Michigan Supreme Court
Lansing, Michigan
Chief Justice: Justices:
Opinion Clifford W. Taylor Michael F. Cavanagh
Elizabeth A. Weaver
Marilyn Kelly
Maura D. Corrigan
Robert P. Young, Jr.
Stephen J. Markman
FILED JUNE 6, 2007
DIANE BUKOWSKI and MICHIGAN CITIZEN,
Plaintiffs-Appellees,
v No. 129409
CITY OF DETROIT,
Defendant-Appellant.
_______________________________
MEMORANDUM OPINION.
The single issue we consider in this case is whether the “frank
communication” exemption, MCL 15.243(1)(m), of the Freedom of Information
Act (FOIA), exempts communications and notes that are no longer preliminary to
a final agency determination of policy or action, even if those communications and
notes were preliminary at the time that they were made. The Court of Appeals
held that the frank communication exemption does not protect from disclosure
communications and notes that are no longer preliminary to a final agency
determination of policy or action. We reject that holding. The phrase
“preliminary to a final agency determination of policy or action” forms part of the
statutory definition of a “frank communication.” The statutory definition,
however, contains no reference to the timing of the FOIA request. Thus, it is only
pertinent whether those communications and notes were preliminary to a final
agency determination at the time they were created, not whether they were
preliminary at the time the FOIA request was made. Accordingly, we reverse the
Court of Appeals judgment and remand this case to the trial court for further
proceedings consistent with this decision.
I. FACTS AND PROCEDURAL HISTORY
In May 2000, Detroit Police Chief Benny Napoleon directed Deputy Chief
Walter Shoulders to head a three-person Executive Board of Review to investigate
a perceived problem of police officer misconduct, particularly by Officer Eugene
Brown,1 and the department’s subsequent mishandling of investigations of that
misconduct. In October 2000, the board completed and compiled its findings and
recommendations in a written document known as the Shoulders Report. The
Shoulders Report included information about the shootings, facts about Officer
Brown’s background, training, and disciplinary history, and interviews from
eyewitnesses, coworkers, and other persons.
In June 2002, plaintiff Diane Bukowski, a reporter with coplaintiff
Michigan Citizen, sought a copy of the Shoulders Report through a FOIA request.
Defendant denied the request, invoking exemptions under MCL 15.243(1)(b)(i)
1
Officer Brown had been involved in the fatal shootings of three civilians
and the wounding of a fourth in four separate incidents from 1995 to 1999.
2
and (ii),2 and the frank communication exemption, MCL 15.243(1)(m). Plaintiffs
subsequently filed suit against defendant, seeking the report pursuant to the FOIA.
Both sides moved for summary disposition. Defendant conceded in the trial court
that it was no longer relying on the exemption in MCL 15.243(1)(b) because the
Wayne County Prosecutor had declined to file charges against Officer Brown.
Defendant, however, continued to assert the frank communication exemption and
also claimed that the report was exempt under the law enforcement personnel
records exemption, MCL 15.243(s)(ix).3
The trial court granted in part and denied in part the parties’ motions for
summary disposition. It ruled that “the government has met its burden of proving
that much of the Shoulders report is exempt and those portions of the report that
2
MCL 15.243(1)(b)(i) and (ii) state, in pertinent part:
(1) A public body may exempt from disclosure as a
public record under this act any of the following:
* * *
(b) Investigating records compiled for law
enforcement purposes, but only to the extent that disclosure
as a public record would do any of the following:
(i) Interfere with law enforcement proceedings.
(ii) Deprive a person of the right to a fair trial or
impartial administrative adjudication.
3
Defendant also maintained that the Employee Right to Know Act, MCL
423.509(2), protected from disclosure certain information taken from Brown’s
personnel file.
3
are not specifically exempted and are pure and factual are discoverable.” It
ordered the redaction of the deliberative portions of the Shoulders Report and
ordered disclosure of the factual material to plaintiffs. The trial court denied
plaintiffs’ request for an in camera inspection of the report.
Both sides appealed the trial court’s decision. The Court of Appeals, in an
unpublished opinion per curiam, reversed the trial court and remanded for further
proceedings.4 With respect to the frank communication exemption, the panel
opined:
Plaintiff argues that, although the Shoulders Report may have
been prepared as “preliminary to a final agency determination of
policy or action,” the frank communications exemption does not
apply because there is no evidence that the Shoulders Report is
currently preliminary to any agency determination of policy or
action. We direct the trial court to address this issue on remand. On
remand, the court should take into account that MCL 15.243(1)(m)
provides that the frank communications exemption applies only if
the communications “are preliminary to a final agency
determination of policy or action” (emphasis added), not “were
preliminary to a final agency determination of policy or action.”
Thus, if the Shoulders Report contains communications that are no
longer preliminary to an agency determination of policy or action,
the frank communications exemption does not apply to these
communications. [Slip op at 5-6.]
4
Bukowski v Detroit, unpublished opinion per curiam of the Court of
Appeals, issued May 26, 2005 (Docket No. 256893).
4
The panel remanded so the trial court could apply the frank communication
exemption consistent with its ruling and could separate the purely factual material
in the process.5
Defendant filed an application for leave to appeal in this Court. We
ordered oral argument on the application, specifically requesting the parties to
address
whether the Court of Appeals erred in instructing the Wayne Circuit
Court, on remand, that the Freedom of Information Act “frank
communications” exemption, MCL 15.243(1)(m), does not apply to
communications that are no longer preliminary to an agency
determination of policy or action, even if the communications were
preliminary at the time that they were made. [477 Mich 960 (2006).]
II. STANDARD OF REVIEW
This Court reviews questions of statutory interpretation de novo.6 The goal
of statutory interpretation is to give effect to the Legislature’s intent as determined
from the language of the statute.7 In order to accomplish this goal, this Court
interprets every word, phrase, and clause in a statute to avoid rendering any
5
The Court of Appeals also held that the trial court misapplied the burdens
in the balancing test found in the personnel records exemption. It remanded the
case to the trial court for proper application of the exemption.
Finally, the Court rejected plaintiffs’ argument on cross-appeal that the trial
court erred in rejecting their requests for an in camera inspection of the Shoulders
Report.
6
Herald Co v Eastern Michigan Univ Bd of Regents, 475 Mich 463, 470;
719 NW2d 19 (2006).
7
Miller v Miller, 474 Mich 27, 30; 707 NW2d 341 (2005).
5
portion of the statute nugatory or surplusage.8 We give the words of a statute their
plain, ordinary meaning unless the Legislature employs a term of art.9
III. ANALYSIS
The frank communication exemption, MCL 15.243(1)(m), states in
pertinent part:
(1) A public body may exempt from disclosure as a public
record under this act any of the following:
* * *
(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 . . . . [Emphasis added.]
In Herald Co, this Court examined the frank communication exemption.
Drawing from the text of this provision and other portions of the FOIA, we set
forth a framework for courts to apply the frank communication exemption. First,
the public body seeking to withhold the document bears the burden of establishing
the exemption. Second, the public record sought to be withheld from disclosure
must meet the three-part statutory definition of a “frank communication”: (1) it is
a communication or note of an advisory nature made within a public body or
8
Herald Co, supra, 475 Mich at 470.
9
Veenstra v Washtenaw Country Club, 466 Mich 155, 160; 645 NW2d 643
(2002); MCL 8.3a.
6
between public bodies, (2) it covers other than purely factual material, and (3) it is
preliminary to a final agency determination of policy or action. Third, if the
public record qualifies as a “frank communication,” the trial court must engage in
the balancing test and determine if the public interest in encouraging frank
communication clearly outweighs the public interest in disclosure. Finally, if the
trial court determines that the frank communication should not be disclosed, the
FOIA still requires the trial court to redact the exempt material and disclose the
purely factual material within the document. 10
The Court of Appeals instructed the trial court that
the frank communications exemption applies only if the
communications “are preliminary to a final agency determination of
policy or action” (emphasis added), not “were preliminary to a final
agency determination of policy or action.” Thus, if the Shoulders
Report contains communications that are no longer preliminary to an
agency determination of policy or action, the frank communications
exemption does not apply to these communications. [Slip op at 6.]
The Court of Appeals misconstrued the frank communication exemption because
the requirement that communications or notes “are preliminary to a final agency
determination of policy or action” has nothing to do with the timing of the FOIA
request. Rather, this phrase speaks to the purpose of the communications or notes
at the time of their creation. The first sentence of MCL 15.243(1)(m) provides the
definition of a “frank communication.” It qualifies what types of communications
and notes are eligible for exemption under this provision. The phrase “are
10
Herald Co, supra, 475 Mich at 475.
7
preliminary to a final agency determination of policy or action” modifies
“communications and notes.”11 The inclusion of this limiting phrase signifies the
Legislature’s intent to exclude from the ambit of the frank communication
exemption those communications and notes that were not preliminary to a final
agency determination of policy or action when they were created. Therefore,
plaintiffs’ and Justice Kelly’s reliance on the Legislature’s use of the present tense
“are” in that phrase is misplaced. Our reading of the statute gives effect to the
present tense of the verb because the communications or notes “are preliminary to
a final agency determination” at the time they are created.12
Moreover, we find additional textual support in other FOIA exemptions
where the Legislature drafted explicit time limits when an exemption ceases to
protect a public record. For instance, MCL 15.243(1)(i) exempts “[a] bid or
proposal by a person to enter into a contract or agreement, until the time for the
public opening of bids of proposals, or . . . until the deadline for submission of
11
The communications or notes, in addition to being “preliminary to a final
agency determination of policy or action” must also be (1) of an advisory nature
made within a public body or between public bodies that (2) covers other than
purely factual material.
12
Justice Kelly argues that there was no longer a need for frank
communications at the time of the FOIA request. However, before that
determination is made by balancing the competing interests, a court must first
consider whether “frank communications” are at issue. One part of the definition
of a frank communication is that the communications and notes “are preliminary
to a final agency determination” at the time they are created. Unless the
communications and notes satisfy this part of the definition, the public body
cannot successfully invoke this exemption.
8
bids or proposals has expired.” (Emphasis added.) Similarly, MCL 15.243(1)(j)
exempts “[a]ppraisals of real property to be acquired by the public body until”
either “an agreement is entered into” or “three years have elapsed since the
making of the appraisal, unless litigation relative to the acquisition has not yet
terminated.” MCL 15.243(1)(p) exempts particular types of testing data
developed by a public body except that the exemption ceases to apply “after 1 year
has elapsed from the time the public body completes the testing.” The absence of
similar explicit time limits in the frank communication exemption supplies further
evidence that the Legislature intended this exemption to apply to communications
and notes after the final agency determination of policy or action has been made.13
13
Both sides present arguments unrelated to the statutory language at issue.
Defendant argues that it would be poor public policy if the frank communication
exemption ceased to apply to a public record once the agency makes its final
determination. Plaintiffs argue that the legislative history behind the frank
communication exemption supports their interpretation of the provision, and they
draw parallels between this statute and similar provisions in the federal FOIA.
Justice Kelly also relies heavily on legislative history, the federal FOIA, the
“general purpose” of the FOIA to disclose public records, and the notion that
FOIA exemptions are to be narrowly construed. As the plain language in the
statute is sufficient to discern the Legislature’s intent and to resolve this case, we
decline to consider these nontextual arguments.
Justice Kelly makes the astonishing argument that adherence to the
statutory language makes a court “deliberately uninformed” and more prone to
impose its policy preferences. Whether or not statutory construction is difficult,
we are certain that, far and away, the most “reliable source” of legislative intent is
the plain language of a statute. Judicial power is most menacing when a court
feels free to roam in search of interpretive cues that are unmoored to the statutory
language. Therefore, we are not inclined to inform ourselves of extratextual
sources where the language of the statute is plain. When grammar is the
(continued…)
9
For these reasons, we reject the Court of Appeals reading of the frank
communication exemption. We reverse the judgment of the Court of Appeals on
this issue, and we remand this case to the trial court for further proceedings
consistent with this opinion.
Clifford W. Taylor
Maura D. Corrigan
Robert P. Young, Jr.
Stephen J. Markman
________________________________
(…continued)
constructive tool of choice, all can readily ascertain what a statute commands. But
when extratextual tools are brought to bear on otherwise unambiguous language,
only judges can say what the statute “means”—and then only after the fact. We
prefer interpretive methods available to all.
10
STATE OF MICHIGAN
SUPREME COURT
DIANE BUKOWSKI and MICHIGAN
CITIZEN,
Plaintiffs-Appellees,
v No. 129409
CITY OF DETROIT,
Defendant-Appellant.
CAVANAGH, J. (concurring in the result only).
The majority holds that the plain language of the “frank communications”
exemption, MCL 15.243(l)(m), of the Freedom of Information Act (FOIA)
exempts communications and notes that were preliminary to an agency
determination of policy or action at the time they were created. Although I agree
with the result reached by the majority and much of its reasoning, I write
separately because I would not rely solely on a textualist approach to statutory
interpretation in this case.
Certainly, statutory interpretation must begin with an examination of the
language of the statute. But it is often helpful to use other methods of statutory
interpretation, such as legislative history, when a statute is susceptible to different
interpretations. Particularly applicable in this case is the maxim that “[i]f the
meaning of a statute is unclear, a court must consider the object of the statute and
apply a reasonable construction that best accomplishes the Legislature’s purpose.”
Rowell v Security Steel Processing Co, 445 Mich 347, 354; 518 NW2d 409
(1994). While FOIA is intended to be a pro-disclosure statute, the frank
communications exemption recognizes a valid public interest in encouraging frank
communications within public bodies during deliberations. Allowing disclosure of
all preliminary communications once a final determination has been made would
undermine the valid interest in encouraging frank communications. But this
exemption is not without bounds: the balancing test associated with the frank
communications exemption is vital to ensuring that the exemption does not engulf
the general rule, which favors disclosure. Accordingly, I concur in the result
reached by the majority.
Michael F. Cavanagh
2
STATE OF MICHIGAN
SUPREME COURT
DIANE BUKOWSKI and MICHIGAN
CITIZEN,
Plaintiffs-Appellees,
v No. 129409
CITY OF DETROIT,
Defendant-Appellant.
WEAVER, J. (dissenting).
I concur with Justice Kelly’s well-reasoned dissent and note that the
majority’s decision further reduces the public’s ability to use the Freedom Of
Information Act (FOIA) to learn how the people’s business is conducted.
Elizabeth A. Weaver
STATE OF MICHIGAN
SUPREME COURT
DIANE BUKOWSKI and MICHIGAN
CITIZEN,
Plaintiffs-Appellees,
v No. 129409
CITY OF DETROIT,
Defendant-Appellant.
KELLY, J. (dissenting).
The issue presented is whether the “frank communications” exemption1 of
the Michigan Freedom of Information Act2 (FOIA) applies to communications and
notes that were preliminary to final agency action when made but were no longer
preliminary when requested. A majority of this Court has decided that the
exemption applies as long as the communications were preliminary to final agency
action at the time of their creation. Because I find this result to be inconsistent
with the statutory language, the legislative history, and the purpose of the
exemption, I must respectfully dissent.
1
MCL 15.243(1)(m).
2
MCL 15.231 et seq.
FACTS
Plaintiffs Diane Bukowski, a news reporter, and the Michigan Citizen, a
newspaper, sought release of the Shoulders Report from defendant City of Detroit.
An Executive Board of Review (EBR) of the Detroit Police Department wrote the
report.3 Its preparation was occasioned by the involvement of Detroit police
officer Eugene Brown in numerous shooting incidents that left three people dead
and six injured. The Detroit Police Department undertook internal investigations
into Officer Brown’s conduct. After public concern was expressed at the response
of the department to Officer Brown’s actions, the chief of police directed the EBR
to review the internal investigations. The EBR’s mission was to review Brown’s
actions and the department’s response to those actions.
On June 6, 2002, plaintiffs filed a FOIA request for a complete copy of the
Shoulders Report. Defendant denied the request, stating:
Your request is denied pursuant to MCL 15.243(1)(b)(i) and
(ii) for the reason that the report you requested is an investigating
record compiled for law enforcement purpose[s] and disclosing the
report would interfere with law enforcement proceedings and
deprive Officer Brown and others [of] the right to a fair trial or
impartial administrative adjudication. Moreover, contained in the
Shoulder[s] report are communications and notes with[in] a public
body of an advisory nature to the extent they cover other than purely
factual material and are preliminary to a final agency determination
of policy or action. Accordingly, your request is also denied
pursuant to MCL 15.243(1)(m).
3
The report gets its name from Deputy Chief Walter Shoulders. Deputy
Chief Shoulders was appointed as chairman of the EBR.
5
On December 6, 2002, plaintiffs filed a complaint seeking release of the
report. Both sides filed motions for summary disposition. Defendant continued to
assert that the report was exempted by the frank communications exemption and
also claimed that it was exempt under the “law enforcement personnel records”
exemption, MCL 15.243(s)(ix).4 After oral argument on the motions, the trial
court indicated that it would partially grant both motions. The court denied
plaintiffs access to the deliberative portions of the report, determining the material
to be exempt. However, it rejected defendant’s contention that the material was
exempt under the personnel records exemption. Both sides appealed from the trial
court’s decision.
In a unanimous unpublished opinion, the Court of Appeals reversed and
remanded. Unpublished opinion per curiam, issued May 26, 2005 (Docket No.
256893). It decided that the trial court had correctly articulated the personnel
records exemption but incorrectly applied the exemption to determine whether the
public interest in disclosure outweighed the interest in nondisclosure. With
respect to the frank communications exemption, the Court decided that the trial
court had incorrectly applied the balancing test. It also held that the frank
communications exemption “applies only if the communications ‘are preliminary
4
Defendant withdrew its claim of exemption under MCL 15.243(1)(b)
because “at the present time, we do not have any knowledge that there is any law
enforcement proceedings that may be interfered with or that would jeopardize any
rights to a fair trial or impartial adjudication of the matter if the Shoulders report
were to be released.”
6
to a final agency determination of policy or action’ (emphasis added), not ‘were
preliminary to a final agency determination of policy or action.’” Id., slip op at 6.
The Court of Appeals directed the trial court to consider this issue on remand.
Defendant filed a motion for reconsideration challenging the Court of
Appeals decision on the frank communications exemption. The Court of Appeals
denied the motion, and defendant applied for leave to appeal in this Court. This
Court heard oral argument on the application, having directed the parties to
“address whether the Court of Appeals erred in instructing the Wayne Circuit
Court, on remand, that the Freedom of Information Act ‘frank communications’
exemption, MCL 15.243(1)(m), does not apply to communications that are no
longer preliminary to an agency determination of policy or action, even if the
communications were preliminary at the time that they were made.” 477 Mich
960 (2006).
STANDARD OF REVIEW
This Court reviews issues of statutory interpretation de novo. Coblentz v
City of Novi, 475 Mich 558, 567; 719 NW2d 73 (2006). When interpreting a
statute, the task is to ascertain and give effect to “the purpose and intent of the
Legislature by examining the provisions in question. The statutory words must be
considered in light of the general purpose sought to be accomplished.” People v
Smith, 423 Mich 427, 441; 378 NW2d 384 (1985).
7
ANALYSIS
The frank communications exemption to FOIA, MCL 15.243(1)(m), states:
(1) A public body may exempt from disclosure as a public
record under this act any of the following:
* * *
(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.
In Herald Co, Inc v Eastern Michigan Univ Bd of Regents,5 this Court held
that documents are frank communications if (1) they are communications and
notes within a public body or between public bodies of an advisory nature that (2)
cover other than purely factual materials and (3) are preliminary to a final agency
determination of policy or action. Id. at 475. If the documents fail any one of
these threshold qualifications, then the frank communications exemption does not
apply. This case concerns the third element. The issue is whether the requirement
that the communications be preliminary to a final agency determination is
measured from when the documents are created or when disclosure is requested.
The frank communications exemption exempts from disclosure
“[c]ommunications and notes within a public body or between public bodies of an
5
475 Mich 463; 719 NW2d 19 (2006).
8
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 is written in the present tense.6 By using the present tense, the
Legislature has indicated that, at the moment the exemption is invoked, the
communications and notes must be preliminary to a final agency determination or
action.7
Accordingly, the Court of Appeals correctly held that the frank
communications exemption applies only if the communications “are preliminary”
to a final agency determination of policy or action at the time the request is made.
If the Legislature wanted the determinative time to be when the communications
were created, it would have used the word “were.”8 It chose not to do so, and the
statutory language should be understood accordingly. It is not the function of the
courts to rewrite statutes. Hesse v Ashland Oil, Inc, 466 Mich 21, 30-31; 642
NW2d 330 (2002).
6
The word “are” is defined as the present indicative plural and second
person singular of “be.” Random House Webster’s College Dictionary (2001).
7
“Present” is defined as “being, existing, or occurring at this time or now;
current.” Random House Webster’s College Dictionary (2001).
8
By finding that the frank communications exemption applies to
communications that “were” preliminary to final agency action, the majority
ignores MCL 8.3a. This section governs statutory construction and provides that
“words and phrases shall be construed and understood according to the common
and approved usage of the language.” The word “are” does not commonly have
the same definition as the word “were.”
9
MCL 15.243(1) is the provision that gives public bodies the authority to
exempt from disclosure material that falls within the terms of one of the specific
exemptions. It, too, supports a finding that the frank communications exemption
applies only if the communications are preliminary to a final agency action at the
time of the request. MCL 15.243(1) provides that “[a] public body may exempt
from disclosure as a public record under this act any of the following . . . .” This
provision is also written to be applied in the present. This is because the public
body cannot decide whether the requested material falls within one of the
exemptions until a member of the public makes a request for disclosure.
For this reason, it is illogical to look back in time, as the majority
interpretation requires, in deciding whether the requested material is exempt. The
more natural interpretation is to look at the material at the time of the request in
order to decide whether an exemption applies.9 Only if the terms of the exemption
specifically use language indicating that another point in time is determinative
should a point in time other than the present be considered. For example, the
9
Another example of a provision in which the measuring time is
determinative is MCL 15.243(g). It provides an exemption for “[i]nformation or
records subject to the attorney-client privilege.” Information that at one time was
subject to the attorney-client privilege can become unprotected. Thus, the
measuring time is determinative. If the determinative time is when the
communication was created, material that was once exempt will always be
exempt. If the determinative time is when the request is made, material that was
once exempt could be subject to disclosure.
10
majority claims that MCL 15.243(1)(i)10 and (j)11 support their interpretation by
using the word “until.” Actually, these provisions undermine their position,
because they specifically provide that some time in the past, or the future, is
determinative. Unlike them, the frank communications exemption speaks in the
present tense.
Holding that the frank communications exemption applies only if the
communications are preliminary to a final agency determination of policy or
10
MCL 15.243(1)(i) provides:
(1) A public body may exempt from disclosure as a public
record under this act any of the following:
* * *
(i) A bid or proposal by a person to enter into a contract or
agreement, until the time for the public opening of bids or proposals,
or if a public opening is not to be conducted, until the deadline for
submission of bids or proposals has expired.
11
MCL 15.243(1)(j) provides:
(1) A public body may exempt from disclosure as a public
record under this act any of the following:
* * *
(j) Appraisals of real property to be acquired by the public
body until either of the following occurs:
(i) An agreement is entered into.
(ii) Three years have elapsed since the making of the
appraisal, unless litigation relative to the acquisition has not yet
terminated.
11
action at the time of the request is (1) consistent with general purpose of FOIA and
(2) consistent with the rule that FOIA exemptions are to be narrowly construed.
See Herald Co v Bay City, 463 Mich 111, 119; 614 NW2d 873 (2000). The
purpose clause of FOIA, MCL 15.231(2), provides:
It is the public policy of this state that all persons, except
those persons incarcerated in state or local correctional facilities, are
entitled to full and complete information regarding the affairs of
government and the official acts of those who represent them as
public officials and public employees, consistent with this act. The
people shall be informed so that they may fully participate in the
democratic process.
Reading the frank communications exemption to apply only if the
communications are preliminary to final action at the time of the request is
consistent with this purpose. It ensures that citizens will get full and complete
information regarding the affairs of government and the official acts of those who
represent them. The majority’s reading of the statute is inconsistent with this
purpose and allows the exemption to swallow the rule.
It is also helpful to review the legislative history surrounding the particular
exemption at issue. It supports the conclusion that the Legislature meant to extend
the exemption only to those communications that are preliminary to a government
decision at the time of the FOIA request.12 The frank communications exemption
12
This case presents a perfect example of what is wrong with a method of
statutory interpretation that fails to consider all relevant sources in ascertaining
legislative intent. As I have demonstrated, the majority’s interpretation is not the
most natural reading of the statutory language. Rather than test its interpretation
to ensure that it reaches the correct result, the majority ignores numerous other
(continued…)
12
is a revision of the “deliberative process” privilege that existed in Michigan law
before the adoption of FOIA. That privilege, contained at MCL 24.222, was part
of the Administrative Procedures Act13 and exempted from disclosure
“[i]nteragency or intra-agency letters, memoranda, or statements which would not
be available by law to a party other than an agency in litigation with the agency
and which, if disclosed, would impede the agency in the discharge of its
functions.”
________________________________
(…continued)
relevant sources that illustrate that its reading was not intended by the Legislature.
“[T]he ‘minimalist’ judge ‘who holds that the purpose of the statute may be
learned only from its language’ retains greater discretion than the judge who ‘will
seek guidance from every reliable source.’ A method of statutory interpretation
that is deliberately uninformed, and hence unconstrained, increases the risk that
the judge's own policy preferences will affect the decisional process.” BedRoc
Ltd, LLC v United States, 541 US 176, 192; 124 S Ct 1587; 158 L Ed 2d 338
(Stevens, J., dissenting), quoting Barak, Judicial Discretion trans. Yadin
Kaufmann (New Haven: Yale University Press, 1989) p 62.
The majority alleges that it is “astonishing” for me to claim that, by
ignoring all sources aside from the statutory language, it could reach an
uninformed decision. Ante at 9 n 13. The majority is too easily astonished. A
decision that considers more pertinent information is generally more informed
than one that considers less. Of course, I agree with the majority that the statutory
language is a vital indicator of legislative intent. But what is “astonishing” is that
anyone, no matter what the task, would ignore other helpful sources when trying
to reach the correct answer to a difficult question. Ignoring helpful and relevant
sources is not a good way to deal with most difficult decisions in life, and that
includes statutory interpretation.
13
MCL 24.201 et seq.
13
FOIA revised the deliberative process privilege to permit more access by
the public to the government’s workings. In fact, the original proposal for FOIA,
House Bill 6085, specifically included preliminary inter- and intra-agency
communications in the category of writings made available to the public under the
act.14 There was considerable debate over this section, however, with several
agencies objecting to the bill’s failure to grant a deliberative process exemption.
House Legislative Analysis, HB 6085, September 21, 1976. In response, an
amendment was offered to the bill. It read:
13. A public body may exempt from disclosure as a public
record under this act:
* * *
(m) Communications between and within public bodies,
including letters, memoranda, or statements which reflect
deliberative or policy-making processes and are not purely factual,
or investigative matter. [1976 Journal of the House 2842-2843.]
14
The initial version of House Bill 6085 stated:
Section 12. The following categories of writings are
specifically made available to the public under this act if those
writings exist and are not exempt under section 13:
* * *
(g) Communications between public bodies and within
public bodies including preliminary intra[-]agency, interagency, and
intergovernmental drafts, notes, recommendations, and memoranda
in which opinions are expressed or policies discussed or
recommended. [1976 Journal of the House 4152-4153.]
14
Under this amendment, the frank communications exemption would have
applied in this case because there was no requirement that the communications be
preliminary to a final agency determination of policy or action. But the proposed
amendment was defeated.15 Id. at 2843. Two months later, the original sponsor of
the bill, Representative Bullard, proposed an amendment adding what is currently
the frank communications exemption. 1976 Journal of the House 3210-3211.
The legislative history surrounding the adoption of the exemption indicates
that the language used was carefully thought out. The final amendment, the first
one to include the language “are preliminary to a final agency determination of
policy or action,” was a compromise. It reconciled one bill that would have
explicitly allowed disclosure of all inter- and intra-agency communications, with
another that would have explicitly exempted all deliberative communications. By
using the word “are,” the Legislature intended to strike a balance between
exempting all frank communications and no frank communications. The majority
ignores this balance by exempting all nonfactual communications made during the
deliberative process.
The fact that the frank communications exemption of FOIA replaced MCL
24.222 of the Administrative Procedures Act is also relevant. The FOIA
legislation was introduced because it was thought that the access provided by the
15
The defeat of this amendment indicates that the Legislature rejected
exempting all nonfactual communications that occur during the deliberative
process. However, this is exactly the result reached by the majority.
15
Administrative Procedures Act was “insufficient, unclear, and extremely
unspecific.” House Legislative Analysis, HB 6085, September 10, 1976. FOIA
was intended to give the public greater access than it had before. Id. It follows
that the Legislature intended less material to be exempt under the frank
communications exemption than had been exempt under the Administrative
Procedures Act.
MCL 24.222 mirrors the Federal Freedom of Information Act16 exemption
found at 5 USC 552(b)(5).17 For this reason, caselaw interpreting the federal
exemption is instructive in determining what material was exempt under the
Administrative Procedures Act. Int’l Business Machines Corp v Dep’t of
Treasury, 71 Mich App 526, 535; 248 NW2d 605 (1976). The United States
Supreme Court has found that the federal exemption applies to predecisional
communications leading up to final policy or action but not to postdecisional
16
5 USC 552.
17
MCL 24.222 exempted:
Interagency or intra-agency letters, memoranda or statements
which would not be available by law to a party other than an agency
in litigation with the agency and which, if disclosed, would impede
the agency in the discharge of its functions.
5 USC 552(b)(5) exempts
inter-agency or intra-agency memorandums or letters which would
not be available by law to a party other than an agency in litigation
with the agency[.]
16
communications. Nat’l Labor Relations Bd v Sears, Roebuck & Co, 421 US 132,
151-52; 95 S Ct 1504; 44 L Ed 2d 29 (1975). Hence, the United States Supreme
Court has decided that the federal exemption applies to communications that were
preliminary to final action at the time they were created.
By deciding as it does, the majority interprets our exemption consistently
with the federal exemption. This is erroneous because the Legislature rejected this
interpretation when it eliminated the Administrative Procedures Act. In place of
the act, the Legislature enacted FOIA, which was intended to exempt less
information than its predecessor. The majority opinion fails to take cognizance of
this point.
Whether one considers the language of the statute or its legislative history,
the conclusion is inescapable: the Legislature intended the frank communications
exemption to apply only when communications are preliminary to final action at
the time a FOIA request is made. In the present case, advisory communications
and notes that are the subject of the Shoulders Report may have been preliminary
to a final agency determination of policy or action at some point in the past.
However, once the documents were no longer preliminary to agency action, they
should have been immediately released when properly sought under FOIA. The
Court of Appeals was correct in remanding the case to the trial court for a
determination on this issue.
17
CONCLUSION
“When government begins closing doors, it selectively controls information
rightfully belonging to the people.” Detroit Free Press v Ashcroft, 303 F3d 681,
683 (CA 6, 2002) (opinion by Keith, J). This Court closes a door by giving the
frank communications exemption an overly broad reading that the Legislature
never intended. The result of this decision will be that materials that our
Legislature intended to allow the public to access will forever be kept from the
public eye. This decision undermines the very purpose of FOIA, which is to
provide for an informed public so that the people can fully participate in the
democratic process. I respectfully dissent from this erroneous decision.
Marilyn Kelly
18