High Court Issues Procedural Ruling In FOIA Case

A cross-appeal was unnecessary in this Freedom of Information Act (FOIA) case in order for the defendant-city to suggest an alternative ground for affirming the lower court’s decision, the Michigan Supreme Court has declared in a recent order.

“We remand this case to the Court of Appeals for further consideration,” the justices said in Hjerstedt v City of Sault Ste. Marie (Docket No. 165688). “On remand, while retaining jurisdiction, the Court of Appeals shall remand this case to the Chippewa Circuit Court for consideration of the issue raised by the defendant but not addressed by that court during its initial review of this case, regarding the staff manual exemption of MCL 15.243(1)(s)(vi).” That part of the FOIA statute says:

“(1) A public body may exempt from disclosure as a public record under this act any of the following: …

(s) Unless the public interest in disclosure outweighs the public interest in nondisclosure in the particular instance, public records of a law enforcement agency, the release of which would do any of the following:

(i) Identify or provide a means of identifying an informant.”

The Michigan Supreme Court directed the Chippewa County trial court to “forward its decision to the Court of Appeals for its consideration of the issue” and said that “[i]n all other respects, leave to appeal is denied, because we are not persuaded that the remaining question presented should be reviewed by this Court.”

The high court’s order also reversed Footnote 7 in the published Michigan Court of Appeals opinion that was issued on February 21, 2023 (Docket No. 358803). Footnote 7 of the Court of Appeals opinion said:

“7  The city also claims that the redacted material is exempt from disclosure under MCL 15.243(1)(s)(vi). But the trial court clearly rejected this argument because it only found that the material was exempt from disclosure under MCL 15.243(1)(n), (s)(v), and (s)(vii), and the city did not file a cross-appeal. Notwithstanding, we find no merit in the city’s argument.”

Background

The plaintiff submitted a FOIA request to the defendant-city seeking the “Sault Police use of force policy/standard.” The city denied the request, claiming the policy was exempt from disclosure under MCL 15.243(1)(n) because “it would prejudice the city’s ability to protect the public safety.”

The plaintiff appealed that decision, arguing that MCL 15.243(1)(n) was misinterpreted because the use-of-force policy “does not include deployment plans or communication codes.” The city commission considered the appeal. City staff provided the city commission with an analysis and a recommendation to disclose the use-of-force policy with redactions. City staff claimed the policy was exempt from disclosure because 1) it was an investigating record that would endanger the safety of law enforcement officers if disclosed under MCL 15.243(1)(b)(vi); 2) it was a record of law enforcement communication codes or plans for deployment under MCL 15.243(1)(n); 3) it disclosed law enforcement operational instructions under MCL 15.243[1](s)(v); 4) it revealed the contents of law enforcement staff manuals under MCL 15.243[1](s)(vi); and 5) it would endanger the safety of law enforcement officers if disclosed under MCL 15.243[1](s)(vii). 

However, “given the social climate around Force of Use [sic] policies,” the staff recommended releasing information that would not jeopardize officers’ safety. The city commission voted to release a redacted version of the policy. The plaintiff then received a “heavily redacted” copy of the policy.

Thereafter, the plaintiff filed this FOIA action challenging the decision in Chippewa County Circuit Court. The defendant-city moved for summary disposition, arguing the redacted information was exempt from disclosure under MCL 15.243(1)(n), (s)(v), (s)(vi) and (s)(vii), and necessary “for the public and/or officer safety.”

In response, the plaintiff requested judgment as a matter of law and filed a cross-motion for summary disposition. She supported her motions with unredacted use-of-force policies from the Michigan State Police, Department of Homeland Security, Michigan Association of Chiefs of Police, Lake County Sheriff Department and Newaygo County Sheriff’s Department that were online. The plaintiff argued these other unredacted policies were “nearly identical” to the unredacted portions of the defendant-city’s policy. She claimed that, because “anyone could access unredacted copies of the other departments’ policies,” the defendant-city’s argument that disclosure of an unredacted copy of its policy would arm persons with information to circumvent officers’ actions was meritless. She maintained the exemptions claimed by the defendant-city were inapplicable and that public interest warranted disclosure. 

The city police chief testified that he believed the redactions were necessary to protect the safety of officers and the public. In addition, the trial court reviewed an unredacted copy of the defendant-city’s use-of-force policy. The trial court found that the redacted portion of the policy involved “tactics and techniques or operational guidelines” and that “disclosure of the information would impact the public and/or officer safety because it would use his or her training to respond and the limitations posed in order to eliminate the threat or to overcome the resistance presented.” Accordingly, the trial court granted the defendant-city’s motion for summary disposition and dismissed the plaintiff’s complaint, finding that the defendant-city’s decision to redact the policy fit within the exemptions in MCL 15.243(1)(n), (s)(v) and (s)(vii).

The plaintiff appealed that decision to the Court of Appeals, arguing the trial court erred in granting summary disposition for the defendant-city because none of the statutory exemptions applied. “We agree,” the Court of Appeals said. Judges Sima G. Patel, Stephen L. Borrello and Douglas B. Shapiro were on the panel that issued the published and binding opinion.

The COA Decision

In its February 2023 opinion, the Court of Appeals said the trial court wrongly held that the defendant-city’s unredacted use-of-force policy for its police department was exempt from disclosure under MCL 15.243(1)(n), (s)(v) and (s)(vii).

The Court of Appeals agreed with the plaintiff that the trial court wrongly granted summary disposition for the defendant-city because none of the statutory exemptions applied. “Michigan has a strong public policy favoring public access to government information,” the appeals court wrote. “Consistent with this policy, FOIA provides that ‘all persons … are entitled to full and complete information regarding the affairs of government’ and mandates disclosure to keep the citizens informed ‘so that they may fully participate in the democratic process.’”

Even though “certain information” may be exempt from disclosure, “the statutory exemptions are not intended to shield public bodies from the transparency that FOIA was designed to foster,” the Court of Appeals explained. “We find that the trial court erred by concluding that the unredacted policy was exempt from disclosure.”

Looking at MCL 15.243(1)(n), the Court of Appeals said that “a general, department-wide policy regarding various factors for officers to consider in deciding whether force should be used and, if so, the type of force to be used, is far too general to be considered a ‘plan for deployment.’ The trial court’s implicit finding that the redacted material contained communication codes or plans for deployment of law enforcement personnel was clear error. Because we find that the redacted portions of the policy do not contain communication codes or plans for deployment, it is unnecessary for us to consider the balancing test set forth in MCL 15.243(1)(n).”

Regarding MCL 15.243(1)(s)(v), “The use-of-force policy in this case deals with policy, not operations,” the Court of Appeals wrote. “The term ‘operational instructions’ would specifically exclude ‘courses of action that … guide present or future decisions.’ … The use-of-force policy is clearly intended to guide the police in making future decisions pertaining to when the use of force is appropriate and the degree of force that may be appropriate. The policy does not give instructions on use of force in specific situations, but rather outlines broad policy prescriptions that should guide law enforcement personnel when engaging in use of force. The policy therefore does not contain ‘operational instructions’ and is not exempt from disclosure. The trial court’s implicit finding that the redacted material contained operational instructions was clear error. Because we find that the redacted portions of the policy are not operational instructions, it is unnecessary for us to consider the balancing test set forth in MCL 15.243(1)(s)(v).”

As for MCL 15.243(1)(s)(vii), the Court of Appeals said the trial court failed to make the required positive finding. “The court found ‘that the [d]isclosure of the unredacted Use of Force Policy would or could in fact impact the officer’s [sic] ability to protect the public and/or themselves,” the appeals court observed. “This is not the positive finding required by MCL 15.243(1)(s)(vii).”

In addition, the defendant-city “failed to identify any evidence to support [the] speculative testimony [of two former police chiefs] that the disclosure ‘would or could’ potentially endanger the officers,” the Court of Appeals said.

Accordingly, the trial court “clearly erred by finding that the redacted material ‘would or could in fact impact the officer’s [sic] ability to protect the public and/or themselves,’” the Court of Appeals said. “Because we find that the city failed to meet its burden to prove that officer endangerment necessarily ‘would’ result from disclosure of the unredacted policy, it is unnecessary for us to consider the balancing test set forth in MCL 15.243(1)(s)(vii). 7”

Therefore, the trial court “clearly erred by finding that the unredacted policy was exempt from disclosure under MCL 15.243(1)(n), (s)(v), and (s)(vii),” the Court of Appeals concluded. “We reverse the trial court’s grant of summary disposition in favor of the [defendant-city], and we remand for entry of judgment in favor of [the plaintiff]. On remand the trial court shall: (1) order disclosure of the unredacted use-of-force policy; (2) award [the plaintiff] the reasonable attorneys’ fees, costs, and disbursements under MCL 15.240(6); and (3) determine whether [the plaintiff] is entitled to punitive damages under MCL 15.240(7).”