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
AMY HJERSTEDT, FOR PUBLICATION
February 21, 2023
Plaintiff-Appellant, 9:05 a.m.
v No. 358803
Chippewa Circuit Court
CITY OF SAULT STE. MARIE, LC No. 20-016126-CZ
Defendant-Appellee.
Before: PATEL, P.J., and BORRELLO and SHAPIRO, JJ.
PATEL, P.J.
George Floyd’s death in May 2020 prompted citizens to advocate for systemic change in
law enforcement across the country. The mass movement included inquiries into use-of-force
policies implemented by police departments in each state. Weeks after Floyd’s death, Amy
Hjerstedt requested a copy of the Sault Ste. Marie Police Department’s use-of-force policy
pursuant to Michigan’s Freedom of Information Act (“FOIA”), MCL 15.231 et seq. The city
denied the request, claiming the policy was exempt from disclosure. Hjerstedt appealed the denial.
The city commission voted to disclose a redacted copy of the policy based on a number of statutory
exemptions. Hjerstedt initiated this FOIA action challenging the city’s decision. The trial court
granted summary disposition in favor of the city and dismissed Hjerstedt’s complaint, concluding
that the unredacted policy was exempt from disclosure because it (1) was a record of law
enforcement communication codes or plans for deployment, MCL 15.243(1)(n); (2) disclosed law
enforcement operational instructions, MCL 15.243(s)(v); (3) would endanger the safety of law
enforcement officers, MCL 15.243(s)(vii); and (4) the public’s interest in disclosure did not
outweigh the public’s interest in nondisclosure.
Michigan has a strong public policy favoring public access to government information.
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.” MCL 15.231(2).
Although 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. We find
that the trial court erred by concluding that the unredacted policy was exempt from disclosure
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under MCL 15.243(1)(n), (s)(v), and (s)(vii). Accordingly, we reverse the court’s grant of the
city’s motion for summary disposition pursuant to MCR2.116(C)(10) and remand for further
proceedings.
I. FACTUAL BACKGROUND
On June 25, 2020, Hjerstedt submitted a FOIA request to the city seeking the “Sault Police
use of force policy/standard.” The city denied Hjerstedt’s request, claiming that 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.” Hjerstedt appealed the denial,1 asserting that MCL 15.243(1)(n) was
misinterpreted because the use-of-force policy “does not include deployment plans or
communication codes.” The appeal was submitted to the city commission for consideration.
The city’s staff, including the city attorney and city manager, provided the city commission
with an analysis and a recommendation to disclose the use-of-force policy with redactions. The
staff maintained that the policy was part of the “general orders and policies for various basic
operations” of the police department and included
information, if made public, would inform individuals with criminal threat intent
or resistance when and how an officer would use his or her training and the
limitations therein in order to eliminate the threat or overcome the resistance
presented. This information would allow the opportunity for a subject to overpower
an officer’s efforts to eliminate the threat or resistance, placing the officer and/or
innocent citizen in jeopardy of severe injury or death.
The staff contended that the policy was exempt from disclosure because it (1) was an investigating
record that would endanger the safety of law enforcement officers if disclosed, MCL
15.243(1)(b)(vi); (2) was a record of law enforcement communication codes or plans for
deployment, MCL 15.243(1)(n); (3) disclosed law enforcement operational instructions, MCL
15.243(s)(v); (4) revealed the contents of law enforcement staff manuals, MCL 15.243(s)(vi); and
(5) would endanger the safety of law enforcement officers if disclosed, MCL 15.243(s)(vii). But
“given the social climate around Force of Use [sic] policies,” the staff recommended releasing
information that would not place the officers’ safety in jeopardy. The city commission voted to
release a redacted version of the policy. Hjerstedt received a heavily redacted copy of the policy.2
Hjerstedt initiated this FOIA action challenging the decision. The city moved for summary
disposition pursuant to MCR 2.116(C)(7) and (10), arguing that 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.” The city relied on affidavits from the city’s current and former police
chiefs who claimed that the disclosure of the information
1
Although Hjerstedt’s initial FOIA request does not reflect it, her FOIA appeal indicates that her
request was made on behalf of the League of Women Voters of Eastern Upper Peninsula.
2
The copy released to Hjerstedt included significant redactions in the sections pertaining to use-
of-force considerations as well as the escalation and de-escalation of force.
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would or could impact safety of the public and/or officers because it would inform
individuals with criminal intent or those who resist know [sic] when and how an
officer would use his or her training to respond and the limitations posed in order
to eliminate the threat or to overcome the resistance presented.
7. The information if disclosed would or could impact safety of the public
and/or officers because it would inform individuals with criminal intent or those
who resist also know the factors that are important for the officer to consider in
making a decision how to respond.
8. Armed with this information a potential suspect could circumvent the
officer’s actions thus placing both the suspect and officer in danger.
In response, Hjerstedt requested judgment as a matter of law under MCR 2.116(I)(2). She
also filed a cross-motion for summary disposition pursuant to MCR 2.116(C)(9) and (10). She
described the police chiefs’ affidavits as “conclusory,” “self-serving opinions” that did not actually
“address the purported exemptions.” She relied on 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
available to the public online. Hjerstedt posited that the other departments’ unredacted policies
were nearly identical to the unredacted portions of the city’s policy. Because anyone could access
unredacted copies of the other departments’ policies, she asserted that the city’s argument that
disclosure of an unredacted copy of its policy would arm persons with information to circumvent
officers’ actions was meritless. Hjerstedt argued that the exemptions claimed by the city were
inapplicable and that the public’s interest warranted disclosure.
The city’s police chief, Wesley Bierling, testified that he believed the redactions were
necessary to protect the safety of officers and the public. Chief Bierling was not the city’s police
chief at the time that the redactions were made, and he was not the decision maker with regard to
Hjerstedt’s FOIA request. But he maintained that he would have made the same redactions.
Consistent with his affidavit, Chief Bierling testified that the redacted information “could or would
impact the safety of [the] officers and [the] public” because it could provide information on how
the officers “may use force, may consider using force, or may react to certain situations, and what
they would use in their decision-making process.” He was not concerned about what other
municipalities did with their policies, stating that it was “not an apples-to-apples comparison.” He
testified that when he makes a decision to redact public records, he “always err[s] on the side of
caution” in order to ensure officer safety.
In addition to the evidence and testimony presented by the parties, the trial court reviewed
an unredacted copy of the city’s use-of-force policy in camera. The court found that the redacted
portion of the policy involved “tactics and techniques or operational guidelines and according to
the affidavit of former City Police Chief, John Riley, 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.” The
court noted that the former chief’s decision was supported by Chief Bierling. 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 safety of the Sault Ste. Marie
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Police Officers’ safety [sic] is paramount and consequently the public interest is outweighed in the
disclosure of said policy.” The trial court granted the city’s motion for summary disposition and
dismissed Hjerstedt’s complaint, concluding that the city’s decision to redact the policy fit within
the exemptions set forth in MCL 15.243(1)(n), (s)(v), and (s)(vii).3 Hjerstedt now challenges the
trial court’s ruling.
II. STANDARD OF REVIEW
“We review de novo a trial court’s decision on a motion for summary disposition.” El-
Khalil v Oakwood Healthcare, Inc, 504 Mich 152, 159; 934 NW2d 665 (2019). In this case, the
trial court did not expressly indicate whether it granted the city’s motion under MCR 2.116(C)(7)
or (10), but because it considered affidavits and testimony beyond the pleadings, we can fairly
surmise that the motion was granted under MCR 2.116(C)(10). Cuddington v United Health Servs,
Inc, 298 Mich App 264, 270, 826 NW2d 519 (2012). A motion for summary disposition pursuant
to MCR 2.116(C)(10) tests the factual sufficiency of the complaint. Woodring v Phoenix Ins Co,
325 Mich App 108, 113; 923 NW2d 607 (2018). We consider all evidence submitted by the parties
in the light most favorable to the non-moving party. El-Khalil, 504 Mich at 160. Summary
disposition under MCR 2.116(C)(10) is only appropriate when there is no genuine issue of material
fact. Id. “A genuine issue of material fact exists when the record, giving the benefit of reasonable
doubt to the opposing party, leaves open an issue upon which reasonable minds might differ.”
Zaher v Miotke, 300 Mich App 132, 139-140; 832 NW2d 266 (2013).
The interpretation and application of a statute is a question of law that we review de novo.
Boyle v Gen Motors Corp, 468 Mich 226, 229; 661 NW2d 557 (2003). We likewise review “de
novo whether the trial court properly interpreted and applied the FOIA.” Mich Open Carry, Inc v
Dep’t of State Police, 330 Mich App 614, 621; 950 NW2d 484 (2019). The court’s factual findings
underlying its application of FOIA are reviewed for clear error. Id. “Clear error exists only when
the appellate court is left with the definite and firm conviction that a mistake has been made.”
Herald Com Inc v Eastern Mich Univ Bd of Regents, 475 Mich 463, 471; 719 NW2d 19 (2006)
(cleaned up). “[C]ertain FOIA provisions require the trial court to balance competing interests.”
Id. at 470. When we review “a decision committed to the trial court’s discretion, such as the
balancing test at issue in [FOIA] case[s], we “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.” Id. at 472.
III. ANALYSIS
Hjerstedt argues that the trial court erred in granting summary disposition in favor of the
city because none of the statutory exemptions were applicable. We agree.
Michigan’s FOIA grants the public an opportunity to “examine and review the workings
of government and its executive officials.” Messenger v Ingham Co Prosecutor, 232 Mich App
633, 641; 591 NW2d 393 (1998). FOIA commands that persons “are entitled to full and complete
3
Although the city also cited MCL 15.243(1)(s)(vi) in its motion for summary disposition, the
court did not rely on this statutory exemption in reaching its decision.
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information regarding the affairs of government and the official acts of those who represent them
as public officials and public employees . . . so that they may fully participate in the democratic
process.” MCL 15.231(2). Consistent with this policy, FOIA provides, in pertinent part, that
“[e]xcept as expressly provided in [MCL 15.243], upon providing a public body’s FOIA
coordinator with a written request that describes a public record sufficiently to enable the public
body to find the public record, a person has a right to inspect, copy, or receive copies of the
requested public record of the public body.” MCL 15.233(1). FOIA has been described repeatedly
by our Supreme Court as a “prodisclosure statute.” Sole v Michigan Economic Development Corp,
509 Mich 406, 413; __ NW2d__ (2022); 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).
MCL 15.243 exempts certain information from disclosure. The public body has the burden
of proving the applicability of any statutory exemption that it claims applies to a FOIA request.
Detroit Free Press, Inc v Southfield, 269 Mich App 275, 281; 713 NW2d 28 (2005). “To meet
this burden, the public body claiming an exemption should provide complete particularized
justification, rather than simply repeat statutory language.” Detroit Free Press v Warren, 250
Mich App 164, 167; 645 NW2d 71 (2002). But FOIA's exemptions “must be narrowly construed
to serve the policy of open access to public records.” Mich Open Carry, 330 Mich App at 625.
In this case, the trial court found that the redacted material was exempted from disclosure
under MCL 15.243(1)(n), (s)(v), and (s)(vii). Resolution of this matter requires us to interpret
these statutory exemptions. “The principal goal of statutory interpretation is to give effect to the
Legislature’s intent, and the most reliable evidence of that intent is the plain language of the
statute.” South Dearborn Environmental Improvement Ass’n, Inc v Dep’t of Environmental
Quality, 502 Mich 349, 360-361; 917 NW2d 603 (2018). When determining the meaning of a
statute’s plain language, we examine “the statute as a whole, reading individual words and phrases
in the context of the entire legislative scheme.” Kemp v Farm Bureau Gen Ins Co of Mich, 500
Mich 245, 252; 901 NW2d 534 (2017). Accordingly, these exemptions should be construed in
accordance with FOIA’s stated purpose of supplying “full and complete information regarding the
affairs of government” to interested citizens. MCL 15.231(2). “Where the statutory language is
unambiguous, the plain meaning reflects the Legislature’s intent and the statute must be applied
as written.” Honigman Miller Schwartz & Cohn LLP v City of Detroit, 505 Mich 284, 294; 952
NW2d 358 (2020) (cleaned up).
A. MCL 15.243(1)(n)
First, the trial court found that the redacted material was exempted from disclosure under
MCL 15.243(1)(n), which exempts “[r]ecords of law enforcement communication codes, or plans
for deployment of law enforcement personnel, that if disclosed would prejudice a public body’s
ability to protect the public safety unless the public interest in disclosure under this act outweighs
the public interest in nondisclosure in the particular instance.”4 The trial court failed to articulate
any factual findings that the redacted portions of the policy were either communication codes or
4
Because Hjerstedt failed to address this statutory exemption in her brief on appeal, we are not
required to address the merits. MOSES, Inc v SEMCOG, 270 Mich App 401, 417; 716 NW2d 278
(2006). But our de novo review necessarily includes this issue.
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plans for deployment. The city has not asserted that the redacted portion of the policy contains
communication codes, and our review of the policy does not reveal any communication codes.
Accordingly, we will limit our review to whether the redacted portion contains “plans for
deployment of law enforcement personnel.”
As commonly understood, the phrase “deployment of [] personnel” means sending
personnel to address a particularized threat or situation. For example, in the context of military
deployment, units of the military are sent to specific locations to address and fulfill specific mission
requirements. The same is true for law enforcement personnel. Deployment of law enforcement
personnel can be to address a specific threat, such as responding to the scene of a vehicle crash or
active shooter situation, or a specific mission, such as manning a DUI checkpoint. But the common
thread is sending, i.e. deploying, law enforcement personnel somewhere to address a specific issue.
Construing these terms to serve FOIA’s policy of open access to public records, Mich Open
Carry, 330 Mich App at 625, “plans for deployment of law enforcement personnel” refers to a
procedure for placing or arranging law enforcement personnel in a position for a particular use or
purpose. For example, in the event of civil unrest in a community, a law enforcement agency may
have a plan for deployment that includes when and where law enforcement personnel will be sent
and how they will respond. Use-of-force policies do not outline specific deployments of law
enforcement personnel to specific locations or particularized threats.
We find 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).
B. MCL 15.243(s)(v)
Next, the trial court found that the redacted material was exempted under MCL
15.243(s)(v), which exempts “operational instructions for law enforcement officers or agents”
from disclosure “[u]nless the public interest in disclosure outweighs the public interest in
nondisclosure in the particular instance[.]” FOIA does not define “operational instructions,” and
there is no caselaw interpreting this subparagraph. The trial court’s conclusion that this exemption
applied was conclusory, it did not include any factual support, and it did not include an analysis of
“operational instructions.” Hjerstedt argues that “[o]perational instructions or manuals prescribe
items such as uniforms, car operations, evidence handling, weapons deployment and use, firearm
handling and safety or procedure for arrests, searches, and seizures.” The city argues that
“ ‘operational instructions’ are ‘approved standard procedures for performing operations safely.’ ”
The phrase “operational instructions,” means instructions relating to operations. The
critical inquiry, then, is whether the use-of-force policy contains instructions relating to operations.
We hold that there is a conceptual difference between policy and operations, and that the use-of-
force policy in this case deals with policy, only, and does not contain any “operational
instructions.” The policy, thus, was not exempt from disclosure.
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Our Supreme Court, albeit in the employment context, recognized that a “policy” is “a
definite course or method of action selected (as by a government, institution, group, or individual)
from among alternatives and in the light of given conditions to guide and usu[ally] determine
present and future decisions; . . . a projected program consisting of desired objectives and the
means to achieve them . . . .” In re Certified Question, 432 Mich 438, 455–456; 443 NW2d 112
(1989) (cleaned up). The Supreme Court echoed this definition recently in Johnson v Vanderkooi,
502 Mich 751, 763–64; 918 NW2d 785 (2018) when examining the constitutionality of Grand
Rapids Police Department “photograph and print” policy: “An ‘official policy’ often refers to
formal rules or understandings . . . that are intended to, and do, establish fixed plans of action to
be followed under similar circumstances consistently and over time.” Id. (cleaned up).
Operational instructions, on the other hand, deal with how policy is implemented in specific
circumstances.
Justice Corrigan, in her partial concurring opinion in Coblentz v City of Novi, 475 Mich
558; 719 NW2d 73 (2006) (CORRIGAN, J., concurring in part and dissenting in part), examined the
distinction between policy and operational decisions. We find her analysis persuasive and adopt
it here. After acknowledging the definition of policy in In re Certified Question, she reasoned that
the definition should apply equally in FOIA cases.5 But she emphasized “that this definition does
not encompass every decision regarding a course of action made by a governmental entity.” Id. at
593. “[G]overnmental bodies adopt many courses of action that do not guide present or future
decisions. Such decisions may be categorized as ‘operational’ decisions rather than ‘policy’
decisions. Operational decisions concern routine, everyday matters and do not require evaluation
of broad policy factors.” Id. “Operational decisions may also be characterized as ‘the execution
or implementation of previously formulated policy.’ ” Id., quoting Hanson v Vigo Co Bd of
Comm’rs, 659 NE2d 1123, 1126 (Ind App, 1996). Justice Corrigan also cited to the Arizona Court
of Appeals, which offered this insightful analysis of contrasting examples of operational versus
policy decisions:
By way of illustration, a decision by the district board to construct a playground at
a school and allocate funds for that purpose would be a policy decision . . . .
Deciding what specific pieces of equipment to have on the playground would not
be a policy decision, but rather would be an operational level decision. See, e.g.,
Warrington v Tempe Elementary Sch Dist, [187 Ariz 249, 252; 928 P2d 673 (Ariz
App, 1996) ] (school district’s decision regarding placement of bus stop is an
operational level decision); Evenstad [v State], 178 Ariz [578] at 582–84; 875 P2d
[811] at 815–17 (App 1993) (issuance of driver’s license by MVD is an operational
level decision; prescribing rules for issuance is making of policy); Rogers v State,
51 Haw 293, 296–98[;] 459 P2d 378, 381 (Haw 1969) (operational level acts
concern routine, everyday matters, not requiring evaluation of broad policy factors;
5
Coblentz dealt with MCL 15.243(1)(f), which exempts from FOIA disclosure “[t]rade secrets or
commercial or financial information voluntarily provided to an agency for use in developing
governmental policy” if certain requirements are met. Justice Corrigan’s analysis focused on the
meaning of “governmental policy” in this subsection. While this case deals with subsection s(v),
the analysis of policy versus operational decisions is still germane.
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operational acts include kinds of road signs to place and which center line stripes
to repaint); Stevenson v State Dept of Transp, 290 Or 3, 9–12[;] 619 P2d 247, 251–
52 (Or 1980) (decision to build a highway rather than a railroad track is exercise of
governmental discretion or policy judgment entitled to immunity; planning and
design of the road does not involve use of discretion in the sense that a policy
decision is required). [Id. at 593 n 5, quoting Schabel v. Deer Valley Unified School
Dist. No. 97, 186 Ariz. 161, 166; 920 P2d 41 (Ariz App, 1996).]
The use-of-force policy in this case deals with policy, not operations. The term “operational
instructions” would specifically exclude “courses of action that . . . guide present or future
decisions.” Id. at 592-593. 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).
C. MCL 15.243(s)(vii)
Finally, the trial court found that the redacted material was exempted under MCL
15.243(s)(vii), which exempts from disclosure law enforcement agency records, “the release of
which would . . . [e]ndanger the life or safety of law enforcement officers” except in particular
circumstances where “the public interest in disclosure outweighs the public interest in
nondisclosure . . . .” The city submitted affidavits from former Chief Riley and current Chief
Bierling, both of whom speculated that disclosure of the unredacted portions of the policy “would
or could impact safety of the public and/or officers” and “a potential suspect could circumvent
[an] officer’s actions thus placing . . . [the] officer in danger.” (Emphasis added). But MCL
15.243(1)(s)(vii) requires a finding that the release would endanger public safety, not that it would
or could.
Our Supreme Court discussed the distinction between “would” and “could” in Evening
News Ass’n v Troy, 417 Mich 481, 505-506; 339 NW2d 421 (1983). The Court found that there
was a clear distinction between (1) the tentative opinion that an investigation “[c]ould indeed well
be jeopardized” by providing the information requested, and (2) the positive conclusion that
providing the information “would interfere” with the investigation. Id. While Evening News
involved the application of MCL 15.243(1)(b)(i), not MCL 15.243(1)(s)(vii), the exemption
required a positive conclusion that something would happen, just as in this case.6 “Could” and
6
MCL 15.243(1)(b)(i) exempts from disclosure public records that were “compiled for law
enforcement purposes, but only to the extent that disclosure as a public record would . . . [i]nterfere
with law enforcement proceedings.” (Emphasis added).
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“would” are “obviously not the same thing.” Id. at 506. Former Chief Riley and current Chief
Bierling’s speculative statements in their affidavits that endangerment “would or could” occur are
tentative opinions. Because MCL 15.243(1)(s)(vii) requires a positive conclusion, these tentative
opinions are insufficient to meet the city’s burden.
In addition to the affidavits, Chief Bierling testified that the redactions were necessary to
protect the safety of the public and police officers. Once again, he speculated that the redacted
information “could or would” impact the safety of the officers and the public because it could
provide information on how the officers “may use force, may consider using force, or may react
to certain situations, and what they would use in their decision-making process.” Chief Bierling’s
testimony that the redacted information “would or could” impact officer safety is a tentative
opinion, not a positive conclusion. Chief Bierling also testified that release of the unredacted
policy would presumably make his staff “nervous” because they would feel as though they did not
“have an edge.” Chief Bierling’s assumption that the release of information would make officers
nervous is a far cry from establishing that it would endanger them. Chief Bierling further testified
that he “always err[s] on the side of caution” in order to ensure officer safety when making a
decision to redact public records. But erring on the side of caution contradicts the mandates of
FOIA, which is a “prodisclosure statute.” Sole, 509 Mich at 413; Herald, 463 Mich at 119;
Swickard, 438 Mich at 544.
The trial court also failed to make a 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.” (Emphasis added). This is not the positive finding required
by MCL 15.243(1)(s)(vii).
Moreover, the city failed to identify any evidence to support former Chief Riley and Chief
Bierling’s speculative testimony that the disclosure “would or could” potentially endanger the
officers. It was the city’s burden to produce particularized evidence that disclosure would
endanger law enforcement personnel. See Evening News, 417 Mich at 501-502, 503. Former
Chief Riley and Chief Bierling’s speculative opinion testimony is based on the tenuous claim that
“potential suspects” could study the redacted portions of the policy and, somehow, circumvent an
officer’s use-of-force, which would allegedly aid the suspect in resisting arrest. The city failed to
present factual evidence that this scenario was certain to occur. As discussed previously, numerous
other jurisdictions (even those that routinely perform joint operations with the city’s police
department) have opted to make their use-of-force policies easily available to the public via the
internet. Given this easy and widespread exposure, and the similarity in subject matter discussed,
it is telling that the city could not produce any particularized evidence that the availability of these
policies has resulted in endangerment of the life or safety of law enforcement officers, their
families, or the general public. Chief Riley and Chief Bierling’s speculative affidavits are
insufficient to establish the necessary proof. The city has failed to present factual evidence to
establish that the public’s knowledge of the redacted portions of the policy would endanger the
officers.
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.” Because we find that the
city failed to meet its burden to prove that officer endangerment necessarily “would” result from
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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
IV. CONCLUSION
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). We reverse the trial court’s grant of
summary disposition in favor of the city, and we remand for entry of judgment in favor of
Hjerstedt. On remand the trial court shall: (1) order disclosure of the unredacted use-of-force
policy; (2) award Hjerstedt the reasonable attorneys’ fees, costs, and disbursements under MCL
15.240(6); and (3) determine whether Hjerstedt is entitled to punitive damages under MCL
15.240(7).
Reversed and remanded for further proceeding consistent with this opinion. We do not
retain jurisdiction. Hjerstedt, as the prevailing party, may tax costs. MCR 7.219(A).
/s/ Sima G. Patel
/s/ Stephen L. Borrello
/s/ Douglas B. Shapiro
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.
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