Earl D Booth v. Department of Corrections
332014
| Mich. Ct. App. | Dec 1, 2016Background
- Earl Booth, a DOC employee, requested under FOIA: the recording of a prisoner’s telephone call, a log of who listened to it, and two AIPAS reports after DOC took adverse action against him.
- The Court of Claims initially found the recording and AIPAS records exempt and granted summary disposition to DOC; Booth appealed as to the recording.
- This Court (Booth I) reversed as to the recording because the trial court had not conducted an in camera review and Booth may be identifiable on the tape; remand was ordered for review.
- On remand the Court of Claims conducted an in camera review, concluded the recording was exempt under the privacy exemption (MCL 15.243(1)(a)), and denied Booth’s motion to hold DOC in contempt for failing to produce a listener log and denied attorney fees.
- This Court vacated the contempt denial and remanded for further proceedings (including an order that DOC obtain the log from its private vendor), but affirmed that the contempt sanction was not imposed at this time; it also remanded the recording question for balanced analysis and allowed limited disclosure to Booth’s counsel for technical enhancement under a protective order.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the recorded phone call (or parts) must be disclosed under FOIA despite privacy exemption | Booth: portions containing his interaction with the prisoner are nonprivate and relevant to his disciplinary appeal and should be disclosed | DOC: recording is personal/medical in nature and disclosure would be a clearly unwarranted invasion of privacy | Court: remanded — in camera review must consider entire recording, balance public interest (Booth’s interest) against prisoner privacy, permit technical enhancement under protective order and possible limited disclosure to counsel |
| Scope of court’s review and whether transcript/listening limitation was appropriate | Booth: court limited review improperly and failed to explain balancing; technical enhancement could reveal nonexempt speech | DOC: court concluded recording mostly personal and exempt; minimal description justified | Court: trial judge’s explanation insufficient; must listen to entire tape, explain balancing, and consider technological enhancement before final FOIA ruling |
| Whether DOC must produce a log of staff who listened to the call (and whether contempt is warranted) | Booth: DOC failed to produce existing listener logs and disobeyed circuit court order; policy requires logging of all staff who reviewed calls | DOC: no DOC log existed; logging function performed by private vendor (PCS); not required to create new record | Court: DOC must seek the log from the private vendor (cannot avoid FOIA by contracting out); vacated denial of show-cause and remanded for a show-cause hearing, but declined to impose contempt immediately |
| Entitlement to attorney fees, costs, and disbursements under FOIA | Booth: prevailing-party fees and costs warranted if nonexempt materials are disclosed | DOC: opposed (argued nothing to award following court rulings) | Court: dismissal of fee claim premature given remand; Booth may renew fee claim after further proceedings |
Key Cases Cited
- Rataj v. Romulus, 306 Mich. App. 735 (interpretation of FOIA is a question of law)
- Federated Publications, Inc. v. City of Lansing, 467 Mich. 98 (exemptions requiring legal determinations reviewed de novo; discretionary determinations for clear error)
- Kent County Deputy Sheriff’s Ass’n v. Kent County Sheriff, 463 Mich. 353 (FOIA is prodisclosure; public access aids accountability)
- Mager v. Department of State Police, 460 Mich. 134 (balancing public interest against privacy exemption under FOIA)
- Mich. Fed’n of Teachers v. Univ. of Mich., 481 Mich. 657 (definition of "information of a personal nature")
- Hudson v. Palmer, 468 U.S. 517 (prisoners have reduced privacy interests)
- United States v. Paul, 614 F.2d 115 (recording of prisoner telephone conversations upheld)
- MacKenzie v. Wales Twp., 247 Mich. App. 124 (public body cannot avoid FOIA obligations by contracting out clerical/record functions)
- Int’l Union, United Plant Guard Workers v. Dep’t of State Police, 118 Mich. App. 292 (use of protective order when disclosing sensitive recordings)