In this action brought pursuant to Michigan’s Freedom of Information Act (FOIA), MCL 15.231 et seq., plaintiff appeals by right the circuit court’s grant of summary disposition in favor of defendants. We
I
Plaintiff Michael A. Rataj (plaintiff), a Detroit-area attorney, learned that Romulus Police Officer Warren Jones (Jones) had assaulted an unnamed citizen at the Romulus Police Department (RPD) in the early morning hours of August 1, 2012. Although it is unclear how plaintiff initially discovered this information, RPD employee Kevin Ladach (Ladach) has confirmed that the assault took place and was captured on video.
On September 21,2012, plaintiff sent a FOIA request to the RPD. Plaintiff sought the disclosure of all records pertaining to the assault, including an unredacted copy of the official incident report, any other internal reports, and any videorecordings. RPD Captain Derran E. Shelby (Shelby) responded on October 4, 2012, stating that plaintiffs FOIA request had been “granted in part and denied in part.” Shelby provided a copy of the incident report pertaining to the events of August 1, 2012, with the names, addresses, dates of birth, and telephone numbers of all persons redacted. Shelby
Plaintiff sent a written appeal to Seifman on November 14, 2012. Seifman responded on November 19,2012, suggesting that the records sought by plaintiff were exempt from disclosure under FOIA because they (1) “would constitute a clearly unwarranted invasion of an individual’s[
September 28, 2012
To the City of Romulus,
[Redacted] requesting that any police reports, patrol car audio/video, police station audio/video, etc., obtained by the city as a result of my arrest on August 1, 2012, that the city of Romulus may have in their [sic] possession surrounding an incident where an officer struck me for spitting on him and using racial slurs, NOT be released to anyone. It is my belief that by releasing any of these items to anyone from*742 the public will not only impact my current employment status, but also my personal safety as well.
Sincerely,
[Redacted]
Seifman informed plaintiff that although the citizen’s name had been redacted, the letter “may help you understand the concerns of the person involved in the incident.” Seifman did not explain why the letter was dated September 28, 2012, nearly two months after the incident had taken place.
On January 11, 2013, plaintiff commenced the instant FOIA action against defendants in the Wayne Circuit Court, seeking disclosure of the records identified in his earlier FOIA request, including an unredacted copy of the incident report and the videorecording of the assault. Plaintiff also requested costs and reasonable attorney fees pursuant to MCL 15.240(6).
In lieu of filing an answer, defendants moved for summary disposition pursuant to MCR 2.116(C)(8) and (10), arguing that the records sought by plaintiff were exempt from disclosure as a matter of law because they (1) contained information of a personal nature and disclosure would constitute a clearly unwarranted invasion of privacy under MCL 15.243(1)(a); (2) were law enforcement investigation records and disclosure would constitute an unwarranted invasion of privacy under MCL 15.243(1)(b)(iii); and (3) related to law enforcement departmental discipline and personnel matters under MCL 15.243(1)(s)(ix). Alternatively, defendants argued that the circuit court should hold an evidentiary hearing or review the requested records in camera before ordering any disclosure.
Plaintiff responded to defendants’ motion for summary disposition and requested that the circuit court enter judgment in his favor pursuant to MCR 2.116(I)(2). Plain
Plaintiff also attached a copy of the complaint filed in Ladach v City of Romulus,
The circuit court held oral argument on March 22, 2013. The court repeatedly questioned counsel concerning plaintiffs motivations for seeking disclosure of the citizen’s identity and videorecording. The court remarked that plaintiffs attorney was also involved in the Ladach case and suggested that the instant FOIA action was “really about you getting discovery to support your Ladach lawsuit.” In response, plaintiffs attorney noted that the Ladach lawsuit had not been filed until after plaintiffs FOIA request was sent to the RPD. The circuit court then asked whether plaintiff was seeking disclosure of the citizen’s identity and videorecording in order “to go out and solicit this citizen to file a 1983[
The circuit court observed that the citizen involved in the incident did not want the incident report or
The circuit court ruled that the requested information was exempt from disclosure pursuant to MCL 15.243(1)(a). With respect to the first prong of the analysis under MCL 15.243(1)(a), the court concluded that
[t]he information sought regarding the identity of the citizen in the police report as well as the video information is of a personal nature. The fact that the citizen was involved in an incident [for] which the police may have arrested and even charged is [an] intimate, embarrassing, private and confidential detail[] regarding the citizen’s life.
Relying on Mich Federation of Teachers & School Related Personnel v Univ of Mich, 481 Mich 657, 680; 753 NW2d 28 (2008), the court held that the requested information remained private and personal, notwithstanding that the citizen’s identity ultimately would have been discovered if he had been charged and tried in open court. With respect to the second prong of the analysis under MCL 15.243(1)(a), the circuit court concluded that the interest in disclosure was outweighed by the interest in protecting the citizen’s privacy. The court “reject[ed]” plaintiffs argument that disclosure of the information would serve the public interest by shedding light on the operations of the RPD.
Regarding plaintiffs request for any RPD reports concerning internal investigations or the discipline of Jones, the circuit court ruled that plaintiff had not “sufficiently” described those records within the meaning of MCL 15.233(1). The court also ruled that, even if the records existed and had been sufficiently described by plaintiff, the records would be exempt from disclosure under MCL 15.243(1)(s)(ix) and Kent Co Deputy Sheriffs Ass ’n v Kent Co Sheriff, 463 Mich 353, 365-367; 616 NW2d 677 (2000). The court explained that it would grant summary disposition for defendants under MCR 2.116(0(10) with respect to plaintiffs request for any internal investigation reports and personnel records. Observing that there was “absolutely no evidence to support any of the assertions made in the complaint and in the brief,” the circuit court concluded that it was unnecessary to conduct an in camera review of the requested information.
On March 28, 2013, the circuit court entered an order denying plaintiffs request for summary disposition under MCR 2.116(1)(2) and granting summary disposition in favor of defendants for the reasons stated on the record.
ii
We review de novo the circuit court’s ruling on a motion for summary disposition. Spiek v Dep’t of Transportation, 456 Mich 331, 337; 572 NW2d 201 (1998). A motion brought under MCR 2.116(C)(8) “tests the legal sufficiency of the claim on the pleadings alone to determine whether the plaintiff has stated a claim on
As with all statutes, the proper interpretation and application of FOIA is a question of law that we review de novo. Herald Co, Inc v Eastern Mich Univ Bd of Regents, 475 Mich 463, 470; 719 NW2d 19 (2006); Breighner v Mich High School Athletic Ass’n, Inc, 255 Mich App 567, 570; 662 NW2d 413 (2003). This includes the question whether a particular document or recording constitutes a “public record” within the meaning of FOIA. See Patterson v Allegan Co Sheriff, 199 Mich App 638, 639-640; 502 NW2d 368 (1993). In general, whether a public record is exempt from disclosure under FOIA is a mixed question of fact and law. Detroit Free Press, Inc v City of Warren, 250 Mich App 164,166; 645 NW2d 71 (2002). However, when the facts are undisputed and reasonable minds could not differ,
III
In enacting FOIA, the Michigan Legislature declared:
It is the public policy of this state that all persons, except those persons incarcerated in state or local correctional facilities, are entitled to full and complete information regarding the affairs of government and the official acts of those who represent them as public officials and public employees, consistent with this act. The people shall be informed so that they may fully participate in the democratic process. [MCL 15.231(2).]
“FOIA is a manifestation of this state’s public policy favoring public access to government information, recognizing the need that citizens be informed as they participate in democratic governance, and the need that public officials be held accountable for the manner in which they perform their duties.” Manning v East Tawas, 234 Mich App 244, 248; 593 NW2d 649 (1999). Our Supreme Court has repeatedly described FOIA as a “prodisclosure statute,” Herald Co v Bay City, 463 Mich 111, 119; 614 NW2d 873 (2000); Swickard v Wayne Co Med Examiner, 438 Mich 536, 544; 475 NW2d 304 (1991), and this Court has held that FOIA’s disclosure provisions must be interpreted broadly to ensure public access, Practical Political Consulting, Inc v Secretary of State, 287 Mich App 434, 465; 789 NW2d 178 (2010). While it is true that FOIA contains several exceptions to
IV
We first conclude that the videorecording of the assault of August 1, 2012, is a public record subject to disclosure under FOIA.
As a preliminary matter, it is beyond dispute that a videorecording of the assault of August 1, 2012, does in fact exist.
We also conclude that the videorecording is subject to disclosure. The circuit court determined that the videorecording was exempt from disclosure under the privacy exemption of MCL 15.243(1)(a), which provides that a public body may 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.” This exemption has two prongs. See Mich Federation of Teachers, 481 Mich at 672.
Under the first prong of the privacy exemption, information is “of a personal nature” if it is “intimate,” “embarrassing,” “private,” or “confidential.” Id. at 676. It has been alleged by the parties that the videorecording shows the citizen spitting on the officer and using a racial slur. This information could well be considered embarrassing and therefore of a personal nature. Id.
“balance the public interest in disclosure against the interest [the Legislature] intended the exemption to protect[.] .. . [T]he only relevant public interest in disclosure to be weighed in this balance is the extent to which disclosure would serve the core purpose of the FOIA, which is contributing significantly to public understanding of the operations or activities of the government.” [Practical Political Consulting, 287 Mich App at 462, quoting Mich Federation of Teachers, 481 Mich at 673 (alterations in original).]
Under this prong of the analysis, it is necessary to ask whether the requested information would shed light on the governmental agency’s conduct or further the core purposes of FOIA. Mich Federation of Teachers, 481 Mich at 681-682. “In all but a limited number of circumstances, the public’s interest in governmental accountability prevails over an individual’s, or a group of individuals’, expectation of privacy.” Practical Political Consulting, 287 Mich App at 464.
Notwithstanding the personal and embarrassing information that is apparently depicted on the videorecording, we conclude that the video would shed light on the operations of the RPD and, in particular, its treatment of those arrested and detained by its officers. These are matters of legitimate public concern. See Henry v Detroit, 234 Mich App 405, 413 n 1; 594 NW2d 107 (1999). “[W]e cannot hold our [police] officials accountable if we do not have the information upon which to evaluate their actions.” Practical Political Consulting, 287 Mich App at 464.
We acknowledge that the circuit court was concerned about plaintiffs motives for seeking disclosure of the videorecording. As explained previously, the court asked plaintiffs counsel whether his client was using the FOIA request as a means of obtaining discovery for the Ladach lawsuit and whether plaintiff was seeking disclosure of the citizen’s identity and videorecording in order “to go out and solicit this citizen to file a [42 USC] 1983 action or an assault and battery claim.” But as this Court has made clear, “initial as well as future uses of information requested under FOIA are irrelevant in determining whether the information falls within exemption, as is the identity of the person seeking the information.” Taylor v Lansing Bd of Water & Light, 272 Mich App 200, 205; 725 NW2d 84 (2006). It is simply irrelevant whether plaintiff was seeking disclosure of the video for purposes of discovery in a different lawsuit. Id.; see also Central Mich Univ Supervisory-
Given that FOIA’s privacy exemption must be narrowly construed, Bradley, 455 Mich at 293, and that disclosure of the videorecording would serve the core purposes of FOIA, see MCL 15.231(2); Mager v Dep’t of State Police, 460 Mich 134, 145; 595 NW2d 142 (1999), we conclude that the videorecording is not exempt from disclosure under MCL 15.243(1)(a). The videorecording was plainly subject to disclosure, and it was therefore unnecessary for the circuit court to perform an in camera review of the video. We reverse the circuit court’s erroneous determination that the videorecording was not subject to disclosure under FOIA.
V
Plaintiff also requested a copy of the unredacted incident report pertaining to the assault of August 1, 2012, presumably seeking disclosure of the identity of the citizen and officer involved in the assault. We conclude that the names of the citizen and officer, which were redacted from the incident report, were subject to disclosure under FOIA.
Like the videorecording itself, the names of the citizen and officer involved in the assault were withheld under the privacy exemption of MCL 15.243(1)(a). In the absence of special circumstances that are not present here, an individual’s name is not “[i]nformation of a personal nature” within the meaning of MCL 15.243(1)(a). See, e.g., Tobin v Civil Serv Comm, 416 Mich 661, 671; 331 NW2d 184 (1982); Practical Political Consulting, 287 Mich App at 455; Detroit Free Press, Inc v Southfield, 269 Mich App 275, 282; 713 NW2d 28 (2005). Because the names of the citizen and officer are not information of a personal nature, the names are subject to disclosure and
VI
In contrast, we conclude that the other personal information redacted from the incident report (e.g., home addresses, dates of birth, and telephone numbers) was exempt from disclosure under FOIA. Home addresses, dates of birth, and telephone numbers typically constitute information of a personal nature within the meaning of the privacy exemption. See Mich Federation of Teachers, 481 Mich at 680. And for purposes of the second prong of the privacy exemption, our Supreme Court has held that the disclosure of such information “would reveal ‘ “little or nothing” ’ about a governmental agency’s conduct, nor would it further the stated public policy undergirding the Michigan FOIA.” Id. at 682 (citations omitted). This other personal information pertaining to the citizen and officer was exempt from disclosure under MCL 15.243(1)(a) and was therefore properly redacted from the incident report.
VII
We similarly conclude that any RPD internal investigation reports
Internal investigation reports and personnel files of a law enforcement agency are exempt from disclosure “[u]nless the public interest in disclosure outweighs the public interest in nondisclosure in the particular instance . .. .” MCL 15.243(1)(s)(ix); see also Kent Co Deputy Sheriffs, 463 Mich at 365-367.
The circuit court relied on the unsigned, unnotarized “affidavit” of Dickerson to conclude that the public interest in disclosure of any internal investigation reports and personnel files was outweighed by the interest in nondisclosure. Specifically, the circuit court determined that it was essential to keep any internal investigation reports confidential in order to foster “frank and open discussion without fear of reprisal or retaliation.” The court observed that if such reports were disclosed under FOIA, the RPD’s ability to conduct internal investigations with the cooperation of its officers “would be chilled” or “destroyed.” Although the circuit court technically erred to the extent that it relied on an unsigned, unnotarized “affidavit,”
VIII
As we have explained, defendants wrongfully denied plaintiffs FOIA request insofar as it sought disclosure of the videorecording and names of the citizen and officer involved in the assault of August 1, 2012. The present action — and particularly this appeal — was necessary to compel disclosure of this requested information. See Scharret v City of Berkley, 249 Mich App 405, 414; 642 NW2d 685 (2002). We conclude that plaintiff, having prevailed in part in this action, is entitled to an appropriate portion of his attorney fees, costs, and disbursements pursuant to MCL 15.240(6). On remand, the circuit court shall determine the reasonable attorney fees, costs, and disbursements incurred by plaintiff in this case, including those attorney fees and costs necessitated by this appeal, and shall award plaintiff an appropriate portion thereof in accordance with MCL 15.240(6). The circuit court shall also determine whether plaintiff is entitled to punitive damages pursuant to MCL 15.240(7).
IX
We reverse the circuit court’s grant of summary disposition in favor of defendants to the extent that the
We remand for entry of partial judgment in favor of plaintiff with respect to the requested videorecording and names, as well as for other proceedings. On remand, the circuit court shall (1) order disclosure of the videorecording and unredacted names of the citizen and officer involved in the assault, (2) award plaintiff an appropriate portion of his attorney fees, costs, and disbursements under MCL 15.240(6), and (3) determine whether plaintiff is entitled to punitive damages under MCL 15.240(7).
In all other respects, we affirm the circuit court’s order granting summary disposition in favor of defendants and denying plaintiffs request for summary disposition under MCR 2.116(I)(2).
Affirmed in part, reversed in part, and remanded for further proceedings consistent with this opinion. We do not retain jurisdiction. No taxable costs pursuant to MCR 7.219, no party having prevailed in full.
See Ladach v City of Romulus, unpublished opinion of the United States District Court for the Eastern District of Michigan, issued February 10, 2014 (Docket No. 13-CV-010771). At the time of the incident at issue in this case, Ladach was a detective sergeant at the RPD and was in charge of supervising the property and evidence room. Ladach has since been demoted and relieved of his duties in the detective bureau.
It is unclear whether Seifman was referring to Jones (the individual who allegedly committed the assault), the unnamed citizen (the individual who was assaulted), or both.
Ladach v City of Romulus, United States District Court for the Eastern District of Michigan, Docket No. 13-CV-010771.
42 USC 1983.
It is true that the citizen who was assaulted was never charged or prosecuted for any crime. But this is not relevant to our analysis.
As with the videorecording, plaintiffs motives for seeking disclosure of the names of the citizen and officer involved in the assault were irrelevant. Taylor, 272 Mich App at 205.
We disagree with the circuit court’s determination that plaintiffs request for internal investigation reports lacked sufficient specificity to
“[A]n unsworn, unsigned affidavit may not be considered by the trial court on a motion for summary disposition.” Gorman v American Honda Motor Co, Inc, 302 Mich App 113, 120; 839 NW2d 223 (2013). Indeed, an unsigned, unnotarized “affidavit” is no affidavit at all. Holmes v Mich Capital Med Ctr, 242 Mich App 703, 711-712; 620 NW2d 319 (2000).