American Civil Liberties Union of Michigan v. Calhoun County

Michigan Supreme Court

Lansing, Michigan Chief Justice: Justices:

Syllabus Bridget M. McCormack Brian K. Zahra

David F. Viviano Richard H. Bernstein Elizabeth T. Clement Megan K. Cavanagh Elizabeth M. Welch

This syllabus constitutes no part of the opinion of the Court but has been Reporter of Decisions: prepared by the Reporter of Decisions for the convenience of the reader. Kathryn L. Loomis

AMERICAN CIVIL LIBERTIES UNION OF MICHIGAN v CALHOUN COUNTY

SHERIFF’S OFFICE

Docket No. 163235. Decided February 4, 2022.

The American Civil Liberties Union of Michigan (the ACLU) filed a complaint in the Calhoun Circuit Court against the Calhoun County Jail; the ACLU subsequently filed an amended complaint naming the Calhoun County Sheriff’s Office (the CCSO) as the defendant. The ACLU alleged that the CCSO violated Michigan’s Freedom of Information Act (FOIA), MCL 15.231 et seq., when it denied the ACLU’s request for documents under FOIA. The ACLU sought disclosure of all records related to the December 2018 detention of United States citizen Jilmar Benigno Ramos-Gomez. Ramos-Gomez’s three-day detention at the Calhoun County Correctional Facility occurred pursuant to an Intergovernmental Service Agreement executed between United States Immigration and Customs Enforcement (ICE) and the jail. The CCSO denied the ACLU’s request, asserting that the requested records were exempt from disclosure under MCL 15.243(1)(d) because they related to an ICE detainee. The ACLU filed its amended complaint, and the CCSO moved for summary disposition, arguing that the ACLU’s FOIA request was appropriately denied under MCL 15.243(1)(d) because the records and information sought by the ACLU were not public records subject to disclosure by the CCSO under 8 CFR 236.6 and 81 Fed Reg 72080 (October 19, 2016). The CCSO cited Soave v Dep’t of Ed, 139 Mich App 99 (1984), in support of its position that MCL 15.243(1)(d) includes federal regulations. The ACLU filed a cross-motion for partial summary disposition. The court, John A. Hallacy, J., granted the CCSO’s motion for summary disposition, ruling that it did not have the authority to order the CCSO to disclose the records in light of MCL 15.243(1)(d) and 8 CFR 236.6 and that the ACLU’s exclusive remedy was to request the records from ICE. The ACLU appealed in the Court of Appeals, and the Court of Appeals, MURRAY, C.J., and M. J. KELLY and RICK, JJ., affirmed, holding that 8 CFR 236.6 constituted a basis to exempt public records from disclosure under MCL 15.243(1)(d). American Civil Liberties Union of Mich v Calhoun Co Jail, unpublished per curiam opinion of the Court of Appeals, issued March 25, 2021 (Docket No. 352334). In so ruling, the Court of Appeals relied on Mich Council of Trout Unlimited v Dep’t of Military Affairs, 213 Mich App 203 (1995), which cited Soave. The ACLU moved for reconsideration, and the Court of Appeals denied the motion. The ACLU sought leave to appeal.

In a unanimous opinion by Justice ZAHRA, the Supreme Court, in lieu of granting leave to appeal and without hearing oral argument, held:

A regulation cannot serve as the basis for exempting from disclosure public records under MCL 15.243(1)(d) because a regulation is not a statute; Soave and Trout Unlimited were overruled insofar as those cases ignored the Legislature’s deliberate linguistic choice in MCL 15.243(1)(d). FOIA requires disclosure of the public records of a public body to persons who request to inspect, copy, or receive copies of those requested public records. However, FOIA sets forth a series of exemptions granting the public body the discretion to withhold a public record from disclosure if it falls within one of the exemptions. MCL 15.243(1)(d) provides, in relevant part, that a public body may exempt from disclosure as a public record records or information specifically described and exempted from disclosure by statute. In this case, the CCSO invoked federal law, 8 CFR 236.6, in denying the ACLU’s FOIA request. 8 CFR 236.6 provides, in relevant part, that no person, including any state or local government entity or any privately operated detention facility, that houses, maintains, provides services to, or otherwise holds any detainee on behalf of ICE (whether by contract or otherwise), and no other person who by virtue of any official or contractual relationship with such person obtains information relating to any detainee, shall disclose or otherwise permit to be made public the name of, or other information relating to, such detainee. 8 CFR 236.6 further provides that this information shall be under the control of ICE and shall be subject to public disclosure only pursuant to the provisions of applicable federal laws, regulations, and executive orders and that insofar as any documents or other records contain such information, those documents shall not be public records. The Court of Appeals erred by holding that “exempted from disclosure by statute” in MCL 15.243(1)(d) really meant exempted from disclosure by statute or regulation. The Court of Appeals relied on the fact that a federal regulation has the legal force of a federal statute; however, a federal regulation is not a federal statute. Moreover, the Court of Appeals holding was at odds with the plain language of MCL 15.243(1)(d). When MCL 15.243(1)(d) was enacted, the relevant definition of “statute” was “[a]n act of the legislature declaring, commanding, or prohibiting something; a particular law enacted and established by the will of the legislative department of government; the written will of the legislature, solemnly expressed according to the forms necessary to constitute it the law of the state.” Accordingly, a regulation promulgated by an executive-branch agency is not a statute. Had the Legislature wanted a regulation to be a basis for exemption, it could have easily included two additional words in MCL 15.243(1)(d): “or regulation.” The Legislature has done just that in various other statutes. Therefore, an exemption that only uses the word “statute” is plainly different from an exemption that uses the words “statute or regulation” or “statute or court rule.” Moreover, the procedure for creating a statute differs from that of creating a regulation, and that difference in process further supported the conclusion that a regulation is not a statute and that a regulation cannot serve as a basis for exempting public records from disclosure under MCL 15.243(1)(d). Finally, with regard to the caselaw, Trout Unlimited did not engage in an independent analysis of whether a federal regulation can serve as a basis for exempting public records from disclosure under MCL 15.243(1)(d); Trout Unlimited merely cited Soave, which itself relied on a federal district court case to conclude that reliance on a federal regulation to exempt a document under MCL 15.243(1)(d) was proper. Accordingly, Soave and Trout Unlimited were overruled insofar as those cases ignored the Legislature’s deliberate linguistic choice in MCL 15.243(1)(d).

Court of Appeals holding reversed, Soave and Trout Unlimited overruled as to their erroneous interpretations of MCL 15.243(1)(d), and case remanded to the Calhoun Circuit Court.

Michigan Supreme Court

Lansing, Michigan Chief Justice: Justices:

OPINION Bridget M. McCormack Brian K. Zahra

David F. Viviano Richard H. Bernstein Elizabeth T. Clement Megan K. Cavanagh Elizabeth M. Welch

FILED February 4, 2022

STATE OF MICHIGAN

SUPREME COURT

AMERICAN CIVIL LIBERTIES UNION OF MICHIGAN,

Plaintiff-Appellant, v No. 163235 CALHOUN COUNTY SHERIFF’S OFFICE,

Defendant-Appellee.

BEFORE THE ENTIRE BENCH ZAHRA, J.

This action involves a request for documents under Michigan’s Freedom of Information Act (FOIA), MCL 15.231 et seq. Pursuant to the express terms of that act, certain information may be exempted from disclosure. One exemption is found in MCL 15.243(1)(d), which provides that “[a] public body may exempt from disclosure . . . [r]ecords or information specifically described and exempted from disclosure by statute.” We must decide whether a federal regulation with a nondisclosure component, 8 CFR 236.6 (2021), 1 can be the basis for exempting public records from disclosure under MCL 15.243(1)(d). We hold that it cannot, for the simple reason that a regulation is not a statute. We reverse the Court of Appeals’ holding to the contrary, and we overrule Soave v Dep’t of Ed 2 and Mich Council of Trout Unlimited v Dep’t of Military Affairs 3 as to their erroneous interpretations of MCL 15.243(1)(d). We remand this case to the Calhoun Circuit Court for further proceedings.

I. BASIC FACTS AND PROCEDURAL HISTORY Plaintiff, the American Civil Liberties Union of Michigan (the ACLU), submitted a January 23, 2019 FOIA request 4 to defendant, the Calhoun County Sheriff’s Office (the CCSO), 5 seeking disclosure of all records related to the December 2018 detention of United States citizen Jilmar Benigno Ramos-Gomez. 6 Ramos-Gomez’s three-day detention at the Calhoun County Correctional Facility occurred pursuant to an Intergovernmental Service Agreement (IGSA) executed between United States Immigration and Customs Enforcement (ICE) and the jail. 7 The CCSO denied the ACLU’s request, asserting that the requested records were exempt from disclosure under MCL 15.243(1)(d) because they related to an ICE detainee. 8

The ACLU filed a complaint in the Calhoun Circuit Court, alleging that the CCSO violated FOIA by denying its request. In response, the CCSO moved for summary disposition under MCR 2.116(C)(8) (failure to state a claim on which relief can be granted) and (10) (no genuine issue of material fact), arguing that the ACLU’s FOIA request was appropriately denied under MCL 15.243(1)(d) because the records and information sought by the ACLU were not public records subject to disclosure by the CCSO under 8 CFR 236.6 and 81 Fed Reg 72080 (October 19, 2016). The CCSO cited Soave 9 in support of its position that MCL 15.243(1)(d) includes federal regulations. The ACLU filed a cross- motion for partial summary disposition under MCR 2.116(C)(9) (failure by the opposing party to state a valid defense to the claim asserted) and (10).

The circuit court granted the CCSO’s motion for summary disposition and denied the ACLU’s cross-motion for partial summary disposition. The circuit court ruled that it did not have the authority to order the CCSO to disclose the records in light of MCL 15.243(1)(d) and 8 CFR 236.6 and that the ACLU’s exclusive remedy was to request the records from ICE.

The ACLU appealed in the Court of Appeals, and the Court of Appeals affirmed. 10 The Court of Appeals held that the federal regulation at issue, 8 CFR 236.6—which was promulgated by the Department of Homeland Security (DHS) Secretary pursuant to a federal statute, the Immigration and Nationality Act, 8 USC 1101 et seq.—constitutes a basis to exempt public records from disclosure under MCL 15.243(1)(d), which provides for exemption of records or information as “a public record” when such records or information are specifically described and exempted from disclosure by statute. In so ruling, the Court of Appeals relied on Trout Unlimited, 11 which itself cited Soave, 12 and it rejected the ACLU’s reliance on Detroit Free Press, Inc v Warren. 13 The ACLU moved for reconsideration, and the Court of Appeals denied the motion. Thereafter, the ACLU sought leave to appeal in this Court. Concluding that oral argument is unnecessary to resolve the dispute presented by this case, we reverse the Court of Appeals judgment for the reasons stated in this opinion.

II. STANDARD OF REVIEW

The interpretation of state or federal regulations is a question of law that is reviewed de novo. 14 Statutory interpretation is also a question of law that we review de novo. 15 “The primary goal of statutory interpretation is to ascertain the legislative intent that may reasonably be inferred from the statutory language.” 16 The first step in that determination is to review the language of the statute itself. 17 When statutory language is unambiguous, no further judicial construction is required or permitted because the Legislature is presumed to have intended the meaning it plainly expressed by the words it chose. 18

This Court reviews de novo a trial court’s decision on a motion for summary disposition to determine if the moving party is entitled to judgment as a matter of law. 19 In this case, the trial court did not expressly indicate whether it granted defendant’s motion under MCR 2.116(C)(8) or (10), but because it considered affidavits and documentary evidence beyond the pleadings, we can fairly surmise that it granted the motion under MCR 2.116(C)(10). 20 A motion under MCR 2.116(C)(10) tests the factual sufficiency of a complaint. 21 When faced with such a motion, a trial court considers affidavits, pleadings, depositions, admissions, and other evidence submitted by the parties, MCR 2.116(G)(5), in the light most favorable to the party opposing the motion. Where the proffered evidence fails to establish a genuine issue regarding any material fact, the moving party is entitled to judgment as a matter of law.[22] permitted and the statute is enforced as written.”) (quotation marks and citation omitted). See also People v Pinkney, 501 Mich 259, 268; 912 NW2d 535 (2018).

III. ANALYSIS

FOIA is a prodisclosure statute. 23 It “requires disclosure of the ‘public record[s]’ of a ‘public body’ to persons who request to inspect, copy, or receive copies of those requested public records.” 24 “However, § 13 of FOIA sets forth a series of exemptions granting the public body the discretion to withhold a public record from disclosure if it falls within one of the exemptions.” 25 The exemption at issue in this case, MCL 15.243(1)(d), provides, in relevant part, “A public body may exempt from disclosure as a public record . . . [r]ecords or information specifically described and exempted from disclosure by statute.” 26 A public body may withhold public records only when it has been proven that an exemption applies. 27 If a FOIA request is denied and the requesting party commences an action to compel disclosure of a public record, the public body bears the burden of sustaining its decision to withhold the requested record from disclosure. 28

In this case, the CCSO invoked federal law in denying the ACLU’s FOIA request. Under the Immigration and Nationality Act, the DHS Secretary “shall have control, direction, and supervision of all employees and of all the files and records of the Service,” 29 and the Secretary “shall establish such regulations; . . . issue such instructions; and perform such other acts as he deems necessary for carrying out his authority under the provisions of this chapter.” 30 Pursuant to those provisions, the Secretary promulgated 8 CFR 236.6, which provides:

No person, including any state or local government entity or any privately operated detention facility, that houses, maintains, provides services to, or otherwise holds any detainee on behalf of the Service[31] (whether by contract or otherwise), and no other person who by virtue of any official or contractual relationship with such person obtains information relating to any detainee, shall disclose or otherwise permit to be made public the name of, or other information relating to, such detainee. Such information shall be under the control of the Service and shall be subject to public disclosure only pursuant to the provisions of applicable federal laws, regulations and executive orders. Insofar as any documents or other records contain such information, such documents shall not be public records. This section applies to all persons and information identified or described in it, regardless of when such persons obtained such information, and applies to all requests for public disclosure of such information, including requests that are the subject of proceedings pending as of April 17, 2002.[32] The Court of Appeals erred by holding that “exempted from disclosure by statute” in MCL 15.243(1)(d) really means “exempted from disclosure by statute or regulation.” 33 In reaching this conclusion, the Court of Appeals relied on the fact that a federal regulation has the legal force of a federal statute. 34 But it does not logically follow that a federal regulation therefore is a federal statute. More importantly, the Court of Appeals holding is at odds with the plain language of MCL 15.243(1)(d). When this statute was enacted, the relevant definition of “statute” was “[a]n act of the legislature declaring, commanding, or prohibiting something; a particular law enacted and established by the will of the legislative department of government; the written will of the legislature, solemnly expressed according to the forms necessary to constitute it the law of the state.” 35 A regulation promulgated by an executive-branch agency is therefore not a statute. If the Legislature wanted a regulation to be a basis for exemption, it would have included language to that effect. But it did not, and we interpret the statute as written. 36

In general, the procedure for creating a statute differs from that of creating a regulation. That difference in process further supports our conclusion that a regulation is not a statute and that a regulation cannot serve as a basis for exempting public records from disclosure under MCL 15.243(1)(d). At the federal level, for a bill to become law, it must clear the constitutionally mandated hurdle of bicameralism and presentment: a bill must be passed by a simple majority vote of both houses of Congress and then be signed into law by the President or, alternatively, be passed into law by a two-thirds vote of both houses of Congress either in the first instance or following a presidential veto. 37 In contrast, in the context of federal regulations, an executive agency can unilaterally promulgate a regulation pursuant to its authority derived from its organic statute(s) 38 and in accordance with the requirements of the Administrative Procedure Act, 5 USC 500 et seq. 39 The same basic dichotomy exists in Michigan. 40

Had the Legislature wanted to “exempt from disclosure as a public record . . . [r]ecords or information specifically described and exempted from disclosure” either by statute or by regulation, it could have easily done so simply by including two additional words in MCL 15.243(1)(d): “or regulation.” Indeed, the Legislature has proven itself capable of doing exactly that in various other statutes. For example, MCL 400.105b(6) provides that “[t]he department of community health shall not implement incentives under this section that conflict with [a] federal statute or regulation.” 41 And MCL 409.118 provides that employment of a minor “shall not be in violation of a federal statute or regulation . . . .” 42 Similar examples of the Legislature’s understanding that a statute is not a regulation abound. 43 What’s more, the Legislature has also provided for a Social Servs, 431 Mich 172, 177-178; 428 NW2d 335 (1988) (noting that Michigan’s APA “requires public hearings, public participation, notice, approval by the joint committee on administrative rules, and preparation of statements, with intervals between each process”). nonstatutory basis for exemption in FOIA itself. Four subdivisions beneath MCL 15.243(1)(d), MCL 15.243(1)(h) provides, in relevant part, that “[a] public body may exempt from disclosure as a public record . . . [i]nformation or records subject to the physician-patient privilege, the psychologist-patient privilege, the minister, priest, or Christian Science practitioner privilege, or other privilege recognized by statute or court rule.” 44 An exemption that only uses the word “statute” is plainly different from an exemption that uses the words “statute or regulation” or “statute or court rule.” As simple as it would have been for the Legislature to include in MCL 15.243(1)(d) just two additional words—“or regulation”—their absence here is dispositive. We are bound to respect the Legislature’s linguistic choice, 45 and we thereby conclude that a regulation cannot be the basis for exemption under the plain language of MCL 15.243(1)(d) because a regulation is not a statute.

Finally, we assess the applicability of the two cases on which the Court of Appeals relied, and the one it rejected, to reach its holding in this case: that a federal regulation can Resources to “provide a copy of [an] order to the relevant legislative committees . . . does not apply to an order that does not alter the substance of a lawful provision that exists in the form of a statute, rule, regulation, or order at the time the order is prepared”) (emphasis added); MCL 333.5477(2) (providing that “[t]he application of sanctions [to persons who engage in a lead-based paint activity in violation of the Public Health Code] does not preclude the application of other sanctions or penalties contained in the provisions of any other federal, state, or political subdivision statute, rule, regulation, or ordinance”) (emphasis added). serve as a basis for exempting public records from disclosure under MCL 15.243(1)(d). The Court of Appeals cited Trout Unlimited, but that case did not engage in independent analysis of this question. 46 Instead, Trout Unlimited merely cited Soave, which itself reasoned that “[s]ince agency regulations promulgated by the federal government have the force of federal statutory law, Wyoming Hospital Ass’n v Harris, 527 F Supp 551, 557 (D Wy, 1981), reliance upon a federal regulation to exempt a document [under MCL 15.243(1)(d)] is proper.” 47 The Court of Appeals also rejected the ACLU’s reliance on Detroit Free Press, which held that because “MCL 15.243(1)(d) plainly includes only statutes, and not rules of procedure, F R Crim P 6(e) cannot serve as a basis for exemption” under MCL 15.243(1)(d). 48 The Court of Appeals’ rationale for following Trout Unlimited and Soave rather than Detroit Free Press to hold that a federal regulation can be the basis for an exemption under MCL 15.243(1)(d) boils down to its observation that federal regulations have the force and effect of federal statutory law, unlike the federal rules of criminal procedure at issue in Detroit Free Press. For the reasons already expressed, we reject this distinction on the basis of the plain text of MCL 15.243(1)(d). 49 Consequently, we overrule Soave and Trout Unlimited, which perfunctorily cited Soave, insofar as those cases ignored the Legislature’s deliberate linguistic choice in MCL 15.243(1)(d).

IV. CONCLUSION

A regulation cannot serve as the basis for exempting from disclosure public records under MCL 15.243(1)(d) because a regulation is not a statute. Accordingly, we reverse the Court of Appeals’ holding to the contrary, and we overrule Soave and Trout Unlimited as to their erroneous interpretations of MCL 15.243(1)(d). We remand this case to the Calhoun Circuit Court for further proceedings.

Brian K. Zahra Bridget M. McCormack David F. Viviano Richard H. Bernstein Elizabeth T. Clement Megan K. Cavanagh Elizabeth M. Welch

United States v Cowan, 524 F2d 504, 505 (CA 5, 1975) (“The Federal Rules of Criminal Procedure have the force and effect of law. Just [like] a statute . . . .”), quoting Dupoint v United States, 388 F2d 39, 44 (CA 5, 1967).