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We have discussed the Freedom of Information Act (the “FOIA”), Act 442 of 1976, MCL 15.231 et seq., before in other e-letters, including the processing of good-faith deposit requests and election-related requests. Now, this e-letter focuses on and explores further some of the more common basis claimed by municipalities or public bodies for purposes of denying a FOIA request. Be careful – the FOIA exemptions are not always as easily applied as they appear!

INTRODUCTION

Once a valid FOIA request is received, absent the ability to issue an extension, a public body must ultimately either (a) grant the request, (b) deny the request, or (c) grant the request in part or deny the request in part. The withholding of a responsive record to a request or the redacting of a responsive record would constitute a denial for purposes of a FOIA response. The FOIA is a pro-disclosure statute however that requires the disclosure of all responsive public records to a valid request unless an applicable exemption applies that would permit the public body or municipality to withhold the records requested. In general, a public record subject to a valid FOIA request will be subject to disclosure unless exempted pursuant to a statutory exemption.  The first common basis for denial this e-letter will discuss, therefore, is if the request itself is invalid.

INVALID REQUESTS

Generally, the FOIA contains requirements that must be satisfied for a request to fall within its scope. Unless qualified as indigent, a requestor must include all of the following to submit a valid FOIA request:

1. A description of the public record(s) sought that sufficiently describes the record(s) so as to enable the public body to find the public record;
2. The requesting person’s complete name;
3. The requesting person’s complete address. An address must be written in compliance with United States Postal Service addressing standards;
4. The requesting person’s contact information. Contact information must include a valid telephone number or electronic mail address;
5. If made by a person other than an individual, the complete name, address, and contact information of the person’s agent who is an individual.

To the extent any of this information is omitted from a request received by a public body, the request would fall outside of the technical scope of the FOIA. The FOIA does not dictate whether a public body is statutorily obligated to respond to an invalid request with a denial, but such action is generally recommended. The issuance of a formal denial in response to an invalid request creates a paper trail that could heed off a subsequent argument that the public body failed to respond to a request within the FOIA’s statutory time limitations.

Of course, a requestor may resubmit an invalid request with corrected information following a denial on those grounds. Thus, to further the spirit and intent of the FOIA as well, it is not uncommon for public bodies to include in those denials’ language indicating to the requestor that the request may be resubmitted with the proper information.

PERSONAL OR NON-PUBLIC RECORDS

The FOIA only requires the mandatory disclosure of “public records.” If a record request does not constitute a “public record,” it is not subject to mandatory disclosure and there is no need to address whether an exemption applies. A “public record” is defined by the FOIA to mean, in relevant part, a “writing prepared, owned, used, in the possession of, or retained by a public body in the performance of an official function, from the time it is created.” A “writing” is also defined broadly to include both physical and electronic means of recording.  A public record does not include computer software however, and by definition also excludes personal records or non-public records.

It is not uncommon for municipalities, or their officials, staff, or employees, to possess different types of records. The State of Michigan’s record retention schedules identify a personal record, for example, as “records that document non-government business or activities.” This may include email or text correspondences congratulating someone on a new job or wishing them a happy birthday. A request that attempts to obtain personal or non-public records may fall outside of the scope of the FOIA, meaning that those records may not be subject to mandatory disclosure. A public body must look at how the record was utilized and/or ascertain the record’s purpose to determine whether it would be a “public record,” as defined by the FOIA, subject to disclosure.

In Walloon Lake Water Sys, Inc v Melrose Tp, for example, the Michigan Court of Appeals considered whether a letter written by a member of the public but read aloud at a township board meeting was a “public record” within the meaning of the FOIA. 163 Mich App 726, 728; 415 NW2d 292 (1987). Following the meeting, the township came into possession of the letter. The COA held that the letter was a public record generally subject to disclosure because “[a]t the township meeting, the letter was read to the board, which considered its contents to decide that the subject of the letter did not require township action.” The COA found that “once the letter was read aloud and incorporated into the minutes of the meeting where the township conducted its business, it became a public record used in the performance of an official function.” The FOIA has therefore been construed to “require disclosure of records of public bodies used or possessed in their decisions to act, as well as of similar records pertaining to decisions of the body not to act.”

Alternatively, in Hopkins v Duncan Tp, the Michigan Court of Appeals considered whether the handwritten notes of a township board member taken for personal use at a board meeting were considered “public records” subject to disclosure under the FOIA.  294 Mich App 401, 402; 812 NW2d 27 (2011). In that case, the notes were not circulated among other board members, were not used in the creation of any minutes for any meetings, and were retained by the individual board member. The COA there found that “[a] writing can become a public record after its creation if possessed by a public body in the performance of an official function, or if used by a public body, regardless of who prepared it.” However, “[m]ere possession of a record by a public body does not, however, render it a public record; a record must be used in the performance of an official function to be a public record.” The Hopkins court distinguished its facts from the Wallon Lake case, noting that unlike in Wallon Lake the notes at issue were not read into the record, were not used in the township’s decision, and were never in the township’s possession. Those facts demonstrated that the notes were not “public records” subject to disclosure because they were never used in the performance of an official function.

THE PRIVACY EXEMPTION

Section 13 of the FOIA contains a list of exemptions from disclosure, one of which is commonly referred to as the privacy exemption. That exemption permits a public body to exempt from disclosure “[i]nformation 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). The privacy exemption is commonly relied on to redact or withhold from disclosure names, addresses, contact information or other identifying information contained in sensitive records.

To apply the privacy exemption, a municipality must engage in a two-pronged test. The first prong asks whether the information contains “intimate” or “embarrassing details” because they are of a personal nature. A person’s name, standing alone, for example, is not information of a personal nature; but, it may become personal nature if it is associated with other personal information about the person named. The second prong asks whether “disclosure of the information at issue would constitute a clearly unwarranted invasion of an individual’s privacy.” In making this determination, public bodies “must balance the public interest in disclosure against the interest [the Legislature] intended the exemption to protect.” The public interest in disclosure to be weighed is whether the disclosure would contribute “significantly to public understanding of the operations and activities of the government.” “Requests for information on private citizens accumulated in government files that reveal little to nothing about the inner workings of government will fail the balancing test.”

In ESPN, Inc v Michigan State Univ, for example, ESPN sought to obtain records involving student-athletes with the names of the suspects, victims and witnesses. 311 Mich App 662, 663; 876 NW2d 593 (2015). While the names were not information of a personal nature standing alone, having one’s name linked with a criminal incident was found to be information of a personal nature. This is because “[p]eople linked with a crime, whether as a perpetrator, witness, or victim, have an interest in not sharing this information with the public.” The COA ultimately found that the names of the student-athlete perpetrators were nonetheless subject to disclosure under the second prong because disclosure would serve the core purpose of the FOIA. The disclosure of the names was necessary in that instance for the purpose of “learning whether policing standards [were] consistent and uniform” by “comparing and contrasting the information within the requested reports.” The disclosure of an individual’s name may alternatively fall within the exemption under the second prong when disclosure would not relate to the inner workings of the government.

Although unpublished, the Michigan Court of Appeals has in a separate case upheld the redaction of a complainant’s name, address and phone number under the FOIA’s pronged privacy exemption. In Richman v Ingham Cnty., a complaint had been made against two 911 dispatchers. No. 356147, 2021 WL 5407497, p *1 (Mich Ct App, November 18, 2021). The county had disclosed the records but had redacted the complainant’s name, address and phone number under the FOIA’s privacy exemption. Under the first prong, the COA found that under the circumstances, the name of the complainant was personal information. The complainant had made their complaint under the promise of confidentiality, presumably wishing to keep the information both private and confidential.

As to the second prong, the COA found that disclosure would do little to advance the FOIA’s core purpose. Instead, the remainder of the non-redacted information spoke to the core purpose by illustrating what the complaint was, how it was investigated, and the ultimate disposition. The name of the complainant was unrelated to how well the county was complying with its public functions. The invocation of the privacy exemption was therefore upheld in this instance.

When applying the privacy exemption, public bodies should also be aware that where the requested information pertains to the party making the request, it is unreasonable to refuse disclosure on the grounds of invasion of privacy. In Lepp v Cheboygan Area Sch, the mother of a minor sought her son’s school file. 190 Mich App 726, 727; 476 NW2d 506 (1991). The school had refused to disclose, claiming to do so would constitute an invasion of her son’s privacy. The court ordered disclosure, finding that the requestor had “requested the disclosure in her capacity as both mother of and conservator for her minor son. [The minor] was unable to make the request himself. Disclosure to [the requestor] would, therefore, constitute disclosure to [the minor]. It would be an absurd result to deny disclosure to the person making the request for the reason that disclosure would invade that person’s privacy.”

A public body will be subject to ambiguous FOIA requests and exemption questions. Remember, when resolving ambiguities under the FOIA Michigan courts will rely on the FOIA’s pro-disclosure purpose. A public body should therefore ensure it is both properly applying any exemption claimed in its responses and applying those exemptions in light of the FOIA’s core purpose.

By Kendall R. O’Connor

This publication is intended for educational purposes only. This communication highlights specific areas of law and is not legal advice. The reader should consult an attorney to determine how the information applies to any specific situation.