*1 Mich v WALEN DEPARTMENT OF CORRECTIONS 7). (Calendar Argued May
Docket No. 92566. No. Decided August 1993. Walen, Jr., inmate, Raymond prison requested permission C. inspect final under the Freedom of Information Act to certain Department pertain- orders and decisions of the ing disciplinary hearings, to as well as the records on which the department request, decisions were made. After the denied his Court, brought Ingham seeking he an action in the Circuit to court, compel department permit inspection. to The James J., Giddings, granted disposition depart- summary R. for the ment, holding apply department did not to disciplinary hearings only and that an affected was copies pertaining entitled to of to a materials proceeding. Appeals, Gribbs, and JJ. Jansen (Shepherd, P.J., affirmed, dissenting), holding that such hear- ings exempted publication by 116548). were the Administrative (Docket plaintiff appeals. Procedures Act No. The opinion by joined by Cavanagh, In an Chief Justice Justices Supreme Brickley, Boyle, Griffin, and Mallett, Court held: applies Department The Freedom of Act Information to of disciplinary hearings. Corrections ll(l)(a), requires agencies publish foia, 1. The state and make available to the final orders or decisions in con- they tested cases and the records on which were made. The chapter proceeding apa, defines "contested case” as a duties, legal rights, privileges which a determination of the party required by aof law to be made after an opportunity evidentiary hearing. for an of provides department Corrections handbook that the must con- right by duct result in the loss of a prisoner. prison disciplinary hearing falls within the defini- tion of "contested case.” By allowing department disciplinary hearings to remain 2. References 2d, 61, 62; Recording Am Jur Courts §§ Records Laws 19.§ agency subject application What constitutes an of state freedom act. 27 742. information ALR4th Corrections 1993] purposes subject to the definition of "contested case” for also intended allow such subject Although the intent under- remain 11 of the foia. requiring publication lying orders and decisions final requiring subject underlying of a the intent that the *2 differ, hearing proceedings copy receive a of the the distinction suggest department intent to does holding Appeals in foia. erred the chapters by removing disciplinary from certain to the definition intended alter "contested case.” publication requirement permits orders of 11 final § 3. in in files. and decisions form to be retained written
Nonetheless, public to the must be allowed access documents Therefore, required for under 3. remand to circuit court is § sufficiently request 3 is § a determination whether under descriptive, light redaction that of the doubtless extensive required permit by department find the will be § not, request If should be denied. records. Reversed and remanded. Levin, concurring part Riley, joined by Justice Justice unambigu- dissenting part, stated that of the foia § provides publish ously and make a state must analysis of the certain records. The available meaning
majority
“publish”
inter-
distorts the common
general
preting
it to
retention of
No
mean the mere
records.
legal
publish
narrowly.
further miscon-
source defines
so
It
public”
solely in the
"make
mean
strues
available to
appears in 11 or
manner
in 3. No such limitation
delineated
Rather,
permits public
in the
foia
review of
elsewhere
foia.
through
through specific
under
searches
3 and and
records
§§
general research under 11.§
(1991)
App 373;
worker’s act under Act No. 317 of the 1969; unemployment compensation Public Acts of under Act being No. of the Public Acts of the Extra Session of Michigan Compiled Laws; sections 421.1 to 421.73 of the or to department hearings of social services assistance under 1939, being section 9 of Act No. of the Public Acts Michigan Compiled section 400.9 of the Laws. 1993] of Corrections Opinion of the Court chapters hearings disciplinary 4 and from apa’s from the defini- are Therefore, does tion of "contested case.” apply. the Freedom Informa- We hold that Department apply of Corrections tion Act does hearings.
I 4.1801(3)(1), 15.233(1); MSA to MCL Pursuant permis- Michigan requested plaintiff, prisoner, inspect final and decisions various orders sion to and re- were made. Plaintiff cords which the decisions on department present action after instituted granted request. trial court defen- denied his The summary disposition, holding dant’s motion publication requirement did not that apply foia hearings, department disciplinary only could mandate the affected proceeding.6 copy of the two one affirmed in a exempted holding
decision,7 publication require- disciplinary hearings 24.315; MSA it ment when enacted granted appeal and now We leave to reverse.
II
shows
of the statutes
review
hearings.
department disciplinary
applies
Be-
*4
conflict, and the lan-
do not
cause the statutes
unambiguous,
interpreting
guage
plain
is
6
791.252(k); MSA
judge
MCL
his decision on
The trial
based
28.2320(52)(k).
7
(1991).
373;
App
722
189
473 NW2d
Mich
terms being Act No. 306 of the Public Acts of as Michigan Compiled sections 24.201 to 24.315 of the Laws. *5 245 1993] Opinion of the Court hearing.”12 evidentiary opportunity for an after an depart explains hearing the that The handbook hearings "may result ment must conduct all right . . . .”13 a The a of loss department held the Court admits and prison disciplinary falls within the case that "a ” App a case.’ definition of 373, 'contested (1991). agree. 722 376; 473 NW2d We pur- chapter 8, § 122,14 that for states The apa, poses chapter 8, "does not a contested case in which a or a case a case is settled include proceeding agreement entered into or consent disapproving, establishing approving, for rate or Chapter withdrawing approval of a form.” or only apply here. The re- however, not does apply quires of "con- court definition chapters the first as used in seven tested case” chapter apa. Additionally, 7, 115, apa, hearings department disciplinary are states that exempt apa. chapter 8 of the from apa remaining provisions do The merely case,” defer to but redefine "contested Legislature chapter intended 1 definition. If the department disciplinary case” define "contested apa express hearings differently defini- from adopted Legislature ex- have tion, could then amending expressing plicit language intent 4.1801(H)(6). 15.241(6); Gordon Sel- MSA See MCL Way, Spence Inc, 488, 506; Bros, 438 Inc v (1991). NW2d B exempts depart- chapter 7, § also apa’s con- ment MCL MCL 791.251(2); MSA 24.203(3); 24.322(1); 3.560(103)(3). 3.560(222)(1). 28.2320(51X2). Mich op the Court procedures, chapter Although tested case empt 4. ex- procedures, department discipli- from those nary are not from the definition of "contested case.” We believe the only department disciplinary intended hearings to remove apa’s procedural requirement
from the for contested cases. This is evidenced *6 the fact hearings that such are not from the re- maining chapters apa. Appeals The Court of recognized hearings subject chapter that the are applies only 6 of the which to a "contested case:” person
When a has exhausted all administrative remedies available within agency, ag- and is grieved by a final decision or a contested order case, whether such decision or order is affirmative form, negative or to direct the decision or order subject review, provided the courts as by law. Emphasis [MCL added.] department disciplinary hearings subject Since are chapter they 6, it must be because are "contested case s.”15 Appeals believes "that the reason Legislature simply
the cases’ as not did not define 'contested
including prison disciplinary hearings purposes judicial was the fact that for the apa applied. review, the still However, this is not requirements.” true App for disclosure 377. There is no evidence that would draw this Court to that conclusion. We will not hold that department disciplinary hearings meet the defini- 6, Chapter 101, also separate makes an indirect reference to the disciplinary hearing procedures handbook, hearing set forth in the stating "[ejxhaustion require of administrative remedies does not filing application the unless the sought.” ing of a rehearing motion or or reconsideration require filing judicial rules before review is hearing require handbook does a motion for resentenc seeking judicial before review. Walen v 1993] op the Court provision, but case” for one tion of a "contested another, absent evidence Analy- Legislative The House intended that result. suggest sis, HB June does not hearings removing department disciplinary was even considered: hear- disciplinary these The manner in which great of a ings subject has been are conducted years, issue in recent and the controversy deal of has been how best to structure Michigan highlighted by a Court of recent Michigan decision, Lawrence In that decision. 167; 276 Department of App Corrections [88 disciplinary (1979)], the court ruled that NW2d fall Michigan correctional facilities in the of contested cases the definition within (a.p.a.), Administrative must Act Procedures provisions. These according to its conducted have rights which provisions include a number department’s part not been counsel, right hearings policy, such as Many people right witnesses. cross-examine *7 a.p.a. inap- requirements are that some of the feel pro- hearings prison disciplinary propriate cess. Legislature exempt department refused to
The
apa altogether16
hearings
from
prison disciplinary
quality
hear-
"the
because
improved by incorporating
ings
some of
could be
allowing
process provisions.”17 By
a.p.a.
due
Id.
hearings
department disciplinary
remain sub-
pur-
ject
case” for
the definition of "contested
emphasiz-
legislative
invited
action
The Lawrence Court also
judicial
"ruling
ing
of our
its
necessitated
the nature
here is
however,
practical
urge
Legislature,
to consider
function. We
necessary application of the
Id. at 174.
statute.”
effect of
convincing
Furthermore,
reasoning
Appeals
is not
the Court of
hearings
explicit
prison disciplinary
light
exemption
of 115’s
§
Legislature
chapters
need for 115 if the
4 and 8. There
no
would.be
apa
apply.
only chapter 6 of the
intended
A recent amendment to the doca also evidence that did not intend to exempt department disciplinary hearings from the specifically MSA 28.2300 de- foia. prison-related exempt scribes documents that are requested by from disclosure under the foia if prisoner. Exempt log on behalf of a items include daily reports department employees, books and staffing assignment daily charts and sheets. Final prison disciplinary hearings orders or decisions of are not exempt Legisla- under this section.18If the ture intended to final decisions, orders or certainly then those items could have been in- exempted cluded in the list of material.
C Appeals suggests also procedure "creation of the to obtain information prison legis- on misconduct evidences the prison lative intent misconduct are purposes not 'contested cases’ for of foia.” procedure App disagree. 377. We The exclusively which the Court of referred is subject for the who was the of the hear- ing. hearing requires sending copy handbook subject hearing. of the decision to the It also requires posted reporting the decision to be for the officer to examine. The does not discuss send- *8 18Some information contained the final orders and decisions pertains exempt need to be redacted if it MSA material. See MCL 1993] Opinion of the Court hearing, subject ing copy but of the to the public. applies general to the subject Together, provisions ensure that hearing automatically copy receives a of the public, to the made available the records are exempt in- from disclosure. The unless otherwise publication requiring tent behind requiring hearing subject to receive a of the suggest copy differ, does not but the distinction department disciplinary exempt intent from the foia.
III prospective application requests Defendant requested retrieving the docu- decision because our an onerous task.19 We stated ments would be Comm, 422 Mich State Tax Washtenaw Co v (1985), that a "considera- 378-379; 373 NW2d limiting justify can administrative burden” ble holding prospective application. to a case onerous burden this there is an Whether the trial court determined until after cannot be any the records are decides whether Only provision then can it be foia. within department action the what course of determined required that action to take and whether would be an onerous burden. creates compels 11 of the
Section department explained decisions the final orders and has Instead, centrally if prison disciplinary filed. are not hearing is officer is that the final determination prison infraction, placed in guilty disciplinary record is of a guilty prisoner is not If it determined that individual file. er’s infraction, hearing report is maintained of a presiding quested years. plaintiff hearing investigator re two Because files, locating files would be numerous the burden onerous. *9 Opinion of the Court "publish to available and make to of Corrections public” of disci- and decisions final orders the plinary explicitly
hearings. defines Section publish: term looseleaf, or pamphlet, in may be Publications mimeographed, printed, in appropriate form
other matter. or other written public” simply means available
"[M]ake
public
can
access
following
obtain
members of
published by
required
documents
procedures
short, § 11
§
3. In
set forth
accept-
published and the
to be
what is
describes
publication,
§
3 describes
while
able form of
rights
publication
opportunities
creates.20
composed
sections,21 each
of eleven
The foia
puzzle.
piece
serving
Section
as a
right
person may
explains
utilize his
how a
explicitly
public
inspect
record,
"does not
but
public
body
require
public
rec-
a new
to create
except
required
. . . .”
5 and 11
ord,
in sections
as
4.1801(3X3). Only
15.233(3);
sec-
these
MSA
MCL
distinct
We
inspection
reject
the Court of
requirements.
Appeals
conclusion that
§
3 and
§
11 have
3,
require
specific
oral
In contrast
does
§
[§ 11]
Thus,
provi-
request.
another
unless made
written
sion of the
act,
required to make
insurance bureau is
consumption
those documents submitted
available for
adjustment petition.
support
rate
of its contested
Blue Cross
Bureau,
Michigan v Ins
& Blue Shield of
Cross
[Blue
(1981).]
113, 127-128;
App
IV holding Appeals in erred Department disciplinary removing hearings of Corrections chapters the the
from certain to alter the definition of intended Accordingly, "contested case.” we reverse term judgment of the Court of and remand this proceedings further consistent with this case for opinion. JJ., Brickley, Boyle, Griffin, Mallett, and C.J. Cavanagh, with concurred dissenting (concurring part Riley, finding part). agree majority’s I with the applies Michigan Freedom of Information Act1 holding. join However, because holding majority § of the eviscerates *11 permit public it does not access to records exempt comply require- be ments under from disclosure for failure to with the submitting request. might for The records also listed, one such as: or more reasons (a) personal public Information of a nature where the disclo- clearly of the would constitute a unwarranted
sure invasion of an individual’s information privacy. (c) prejudice public which if disclosed would record security public body’s ability dial or convicted of a crime or admitted because of a mental unless physical of custo- to maintain persons penal occupied by institutions arrested disability, public outweighs interest in disclosure under this act in interest nondisclosure. (d) specifically Records or information described and ex- empted from disclosure statute. 4.1801(1) seq.; seq. 15.231 et et v 1993] Riley, respectfully independent foia, I dis- §of of the sent.
I foia, "Michi- the enactment of the Even before requiring public history gan had an established Evening Ass’n v . . . .” News disclosure (1983). Troy, 494-495; 339 NW2d 417 Mich General, 243 Mich 203- In Nowack v Auditor (1928), explained that this Court 204; 219 NW Michigan possess a common-law the citizens right government documents: to access English common law any If rule of the there be right public the of access
that denies the
records,
spirit
demo-
repugnant
it
of our
government of the
is a
cratic institutions. Ours
people.
it
Undoubtedly,
. . .
Every citizen rules.
great
surprise
to the citizens
would be a
denied
Michigan
learn that the law
taxpayers of
purpose of
for the
them access to their own books
being expended and
seeing
money
how their
was
being
There is
their
was
conducted.
how
business
country
either in this
law and never was
no such
or
saying:
right
was
England.
Mr. Justice Morse
any
law ever
"I
think that
common
do
deny
government
free
would
obtained
this
to,
right
of free access
people
thereof
of, public records.” Burton v
public inspection
73)
(7
Tuite,
LRA
NW 282
[44
(1889)].
right
the common-law
question
is no
as to
There
large
inspect public
documents
people
at
right
the interest
is based on
and records.
in the matter
necessarily
citizens
have
which
which
records related.[2]
Corp Dep’t
Treasury, 71
Int’l Business Machines
See also
(1976).
526, 542;
App
It all policy is the of this state that persons complete are entitled to full and informa- regarding government tion the aifairs of and the represent public official acts of those them as who public employees, officials and act. The consistent with this people they may shall informed so that participate process. fully the democratic [MCL 15.231(2); 4.1801(1X2).] MSA publi- Hence, the mandates disclosure and 3(1) public act, cation of records. Section pertinent part, mandates: Upon request an oral or written which describes public sufficiently public record to enable the record,
body public person right to find the a has a inspect, copy, copies public to record of a pressly or receive of a public body, except as otherwise ex 13.[3] provided by section specific Section 54 delineates the mechanics of obtaining request, provides §a that mem- public may bers of file an action in circuit pursuant compel court, agency act,5 10 of the §§
to disclose records when in violation of and 5._
3The section continues: require public body compila- act This does not to make a tion, summary, information, report except required or as 11. section require public body This act does not to create a new record, except required as in sections 5 and required by furnishing copies, extent edited this act copies pursuant already existing 14(1), to section of an 15.233(3); 4.1801(3)(3).] record. MSA [MCL MCL 15.235; 4.1801(5). *13 255 1993] of Corrections v by Opinion Riley, J. Furthermore, § "[a] 11 mandates state agency publish and make available to the shall public” public publication "may records.6 Such be pamphlet, appropriate looseleaf, form other mimeographed, printed, mat- or other written 5, § § ter.” unlike 11 authorizes a cause of Not compel comply "to with action a state this section.” disciplinary hearings by majority,
As found clearly fall within the foia’s mandate of access. " majority also found that 'make available public’ simply means that members of the required to documents to be can obtain access published by following procedures set forth published short, In 11 is to 3. describes what be acceptable publication, § 3 and the form of while rights opportunities publication describes the creates.” Ante at 250.
II regarding statutory analy- of this Court The role Legislature’s sis is to determine and enforce the People Bank, ex rel Platt v Oakland Co intentions. 1844). (Mich, Legisla- Doug 287 Because the meaning presumed of its ture is statutes, to understand the begins "[statutory analysis necessarily wording v of the statute itself.” Carr with Corp, 313, 317; General Motors NW2d 686 (1986). act, therefore, Each word of "presumed purpose,” is to be made use of for some given possible, far as effect must be and "so every Michigan Bd clause and sentence.” Univ Regents General, 450; v 167 Mich Auditor 4.1801(H)(1). 15.241(1); MSA 6 MCL Mich Riley, (1911).7 Moreover, circum unless
treated as
or rendered
at all
8
instance,
term,
if
defines a
the statute’s definition
For
a statute
See,
15.232(a), (b), (c);
4.1801(2)(a),
e.g., MCL
must be followed.
(c)
alia,
(b),
"[pjerson,” "[pjublic body,”
"[pjublic
(defining,
inter
Similarly,
legal
purposes).
when a
term of art
is
record” for utilized,
referenced. Cf.
then the technicalities of that term should be
(8th ed),
legal
Cooley,
p
(noting that
1
Constitutional Limitations
132
interpreted
light
history).
terms in constitutions must be
of their
9
Cooley,
supra
n 8
at 130.
See also
10
legislature
and used
We cannot assume the
made mistake
language
one word when it in fact intended to use another. The
of
to
the
plain
it reads and we do not feel authorized
the statute is
as
substituting
change meaning by
word for the one
its
another
legislature
used.
plain
unambiguous,
a law is
whether it be ex
Where
terms,
legislature
pressed
intended to mean what
general
limited
should be
they
plainly expressed, and conse
have
Fisher,
quently no room is left for construction.
v
6 US
[Fisher
Cranch)
(2
(1805),
399;
Cooley,
quoted
B unambiguous language provides of 11 publish "[a] state shall and make available public” majority’s certain records. The analysis meaning "publish” distorts the common by interpreting it as the mere retention of records. Ante at 250. If the intended to so certainly 11,§ it tailor could have utilized more precise "keep,” "store,” "maintain,” terms such as Legislature, however, or "retain.” The chose and "publish.” Legisla- enacted ture term Because the "publish” did define in its definition sec- tion of the meaning an examination of its common foia,12 appropriate. The Random House Dic- English tionary Language: Second Una- bridged p "publish” Edition, 1563, defines "to as: (printed reproduced issue or otherwise textual or *15 etc.) graphic computer material, software, for sale public,” publicly or distribution to the "to issue formally officially; of,” the work "to announce or proclaim; promulgate,” publicly or "to make generally Similarly, Roget’s known.”13 Interna- (New 1961), publica- tional Thesaurus York: 531.7 p "propagate, promulgate, tion, 363, notes circu- Contrary to the assertions of the act, majority, "publish” only acceptable is not defined the the publication. modes of 13Dictionary do not definitions from the era of the foia’s enactment substantively. differ Riley, J. broadcast, abroad, or late, spread about spread, known, disseminate,” "divulge,” "make diffuse, "declare,” forth,” "issue,” "an- "put public,” make al., listing primary in the nounce,” et "proclaim,” do not legal definitions for the term. Common (6th instance, Dictionary Black’s Law differ. For circulate; public; make to ed), p includes "[t]o issue; general,” in known people to make to "[t]o pub- circulation,” advising of to into put "[a]n public for something to the making known of lic or of authorities array legal The vast purpose.” None Secundum concur.14 Corpus in Juris compiled storage or the term as mere sources define these understanding "publish” The common retention. of infor- production least includes at certainly review, public available for readily that mation of ma- binding or outright if distribution consumption. public terials misconstrues important, majority More to mean "make public” available "make in as delineated public solely to available statutory exists in the No such limitation 3.”15 understood, "publish” give commonly means to the word As depend meaning public. on While term to the word is paper. connected, subject it that with it is has been said which (cid:127) usually printing by pamphlet or news- with associated meaning public, to make to "Publish” is defined as make circular, book, like; newspaper, to make or the of; bring public, as for sale before the announcement to distribution; known; people or to make known to to make or mankind disclose, general; reveal. term is further to The meaning printed, print, and to issue or cause to be as to defined from distribution, general press, as a either for sale music, book, newspaper, piece engraving, etc. circulate; meaning put into to to is also defined as "Publish” disseminate; circulation; circulation; issue; put general advertise; omitted.] utter. CJS 551-552. Citations [73 majority correctly *16 1993] Opinion by Riley, J.
language § 11 or elsewhere the foia. Each independent, section is and neither refers to the simply statutory other for definition —there language is no intertwining justify the sections.16 examining Moreover, majority’s superfluous: whole, the statute as a
interpretation phrase §of 3 renders the already
§§ 3 and 5 ensure that records public through specific are available to the a re- quest governmental agency. Furthermore, to a provide 3§§ both and 11 for a Of cause action compel to disclose information unlaw- fully public, evidencing withheld from the a grant independent § scheme intended to mechanism for 11 an public access to documents. public, gain public may therefore, access to independent obtaining by § records published §
documents as mandated under 11. permits public Hence, the foia review of records (1) through specific in two fashions: search utiliz- (2) ing through general §§ 3 and access utilizing gather may § 11. A member of the through request § information specific person a 3 that relates to a topic, perform
or or wide- he ranging general examining by research materials published through reporter example, § 11. For wishing gather regarding information the dnr’s regarding activities Detroit’s Belle Isle could file a request asking specifically § 3 for such infor- reporter hand, mation. On the other another wish- ing thoroughly practices, perhaps research dnr pattern corruption abuse,17 to search for a published § could examine materials via 11. Con- complying publication requirement dilferent methods of exist. with the another, When one section of the is defined foia often See, explicit specifically e.g., reference refers to that other section. procedures. in 5 to 10 hypothetical, suggest pattern As a I do not mean to that such a exists. Riley, *17 majority,
trary con- this to the assertions § 3 mean- not render does struction of the statute only interpretation ingless. one fact, In this integrity of both sections that maintains preserving meaning phrase "publish public.” available to make interpretation majority’s con- Furthermore, which is mandate flicts the broad with foia, persons to full and are entitled that "all ensure complete regarding affairs of information fully partici- they may government ... so that inability process.”18 pate in the democratic request specific § should to formulate a citizen ability deny records, other- him the to examine general practices government unknown to wise scrutiny exposed populace could never general public could because no member knowledge specific possess to formulate the exact request.19 § 3 respectfully
Hence, I dissent. J., with concurred Riley, Levin, 4.1801(1)(2). 15.231(2); MSA 18 MCL 19Moreover, permit general access to even if the did not records, certainly permit such access. common law would almost our Nowack, supra at 203-204. notes 11 mandates records,” many "agencies ante at . . . create certain