King v. Oakland County Prosecutor
303 Mich. App. 222
| Mich. Ct. App. | 2013Background
- In 2010 Barry L. King and Christopher K. King submitted FOIA requests to the Oakland County Prosecutor for records about Christopher Busch and his alleged involvement in the 1976–77 Oakland County Child Killings (OCCK). Busch died in 1978; the OCCK remain unsolved.
- The prosecutor denied the requests asserting the law-enforcement-proceedings FOIA exemption (MCL 15.243(1)(b)(i)) because disclosure would interfere with an active, ongoing investigation.
- The circuit court initially denied the prosecutor’s summary-disposition motion for lack of admissible proof that the investigation was ongoing, then permitted in camera submission of affidavits and documents and thereafter sustained the FOIA denial.
- Plaintiffs moved for reconsideration; the trial court clarified that release "would" (not merely "could") interfere with proceedings, found the Busch material inextricably intertwined with sensitive investigation material, and denied reconsideration, dismissing claims without prejudice.
- Plaintiffs appealed, arguing (inter alia) that the trial court failed to make sufficiently particularized findings as required by Evening News, improperly denied discovery/depositions, failed to segregate nonexempt material, and violated a constitutional duty to confer with victims.
- The Court of Appeals affirmed: it held the trial court followed Evening News (including in camera review), made adequate particularized findings that disclosure would interfere with an ongoing investigation, and did not abuse its discretion in denying depositions or requiring separation of nonexempt material; the constitutional conferral claim was unpreserved and without merit.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the law-enforcement-proceedings FOIA exemption applies (would disclosure interfere?) | Plaintiffs: Trial court’s findings were conclusory and at times used the weaker “could” standard; exemption not shown. | Prosecutor: In camera materials show an active investigation and that Busch material is inextricably intertwined with sensitive investigative material such that disclosure would interfere. | Affirmed — court found (after clarification on reconsideration) the record supported particularized findings that disclosure would interfere and exemption applies. |
| Whether the trial court complied with Evening News procedures (particularized findings; in camera review; burden of proof) | Plaintiffs: Court’s findings were too conclusory and did not explain how specific documents would interfere. | Prosecutor: In camera review was proper and produced sufficient particularized justification without publicly revealing sensitive content. | Affirmed — in camera review under step two of Evening News was permissible and the court’s particularized findings (active investigation; inextricable intertwining; risk of interference) were adequate. |
| Whether defendant was required to segregate nonexempt from exempt material and produce nonexempt portions | Plaintiffs: Defendant possessed nonexempt Busch records (pointing to later State Police releases) and should have segregated and released them. | Prosecutor: All Busch-related material in its possession was intertwined and exempt; State Police releases do not prove prosecutor had nonexempt copies at denial time. | Affirmed — court found no nonexempt material in prosecutor’s possession at denial time and segregation requirement did not apply. |
| Whether plaintiffs were entitled to depose the prosecutor or chief assistant (discovery) | Plaintiffs: Needed testimony on credibility/motives; deposition essential. | Prosecutor: Deposition would be a fishing expedition and would not assist the court’s in camera review. | Affirmed — trial court did not abuse discretion; depositions were unnecessary and would be a fishing expedition given the in camera record. |
| Whether defendant violated a constitutional/statutory duty to confer with victims | Plaintiffs: Prosecutor had a duty to confer under Const 1963, art 1, § 24 and CVRA. | Prosecutor: Constitutional right is ‘‘as provided by law’’; CVRA (procedural enforcement) applies only to crimes after Oct. 9, 1985 and its conferral duties arise after arraignment; here crime predates CVRA and no arraignment/charges exist. | Affirmed — issue unpreserved; on merits CVRA does not apply to 1977 crimes and no statutory/constitutional duty to confer arose pre-charging. |
Key Cases Cited
- Evening News Ass’n v. City of Troy, 417 Mich 481 (1983) (defines burden, narrow construction, need for particularized justification, and sets three-step procedural options including in camera review)
- Herald Co., Inc. v. Eastern Mich. Univ. Bd. of Regents, 475 Mich 463 (2006) (FOIA review standards; discretionary findings and when particularized facts are required)
- State News v. Michigan State Univ., 481 Mich 692 (2008) (timing principle: exempt status at denial time controls; later events do not retroactively defeat exemption)
- Messenger v. Ingham County Prosecutor, 232 Mich App 633 (1998) (approving in camera resolution without depositional discovery; discouraging compelled depositions of prosecutors absent necessity)
- Dickerson v. Department of Justice, 992 F.2d 1426 (6th Cir. 1993) (explaining how disclosure during active investigations can reveal investigative leads and jeopardize investigations)