Michigan Supreme Court Lansing, Michigan 48909 ____________________________________________________________________________________________ C hief Justice Justices Maura D. Cor rigan Michael F. Cavanagh

Opinion Elizabeth A. Weaver Marilyn Kelly Clifford W. Taylor Robert P. Young, Jr. Stephen J. Markman ____________________________________________________________________________________________________________________________ FILED JULY 25, 2002

FEDERATED PUBLICATIONS, INC, doing business as THE LANSING STATE JOURNAL,

Plaintiff-Appellee,

v No. 118184

CITY OF LANSING,

Defendant-Appellant,

and

CAPITOL CITY LODGE NO. 141 OF THE FRATERNAL ORDER OF POLICE LABOR PROGRAM, INC, and Jane Doe, and John Doe,

Intervening Defendants.

________________________________ FEDERATED PUBLICATIONS, INC, doing business as THE LANSING STATE JOURNAL,

Plaintiff-Appellee,

v No. 118186

CITY OF LANSING,

Defendant,

and CAPITOL CITY LODGE NO. 141 OF THE FRATERNAL ORDER OF POLICE LABOR PROGRAM, INC, Intervening Defendant-Appellant. ________________________________ BEFORE THE ENTIRE BENCH

MARKMAN, J.

In this Freedom of Information Act (FOIA) matter, we are

called upon to consider whether the circuit court erred in

concluding that city police department records regarding

citizen-initiated investigations were not exempt from

disclosure while records regarding department-initiated

investigations were exempt from disclosure under MCL

15.243(1)(s)(ix). We take this opportunity to clarify the

appropriate standards of appellate review of the circuit

court’s determination in a FOIA dispute and the method by

which the circuit court is required to perform its analysis

under § 243(1)(s) of the FOIA.

First, we hold that the application of exemptions

requiring legal determinations are reviewed under a de novo

standard, while application of exemptions requiring

determinations of a discretionary nature, such as the one

presented here, are reviewed under a clearly erroneous

standard. Second, we hold that MCL 15.240(4) of the FOIA

specifically places the burden of proof on the public body to

show that the public record is exempt from disclosure. Third,

in applying the public interest balancing test, the circuit

court should consider the fact that records have been made

exemptible under § 243(1)(s). Fourth, the “particular

instance” language set forth in § 243(1)(s) requires the

circuit court to analyze the FOIA request to determine whether

further categorization of the requested records is required in

order to determine whether the public interest in disclosure

outweighs the public interest in nondisclosure. If further

categorization is required to perform the balancing test, the

circuit court should direct the public body to assist it in

reasonably categorizing the sought-after records.

Because the city released the records regarding citizen­ initiated complaints, that issue has been rendered moot.

Further, with regard to the department-initiated complaints,

we remand this matter to the Court of Appeals for

reconsideration in light of the principles expressed in this

opinion.

I. FOIA OVERVIEW

The Michigan Legislature enacted FOIA, MCL 15.231 et

seq., to provide for the “disclosure of ‘public records’ in

the possession of a ‘public body.’” Kent Co Deputy Sheriff’s

Assoc v Kent Co Sheriff, 463 Mich 353, 360; 616 NW2d 677

(2000), quoting Bradley v Saranac Comm Schs Bd of Ed, 455 Mich 285, 292; 565 NW2d 650 (1997). Affording such public

disclosure effects the state’s policy of providing “full and

complete information regarding the affairs of government and

the official acts of those who represent the people as public

officials.” MCL 15.231(2).

When a party desires to inspect or receive a copy of a

public record, it “shall make a written request [of the public

body] for the public record . . . .”1 MCL 15.235(1). After

receiving a FOIA request, a public body may grant, deny,

grant in part, deny in part, or issue a notice extending (for

not more than ten business days) the period for responding to

the FOIA request. MCL 15.235(2)(a), (b), (c), (d). If a

public body denies the request, in full or in part, it must

explain the basis, under the FOIA or another statute, for its

denial. MCL 15.235(4)(a). A denial may be based upon a

record’s inclusion in one of the enumerated classes of

exemptible records set forth in § 243.

Once a public body denies a FOIA request, the requesting

party may either submit a written appeal to the head of that

public body or commence an action in circuit court. MCL

15.240(1)(a), (b). If the requesting party appeals the matter

to the head of the public body, the public body must either

reverse its denial of disclosure, issue a written notice

A public record is statutorily defined as a “writing prepared, owned, used, in the possession of, or retained by a public body in the performance of an official function, from the time it is created.” MCL 15.232(e).

upholding the denial of disclosure, reverse the denial of

disclosure in part and issue a written notice upholding the

denial of disclosure in part, or issue a notice extending the

period of response for a period not exceeding ten days. MCL

15.240(2)(a), (b), (c), (d). If the public body upholds its

decision to deny the request, in full or in part, the

requesting party may then seek judicial review. MCL

15.240(3).

At issue in the instant case is the FOIA exemption

applicable to personnel records of a law enforcement agency,

§ 243(1)(s)(ix), which provides as follows:

(1) A public body may exempt from disclosure as a public record under this act:

* * *

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

II. FACTS AND PROCEEDINGS

In 1998, plaintiff, Federated Publications (doing

business as The Lansing State Journal), submitted a FOIA

request to defendant, city of Lansing, requesting disclosure

of

any reports or other documents regarding complaints investigated by the Lansing Police Department

Internal Affairs Bureau for the time period of January 1, 1997 through December 31, 1997. To the extent you believe the officers’ identities may be subject to a privacy exemption, the names of the officers may be concealed, though the content of the reports and complaints themselves must be provided.

The city denied plaintiff’s request, asserting that the

records were exempt from disclosure pursuant to §

243(1)(s)(ix), among other provisions of law.2 Instead, the

city voluntarily disclosed a “statistical summary of internal

affairs investigations for the year 1997.” In response to

the city’s denial of its FOIA request, plaintiff filed an

administrative appeal with the city council president. MCL

15.240(1)(a). Plaintiff argued that the public interest in

the subject matter of its request required disclosure of the

records that it had sought. In response, the city provided

a more detailed explanation of its position in opposition to

plaintiff’s FOIA request.

Plaintiff subsequently sued under FOIA for disclosure,

and both parties unsuccessfully moved for summary disposition.

The circuit court observed that it must, first, determine

whether the records were indeed law enforcement personnel

In a letter from defendant to plaintiff, the city also contended that the requested records were exempt pursuant to MCL 15.243(d) (citing MCL 423.501, Employee Right to Know Act). The circuit court and the Court of Appeals rejected this argument below, and this Court limited its review to FOIA issues, specifically those relating to § 243(1)(s)(ix).

records, and, second, weigh the public interest in disclosure

against the public interest in nondisclosure “in each

particular instance.”3

Upon consideration of the various interests at stake, the

court ordered the release of all internal affairs

investigation records, except those relating to department­ generated complaints. Shortly after the circuit court’s

decision, the city, as well as intervening defendant Capital

City Lodge, filed an emergency motion in the Court of Appeals

for a stay of the circuit court proceedings. After initially

granting the motion, the Court of Appeals vacated its order.

Without taking any further action, the city then released the

non-exempt citizen-generated complaint records to plaintiff.

The Court of Appeals subsequently affirmed the circuit

court’s decision in part and reversed in part. After

observing that “FOIA embodies this state’s strong public

policy favoring public access to government information,” the

Court stated that defendants failed to satisfy their statutory

burden of producing evidence explaining why the public

interest in nondisclosure of the records outweighed the public

interest in disclosure. Consequently, it ruled that all the

Before renewing these motions for summary disposition, defendant Capitol City Lodge No 141 of the Fraternal Order of Police was granted permission to intervene in the present lawsuit.

requested records were subject to disclosure. Unpublished

opinion per curiam, issued November 14, 2000 (Docket Nos.

218331, 218332).

Defendants filed separate applications for leave to

appeal in this Court. We granted leave, limited to “whether

the requested files were exempt from disclosure under

§ 243(1)(s)(ix) . . . .” 465 Mich 910 (2001).

III. STANDARD OF REVIEW

We are required in this case to determine whether the

circuit court properly applied § 243(1)(s)(ix) in determining

that the department-initiated records were exempt and that the

citizen-initiated investigation records were not exempt under

the FOIA. This Court has not had prior occasion to enunciate

the specific standard of review applicable to this inquiry.4

We conclude that a circuit court’s decision regarding the

applicability of exemptions to public records does not

automatically require de novo review.

Although the FOIA expressly addresses the standard that

governs a circuit court’s review of a public body’s own

This Court has, without elaboration, applied a de novo standard of review in some FOIA cases. In cases applying a de novo standard, this Court has either assumed that the application of a FOIA exemption is purely an issue of statutory interpretation, see, e.g., Bradley, supra at 293, or has reviewed the matter in the context of a summary disposition motion, see, e.g., Herald Co v Bay City, 463 Mich 111, 117; 614 NW2d 873 (2000).

determination of what public records must be disclosed,5 it is

silent regarding the standard that governs appellate review

of the circuit court’s decision. Therefore, we turn to our

case law to determine the appropriate standard of review. As

stated above, questions of law are reviewed de novo. Factual

findings and matters of discretion, on the other hand, are

generally reviewed either for clear error or an abuse of

discretion. See, e.g., People v Barrera, 451 Mich 261, 269;

547 NW2d 280 (1996).

Several statutory exemptions exist in the FOIA.

Depending on the particular language of an exemption, judicial

determinations of its applicability may implicate different

standards of appellate review. We hold that the application

of exemptions involving legal determinations are reviewed

under a de novo standard. Lincoln v General Motors Corp, 461 Mich 483, 489-490; 607 NW2d 73 (2000). Exemptions involving

discretionary determinations, such as application of the

instant exemption requiring a circuit court to engage in a

Section 240(4) provides in relevant part:

In an action commenced under subsection (1)(b), a court that determines a public record is not exempt from disclosure shall order the public body to cease withholding or to produce all or a portion of a public record wrongfully withheld, regardless of the location of the public record.

The circuit court . . . has venue over the action.

The court shall determine the matter de novo . . . .

balancing of public interests, should be reviewed under a

deferential standard. We therefore hold that the clearly

erroneous standard of review applies to the application of

exemptions requiring determinations of a discretionary nature.

A finding is “clearly erroneous” if, after reviewing the

entire evidence, the reviewing court is left with the definite

and firm conviction that a mistake has been made. In re

Miller, 433 Mich 331, 337; 445 NW2d 161 (1989).

IV. DISCUSSION

As stated on numerous occasions by this Court, the

primary goal of judicial interpretation of statutes is to

discern and give effect to the intent of the Legislature.

This Court discerns that intent by examining the specific

language of a statute. If the language is clear, this Court

presumes that the Legislature intended the meaning it has

plainly expressed and the statute will be enforced as written.

Pohutski v City of Allen Park, 465 Mich 675, 683; 641 NW2d 219

(2002). Unless otherwise defined in the statute, or

understood to have a technical or peculiar meaning in the law,

every word or phrase of a statute will be given its plain and

ordinary meaning. See MCL 8.3a.

A. BURDEN OF PROOF

Defendant urges this Court to embrace its position that

the FOIA requester carries the burden of proving that the

public interest in the disclosure of public records outweighs

the public interest in nondisclosure. Specifically, defendant

argues that the public body is required initially only to

establish that public records sought under the FOIA fall

within one of the exemptible categories, in this instance,

that the records were “personnel records of law enforcement

agencies.” Once established, defendant contends that the

burden of demonstrating that the public interest in disclosure

outweighs that of nondisclosure shifts to the requester. In

support of its view, defendant focuses on the following

language in § 243(1)(s): “[u]nless the public interest in

disclosure outweighs the public interest in nondisclosure in

the particular instance.” Plaintiff, in response, argues

that § 240(4) places the burden of proof on the public body.

Further, plaintiff maintains that the language in § 243(1)(s)

neither conflicts with nor alters the burden of proof set

forth in § 240(4). We agree with plaintiff.

First, § 240(4) provides:

In an action [in the circuit court to compel disclosure under the FOIA], . . . [t]he court shall determine the matter de novo and the burden is on the public body to sustain its denial. [Emphasis added.]

This language plainly states that the burden of proof is on

the public body to demonstrate why it is entitled to protect

a record from disclosure.

Second, the language of § 240(4) is consistent with that

of § 243(1)(s). The latter provision merely sets forth the

public interest balancing test. When read together with the

introductory language in § 243(1), this provision states that

a public body may exempt from disclosure a class of public

records identified in § 243(1)(s), unless the “public interest

in disclosure outweighs the public interest in nondisclosure”

in the particular instance. In light of the express language

of § 240(4), we do not view § 243(1)(s) as allocating the

burden of proof in FOIA matters; rather, it merely prescribes

a balancing test for determining whether a class of records

is exemptible.

In sum, in determining which party bears the burden of

proof regarding the applicability of a FOIA exemption, we have

no reason to depart from the settled principle that the burden

of proof is on the party asserting that a record is exempt

under the FOIA.6 Accordingly, we hold that the language set

forth in § 240(4) controls and places the burden of proof on

the public body to show that it is entitled to protect a

record from disclosure.

B. “PUBLIC INTEREST ”

In carrying out its public interest balancing under §

See, e.g., Herald Co, supra at 119; Bradley, supra at 293; Evening News Ass’n v Troy, 417 Mich 481, 503; 339 NW2d 421 (1983).

243(1)(s), a circuit court is confronted in each case with

differing public interest considerations. In undertaking this

balancing, however, the circuit court must consider the fact

that the inclusion of a record within an exemptible class

under § 243(1)(s) implies some degree of public interest in

the nondisclosure of such a record. In contrast with the

universe of public records that are non-exemptible, the

Legislature has specifically designated these classes of

records as exemptible. That is, some attribute of these

records has prompted the Legislature to designate them as

subject to disclosure only upon a finding that the public

interest in disclosure predominates. However, we emphasize

that these records are merely exemptible and not exempt, and

that exemption is not automatic. Nonetheless, in performing

the requisite balancing of public interests, the circuit court

should remain cognizant of the special consideration that the

Legislature has accorded an exemptible class of records .

C. “PARTICULAR INSTANCE ”

As stated previously, a public body may exempt from

disclosure certain classes of records, including law

enforcement personnel records, “[u]nless the public interest

in disclosure outweighs the public interest in nondisclosure

in the particular instance . . . .” MCL 15.243(1)(s)

(emphasis added). In the emphasized phrase at issue, the

first significant word is “particular,” which means

“pertaining to a single or specific person, thing, group . .

. not general.” Random House Webster’s College Dictionary

(2001). Next, there is “instance,” which means “a case or

occurrence of something.” Id. In light of this language, we

believe that public records reviewed under the FOIA balancing

test must be organized within reasonably specific categories

that enable the circuit court to weigh similar competing

aspects of the public interest. In some cases, it may be

clear that the FOIA request is comprised of a sufficiently

precise or narrow category of records that the circuit court

can adequately balance the public interests at stake without

the need of further “particular instance” categorization.7

See, e.g., Kent Co, supra at 399, which involved a narrow

request for records on which disciplinary decisions regarding

two prison guards were based.

Conversely, a FOIA request may be general and entail a

request for records relating to varied subjects, arguably

implicating several different aspects of the public interest.

In such cases, the circuit court may be required to conduct

a “particular instance” categorization of records to enable

it to identify and weigh similar aspects of the public

A FOIA request must “sufficiently” describe the sought-after records. MCL 15.233.

interest in favor of disclosure or nondisclosure.8

The circuit court is charged with balancing the records

sought by a FOIA requester. The more general or complicated

the request, however, the more likely the court is to require

the assistance of the parties, in particular that of the

public body because it has custody of the sought-after

records. Schiffer v FBI, 78 F3d 1405, 1408 (CA 9 1996). The

requester may be unaware of what records the public body

For example, in Newark Morning Ledger Co v Saginaw Co Sheriff, 204 Mich App 215, 216; 514 NW2d 213 (1994), the Court of Appeals determined that, although an exemption may apply to a category of records, “any category must be clearly described and ‘drawn with sufficient precision so that all documents within a particular category are similar in nature.’” Id. at 226, quoting Anderson v Dep’t of Health & Human Services, 907 F2d 936, 944 (CA 10, 1990). The Court of Appeals emphasized that drafting categories with sufficient precision is required because it enables the circuit court to properly balance the competing public interests:

The difficulty with the court’s treatment of the internal affairs investigatory records as a single category is that public interest in disclosure and nondisclosure may vary depending on the circumstances of an investigation, and the nature of the documents produced. For example, the court’s analysis of the public interest in nondisclosure is focused on the potential harm that may result from disclosing information about unfounded allegations of misconduct. That analysis is clearly not applicable to those investigations in which it was determined that the employee had engaged in wrongdoing. Yet, in determining the applicability of the exemption, the court did not distinguish between investigations in which the allegations were determined to be clearly unfounded, and those that even the department found warranted disciplinary action. [Newark, supra at 225.]

possesses, how such records have been categorized, or the

precise nature of their contents. Such a disparity in

information suggests that the public body will often be in the

best position to categorize the information sought to be

disclosed. Vaughn v Rosen, 157 US App DC 340, 343-344; 484

F2d 820 (1973).9

Therefore, if because of the diverse nature of the

records sought, the circuit court is unable to apply the

statutory public interest balancing test, the court should

direct the public body to assist it in reasonably categorizing

the sought-after records.

V. APPLICATION

A. CITIZEN -INITIATED COMPLAINTS

As stated above, the city released the citizen-initiated

complaints to plaintiff. Therefore, we must determine whether

a claimed exemption for those records was rendered moot by

their release.

The principal duty of this Court is to decide actual

cases and controversies. Anway v Grand Rapids R Co, 211 Mich 592, 610; 179 NW 350 (1920). To that end, this Court does not

reach moot questions or declare principles or rules of law

that have no practical legal effect in the case before us

unless the issue is one of public significance that is likely

See also Evening News Ass’n, supra at 503.

to recur, yet evade judicial review. Id.; see also In re

Midland Publishing, 420 Mich 148, 152, n 2; 362 NW2d 580

(1984).

Applying these principles to the present case, we hold

that any existing “controversy” regarding whether the citizen

complaint records were properly ordered to be disclosed was

rendered moot by their release.10 A decision from this Court

regarding the released records would have no practical legal

effect. Defendants are advocating the nondisclosure of the

citizen complaint records; they want to ensure that these

records remain secret. Yet, because the city has already

publicly released these records, they are obviously no longer

“secret.” No decision by this Court can transform disclosed

records into nondisclosed records.

Further, this case does not present an issue that is

likely to recur yet regularly evade judicial review. Quite

simply, all that the city would have had to do here to secure

review of this issue was to appeal the disclosure order to

this Court. A similar course of action is open to a public

body that finds itself situated in the city’s circumstances

in the future.

See, e.g., Regional Mngt Corp Inc v Legal Services Corp, 186 F3d 457 (CA 4, 1999).

B. DEPARTMENT -INITIATED COMPLAINTS

The Court of Appeals, not having had the benefit of this

opinion clarifying the appropriate standards of review

applicable to this FOIA matter, engaged in a de novo review

of the circuit court’s determination that the department­ initiated investigation records were exempt from disclosure

under § 243(1)(s)(ix). Because we hold today that the clearly

erroneous standard of review applies to exemptions involving

discretionary determinations, we believe that it is necessary

to remand this matter to the Court of Appeals for

reconsideration of its determination that the circuit court

erred in holding that the department-initiated internal

affairs investigation files were exempt from disclosure.

Should the Court of Appeals on remand find that it is not

“left with the definite and firm conviction that a mistake has

been made,” Miller, supra at 337, it must affirm the circuit

court’s grant of summary disposition.

VI. CONCLUSION

We hold that: (1) Depending on the language of the

particular FOIA exemption at issue, the circuit court may be

entitled to a level of deference that is not accorded to legal

issues. Where, as here, application of the statutory

exemption requires the circuit court to exercise discretion,

the appellate court must apply a clearly erroneous standard

of review. (2) The public body has the burden of establishing

that records are exempt from disclosure under the FOIA. (3)

In applying the public interest balancing test pursuant to

§ 243(1)(s), the circuit court should consider the fact that

the records have been designated as exemptible by the

Legislature. (4) The “particular instance” language set forth

in § 243(1)(s) requires the trial court to analyze the FOIA

request to determine whether further categorization is needed

to conduct the proper balancing of the public interests

involved.

We therefore remand this matter to the Court of Appeals

for reconsideration in light of the principles expressed in

this opinion. We do not retain jurisdiction.

CORRIGAN , C.J., and CAVANAGH , KELLY , TAYLOR , and YOUNG , JJ.,

concurred with MARKMAN , J.

S T A T E O F M I C H I G A N

SUPREME COURT

FEDERATED PUBLICATIONS, INC, doing business as THE LANSING STATE JOURNAL, Plaintiff-Appellee, v No. 118184 CITY OF LANSING, Defendant-Appellant, and CAPITOL CITY LODGE NO. 141 OF THE FRATERNAL ORDER OF POLICE LABOR PROGRAM, INC, and Jane Doe, and John Doe, Intervening Defendants. ________________________________ FEDERATED PUBLICATIONS, INC, doing business as THE LANSING STATE JOURNAL, Plaintiff-Appellee, v No. 118186 CITY OF LANSING, Defendant, and CAPITOL CITY LODGE NO. 141 OF THE FRATERNAL ORDER OF POLICE LABOR PROGRAM, INC, Intervening Defendant-Appellant. ________________________________

WEAVER, J. (concurring).

I concur in the result of the majority opinion, but write

separately to make clear that the inclusion of certain classes

of records within those exemptible under MCL 15.243(1)(s)

creates no presumption of exemption.

The Legislature has not indicated that the mere inclusion

of a record within an exemptible class of records is to be

accorded weight in favor of nondisclosure where the statute

requires a balancing of the public interest in disclosure

versus the public interest in nondisclosure. The inclusion

of a record within an exemptible class means that the record

may be, under certain circumstances, exempt from disclosure.

It remains incumbent upon the public body to “sustain its

denial” of disclosure of exemptible records. MCL 15.240(4).

Thus, I do not agree with the majority suggestion that the

“circuit court must consider the fact that the inclusion of

a record within an exemptible class under § 243(1)(s) implies

some degree of public interest in the nondisclosure . . . .”

Slip op at 13.

It is the policy of the Freedom of Information Act to

afford the public “full and complete information regarding the

affairs of government . . . .” MCL 15.231(2). In light of

this express policy, one would assume that the Legislature

intended that the balancing of the public interest in

disclosure versus its interest in nondisclosure under MCL

15.243(1)(s) at least be conducted on level ground. According

weight to nondisclosure because of the Legislature’s mere

inclusion of a class of records among those that are

exemptible tips the scale in favor of nondisclosure and is,

therefore, inconsistent with a fair balancing of the public

interest.