*1 Herald Co EMU Bd v COMPANY, HERALD INC v EASTERN MICHIGAN BOARD UNIVERSITY OF REGENTS September 8, 2004, Lansing. Docket No. 254712. Submitted Decided February 10, 2005, appeal granted, at 9:05 a.m. to Leave Mich_. Company, Inc., doing Newspapers, The Herald business as Booth Inc., News, brought and Ann Arbor an action the under Freedom (FOIA), seq., Act MCL of Information 15.231et in the Washtenaw against Michigan University Circuit Court Eastern Board of Regents (Board), seeking university’s presi- a letter from the vice regarding dent of to a finance Board member control of the expenditures university presi- involved of the construction court, Swartz, J., summary granted dent’s residence. The David B. disposition determining for the Board after that the letter fell exemption FOIA, within the frank communications of the MCL 15.243(l)(m), public good management because the interest by protecting exemp- fostered internal communications under the clearly outweighed public tion interest in disclosure. The plaintiff appealed. Appeals
The Court held: public promoting 1. The has an interest in frank communica- government. tions within the The FOIA includes numerous ex- 15.243(l)(m) emptions general from its rule of disclosure. MCL exempts public body they *2 public determine the officers and the Board unable to whether is proper acted in a manner. decided and 15.243(l)(m) requires public body that the demonstrates MCL encouraging public particular in the instance that the interest outweighs clearly public interest frank communication balancing. question public a It is disclosure. This is not Legislature weighted in favor of an issue in which the the balance using “clearly outweighs.” the term disclosure exemptions application A decision of FOIA trial court’s on discretionary require is reviewed determinations of nature “clearly must be under the erroneous” standard. trial court only given if Reversal in this case is deference. available evidence, appellate court, reviewing with the after the entire is left firm a mistake been made. The definite and conviction that has clearly standard is not the same as the abuse of erroneous standard, applied. which the seems to have discretion decision, clearly Applying to the trial court erroneous standard and court there exists a definite firm conviction the trial made a mistake. The trial court balanced the interest in nondisclosure disclosure, “clearly disregarding the out- with that of statute’s weighs” language. That is of a the definition clear error. — — Exemp- Frank Records of Information Act Communications Freedom tion. governmental agency Act, A sued under the Freedom of Information exempt prevail question record order to on claim that the exemption, under the must from disclosure frank communications purely requested than establish that the document covers other materials, preliminary to a final factual the document action, public agency or and that determination public encouraging interest in frank communications within body outweighs between bodies (MCL 15.243[l][m]). in disclosure Rowe, Rowe), & Soble L.L.R Jonathan D. for (by plaintiff. Ross Cooney, (by Mary
Plunkett & PC. Massaron and Michael S. for Bogren), the defendant. Regents v Bd Herald Co EMU Opinion of the Court C.J., SAAD, WfflTBECK,
Before: and JJ. SAWYER SAAD,J. OF THE
I. NATURE CASE re- Michigan Constitution confers enormous authority on the sponsibility governing boards grants universities: our Constitution to boards of “supervision universities the of the institution expenditures control and direction of all from 1963, 8, § the institution’s funds.” Const art 6. In mandate, furtherance of this constitutional our Legis- similarly university lature invests boards with this significant oversight seq.1 role. MCL 390.551 et role, statutory
Consistent its constitutional and (Board) Board of Eastern Michigan University (University) investigated expenditures and, president’s University, at the as part residence *3 Board, of its investigation, through the one of its members, Brandon, immediate Jan asked an subordi- University, nate of the of then-president the Vice Presi- of Doyle, dent Finance Patrick for opinion his written of president’s project. the role in this In furtherance of its investigation, sought the Board also the assistance of an firm, outside-certified and public accounting asked De- Touche, & (Deloitte), loitte LLP to a compre- conduct audit to the relating expenditures hensive for the presi- dent’s Deloitte ultimately residence. issued “voluminous and exhaustive”2 on the report subject, the public which Board made and to the gave press. Act Upon receiving (FOIA), Freedom Information general institution, supervision board of “A control shall have of its institution, and all the control direction of funds of the and such other powers may prescribed by and duties as he law.” MCL 390.553. Order, 12, 2004, p Opinion Trial Court and March 4. 265 Mich the Court from Ann Arbor News3 request et the seq.,
MCL 15.231 residence, the relating president’s to the for documents director, cited the “frank its FOIA University, through identified, de- exemption and but communications” letter. Herald disclose, Doyle-to-Brandon the clined to to and the court order disclosure filed suit asked the had the to know argued right responded letter. The Board Doyle contents of frank clearly letter within the commu- Doyle falls because nications by subordinates of their fostering appraisals candid ad- highest University level supervisors necessary inves- to the Board’s effective ministration The trial court reviewed tigative oversight role. camera, public interests disputed letter in balanced the and, in versus nondisclosure a written disclosure frank ex- communication opinion, concluded “clearly outweighs emption under these facts Supreme Because Court disclosure.”4 our courts, to trial grant has ruled that are deference we balancing which have the difficult task of FOIA, Supreme under our Court interests because has held that are a trial court’s specifically uphold we “balancing” the trial court committed judgment unless error, find did clear that the trial court because we err in affirm the trial court’s ruling, we holding.
II. AND FACTS PROCEDURAL HISTORY alleged part investigation As the Board’s into residence, in the overexpenditures president’s Board, 2003, Brandon, a summer of Jan member University from requested a letter Vice President Trial Court Plaintiff Herald Company, and Order, Inc. *4 (Herald), supra, p owns the 4. Ann Arbor News. Herald Co v EMU Bd of Opinion of the Court Finance Patrick Doyle regarding construction of the president’s house. In particular, Brandon desired to learn more the University about president’s role in the construction project. There was a controversy regard- ing costs, construction and the Board needed informa- tion to aid it in determining the appropriate course of action. Doyle’s letter, dated September 3, 2003, con- tained his candid appraisal the conduct of the presi- dent regarding the construction. 10,
On September 2003, Herald sent the Board an FOIA request for documents relating to the construc- tion of the president’s residence. Citing MCL 15.243(l)(m), the Board’s FOIA coordinator provided the following written explanation for the Board’s re- fusal to provide copy of the Doyle letter in response to Herald’s FOIA request:
Please be advised [EMU] has identified one other may document which be scope your Septem- within the 10,2003 request. ber [FOIA] September The document ais 3, 2003 letter from Doyle Patrick Regent to EMU Jan 15.243(l)(m)] Brandon. Pursuant to [MCL Michigan FOIA, your denying request EMU is for this letter as the letter is a public body within the EMU communication/note advisory of an covering nature purely other than factual preliminary material and agency to a final decision. Fur- ther, EMU particular has determined that in this instance encouraging interest frank communications between employees officials and outweighs of EMU disclosure. Thereafter, Herald brought this suit and asked the trial court to Doyle review the letter in camera and order its claimed, disclosure. Herald among other things, claimed in encouraging frank com- munications between employees officials and did not clearly outweigh the public interest in disclosure *5 265 Mich Court of the in- to critical issues Doyle speaks “the letter
because and his accountability financial the President’s volving style.” management motion, the Board indi-
In to Herald’s response its Regent Doyle requested by letter was cated determining appropriate her in Brandon “to assist during early for to take [the Board] course of action controversy,” that the letter “used stages of the and was Board] process [the of the part deliberative members, in, its to deter- through individual engaged mat- University mine course of action in the House ter.” facts, Doyle that the light argued
In of these the Board un- exempt letter should be considered from disclosure 15.243(l)(m) com- advisory der because was an MCL regarding superior, from a subordinate munication action” a “final determination of prehminary Board, encouraging in frank and the of the employees communication officials and between in University clearly outweighed argued publication The Board that its disclosure.5 also of “a and exhaustive on the investi- report voluminous University controversy,” pre- into the House gation firm, Deloitte, auditing an pared by independent Doyle of the letter. weighed against disclosure all and asserted that the facts had been released Board record, and opinions of the but that the part were delib- Doyle, part views of which were personal Board, from process protected erative should be disclosure. Doyle “opinions emphasized also that the letter includes The Board Doyle’s superior, the and that could reflect on Mr. immediate comments
University president,” Doyle be and that had would if known letter likely circumspect public, made “he he much more to be would communication.” cautious his Herald Co EMU Bd v Opinion of the Court court a hearing, Doyle trial held reviewed the camera, letter compel denied Herald’s motion to of the letter Doyle granted summary disclosure Board, disposition favor of held that exemption provided by letter fell within the FOIA MCL 15.243(l)(m). The trial court stated: Court, opinion sufficiently
In the of the has Defendant particularized justification articulated 15.243(l)(m)]. under [MCL Based on its camera review (1) letter, the Court finds that: of an contents are advisory nature other purely and cover than factual mate- *6 (2) rials; was communication made between officials (3) bodies; employees public of and the communica- and/or preliminary agency tion a was final determination policy or action.
Although the document contains some “factual mate
rial,”
primarily
summary
Doyle’s
it is
a
of events from
Any
perspective.
factual material
in the
contained
letter
easily
Doyle clearly
judgment
severable.
exercised
selecting
material,
evaluating
factual
its relative
significance,
using
it to
impact
facilitate the
his
opinions. See,
Train,
Corp
Montrose Chemical
v
F2d
491
(DC
1974) (Federal
Cir,
63
Court held that two factual
developed
hearing
summaries of evidence
at a
before
Administrator of the
exempt
parallel
EPA were
under a
FOIA).
provision
Further,
of the federal
under recent
persuasive Michigan authority,
may
a court
determine
particular
“substantially
that a
document that contains
opinion
more
exemption.
than fact” falls
within
Basso,
App
Barbier
[2000
v.
The trial court further ruled that the letter was exempt from disclosure under parameters “the forth set Co, in Herald Inc v Ann Arbor Pub Schools”6 and made the following findings: Co, Schools, 266; Herald Inc v Ann Arbor Pub Mich (1997).
NW2d 411 APP 185 265 MICH Opinion op the Court (1) substantially opinion than more contains The letter easily from
fact, is not severable factual material and the Doyle’sviews comments: overwhelming the Univer- concerning involvement the President’s sity project. House
(2) final determination preliminary to a letter is between officials The communication was policy or action. [the Board’s] investi- public The letter concerns bodies. action, any, if of what gation ultimate determination University contro- regarding the House taken would be versy. (3) encouraging frank communica- interest body public bodies or between
tions within spe- outweighs [Herald’s] interest in disclosure. light letter, apparently to “shed on cific need for the resigned in the wake why respected official reasons misleading public as to University] being caught [the house,” public’s true of the President’s cost disclosure, outweighed [the Board’s] general maintaining quality of its deliberative decision-making process.
(4) recently investigation and conducted an [The Board] report” concern- published and exhaustive a “voluminous project, University ing findings regarding the House copy [Herald]. furnished to of which was peremptory motion for Court denied Herald’s This immediate consid- reversal, its motion for granted but This expedited. to be appeal eration and ordered *7 Doyle file a copy directed the Board to Court also “suppress Clerk to Court and the letter with this upon receipt.”7 view public letter from III. OF REVIEW STANDARD Publica- in Federated Court’s decision Supreme Our tions,8 the rationale for the the rule of law and provides 7 254712). (Docket order, 20, April Unpublished entered 2004 No. 8 Publications, 98; City Lansing, 649 Inc v 467 Mich NW2d Federated of (2002). 2005] Herald Co v EMU Bd of Opinion of the Court of appropriate give level deference we are to to trial courts conduct the difficult and fact-sensitive bal- In ancing opinion tests under the FOIA. an authored Supreme Justice our Court observed that the MARKMAN, standard review for FOIA cases is not contained in the itself, legislation Specifically, but “our case law.”9 Court held that: determinations,
Exemptions involving discretionary such application exemption requiring the instant a circuit interests, engage balancing court to in a should be reviewed under a standard. We therefore hold deferential applies that the standard erroneous of review to the application exemptions requiring determinations of a discretionary finding “clearly if, nature. A erroneous” reviewing evidence, reviewing court is after the entire with a conviction that a mistake has left been made. definite firm (em- Publications, supra [Federated at 106-107 added).] phasis Court in Federated Publications empha Supreme Our sized that as trial carry courts out the “public interest case, balancing,” facts, each with special implicate will “differing public interest Equally considerations.”10 im portant, our Supreme Court ruled that “in undertaking balancing, however, the circuit court must consider the fact that the inclusion of a record an exempt within ible class ... some implies degree interest the non-disclosure of such a record.” The Court fur ther observed: is,
That some prompted attribute of records has these Legislature designate subject only them as to disclosure upon finding predominates. in disclosure [Id].[ Publications, supra Federated at 106. 10Id. at 109. 11Id. 12And, here, respect exemption, to the frank communication “clearly outweigh” in frank communication must *8 Mich 185
194 265 the Court words, in Federated Supreme In our Court other policy the FOIA’s disclosure although reasoned that governance, our good interest public serves legislation in the same that made clear Legislature may also be served good governance interest public by specific ex- illustrated policy nondisclosure of records: emptible classes public requisite balancing of inter- performing [I]n ests, cognizant circuit court should remain Legislature special has accorded an consideration that exemptible [Id. 110.] class of records.
Accordingly, inquiry the relevant under Federated ruling the trial court’s consti- Publications is whether tutes error. clear
IV ANALYSIS
acts
Under federal and
freedom of information
state
(FOIAs),
right
inspect govern-
has a broad
to
documents,
general
promoted
ment
Co
Wayne
one of “full
Swickard v
Medical
disclosure.”
(1991).
536, 543;
Examiner, 438 Mich
records as Federated Co v EMU Bd of Herald Opinion of the Court A. THE PURPOSE OF THE FRANK COMMUNICATIONSEXEMPTION The quality of a governmental only decision is good as the information it, and, informs accord- *9 ingly, widely it is recognized that the public has a strong in promoting frank communications between government officials, as evidenced by numerous federal and state laws that contain exemptions for information falling into category.15
One example is the federal FOIA, which contains a broad exemption for or “inter-agency intra-agency memorandums or letters which would not be available by party law to a other than an agency litigation 552(b)(5). the agency....” 5 USC The United States Supreme Court articulated the reason for the frank exemption: communications Congress
That privi- had the Government’s executive lege specifically adopting in mind in Exemption 5 is clear. precise The privilege contours of the in the context of this clear, may case are gleaned less but be expressions from legislative purpose prior and the case The law. cases uniformly privilege rest the policy on the protecting making processes government “decision agencies,” .... point, plainly Report, made in the Senate is that the “frank legal discussion of or writing matters” in might be inhibited if the public; discussion were made and that the “policies “decisions” and formulated” would be the poorer as a out, result. As a pointed lower court has “there enough are playing listing incentives as is for it safe and wind,” with the and as we have analogous said in an context, experience “[h]uman teaches that those ex- who pect public dissemination may of their remarks well tem- per appearances... candor with a concern for to the 15 preliminary See Anno: What provided by constitutes or notes or drafts governmental agency, memorandums, state or intra-agency local exempt inspection disclosure or under state from freedom of information acts, 26 ALR4th 639. 265 Mich Opinion of the Court process.” [Nat’l Labor decisionmaking detriment of Sears, Co, 132, 150-151; 421 US & Relations Bd v Roebuck omitted).] (1975) (citations 1504; L Ed 2d 95 S Ct courts, reasoning. similar expressed State have FOIA to New York’s process” exemption “deliberative and candid discussion open to foster “was enacted rec- and to uninhibited among public protect officials being family, made from ommendations, within In the by public.” those affected and by scrutinized Shaw, plaintiff, high In school Matter Shaw.16 referee, rating reports to obtain that had been sued high coaches. The court held compiled on him school thus, did exemption and, that the fell reports within not have to be disclosed: only imperative preferable
It is that the indi- but ratings private be vidual remain because disclosure would extremely A detrimental interest. ratings temper an dissemination would honest reprisals animosity evaluation with *10 free fear of proper a deter decision. rating process provides In the useful the instant case advisory meaningless opinions become or which would confidentiality if the cloak of to be nonexistent were par- The coaches and hesitate to removed. officials would ticipate any rating process public be in which would made any rating madé under such circumstances would public acceptance reflect more concern for than for its actual be an truth. The inevitable result would interference sportsmanship and a true of scholastic events impact upon partici- public’s interest and detrimental high potential pation public school The harm in functions. public outweighs any possible to interest far benefit single participant. If more disclosure is harmful to person seeking public to the than nondisclosure is harmful information, justice tip of must toward scales (1981). Shaw, 261; 260, In the Matter 112 Misc 2d NYS2d 855 of Herald Co v EMU of Bd Opinion of the Court important pub- than nondisclosure. Public is more welfare (citations [Shaw, omitted; knowledge. supra 261-262 lic at added).] emphasis FRANK EXEMPTION
B. THE MICHIGAN COMMUNICATIONS Michigan recognizes public strong also that the has a interest in frank communications between promoting officials. government Michigan Legislature pub-
The determined that in frank nec- promoting lic’s interest communications may, essary proper functioning government times, FOIA, and outweigh policy the disclosure specific exemption thus included a in the FOIA for body public a [c]ommunications and notes within or be- public advisory of an tween bodies nature to the extent they purely other than are cover factual materials and agency preliminary to a final determination exemption apply public action. This does not unless the body particular shows that instance the encouraging interest frank communication between employees clearly outweighs officials and bodies 15.243(l)(m).] [MCL disclosure.... This there are exemption explicitly recognizes special cases in which nondisclosure better serves the public’s good governance. exemption the big picture forces courts to view and ask whether interest in the particular piece disclosure of information may clearly outweighed by be certain decision-making realities in which the disclosure would ultimately goal good governance.17 frustrate the note also that frank communications Michigan’s
We than exemption. is narrower the federal discovery, Michigan recognizes privilege for In the context of also *11 “ advisory policy intraagency opinions,’ based on a ‘confidential protecting ‘open, concerning governmental discussion’ action.” frank App 265 Mich 185 Opinion of the Court an implicit presumption
federal contains that the frank communications is promoting value outweighs public’s right it to know. such However, is more limited: in Michigan exemption disclosure, prevent government order to must not frank commu- only show disclosure would inhibit nications, why promotion articulate of frank must instance,” communications, particular “clearly” “in the outweighs right to know. public’s
Therefore, analysis under conduct MCL 15.243(l)(m), the trial court will ask and answer these (1) questions: public body did the show that the re- quested document covers “other than factual purely (2) materials”; did the public body show document is to a final “preliminary agency determina- (3) action”; tion of did the public body “establish that the encouraging frank the public body communications within or between clearly outweighs bodies Schools, Ann 274, disclosure.” Arbor Pub supra 15.243(l)(m). quoting part MCL Herald concedes challenges first and second points, University’s but position ruling and the trial court’s on the point. third
C. THE “CLEARLY OUTWEIGHS” STANDARD
1. MICHIGAN
In McCartney,18 this Court balanced the applicable
applied
“clearly outweighs”
interests
standard. In
McCartney,
plaintiff sought
release
Dep’t,
Twp
334, 338;
Ostoin v
Police
App
189 Mich
471 NW2d
Waterford
States,
Corp
(1991),
Kaiser Aluminum & Chemical
quoting
v United
(Ct
1958).
939,
Cl,
Supp
157 F
General,
McCartney Attorney
722;
v
231 Mich
“The number of assistants and the divisions, of the diverse location the vast number of mat- any given moment, pres- ters under consideration at deadlines, imposed fully sure of court and the need to absolutely consider and evaluate various concerns make it Department Attorney essential that the General utilize written memoranda as a means of to communication assist making. in decision
“The release to the internal memoranda of type discourage prepa- at issue in this case would impact negatively ration such memoranda and on would quality department’s decision-making process legal provided with detrimental effect on the services to agencies public’s state as well as on the [Id. interest.” at 734-735.] Court, in Corrections,
This Favors v 192 Mich Dep’t of 131; (1991), 604 App applied NW2d also inmate, standard. The outweighs plaintiff, sought an form, obtain review which was used to determine disciplinary credits. The form contained a sheet used to comments, record the committee’s which were then used to make a final decision. Court noted: This designed
The comment sheet is to allow the committee impressions regarding members to state their candid eligibility disciplinary inmate’s credits. Release of this conceivably discourage appraisals information could frank and, thus, the committee inhibit accurate assessment of [Id. 135.] an inmate’s merit or lack thereof. Mich Court in nondisclo- Court held
This the interest in disclosure: clearly outweighed sure encouraging frank communica- public interest [T]he clearly out- Department of Corrections tions within of these worksheet weighs public interest in disclosure encouraging the interest in has a clear forms. within the de- disciplinary credit committees members of frankly a warden with partment communicate credit, disciplinary inmate an issue regard to the issue of length of an inmate’s incarceration. that affects the insuring these greater has a far knowing reasons accurate than in evaluations are added).] (emphasis at 136 [Id. behind the evaluations. *13 here, body proper makes the When, public as by is better served non- showing good governance disclosure, not to by required than it will be disclosure proper showing, To make the release the information. must show that the information falls public body and that exemption the frank communications within clearly outweighs public’s nondisclosure disclosure. balancing
McCartney why demonstrates how and may goal interests favor nondisclosure. The public McCartney provision was the communications advice, a matter of legal undeniably great accurate Likewise, the nature of the communica- importance. advice, tions, subject normally is a sensitive legal confidentiality. Because the communications requires of a McCartney type generally recognized were directed an requiring confidentiality were toward in nondisclosure important goal, the interest in disclosure. Favors greatly outweighed how the nature of a communication specific also shows If the committee members justify can nondisclosure. comments, the inmates would view their knew understandably candid in their they would be less Bd Herald Co v EMU Opinion of the Court Furthermore, candid of the inmates. their appraisal final deter- comments were invaluable to warden’s to expected keep mination: the warden could not be himself, thus he every track of and evaluate inmate mem- relied on the candid comments of the committee bers.
2. CALIFORNIA
jurisdiction
“clearly outweighs”
Another
that uses a
The California FOIA contains a
standard is California.
to
provision
public body
allows a
withhold disclo-
document
if “on the
of the
case
particular
sure of
facts
the record
by
making
interest served
served
outweighs
public interest
of the
Ann Cal
Code
disclosure
record.” West’s
Gov
6255. The court
frank communications
analyzed this
in Times Mirror Co.19 plaintiff sought
copies
appointment
obtain
Governor’s
schedules.
argued
The Governor
that disclosure would interfere
decision-making process
with his
because “disclosure of
where,
in question,
identify
the records
which
when and
met,
with whom he has
would
access to the
inhibit
broad
spectrum
persons
viewpoints which he
Id. at 1339. The Califor-
requires
govern effectively.”
nia Supreme
Court first noted that
had a
strong interest
in the disclosure of the schedules. “In
politics,
power
purest
access is
form. Entrance to
*14
passport
the executive office is the
to influence in the
government.
decisions of
interest extends
public’s
only
Governor,
to the
elect
they
individual
but
as advisors.” Id.
their
individuals
Governor selects
could
public exposure
at 1344.
court also noted that
limit,
expand,
variety
people
rather
than
of
Court,
Superior
1325;
Times Mirror Co v Sacramento Co
53 Cal 3d
(1991).
893;
Rptr
283 Cal
Governor with. ultimately the court con- good government, promoting cluded: arguments they these is not that lack
The answer to substance, process privi- pragmatism. The deliberative but reality politics; lege grounded in the unromantic of it understanding public and the rests on if information, precisely were entitled to the same Governor likely neither would receive it. Politics is an ecumenical affair; persons every groups and conceivable embraces public private; popular unpopular; interest: Re- publican every partisan stripe and Democratic and between; left, right every private and center. To disclose meeting expect association the Governor making process effectively, deny decision is to function contrary experi- human nature and to common sense and added).] (emphasis [Id. ence. Thus, the court held that “the interest in non- public clearly outweighs public disclosure dis- closure.” Id.
3. APPLICATION TO THE DOYLE LETTER goal exemptions Because the of both the FOIA and its good government, sake, not disclosure for disclosure’s Legislature, our by placing the frank communications FOIA, policy judgment within made “public welfare is more than important is, knowledge.”20 greater That has a far ensuring boards of universities oversight of the ex- provide effective administration’s penditure knowing funds than opinions one administrator about another. The Board needed more dry job, than cold and data to do its it needed the opinion unvarnished candid of insiders to make In the Matter Shaw, supra at 262. *15 EMU Bd of Herald Co v the Court inves- and, to conduct sensitive judgments particularly, And, a high-level when tigations top administrators. give opinion highest asked to his of the administrator is administration, president, in the his ranking official job immediate favor he needs for secu- whose superior, to trust the may naturally the insider be reluctant rity, confidentiality of the commu- outsider and to trust Also, the outside board unimportantly, nication. member, advisability conducting assessing alleged into investigations further and more exhaustive residence, must over-expenditures president’s and of such reliability, credibility, validity assess the words, In other these frank commu- communications. ability nications are essential to an outside board’s oversight vital constitutional function on discharge its There public. behalf of the substantial risk opinions dry up of candid would were these vital sources justifiably appraisals fearful that their candid insiders make headlines. This is true front-page especially would where, here, investigating potential as the Board is high-ranking misconduct of a official seeks insight high-ranking of other officials who work for and investigation. of the side-by-side target with wagons” “circle the or tendency “play natural human safe,” if coupled apprehension of retaliation would, fear, opinion public, deprive written is made we important perspective: the Board of an point, plainly Report, that the made in the Senate writing legal policy matters” in “frank discussion of public; might be inhibited if the discussion were made “policies that the “decisions” and formulated” would be the out, pointed poorer As a lower court has “there as result. playing listing enough as it is for it safe and are incentives wind,” analogous we have said in an with the context, experience teaches that those who ex- “[h]uman may of their remarks well tern- pect public dissemination 265 MICH APP 185 Opinion of the Court appearances ... to the per with a concern for candor [Sears, decisionmaking process.” Roebuck detriment omitted).] (internal Co, supra & at 150 citations hurt, not likely letter would Doyle’s To make would, context, It advance, the interest. *16 because, golden egg, that laid the to goose kill the Court, if Supreme public the California paraphrase exactly and the Board are entitled to receive same information, likely it. See then neither would receive Co, Mirror at 1345. supra Times our is the uncontroverted important Also to decision fulfillment, deroga- that the Board acted in not in fact is, tion, constitutional role. That the Board of its to the it did not investigated reported public, sweep rug.21 conceal and the issue under the Had this himself in concealed president been a case which misconduct, alleged to hide his with the documents Board, then of complicity balancing public and the making interests calculus decision But, where, in clearly weigh would favor disclosure. here, opinions investigate a board needs insiders’ and, protect other insiders to the use of funds honorably discharges obligations, where board clearly interest in nondisclosure predomi- Indeed, this factual scenario strikes us as the nates. Legislature had in mind when it prototype adopted the frank communications in the FOIA. The express recognition by Legislature of the need for role in internal making candor its vital decision FOIA, involving In a the federal the United States Court of case availability Appeals for the District of Columbia held that the of the facts weighing against question from another a factor disclosure. in source was distinguished only from in “[0]ur case here is to be a situation which place certain facts are to be is in the administrative assistants’ memo Chemical, all are in the record.” randa. Here the facts Montrose supra at 70. Herald Co v EMU Bd
Opinion of the Court internal investigations22 gave birth to the frank commu- and, nications exemption, were to hold we this exemp- tion inapplicable facts, under these may very well sound the death knell of this vital tool for board to discharge members their oversight roles for the benefit of the public.
D. THE "CLEARLY ERRONEOUS” STANDARD OF REVIEW agree Because we with the trial court that the in frank protecting clearly communications outweighs the disclosure, fortiori, we conclude that the trial court did not commit clear error by so And ruling. because our Supreme Court instructs us to the clearly use erroneous standard when we review a trial court’s balancing judgment, we hold that the trial court did not err ruling public interest predominates nondisclosure here. Indeed, the clearly erroneous standard adopted by was our Supreme Court provide deference to trial courts engage precisely the type balancing of public *17 interests conducted here. Publications, Federated supra at 105-107. There is often a delicate balance between disclosure and the in nondisclosure. The trial court must make a careful appraisal of the special circumstances and all relevant facts to ensure that the correct balance is struck.23 Because the trial court is in a better position to hear testimony and review documents in ap- camera and praise the multiple factors that balance, influence this 22 Indeed, arguably, greater the need respect for candor is even investigations allegations wrongdoing internal of day-to of than it is for day policymaking. 23 Perhaps why Supreme this is our Court in Federated Publications held that discretionary these “determinations nature” should be of Publications, “reviewed under a supra deferential standard.” Federated added). (emphasis at 107 Mich Opinion of the Court appropriate be accorded the
its determination should erroneous” standard of “clearly deference reflected Id. at 107.24 review. given has Supreme
The United States Court clearly application of the of following description erroneous standard of review: “clearly
Although meaning phrase errone- immediately apparent, general prin- is certain ous” appellate ciples governing the exercise of the court’s findings may be power to overturn of a district court principles, our cases. The foremost of these derived from recognized, finding “[a] as the Fourth Circuit itself is that ‘clearly although erroneous’ when there is evidence to it, reviewing support court on the entire evidence firm left with the definite and conviction a mistake plainly has committed.” This standard does not been reviewing finding the trier entitle a court to reverse of simply because it is convinced that it would have of fact decided reviewing oversteps differently. the case court 52(a) duty if [F P] the bounds of its under R Civ it duplicate the role of the court. “In undertakes lower clearly findings applying erroneous to the standard sitting jury, appellate a district court without a courts constantly must in mind that their function is not to have decide factual issues de novo.” the district court’s If plausible light account the evidence is the record entirety, appeals may viewed in its the court not reverse though sitting it been even convinced that had fact, weighed trier it would have the evidence differ- ently. permissible are Where there two views of evidence, the fact finder’s choice between them cannot be 564, City, [Anderson erroneous. v Bessemer 470 US (1985) (citations 573-574; 1504; L 105 S Ct 84 Ed 2d 518 added).] omitted; emphasis Also, language adopted in colorful from the United Circuit, Court of for the Appeals States Seventh 24 Furthermore, steady requests *18 there is a stream of FOIA made at every government, judicial level of and it would be an inefficient use of every require appellate challenge. resources to courts to review de novo Herald Co EMU Bd v Opinion of the Court Michigan Supreme Court clearly has stated: “To be erroneous, a decision must strike more just us as than maybe probably wrong; it must... strike us as wrong old, with the force of a unrefrigerated five-week Cheatham, 1, dead fish.” v n People 23; 453 Mich (1996), Motors, NW2d 355 & quoting Parts Electric Inc (CA 1988). Electric, Inc, v Sterling 228, 7, 866 F2d V RESPONSE TO THE DISSENT Among many misstatements, misapprehensions, dissent, mischaracterizations contained in the glaring most flaw in the dissent’s reasoning is the dissent’s failure to properly apply the principles regard- ing review, the standard of enunciated by our Supreme Publications, Court Federated to the trial court’s role in the balancing of public required interests by MCL 15.243(l)(m). While inaccurately accusing the majority ignoring “clearly outweighs” standard to deter- mine when prevails disclosure over nondisclosure, ignores dissent our Supreme express Court’s review limitations articulated Federated Publications. That is, our Supreme Court Federated made abundantly that, clear not simply case, in that any but in case which a trial court makes “discretionary determina- involving tions” “balancing public interests,” we are not to disturb the trial findings simply court’s because (as does). may disagree we clearly Rather, dissent may we overrule the trial court only when the trial court errs. “clearly” The dissent overstates the outweighs standard under beyond the FOIA in- tended meaning accomplish purpose dissent’s overruling trial court it disagrees because with the time, trial court. At the same to accomplish the dis- purposes here, sent’s relegates dissent our Supreme Court’s mandated “clearly erroneous” standard to *19 Mich 185 Opinion of Court in- Supreme Court much than our
something less so, falsely accuses the doing In the dissent tended. a disclosure majority positing of balance between government. simply This is good sake and disclosure’s Rather, makes the observa- wrong. majority simply that, we, Legislature, by but our tion that it was not deter- exemption, frank creating the communications may be governance in limited cases good mined that in by than disclosure better nondisclosure served investi- encourage very kind of successful order to Moreover, the dissent that we witness here. gation conflating mistakenly accuses the with the abuse of discretion clearly erroneous standard simple that we do not conflate standard. The answer is Instead, simply the two we note or confuse standards. we, Legislature, but our the concrete fact that it was not exceptions there are clear to that determined clearly outweighs the disclosure when nondisclosure And, in equally important public interest disclosure. analysis Supreme to is our Court’s our compelling “exemptions holding teaching Federated requiring determinations ... involving discretionary balancing public interests, in a engage circuit court to It under a deferential standard.”25 should be reviewed And, ignores. contrary this that the dissent admonition accusations, hyperbolic we not invent to dissent’s do Rather, our Court Supreme standard review. standard of review simply appropriate articulated the balancing requires Simply Federated. because the here “clearly” to find that one interest out- trial court the obvi- weighs meaningless another does not render job weighing ous that the trial court’s one proposition — light another of all the facts against conducting balancing case—remains one of particular Publications, supra Federated 106-107. Co v EMU Bd of Herald Court test. That the frank communications carries “clearly mandate, with it a outweighs” obvious, which is nonetheless leaves the trial court with the discretionary job of weighing public us, interests and leaves aas reviewing court, the obligation the trial review ruling using court’s what Federated tells us ais “defer- ential standard.” our Supreme As Court clear makes Federated, “some records,” attribute of these here records that fall within the category of frank commu- nications, our prompted Legislature give “spe- them cial consideration” —to subject make them to special (unlike treatment falling records any outside class) exemptible as an “exemptible class of records.” *20 that, We observe throughout dissent, the the dissent prefers to minimize the “clearly” in the clearly errone- ous standard of and review to inflate the “clearly” the clearly outweighs of the FOIA to effectuate the dissent’s objectives.
Moreover, dissent, again inaccurately and un- fairly, accuses the trial court and the majority of bal- ancing interests and reviewing the trial decision, court’s balancing respectively, contrary to the legislative mandate, by ignoring the language, “in the particular instance.” To support this unfair character- ization, the dissent the majority accuses of speculating (which not) about facts we do while the dissent itself speculates about the meaning Doyle’s of some of state- ments his letter (speculation is, view, our naive).
Again, the dissent is simply wrong. The trial court Court this each makes respective ruling its particular facts of this case analysis. at the center of the Indeed, in opinion, its the trial court said that defen- dant articulated “a particularized justification.” Fur- ther, the trial court specifically details its reasoning 265 Mich op the Court instance.” particular “in this holding its basis for
its trial court’s our of the we conduct review Significantly, in- particular on this special emphasis ruling with not dissent, cannot and do we Unlike stance. (2) (1) did; he when wrote what why Doyle on: speculate (3) is credible to letter; Doyle whether he wrote the (4) may have the Board how opinions; Board his (5) sincerity; or what credibility, reliability, judged his relationship known about may the Board have and how University president Doyle and the between investiga- further regarding affected its decision constitutionally mandated board is for the tions. This gives out, Michigan Constitution not for us. sort job protecting difficult Board, judges, very not funds are by ensuring interests that the here, question there is no spent. And properly part in no small discharge duty able to Board was and assess- ability opinions of its to obtain because insiders, a perspective of insiders about other ments absent the frank may the Board not have obtained management of this exception. The communications board, opin- mix of an insiders’ very sensitive outside insiders, of motiva- weighing other ions about of investi- credibility balancing in a delicate tions and Board, charge is the constitutional gations balancing delicate of interests that judges. It is this here that in- unique “particular instance” creates well-reasoned, correct, and formed the trial court’s *21 under “clearly erroneous” decision certainly most exemption. the frank communications
VI. CONCLUSION interests, the trial court balancing In constitutional important, determined that Board’s thus, role, and investigative oversight function Herald Co v EMU Bd Dissenting by Opinion Whitbeck, C.J. public in good government, would be better served nondisclosure rather than disclosure of the Doyle letter. In so finding, the trial court did not clearly err. reasons,
For all the foregoing we hold that the trial properly court granted summary disposition in favor of defendant.
Affirmed. J., concurred.
Sawyer, (dissenting). C.J. This case arises from the WHITBECK, construction of a residence, new official University House, for the president of Eastern Michigan Univer- (the sity University). Apparently, there was consider- able public controversy regarding expenditures as- University House, sociated with ultimately president resigned, perhaps because of this controversy. event, In any it is clear from the record that University Regent Jan Brandon wrote a Doyle, letter to Patrick University’s president finance, vice asking Doyle Mr. to address several questions relating directly or indi- rectly to the construction of University House. On September 3, 2003, Doyle Mr. responded by letter, and it (the letter) is this Doyle communication that is at issue here. Plaintiff Herald Company1 sought to obtain a copy letter, of the Doyle University denied the request on the basis of the “frank communications” (FOIA).3 exception2 of the Freedom of Information Act sued, Herald Company and the trial court upheld the University’s denial, as does the here.
I respectfully dissent from the In majority’s opinion. construing the frank communications 1 Doing Inc., Newspapers, business as Booth and the Ann Arbor News.
2 MCL15.243(l)(m). seq. MCL 15.231 et *22 Mich 185 265 C.J. Dissenting by Whitbeck, false choice between majority posited has
FOIA the for and “disclosure the one hand on “good government” no other. The FOIA contains on the disclosure’s sake” statute, the the but, reading it into by choice such Doyle letter will the contents of the assures that majority majority ignores process, In the remain secret. to the that is so essential accountability concept of requirement disregards It process governing. of public that exemption frank communications instance in the particular public must show body frank between encouraging communication outweighs bodies employees public officials It what in disclosure. articulates appellate for an abuse of discretion standard amounts to may speculates FOIA cases. It about what court review of guise construing under the occur the future ignoring facts frank communications while in the are, my view, outcome determinative that And finally, relying of this case. particular circumstances case, amazing York it reaches the conclusion on a New than important welfare is more “public that In overlooks knowledge.” process, democracy in a that proposition fundamental ignores welfare and knowledge is essential in the FOIA that “[t]he statement explicit public policy they may folly partici- informed people shall be so I reasons, For these pate process.”4 in the democratic dissent.
I. ACCOUNTABILITY AND OVERVIEW: THE OF GOVERNING PROCESS In a chess complete is a information.5 game Chess and sees the each looks at the board game, player World Series MCL McManus, 15.231(2). Positively Poker York: (New Fifth Street: Farrar, Murderers, Cheetahs, Straus & Giroux, and Binion’s 2003). Herald Co EMU Bd of v Dissenting Opinion Whitbeck, C.J. all same information and information is By contrast, available. poker game partial infor- poker game, mation. In a all example, stud players they have some information that equally is, share —that knowledge of the cards that have been dealt face each up player unique also has some information —but *23 only is, player of knowledge the cards that —that player’s are hand.
The of game poker analogous is more to real life than chess, game may which for poker’s account significantly greater As popularity. individuals within a larger society, we have rarely exactly the same informa- tion and almost never do we have all the information make, that exists. The decisions that we therefore, may depend as much on on past experience, intuition, on context, and on our systems they own value as do on factual information.
The a process governing and, real life exercise it certainly while is most game, is an exercise characterized by partial Rarely information. do indi- vidual citizens have the same information gov- about ernmental decisions. Almost never do such citizens have all the information that In part, exists. this is Although inevitable. the direct democracy of the town meeting areas, still exists in a largely few we now function within a representative government form which and appointed elected officials make decisions on and, indeed, our behalf without our participation often knowledge. without our
Nonetheless, as citizens we must be able to hold our elected and appointed officials de- accountable cisions that they make on our behalf. Accountability, turn, information; depends on we an cannot make judgment informed about whether a decision of a gov- Mich Dissenting Whitbeck, C.J. having one was the correct without eminent official 1976, In about that decision. least information some regu- step took a decisive toward Michigan Legislature to information that citizens have larizing the access and, thereby, to- decision-making governmental about accountability by appointed elected and ensuring ward passage That step was governmental officials. FOIA. spells policy first of the FOIA out section concept premised upon to be appear
would information: perfect persons, all is the this state that
It persons those incarcerated in or local correc except state facilities, complete are entitled to tional full informa regarding government tion the affairs of and the official represent officials acts of those who them public employees, people consistent with this act. shall fully they may participate in be informed so that process.[6] democratic however, FOIA, do not actu-
The mechanisms of ally provision complete result in the of full and infor- *24 7 the FOIA mation in all instances. Section 136 of cur- exemptions twenty-five contains discrete from rently of sweep the of the act. inclusion such broad wholly policy reflects a realistic series of exemptions that, sometimes, by Legislature decisions the full dis- of process governing. closure would not advance the court, however, Court after has said that exemp- these narrowly.8 tions are to be construed 6 15.231(2) (emphasis supplied). MCL 7 MCL 15.243. 8 Press, Dep’t Inc v See, Detroit Free Consumer and example, for of ("The (2001) Services, 315;
Industry App 311, 631 246 Mich NW2d 769 narrowly exemptions construed, party asserting in the the FOIA are and proving exemption’s appli- the that the bears burden Eegents Herald EMU Bd Co v 215 Dissenting by Opinion Whitbeck, J.C. Further, no question there can be that concept of accountability is central to both the policy broad A.9 implementing mechanisms the FOI FOIA, then, is a pro-disclosure statute sought expand enactment to access to information in government the hands of Thereby officials. it allows the citizens of this state hold those officials accountable for the decisions that on they make our behalf. While not, Legislature not, did provide could for information, complete access to significantly did shift from away open balance restricted access to access in all but a limited number of Legisla instances. The ture necessarily therefore made the decision that dis closure, in except instances, a few process facilitates of governing because it incorporates concept accountability. deliberate,
This was a
reasoned
choice and one
judiciary should,
which we
in the process of
judicial review,
view,
defer. In my
the majority here
cability
purpose
FOIA.”);
Bay
is consonant
Herald Co v
(2000) (“[T]he
City,
111, 119;
463 Mich
exhibits process policy of proper its own view tutes —that be hindered in context of the would governing by providing access exemption “frank communications” that are at best Doyle grounds suspect letter —on exemption of that is exam- actual language when the ined. THE EXEMPTION
II. FRANK COMMUNICATIONS 13(l)(m)10 commu- of the FOIA the “frank Section The frank communications ex- exemption. nications” first, public contains, description a emption second, a exempted and, documents that are to be necessary for the requirement showing documents to be description public apply. (1) exempted that such documents must be provides public body or communications and notes within (2) bodies, purely factual public other than between (3) materials, to a final deter- preliminary agency found, mination of action. The trial court Doyle letter here met each of agree, I at issue three prongs. these is, however, “necessary showing” requirement “[tjhis 13(l)(m) ex-
another matter. Section states that body does shows emption apply public unless particular instance public interest encouraging frank communication between officials clearly outweighs public employees bodies Thus, (Emphasis supplied.) interest disclosure.” body claiming exemption particu- must show with larity encouraging how the frank outweighs communications overall in disclosure. 15.243(l)(m). MCL EMU Bd Herald Co v *26 by Dissenting Opinion Whitbeck, C.J. It within of language the context this that I find majority’s “public the reliance on the interest balanc- in ing” be, mentioned Federated to Publications11 very least, the It interesting. law, is clear from the case including Publications, Federated that applying the FOIA, necessity, requires balancing the the inter- est in in disclosure and the interest nondisclosure. However, in the frank exemption, communications the in Legislature, a manner of speaking, put thumb its on Legislature placed the scale. The the burden squarely on public body the to show that the interest in nondis- closure clearly outweighs in In disclosure. addition, Legislature provided that this showing Thus, must be made in the in particular instance. frank exception communications the competing inter- ests in nondisclosure and disclosure do stand on Rather, equal footing. Legislature weighted has balance favor of disclosure.
It enough follows that is not state to that there ais public interest in the communications nondisclosure of and notes a public body within between bodies that contain purely other than factual materials and that are preliminary to a final agency of policy determination or action. The Legislature has already made such a given. determination and it Merely is a repeating that given analysis advances the not at all. The issue here is whether interest in nondisclosure clearly outweighs competing interest disclosure in particular view, In my instance. majority issue, skirts this in the process conflating two considerably different standards of review. 11 Publications, Lansing, 98, 109; Federated Inc v Mich 649 NW2d (2002). APP 265 MICH Dissenting C. J. Whitbeck,
III. OF REVIEW12 STANDARD in its section on standard majority states the trial standard is whether applicable that the review Curiously, later ruling constitutes clear error. court’s review. revisits the standard of analysis majority its refers to analysis, In Federated its later position “the Publications bolster our Court adopted by Supreme erroneous standard was engage trial provide deference to courts balancing interests con- type precisely at 205. ducted here.” Ante inaccurate, factually logically. simply This *27 not all frank Publications did deal at with the Federated explicit “clearly nor exemption communications with Rather, Federated Publications outweighs” standard. to exemption applicable personnel dealt the FOIA with Therefore, Fed- a law agency.13 records of enforcement not deal at all with “precisely erated Publications did of interests conducted type balancing of wholly “equal footing” here.” It a different dealt with another, wholly scheme to and balancing applicable distinct, Legislature in had not exemption which As weighted the in favor of articulated scales disclosure. Publications, in and of to the subject Federated course bias in favor of disclosure and to broad exemptions to disclosure in the scope narrow FOIA, and the interest the interest disclosure exception in the enforcement stand nondisclosure law There footing. on akin is no such something equal to footing in the frank communications equal standard question appellate here is Note that the standard of review at the level, explicitly level. the trial court the FOIA states that the court At proof novo burden of on the “shall determine the matter de and the is 15.240(4). public body to sustain MCL its denial.” 15.243(l)(s)(ix). MCL Herald Co v EMU Bd Dissenting Opinion Whitbeck, J.C. exception. That has its own distinct and “clearly outweighs” discrete standard. broadly,
More there are three general categories of novo, appellate error, review: de clear abuse of discretion. Federated Publications discussed first two had, It categories. these noted that the Supreme Court elaboration, some instances without a applied de However, standard review novo to FOIA cases.14 Federated Publications limited review de novo to appli- FOIA exemptions cations of involving legal determina- footnote, tions.15 In a the majority here propounds theory that be an would inefficient of judicial use to require appellate resources every courts to review FOIA I challenge de novo. generally agree, While I do note that Federated appears Publications to stand for the proposition that review de novo required is with respect applications of FOIA exemptions involv- ing legal determinations. hold,
Federated Publications squarely, does that “the clearly ap- erroneous standard of review applies plication exemptions requiring determinations of a discretionary nature” and that finding “[a] if, erroneous after reviewing evidence, entire reviewing court is left the definite firm convic- tion has mistake been made.”16 however,
The majority,
satisfied with this
reasonably straightforward
quotes
standard and
People
Cheatham,17
v
to the effect
to be clearly
erroneous
*28
14
Publications,
supra
4, citing
Federated
Bradley
at 105-106 n
v
Community
Ed,
285, 293;
Saranac
Schools Bd
455 Mich
565
650
NW2d
(1997),
Bay City,
117;
111,
Herald
Co v
Mich
463
220 265 MICH Dissenting Whitbeck, C. J. of a wrong us the force must decision “strike a Cheatam was old, unrefrigerated dead fish.” five-week it, BOYLE noted and, writing in Justice criminal case determining in a defen- crucial “[credibility that is in judge trial and the comprehension, level dant’s Credibility assessment.”18 to make this position best in FOIA and most is, issue cases generally, not case; in the trial court not an this FOIA certainly issue in of the a camera here made its decision after review credibility played in determinations Doyle letter which explain why admit- does not an part. majority no erroneous stan- tedly clearly illustration of colorful that a quotes in a criminal case dard in a footnote in another Appeals Court decision federal Circuit clearly any understanding circuit is of assistance Michigan FOIA case erroneous standard credibility whatsoever. involves no determinations however, the majority the fact that Beyond that, has erroneous standard in essence conflated the Publi- abuse standard. Federated with the of discretion of discretion cations did not discuss the abuse standard At its and, no to FOIA cases. clearly, application has recognizes standard core, the abuse of discretion is in a better position some circumstances trial court and is therefore to make certain factual determinations “an deference as acknowl- be accorded considerable edgment knowledge of the trial court’s extensive with the circum- familiarity and that court’s direct facts upon .”19 here seizes the word stances . .. “deference,” that because of the trial court’s and states testimony to “hear review documents ability multiple factors influence appraise camera and 18 Cheatham, supra at 30. (2003). 270; Babcock, 247, People Mich v NW2d *29 Herald Co EMU Bd of v Dissenting by Opinion C. J. Whitbeck, balance,” determination be
this trial court’s should accorded “great deference.” no in credibility
There were determinations involved the trial court’s decision here. While the trial court in Doyle camera, reviewed the letter have If there so we. were trial “multiple other factors” that influenced the those are balancing process, court’s factors not discern- able trial from opinion from the court’s the record By the clearly this case. conflating erroneous standard and, essence, the abuse discretion standard latter, applying majority has made the trial court’s decision virtually cry unreviewable. This is a far us, reverse, from a requires standard that in order to review the entire and evidence come a definite and firm conviction that trial court has made a mistake. The deference that the trial is due court’s decision is the deference that flows from careful review of the evi- decision, dence and from a analysis reasoned no more no I suggest less. that it is this review that we should conducting be in this case. I further suggest this is not the the majority review that has conducted.
IV THE “PARTICULAR INSTANCE” OF THIS CASE
A. THE MAJORITY’S VIEW majority the particularized addresses circum- very stances of this case in one specific instance then in a of very series broad statements. Specifically, majority University’s notes that Board of Re- gents honorably discharged obligations. Presumably, here to the undisputed refers fact that the University ultimately comprehensive report released a by independent auditing firm that investigated University controversy. House I that the agree Univer- sity responsibly good releasing acted faith this 265 Mich Dissenting Whitbeck, C.J. case, I bearing on this only factor report. Were decision. Of the trial court’s inclined to affirm be would (I do involved here. course, only not the factor this is however, precisely here is note, situation Chemical the federal case of as in Montrose the same Train,20 decision on which v Corp of California *30 faced with a Montrose, the court was relies. In majority the matter concerning all the facts in which situation and, therefore, record public in issue were was, to a consider- being withheld document was Here, a in camera of the extent, review able redundant. not in that all the facts are letter discloses Doyle plainly record.) public of generalized policy a series then offers (For “The example, of its view. support statements tendency wagons’ ‘play to ‘circle the human natural if the safe,’ apprehension of retaliation coupled with would, fear, deprive made we opinion public written ” .... Ante at perspective of an important the Board 203.) are related to the these statements Ostensibly, Regents Board of faced University’s that the situation do not actu- However, generalized these concerns here. case; circumstances of this ally particular relate to the public on fact, they proper an overall view express instance, to to but respect not with future in the may about what occur speculation instances. But frank construing when future is not our task the lan- By of the FOIA. communications our task is to confine our exemption, guage of If we instance” of this case. inquiry “particular to the here, then I they as exist inquiry limit our facts how the am at a loss to understand 270; Train, Corp v 160 US DC Montrose Chemical California (1974). 491 F2d 63 v Herald Co EMU Bd of Opinion by Dissenting Whitbeck, C.J. encouraging “clearlyoutweighs” frank communications interest in disclosure. EXIST
B. THE FACTS AS THEY HERE majority acknowledges, passing, expenditure matter here involves “administration’s me, funds.” To this fact central to our dealing here, consideration of this case. We are not McCartney Attorney legal General,21with were in v we Attorney prepared memoranda that the regarding General’s staff negotiations the Governor’s with Indian dealing rights. here, tribes over casino Weare not as we Dep’t in Favors v with Corrections,22 were a comment by Department disciplinary used sheet Corrections credit committee to determine whether recommend disciplinary dealing Rather, the award of credits. we are expenditure derived, direct funds— may reasonably assume, we taxpayer from a combination of payments by presi- tuition dollars and the— university major dent of a for the construction of a *31 Further, residence in which he would live. we are dealing allegations, with a situation which there were part by University’s report, confirmed at least in expenditures extravagant inappro- that these were priate. question president’s Thus, the of the account- ability, just University’s Regents, to the of Board taxpaying public, expenditures also to the but for these the core is at of this case. majority’s Doyle opinion keeps letter, highly president,
document that
was
critical of
posits, my
from
view,
hidden
view. It
a false
21
General,
McCartney Attorney
722;
v
App
231 Mich
choice between on the other. sake” for disclosure’s and “disclosure for in the FOIA for disclosure no provision There is Rather, there is broad disclosure’s sake. disclosure, fully cognizant Legislature aby decision gov- accountability, good facilitates it fosters because letter Doyle hide the contents ernment. To “good of a Manichean choice between behind facade arguably extrava- and the disclosure government” funds inappropriate expenditures gant to reality, run from only is not to official reality. existence of very obscure of this central to our consideration The second fact Doyle that Mr. had decided apparent that it is case is Brandon Regent letter to he wrote his retire well before Doyle Mr. and, opinion, trial court noted in its as the after he wrote letter. days resigned several such high that a level administrator concern majority’s give his “naturally reluctant” Doyle might Mr. be in the ranking official “highest opinion candid superior, immediate administration, president, his 203, job security,” for ante favor he needs whose have no Doyle Mr. could absolutely unfounded. thus presi- or about the job security, his future fears about retire. already he had decided to “favor,” because dent’s known to the Further, he had made that decision Regent letter to penned months before he his president Brandon.23 the outcome in this these facts determine my
In view the sort of circum- case, precisely they exemplify Legislature effectively has dealt with the fear that note that the I also public employees against employees, including employers retaliate will service, report exception state classified who of those in the laws, regulations, through suspected or rules violations or violations seq. Act, MCL 15.361 et Protection the enactment of Whistleblowers’ *32 Herald Co v EMU Bd of 225 Opinion by Dissenting Whitbeck, C.J. stances the commanded Legislature us to consider in particular instance of an exemption claimed under the frank communications exemption to the FOIA. The majority avoids by turning this conclusion to case law from other It places heavy states. reliance on the California case of Times Mirror Co v Sacramento Co Superior the Times Mirror case, In that sought Court,24 disclosure of the appointment Governor’s schedules. The California Supreme ultimately Court denied that disclosure, stating: “The process privilege deliberative grounded the unromantic reality politics; it rests on the understanding that if the public and the Gover- nor were entitled to precisely information, the same likely neither would be to receive it.”25 I first note that the issue of access to Governor’s appointment simply schedule could not arise in Michi- gan as the body” definition of a “public “does not include governor or governor, lieutenant the execu- tive governor office of the governor, or lieutenant employees Second, thereof.”26 the California fell court into the same error as the here when it expounded its own view of proper public policy, which was based on speculation might about what happen future, ignoring while the language that the legis- lature actually had enacted.
The New York decision in In the Matter
Shaw27
exhibits the same
At
hubris.
issue were rating reports of
a high school referee that had been compiled by high
There,
school coaches.
the court stated that
“[a]
ratings
dissemination of the
temper
would
an honest
24
Court,
Superior
Times Mirror Co v Sacramento Co
1325;
53 Cal 3d
(1991).
Rptr 893;
283 Cal
and free evaluation with The court reached the deter a decision.”28 proper is more im- “[pjublic conclusion that welfare amazing ma- knowledge.”29 Remarkably, the than portant Shaw, case, here cites In the Matter a York New jority Michigan Legislature that had proposition for the is more policy judgment made the welfare knowledge. a decision con- than How important any light can shed whatso- struing a New York statute Michigan Legislature the intent of the ever on completely My puzzle- the FOIA eludes me. enacting Michigan fact that neither the by ment is increased nor, my knowledge, any construing to court Legislature Michigan astounding the FOIA in has ever reached knowledge functioning that the conclusion by is overridden the incantation of government of its welfare,” “public phrase a both New phrase conveniently York and the here leave majority court Michigan, then the FOIA undefined. If this is law dead letter. simply THE TO THIS V MAJORITY’S RESPONSE DISSENT my case and majority responds The to dissent The similarly, briefly. majority’s response I will do charge “many commences with the there are misstatements, misapprehensions, mischaracter- izations contained in the dissent....” Ante at 207. require alliterative ruffles and flourishes neither Such majority’s my nor view and response. deserve language respective are out in the of our own set chips and I am content to let the fall where opinions they may.
28 Id.
29 Id. at 262. Herald Co v EMU Bd of Dissenting Opinion Whitbeck, C.J. More substantively, majority circles around the question of the standard of review at some length, with frequent references to Federated Publications.30 appears view to have two components. The first is that Federated “clearly Publications articulates a Indeed, erroneous” standard of I agree. review. I say exactly body that in the I out, this dissent. also point however, that Federated Publications dealt with the exemption FOIA applicable personnel records of a law enforcement and not agency to the frank commu- nications issue here. As the majority appears concede, the frank communications exemp- tion “clearly has its own outweighs” standard. Unless *34 the specific language of the frank communications entirely be rendered nugatory, “clearly standard, outweighs” along with the require- ment to take into account the “particular instance” of a involving case the frank communications exemption, must part be of the public interest balancing that Federated Publications requires.
The second component majority’s of the appears view to stem from the rather common-sense observation in Federated Publications that “[i]n contrast with the universe of public records that are non-exemptible, the Legislature has specifically designated these classes of course, records as Of exemptible.”31 the fact that Legislature designated a class of exemptible records as does not end inquiry. As the Supreme said, Court emphasize “[W]e that these records are merely exempt- ible and not exempt, that exemption is not auto- And, matic.”32 I suggest, even taking when into account the Supreme Court’s following comment that a review- Publications, supra. See Federated Publications, supra Federated at 109. 32 Id. APP 185 265 Mich Opinion by Dissenting Whitbeck, C.J. con- “cognizant special of the remain
ing court should an exempt- has accorded Legislature that the sideration records,”33 can be special consideration ible class be a conclusion that the records should overridden in when, here, interest public made as communication does not out- encouraging frank in interest disclosure. weigh on short, emphasis I not see the conflict in In do me, To is rather majority process which the seizes. Publications, we are to review Under Federated simple. erroneous” “clearly decision under a a lower court’s communica- language standard. Under the frank necessarily involves a exemption, tions review into special inquiry whether communications “clearly outweighs” encouraging frank inquiry in disclosure. The second neither can just important as the first and be Indeed, least, disregarded. my view two constitute a seamless whole.34 inquiries disagree that I regard, In this states Indeed, I I do not findings. the trial court’s do. But evidence, I disagree. reviewing After the entire simply am left with the definite and firm conviction below, that trial court made a mistake. As set out “clearly outweighs” ignoring special mistake was frank ex standard contained communications that, the fact with re emption thereby ignoring *35 33 Id. at 110. “constitutionally majority University also refers to the as a University specifically
mandated board.” The is mentioned Const 1963, 8, by 8, But, example, § § art 4 and is art 6. for the Civil covered entity. Eights constitutionally created See Const Commission is also 5, Yet, court, 1963, my knowledge, § has concluded that the art 29. no enjoys unique respect any special commission or status with to the Nor, my view, University enjoy any application of the FOIA. does the such status. Herald Co v EMU Bd of Dissenting Opinion by Whitbeck, C.J.
spect particular to this exemption, Legislature has a policy made decision that tilts balance in favor of disclosure.35
VI. CONCLUSION In conclusion, the majority states: balancing public interests,
In the trial court deter- important, mined that the oversight Board’s constitutional role, investigative thus, function and inter- good government, est would be better served nondis- closure rather Doyle than disclosure of the letter. In so finding, clearly the trial court did not err. [Ante 210-211.] at I see nothing in the trial court’s opinion referring to “important, constitutional oversight function and investigative role” of University’s Regents. Board of However, I agree do that the trial court found in essence that nondisclosure of the Doyle letter would better serve the public than would disclosure. And it precise reason that the trial court’s decision was erroneous.
In its opinion, the trial court reached a general conclusion: “The in encouraging frank majority states, “(1) inferentially, speculated also that I have on (2) why Doyle (3) did; letter; wrote what he when he wrote the whether (4) Doyle opinions; may is credible to the Board in his how the Board have (5) judged credibility, reliability, sincerity; may his or what Board relationship Doyle have known about the University between and the president and regarding investiga how this affected its decision further have, Try tions.” speculation Ante at 210. I I my can find no such majority perhaps engages informal, material, dissent. The here in the but fallacy quoque-.meeting argument of tu criticism with the that the other person engages very criticizing. in the conduct he or she is I have indeed suggested speculating that the about the effect of future myself is, put events. The statement that I have done the same gently, any foundation, find, my without I least that can in the words dissent. *36 Mich APP 185
Dissenting Opinion by C.J. Whitbeck, body or between within communication in clearly outweighs public bodies how- recognized, apparently The trial court disclosure.” conclusion, alone, standing ever, general that such therefore went day. The trial court carry could say: toon letter, apparently to specific for the need
Plaintiffs highly respected public why a light on the reasons “shed being caught EMU mislead- resigned in the wake of official house,” ing true of the President’s as to the cost disclosure, outweighed public’s general interest in is or the maintaining quality by of its Defendant’s interest in decision-making process. deliberative “clearly trial was aware of the Obviously, the court However, analyzing when outweighs” standard. FOIA Company’s of the Herald instance particular Rather, the trial court ignored it that standard. request, against the interest in nondisclosure simply balanced the Uni- and came down on the interest disclosure In the trial court failed versity’s doing, side. so that, the FOIA’s frank communica- recognize under and the the interest nondisclosure exemption, tions footing. equal in disclosure do not stand on particular exemption, Legisla- to this respect With in favor of weighted ture the scales disclosure. has the very decision is Ignoring legislative policy of clear error. definition that, It commits the same error. states majority here, makes the
“[w]hen, public body proper by served non- showing good governance better disclosure, by than it will not be disclosure rather the information.” Ante at 200. Like required to release court, obviously trial aware Indeed, it quotes “clearly outweighs” standard. court, the trial very next sentence. Like standard Heeald Co v EMU Bd of Dissenting C. J. Whitbeck, however, simply ignores then that standard. Like the court, trial it balances the supposed harm that may flow from disclosure against the supposed good that may nondisclosure, flow from matter, as a policy future without regard to the legislatively imposed mandate requires consideration of the particularized in- stance this case. Like the court, trial it overlooks the *37 concept of accountability that is at the core of the FOIA. Like court, therefore, the trial it clearly errs.
In my view, this error profound. The majority reaches astounding conclusion that in Michigan the “public welfare” —defined without regard to the par- ticular circumstances of this important case—is more than public If knowledge. this is the state, law of this then the Legislature’s broad policy decisions in the FOIA and its carefully tuned implementing mecha- nisms are without meaning. In the process, a narrowly tailored exemption from the broad sweep of the act will have swallowed the overall rule. Within the context of the frank communications exception, consigns our citizens to the receipt only that information that public body safe, determines according to its definition of the public welfare, to release. I cannot agree that this is the result the Legislature intended. I would reverse and remand. communications notes within if purely than preliminary contain other factual materials are agency policy final determination of or action. The apply public that, body regard does not unless the shows specific document, encouraging frank communications be- employees public body outweighs tween the officialsand disclosure. case, clearly determining 2. In this the trial court did not err in produced prelimi- defendant showed that the was letter narily agency to a final determination or action and that protecting interest in frank communications outweighed disclosure. Affirmed. 265 Mich op the Court C.J., dissenting, one of issue is not stated Whitbeck, good government for the sake of disclosure. versus disclosure accountability access to officials and allows FOIA fosters public may fully participate in the demo- so that information case, sought process. in this cratic Without the information