plaintiff failed to do so.

Instead, almost one year later, plaintiff moved for summary disposition under MCR 2.116(C)(10), arguing that the majority of the redacted information was not exempt. In response to this motion, defendant filed a brief in opposition and also sought judgment in its favor under MCR 2.116(I)(2), arguing that because plaintiff failed to file a response to defendant's affirmative defenses, they were admitted. After hearing arguments, the trial court concluded that the affirmative defenses were admitted and that defendant did not violate the FOIA. Accordingly, the trial court granted summary disposition in favor of defendant pursuant to MCR 2.116(I)(2) and dismissed the complaint with prejudice. This appeal ensued.

On appeal, plaintiff argues, in essence, that the trial court erred in determining that defendant did not violate the FOIA because the redacted information is not subject to exemption under the FOIA, and thus the trial court erred in granting summary disposition in favor of defendant. We disagree.

This Court reviews de novo a trial court's ruling on a motion for summary disposition. Spiek v. Dep't of Transportation, 456 Mich. 331, 337, 572 N.W.2d 201 (1998). "`The trial court properly grants summary disposition to the opposing party under MCR 2.116(I)(2) if the court determines that the opposing party, rather than the moving party, is entitled to judgment as a matter of law.'" The Local Area Watch v. Grand Rapids, 262 Mich.App. 136, 142, 683 N.W.2d 745 (2004), quoting Washburn v. Michailoff, 240 Mich.App. 669, 672, 613 N.W.2d 405 (2000). "`Whether a public record is exempt from disclosure under the FOIA is a mixed question of fact and law, and we review the trial court's factual findings for clear error and review questions of law de novo.'" The Local Area Watch, supra at 142-143, 683 N.W.2d 745, quoting Detroit Free Press, Inc v. City of Warren, 250 Mich.App. 164, 166, 645 N.W.2d 71 (2002). Our Supreme Court has held that "the application of exemptions [under the FOIA] requiring legal determinations are reviewed under a de novo standard, while application of exemptions requiring determinations of a discretionary nature ... are reviewed under a clearly erroneous standard." Federated Publications, Inc. v. Lansing, 467 Mich. 98, 101, 649 N.W.2d 383 (2002). Further, the proper interpretation of a statute is a question of law subject to review de novo. Brown v. Genesee Co. Bd. of Comm'rs (After Remand), 464 Mich. 430, 433, 628 N.W.2d 471 (2001).

The FOIA protects a citizen's right to examine and to participate in the political process by requiring public disclosure of information regarding the formal acts of public officials and employees. Booth Newspapers, Inc. v. Univ. of Michigan Bd. of Regents, 444 Mich. 211, 231, 507 N.W.2d 422 (1993). The act mandates "`[a] policy of full disclosure....'" Id., quoting Swickard v. Wayne Co. Medical Examiner, 438 Mich. 536, 543, 475 N.W.2d 304 (1991); see MCL 15.233(1). However, § 13 of the act, MCL 15.243, sets forth narrow exemptions that allow a public body to exempt certain information from disclosure. Booth Newspapers, supra at 231-232, 507 N.W.2d 422.

In relevant part, § 13(1) provides:

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

* * *

(d) Records or information specifically described and exempted from disclosure by statute. [MCL 15.243(1)(d).]

Section 25(9) of the McCauley-Traxler-Law-Bowman-McNeely Lottery Act (Lottery Act), MCL 432.1 et seq., provides:

Except as otherwise provided by state or federal law, the commissioner or an officer or employee of the bureau shall not disclose the name, address, or any other personal information concerning a winner of a prize greater than $10,000.00 drawn from the state lottery, unless the winner of a prize agrees in writing to allow the disclosure. Subject to subsection (10), the information protected against disclosure under this section is exempt from disclosure under the freedom of information act, ... MCL 15.231 to 15.246. [MCL 432.25(9).]

According to plaintiff, read together, § 13(1)(d) of the FOIA and § 25(9) of the Lottery Act exempt only winners of lottery prizes from having their personal information disclosed and this exemption does not extend to other persons receiving lottery prizes pursuant to an assignment.¹ However, both in the trial court and again on appeal defendant, in essence, concedes that § 13(1)(d) of the FOIA and § 25(9) of the Lottery Act do not provide an exemption for assignees. Rather, defendant relies on § 13(1)(a) of the FOIA² and § 25(9) of the Lottery Act as the basis for redacting assignees personal information.

Section 13(1)(a) of the FOIA provides:

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

(a) Information of a personal nature if public disclosure of the information would constitute a clearly unwarranted invasion of an individual's privacy. [MCL 15.243(1)(a)].

According to defendant, reading § 25(9) of the Lottery Act together with § 13(1)(a) of the FOIA leads to the conclusion that the defendant may withhold personal information that belongs not only to individuals who participated in the state lottery, but also individuals who derived a benefit from another person's participation because the invasion of privacy resulting from disclosure would be clearly unwarranted.

"[W]hen a public body refuses to disclose a requested document under the [FOIA], and the requester sues to compel disclosure, the public agency bears the burden of proving that the refusal was justified under the act." Swickard, supra at 544, 475 N.W.2d 304. In analyzing a claim of exemption under § 13(1)(a) of the FOIA, this Court must first consider whether the information at issue was of a "personal nature." Swickard, supra at 547, 475 N.W.2d 304. If it is determined that disclosure threatens an invasion of privacy, then this Court must determine whether the invasion would be "clearly unwarranted." Id.

Turning first to the "personal nature" inquiry, our Supreme Court has noted 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." Id. at 556, 475 N.W.2d 304. But our Supreme Court has offered the following standard as guidance: "information is of a personal nature if it reveals intimate or embarrassing details of an individual's private life." Bradley v. Saranac Community Schools Bd. of Ed., 455 Mich. 285, 294, 565 N.W.2d 650 (1997). This standard is evaluated "in terms of `the "customs, mores, or ordinary views of the community"....'" Id., quoting Swickard, supra at 547, 475 N.W.2d 304.

In addressing this threshold inquiry, in Mager v. Dep't of State Police, 460 Mich. 134, 137-143, 595 N.W.2d 142 (1999), our Supreme Court reviewed prior Michigan cases that have considered application of the FOIA and, given the guidance provided by those cases, went on to consider the question at issue: whether a citizen's status as a registered handgun owner was information of a personal nature. The Mager Court, noting that "[t]he ownership and use of firearms is a controversial subject," concluded that the names and addresses of gun owners was information of a personal nature because release of such information had the potential to endanger the occupants of the household by creating "a virtual shopping list for...