If this opinion indicates that it is “FOR PUBLICATION,” it is subject to
revision until final publication in the Michigan Appeals Reports.
STATE OF MICHIGAN
COURT OF APPEALS
MICHIGAN RISING ACTION and TORI SACHS, UNPUBLISHED
July 21, 2022
Plaintiffs-Appellees,
v No. 359355
Court of Claims
SECRETARY OF STATE and DEPARTMENT OF LC No. 20-000157-MZ
STATE,
Defendants-Appellants.
Before: MARKEY, P.J., and BOONSTRA and RIORDAN, JJ.
PER CURIAM.
Defendants appeal by right the order of the Court of Claims granting in part plaintiffs’ and
defendants’ respective motions for summary disposition under MCR 2.116(C)(10) and ordering
certain documents to be disclosed (or disclosed in unredacted form) to plaintiffs. We affirm.
I. PERTINENT FACTS AND PROCEDURAL HISTORY
Plaintiff Michigan Rising Action describes itself as a “Michigan nonprofit corporation that
advances the principles of free markets and limited government.” Plaintiff Tori Sachs is (or was
at the time of the filing of plaintiffs’ complaint) Michigan Rising Action’s Executive Director. In
2019, plaintiffs filed a Freedom of Information Act (FOIA), MCL 15.231 et seq., request with
defendants, seeking documents relating to two campaign finance violation complaints and the
subsequent administrative proceedings on those complaints. Defendants denied plaintiffs’ request
in part, contending that some of the requested documents were exempted under MCL 15.243(1)(h),
the privilege exemption, and MCL 15.243(1)(m), the frank communications exemption.
Plaintiffs subsequently filed this action in the Court of Claims, requesting that the Court of
Claims order defendants to produce the withheld documents. The parties filed cross-motions for
summary disposition under MCR 2.116(C)(10), and the Court of Claims rendered its decision
without oral argument after performing an in camera inspection of the documents. The Court of
Claims ruled that some of the withheld documents were properly exempted while others were not,
and ordered defendants to produce the documents it had found nonexempt. Defendants moved for
reconsideration, which the Court of Claims denied.
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This appeal followed.
II. STANDARD OF REVIEW
This Court reviews de novo a trial court’s decision on a motion for summary disposition;
we also review de novo questions of law, such as statutory interpretation and the construction and
application of court rules. Dextrom v Wexford Co, 287 Mich App 406, 416; 789 NW2d 211 (2010).
A motion is properly granted under MCR 2.116(C)(10) when “there is no genuine issue with
respect to any material fact and the moving party is entitled to judgment as a matter of law.”
Dextrom, 287 Mich App at 415. This Court “must examine the documentary evidence presented
and, drawing all reasonable inferences in favor of the nonmoving party, determine whether a
genuine issue of material fact exists. A question of fact exists when reasonable minds could differ
as to the conclusions to be drawn from the evidence.” Id. at 415-416.
“When interpreting a statute, [this Court] must ascertain the Legislature’s intent,” which is
accomplished “by giving the words selected by the Legislature their plain and ordinary meanings,
and by enforcing the statute as written.” Griffin v Griffin, 323 Mich App 110, 120; 916 NW2d
292 (2018) (quotation marks and citation omitted). If a statute is unambiguous, it must be applied
as plainly written. McQueer v Perfect Fence Co, 502 Mich 276, 286; 971 NW2d 584 (2018). This
Court may not read something into the statute “that is not within the manifest intent of the
Legislature as derived from the words of the statute itself.” Id. (quotation marks and citation
omitted). Court rules are interpreted using the same principles that are used for statutory
interpretation. Lamkin v Engram, 295 Mich App 701, 707; 815 NW2d 793 (2012).
Additionally, “[t]his Court reviews de novo whether a public record is exempt from
disclosure under the FOIA,” but a trial court’s “factual findings associated with its FOIA decision
are reviewed for clear error.” Mich Open Carry, Inc v Dep’t of State Police, 330 Mich App 614,
625; 950 NW2d 484 (2019). Moreover, “certain FOIA provisions require the trial court to balance
competing interests,” and, “when an appellate court reviews a decision committed to the trial
court’s discretion . . . the appellate court must review the discretionary determination for an abuse
of discretion and cannot disturb the trial court’s decision unless it falls outside the principled range
of outcomes.” Herald Co, Inc v Eastern Mich Univ Bd of Regents, 475 Mich 463, 470-472; 719
NW2d 19 (2006). Clear error occurs “when the appellate court ‘is left with the definite and firm
conviction that a mistake has been made.’ ” Id. at 471 (citation omitted).
III. ANALYSIS
Defendants argue that the Court of Claims erred by concluding that certain of the withheld
records were not exempt from disclosure. We disagree.
“The FOIA requires public bodies to release certain information at a citizen’s request.”
Warren v Detroit, 261 Mich App 165, 166; 680 NW2d 57 (2004). Except when expressly
exempted, “a person has a right to inspect, copy, or receive copies of [a] requested public record
of [a] public body.” MCL 15.233(1). The purpose of the FOIA is for people to “be informed so
that they may fully participate in the democratic process,” MCL 15.231(2), and our “Legislature
codified the FOIA to facilitate disclosure to the public of public records held by public bodies,”
Herald Co, Inc, 475 Mich at 472. However, our Legislature has created numerous exemptions to
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the general rule of disclosure. See MCL 15.243. Relevant to this appeal are MCL 15.243(1)(h)
and (m):
(1) A public body may exempt from disclosure as a public record under this
act any of the following:
* * *
(h) Information or records subject to the physician-patient privilege, the
psychologist-patient privilege, the minister, priest, or Christian Science practitioner
privilege, or other privilege recognized by statute or court rule.
* * *
(m) Communications and notes within a public body or between public
bodies of an advisory nature to the extent that they cover other than purely factual
materials and are preliminary to a final agency determination of policy or action.
This exemption does not apply unless the public body shows that in the particular
instance the public interest in encouraging frank communication between officials
and employees of public bodies clearly outweighs the public interest in disclosure.
This exemption does not constitute an exemption under state law for purposes of
section 8(h) of the open meetings act, 1976 PA 267, MCL 15.268. As used in this
subdivision, “determination of policy or action” includes a determination relating
to collective bargaining, unless the public record is otherwise required to be made
available under 1947 PA 336, MCL 423.201 to 423.217. [Emphasis added.]
“[T]he FOIA must be broadly interpreted to allow public access to the records held by public
bodies,” and, in contrast, “the statutory exemptions must be narrowly construed to serve the policy
of open access to public records.” Mich Open Carry, Inc, 330 Mich App at 625. “The burden of
proving that an exemption applies rests with the public body asserting the exemption.” Id. “The
FOIA exemptions signal particular instances where the policy of offering the public full and
complete information about government operations is overcome by a more significant policy
interest favoring nondisclosure.” Herald Co, Inc, 475 Mich at 472. Our “Legislature has made a
policy determination that full disclosure of certain public records could prove harmful to the proper
functioning of the public body.” Id. at 472-473.
A. PRIVILEGE EXEMPTION
Defendants argue that MCL 15.243(1)(h), the privilege exemption, applied to those
withheld documents that reflect settlement negotiations. We disagree.
The parties agree that the only type of privilege that could be applicable is the “catch-all”
phrase “other privilege recognized by statute or court rule.” MCL 15.243(1)(h). “In Michigan,
‘[p]rivilege is governed by the common law, except as modified by statute or court rule.’ ” Detroit
News, Inc v Indep Citizens Redistricting Comm, ___ Mich ___, ___; ___ NW2d ___ (2021)
(Docket No. 163823); slip op at 5, quoting MRE 501 (alteration in original). “The existence and
scope of a statutory privilege ultimately turns on the language and meaning of the statute itself.”
Howe v Detroit Free Press, Inc, 440 Mich 203, 211; 487 NW2d 374 (1992). “Privileges are
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narrowly defined and their exceptions broadly construed.” People v Warren, 462 Mich 415, 427;
615 NW2d 691 (2000).
Defendants rely on MRE 408 and MCL 169.215(10), which is part of the Campaign
Finance Act, MCL 169.201 et seq., to support their assertion that a settlement negotiation privilege
exists for purposes of the FOIA. MRE 408 provides:
Evidence of (1) furnishing or offering or promising to furnish, or (2)
accepting or offering or promising to accept, a valuable consideration in
compromising or attempting to compromise a claim which was disputed as to either
validity or amount, is not admissible to prove liability for or invalidity of the claim
or its amount. Evidence of conduct or statements made in compromise negotiations
is likewise not admissible. This rule does not require the exclusion of any evidence
otherwise discoverable merely because it is presented in the course of compromise
negotiations. This rule also does not require exclusion when the evidence is offered
for another purpose, such as proving bias or prejudice of a witness, negativing a
contention of undue delay, or proving an effort to obstruct a criminal investigation
or prosecution. [Emphasis added.]
Defendants’ position rests mainly on a single decision by the United States Court of Appeals for
the Sixth Circuit: Goodyear Tire & Rubber Co v Chiles Power Supply, Inc, 332 F3d 976 (CA 6,
2003).1 However, Goodyear does not support defendants’ position. In Goodyear, the Sixth Circuit
held that FRE 408, which contained similar language to MRE 408, created a “settlement privilege”
that shielded “settlement communications” for discovery purposes. Goodyear, 332 F3d at 979-
982. The Sixth Circuit did not recognize such a privilege as extending to settlement
communications that are the subject of an otherwise-valid FOIA request. In fact, Goodyear did
not involve the FOIA at all. Furthermore, as the Court of Claims recognized, the plain language
of MRE 408 does not support defendants’ position. The language of the rule provides that
settlement communications and offers to compromise are “not admissible to prove liability for or
invalidity of the claim or its amount.” MRE 408 (emphasis added). In other words, MRE 408
relates to admissibility at trial; it does not speak to whether such evidence is exempt or nonexempt
under the FOIA.
Similarly, MCL 169.215(10) does not support defendants’ argument. It states:
No later than 45 business days after receipt of a rebuttal statement submitted
under subsection (5), or if no response or rebuttal is received under subsection (5),
the secretary of state shall post on the secretary of state’s Internet website whether
or not there may be reason to believe that a violation of this act has occurred. When
the secretary of state determines whether there may be reason to believe that a
violation of this act occurred or did not occur or determines to terminate its
proceedings, the secretary of state shall, within 30 days of that determination, post
on the secretary of state’s Internet website any complaint, response, or rebuttal
1
Federal courts of appeals decisions are not binding but may be considered persuasive authority.
Abela v Gen Motors Corp, 469 Mich 603, 607; 677 NW2d 325 (2004).
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statement received under subsection (5) regarding that violation or alleged violation
and any correspondence that is dispositive of that violation or alleged violation
between the secretary of state and the complainant or the person against whom the
complaint was filed. If the secretary of state determines that there may be reason
to believe that a violation of this act occurred, the secretary of state shall endeavor
to correct the violation or prevent a further violation by using informal methods
such as a conference, conciliation, or persuasion, and may enter into a conciliation
agreement with the person involved. Unless violated, a conciliation agreement is a
complete bar to any further civil or criminal action with respect to matters covered
in the conciliation agreement. The secretary of state shall, within 30 days after a
conciliation agreement is signed, post that agreement on the secretary of state’s
Internet website. If, after 90 business days, the secretary of state is unable to correct
or prevent further violation by these informal methods, the secretary of state shall
do either of the following:
(a) Refer the matter to the attorney general for the enforcement of any
criminal penalty provided by this act.
(b) Commence a hearing as provided in subsection (11) for enforcement of
any civil violation.
This provision says nothing about a privilege for settlement negotiations. Defendants argue that
such a privilege is “implied.” But defendants would have this Court impermissibly read language
into the statute that does not exist, and we decline to do so. See McQueer, 502 Mich at 286.
B. FRANK COMMUNICATIONS EXEMPTION
Defendants also argue that certain documents were “frank communications” and therefore
exempt from disclosure under MCL 15.243(1)(m). We disagree.
A party asserting this exemption must first establish that the document is a “frank
communication.” Herald Co, Inc, 475 Mich at 475 (quotation marks omitted). Our Supreme Court
has stated that a frank communication involves three elements: “it (1) is a communication or note
of an advisory nature made within a public body or between public bodies, (2) covers other than
purely factual material, and (3) is preliminary to a final agency determination of policy or action.”
Id. If any one of these three elements is not met, the document is not a frank communication. Id.
A party asserting this exemption must next satisfy a weighted balancing test. Our Supreme
Court has discussed the framework for this test and how it carries a high burden to avoid disclosure:
The frank communication exemption ultimately calls for the application of
a weighted balancing test where the circuit court must weigh the public interest in
disclosure versus the public interest in encouraging frank communication. Under
the plain language of the provision, these competing interests are not equally
situated, and the Legislature intended the balancing test to favor disclosure. The
Legislature’s requirement that the public interest in disclosure must be clearly
outweighed demonstrates the importance it has attached to disclosing frank
communications absent significant, countervailing reasons to withhold the
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document. Hence, the public record is not exempt under the frank communication
exemption unless the public body demonstrates that the public interest in
encouraging frank communication between officials and employees of public
bodies clearly outweighs the public interest in disclosure. [Id. at 473-474.]
The party asserting this exemption must show why, in that particular instance, the interests
favoring the withholding of a document clearly outweigh the interests favoring disclosure; the
party may not “speak in platitudes and generalities” but must show how “the unique circumstances
of the ‘particular instance’ affect the public interest in disclosure versus the public interest in
encouraging frank communication.” Id. at 474. However, the Supreme Court has also recognized
that “the Legislature decided that the public has an interest in encouraging frank communication
so that public officials’ ongoing and future willingness to communicate frankly in the course of
reaching a final agency determination is an essential component in the balancing test.” Id. As a
result, “when a court interprets the ‘particular instance’ in the frank communication exemption, it
must remember that there is a valid public interest that officials and employees of a public body
aspire to communicate candidly when the public body considers an issue that is ‘preliminary to a
final agency determination of policy or action.’ ” Id. at 474-475.
The Court of Claims generally described the withheld documents as falling into three
categories. The first category was “draft conciliation agreements that contain no writings,
comments or other information.” This category contained documents 0457-0462, 0478-0485,
0494-0502, and 0513-0529.2 The Court of Claims ruled that these documents were not frank
communications because they “contain no indicia of any communications between public bodies
or persons within a public body, let alone frank communications,” and because “there is nothing
on these drafts that show who prepared them or why one was different from another.” We agree.
These documents are drafts of a conciliation agreement. Some have no comments or edits at all;
others reflect “track changes” using Microsoft Word. There is no indication as to the identity of
the author(s), and there are no advisory statements contained within them. Such documents are
not communications or notes of an advisory nature that cover something other than factual
material; they are merely draft agreements. This is in contrast to the second category of documents,
i.e., draft agreements that contained comments from various agency personnel, which the Court of
Claims found to be frank communications not subject to disclosure; these are documents 0486-
0493. Defendants would have us construe the exemption in an improperly broad manner so as to
exempt most documents simply because they came from within a public body and contained
proposed edits. We decline to do so. Mich Open Carry, Inc, 330 Mich App at 625.
The third category was comprised of “emails between Secretary of State staff and counsel
for Build a Better Michigan regarding draft conciliation agreements.” This category contained
documents 0463-0466, 0472-0477, 0503-0512, 0530-0533, as well as portions of 0538-0541. The
Court of Claims ruled that these documents were not frank communications because, as
“communications between the law firm representing Build a Better Michigan and certain
department personnel,” “they are not communications between or within public bodies, and thus
2
Defendants assigned a “Bates-Number” to each document. The Court of Claims used these
numbers to refer to the withheld documents, and we will do the same.
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do not fall within the frank communication exemption contained in MCL 15.243(1)(m).” We
agree. These documents are e-mails between the Michigan Department of State and the retained
counsel for Build a Better Michigan; therefore, they are not between or within public bodies, but
rather are the communications of a public body with the retained counsel of a non-state entity.
The Court of Claims characterized certain miscellaneous documents as falling outside these
three categories; these included documents 0469-0471, 0535-0537, and 0543. The Court of Claims
ruled that these documents were not frank communications because they were merely “checklists
or meeting topics, i.e., factual matters, and do not appear to contain ‘frank communications’
between members of a public body.” We agree, and, to the extent that any of those documents do
contain more than factual information, we agree with the Court of Claims that defendants have
failed to show how the balancing test clearly weighs in favor of nondisclosure. Although
defendants make generalized claims about the need in general to have internal communications
kept private, they fail to show how in this particular instance disclosure would have a chilling
effect on internal communications. See Herald Co, Inc, 475 Mich at 474.
The Court of Claims also considered various redactions made to documents that were
disclosed by defendants, as described in redaction logs. It concluded that while certain of those
redactions were proper, others were not proper, thus requiring that those documents be produced
in unredacted form. The court ruled that documents 009-014, 0271, 0280, 0282, 0293, 0295-0298,
0335, 0345, and 0347-0348 were not frank communications because they were merely
“communications with an outside law firm for a non-state entity . . . .” We agree. These
documents appear to be more communications between defendants and Build a Better Michigan
and, therefore, are not between or within a public body or bodies. The Court of Claims further
ruled that documents 0114, 0134, 0143, 0149, and 0155 “were simply draft documents presented
without commentary or strategy,” and that documents 0223, 0247, and 0261-0262 “contained only
factual material, and not the type of communications that can be withheld under the exemption.”
Again, we agree. Documents 0114, 0134, 0143, 0149, and 0155 appear to involve multiple drafts
of the same document, and there is no commentary, indicia of an author, or anything of an advisory
nature. Documents 0223, 0247, and 0261-0262 contain purely factual matters, and they are not
frank communications. Furthermore, for those same reasons previously discussed, defendants
failed to show how in this particular instance disclosure would have a chilling effect on internal
communications. See Herald Co, Inc, 475 Mich at 474.
Affirmed.
/s/ Jane E. Markey
/s/ Mark T. Boonstra
/s/ Michael J. Riordan
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