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________________________________ Michigan Supreme Court Lansing, Michigan 48909

C hief Justice Justices Maura D. Corrigan Michael F. Cavanagh Elizabeth A. Weaver Marilyn Kelly Clifford W. Taylor Robert P. Young, Jr. 

# Opinion

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. Inthis Freedom of Information Act (FOIA) matter, we are calledupon to consider whether the circuit court erre d i n 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 approp ri ate standards of appellate review of the circuit court’s determination in a FOIA dispute and the method by

w

hich t he circuit court is required to perform its analysis under § 243(1)(s) of the FOIA. First, we hold that th e a pplication of exemptions requiring legal determinations are r evie wed under a de novo standard, while application of exemptions requiring determinations of a discretionary nature, suc h as the one presented here, are reviewed under a cl early erroneous stand ard. Second, we hold that MCL 15.240(4) of th e FOI A specifically places the burden of proof on the public body to show that the public record is exempt from disclosure. Third, inapplying the public interest balanci ng t est, the circuit 2court should consi der the fact that records have been made exemptible under § 243(1)(s). Fo urth, 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

ou twei ghs the public interest in nondisclosure. If further categorizationis 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 citizeninit ia ted complaints, that issue has been rendered moot. Further, with regard to the department-initiated complaints,

we remand this matter to the Court of Ap pea ls for reconsideration in light of the principles expressed in this opinion. I. FOIA O VERVIEW T he Mi chigan Legislature enacted FOIA, MCL 15.231 et seq. , to provide for the “d isclos ure of ‘public records’ in the possession of a ‘public body.’” Kent Co Deputy Sheriff’s A ssoc v Kent Co Sheriff, 463 Mich 353, 360; 616 NW2d 67 7 ( 2000), quo ting Bradley v Saranac Comm Schs Bd of Ed, 455 Mich285, 292; 565 NW2d 650 (1997). Affording such public disclosure effects the state’s policy of providing “full and 3complete 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 rec ord . . . . ” 1 MCL 15.235(1). After receiving a FOIA request, a public body may grant, deny, grant inpart, 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 reques t, in full or in part, it must explainthe basis, under the FOIA or another statute, for its denial. MCL 15.2 35(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 t he pu blic body, the public body must either

reverse its denial of disclosure, issue a written notice

1 A publi c re cord 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). 4upholding the denial of disclosure, reverse t he d enial of disclosure in part and issue a written not ice up holding 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 decisionto 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 di sclosure outweighs the public interest i n nondisclosure in the pa rtic ular 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. F ACTS AND P ROCEEDINGS In1998, plaintiff, Federated Public ati ons (doing business as The Lansing State Journal), submit ted a FOIA request to defendant, city of Lansing, requesting disclosure of any reports or other documents regarding complaints i nvestigatedby the Lansing Police Departmen t 5Internal 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 priva cy exe mption, the names of the officers may be concealed, though th e cont ent of the reports and complain ts t hemselves must be provided. The city denied plaintiff’s request, asserting that the records were exempt from disclosure pursuant to § 243(1)(s)(ix ), amo ng other provisions of law. 2 Instead, the city voluntarily discloseda “statistical summary of internal affairs investigations for the year 1997.” In res ponse t o the city’s denial of its FOIA request, plaint iff fil ed an administrative appeal with th e city council president. MCL 15.240(1)(a). Plaint if f argued that the public interest in the subject matter of its request required disclosure of the

recor ds that it had sought. In response, the city provided a more detailed explanation of its positionin oppositionto plaintiff’s FOIA request. Plaintiff subsequently sued under FOIA for discl osur e, andboth parties unsuccessfully moved for summary disposition. The circuit court observed that it must, firs t, determine whether the records were indeed law enforceme nt personnel

2 Ina 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). 6records, and, second, weigh the public interest in disclosure against th e pub lic interest in nondisclosure “in each particular instance.” 3 Uponconsideration of the various interests at stake, the court ordered the release of all internal affairs investigat ion records, except those relating to departmentgenerated complaints. Shortly after t he c ircuit 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 A ppeals subsequently affirmed the circuit court’s de cision 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 burdenof producin g evidence explaining why the public interest in nondisclosure of the records outweighedthe public interest in disclosure. Consequently, it ruled that all the

3 Before renewing these motions for summary disposition, defendant Capitol City Lodge No 141 of the Fraternal Order of Pol ice was granted permission to intervene in the present lawsuit. 7requested records were subject to disclosure. Unp ublished opinionper curiam, issued November 14, 2000 (D ocket Nos. 218331, 218332). Defendants filed separat e ap plications for leave to appeal in this Court. We grantedleave, limited to “whether the requested files w ere e xempt from disclosure under § 243(1)(s)(ix) . . . .” 465 Mich 910 (2001). III. S TANDARD OF R EVIEW 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 th is inq uiry. 4 We conclude that a circuit court’s decision regarding the applicability of exemptions to publi c records does not automatically require de novo review. Althoughthe FOIA expressly addresses the standard that governs a circuit court ’ s review of a public body’s own

4 This Court has, without elaboration, applied a de novo standard of review in some FOIA cases. In cases applying a de novo standard, this Cou rt has either assumed that the applicationof a FOIA exemp tion i s purely an issue of statutory interpretation, see, e.g., Bradley, supra at 293, or has reviewed the matter in the context of a summary dispositionmotion, see, e.g., Herald Co v Bay City , 463 Mich 111, 117; 614 NW2d 873 (2000) . 8determinationof what public records must be disclosed, 5 it is silent regarding the standard that governs a ppellate review of the circuit court’s decision. Therefor e, 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 erro r or an abuse of discretion. See, e.g., People v Barrera , 451 Mich 261, 269; 547 NW2d 280 (1996). Several statutory e xemp tions exist in the FOIA. Depending on the particular language of an exemption, judicial determinations of its a ppli cability may implicate different standards of appellate review. We hold that the application of exemptions involving legal determinations ar e re viewed under a de novo standard. Lincoln v General Motors Corp , 461 Mich 483, 489-490; 607 NW2d 73 (2000). Exemptions involving discretionary determinations , su ch as application of the instant exemption requiring a circuit court to engage in a

5 Section 240(4) provides in relevant part: Inan action commenced under subsection (1)(b), a court that determines a public record is not ex empt from disclosure shall order the public body to ce ase withholding or to produce all or a portionof a public record wrongfully withheld, regardless of the location of the public record. The circuit court . . . has venue over the action. The court sha ll determine the matter de novo

. . . . 9balancing of public interests, should be revi ew ed under a deferential standard. We therefore hold that t he clearly

erroneous standa rd of review applies to the application of exemptions requiring determinations of a discretionary nature. A

finding is “clearly erroneous” if, a fter reviewing the entire evidence, the reviewing court is left with the definite andfirm conviction that a mistake has be en made . In re Miller , 433 Mich 331, 337; 445 NW2d 161 (1989). IV. DISCUSSION As stated on numerous occasions by this Co urt, the primary goal of judicial interpretation of statut es is to discernand give effect to the intent of the Legi slature . This Court discerns that intent by examining the sp ecific language of a statute. If the language is clear, this Court presumes that the Legislature intended the meanin g it has plainly expressedand the statute will be enforced as written. Pohutski v City of Allen Park , 465 Mich675, 683; 641 NW2d 219 (2002). Unles s otherwise defined in the statute, or understood to have a technical or peculiar meaning inthe law, every word or phrase of a statute will be given its plain and ordinary meaning. See MCL 8.3a. A. B URDEN OF P ROOF Defendant urges this Court to embrace its position that the FOIA requester carries the burden of proving that th e 10public interest in the disclosure of public records outweighs the public interest in nondisclosure. Specifically, defendant argues that the public body is required initi ally on ly to establishthat public record s soug ht under the FOIA fall wi thin o ne of the exemptible categories, in this instance, that the r ec ords were “personnel records of law enforcement agencies.” Once established, defendant conte nds that the burdenof demonstrating that the public interest in disclosure outweighs that of nondisclosure shifts to the requester. In suppor t 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.” Plaint iff, in response, argues that § 240(4) places the burdenof proof on the public body. Further, plaintiff maintains that the language in§ 243(1)(s) neither conflicts with nor alters the burden of proo f set forth in § 240(4). We agree with plaintiff. First, § 240(4) provides: Inan action[ in the circuit court to compel disclosure under the FOIA], . . . [t]he court shall determine the matter de novo and the burdenis on the public body to sustain its denial . [Emph asi s added.] Th is langu age plainly states that the burden of proof is on the public body to demonstrate why it is entitled to protect a record from disclosure.

11Second, the language of § 240(4) is consistent withthat of § 243(1)(s). The latter provision mere ly sets forth the public interest balancing test. When read together withthe introductory language in§ 243(1), this provision states that

a public b ody may exempt from disclosure a class of public records identified in § 243(1)(s), unless the “public interest indisclosure outweighs the public interest in nondisclosure” inthe particular instance. In light of the express language of § 240(4), we do not view § 243(1)(s) as al lo cating the burdenof proof in FOIA matters; rather, it merely prescribes

a balancing test for determin ing whether a class of records is exemptible. In s um, 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 t he partyasserting that a record is exempt under the FO IA . 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 enti tled to protect a record from disclosure. B. “P UBLIC I NTEREST ” Incarrying out it s public interest balancing under §

6 See, e.g., Herald Co, supra a t 119; Bradley, supra at 293; Evening News Ass’n v Troy , 417 Mich 481, 503; 33 9 NW2 d 421 (1983). 12243(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 exem ptible class under § 243(1)(s) impl ies some degree of public interest in the nondisclosure of such a record. In contr ast with the universe of public records that are n on-e xemptible, the Legislature has specifically designated thes e cl asses of records as exemptible. That is, some attribute of t hese records has prompted the Legislature to desig na te them as subject to disclosure only upon a finding tha t the p ublic interest in disclosur e 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 shouldremain cognizant of the special consideration that the Legislature has accorded an exemptible class of records . C. “P ARTICULAR I NSTANCE ” As stated previ ously, a public body may exempt from disclosure certain classes of records, i nclu ding law enforcement personnel records, “[u]nless the public interest in disclosure outweighs the public interest in nondisclosure inthe particular instance . . . .” MCL 15.243(1)(s) (emphasis added). In t he emphasized phra se at issue, the

13fir st s ignificant word is “particular,” which means “pertaining to a single or specific person, thing, group . .

. not gener al.” Random House Webster’s College Dictionary (2001). Next, t here 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 withinreasonably specific categories that enable the circuit court to weigh similar c ompeti ng aspects of the public interest. In some cases, i t may be clear that the FOIA request is comprised of a sufficiently precise or narrow category of records that the circuit court

canadequately balance the public interests at stake without the need of further “particular inst ance” categorization. 7 Se e, e.g., Kent Co , supra at 399, which involved a narro w request for records on which disciplinary decisions regarding two prison guards were based. Conv ersely, a FOIA request may be general and entail a request for records relating to varied subjects, ar gua bly implicating several different aspects of the public interest. Insuch cases, the cir cuit cou rt may be required to conduct

a “particular in stance” categorization of records to enable it to identif y and weigh similar aspects of the public

7A FOIA request must “sufficiently” desc ribe the sought-after records. MCL 15.233. 14interest in favor of disclosure or nondisclosure. 8 The circuit court is charged with balancing the records sought by a FOIA requester. The mo re g eneral or complicated the request, however, the more likely the court is to require the assistance of the parties, i n pa rticular that of the public body because it h as cus tody of the sought-after records. Schiffer v FBI, 78 F3d 1405, 1408 (CA 9 1996). The requester may be unaware of what records the p ubli c body

8 For example, in N ewa rk Morning Ledger Co v Saginaw Co Sheriff, 204 MichApp 215, 216; 514 NW2d 213 (1994), the Court of Appeals determined that, althoughan exemption may apply to a category of records, “any category must be clearly described and ‘drawn with sufficient precision so that all documents withina 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 precisionis 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 focusedon the potential harm that may result from disclosing information about unfoundedallegations of misconduct. That analysis is clearly not applicable to those investigations inwhich it was determined that the employee had engagedin wrongdoing. Yet, in de termi ning the applicability of the exemption, the court did not distinguishbetween 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.] 15possesses, how such records have been categor iz ed, or the precise nature of their conten ts. Su ch a disparity in informationsuggests that the public body will often be in the best position to categorize the in formation sought to be disclosed. Vaughn v R osen, 157 US App DC 340, 343-344; 484 F2d 820 (1973). 9 Ther ef ore, if because of the diverse nature of the records sought, the circuit court is unable to app ly the statutory public interest balancing test, the court should direct the public body to assist it inreasonably categorizing the sought-after records. V. A PPLICATION A. C ITIZEN -I NITIATED C OMPLAINTS 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 princ ipal 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

r eachmoot questions or declare principles or rules of law that have no practical legal effect in the case b efore u s unless the issue is one of public significance that is likely

9 See also Evening News Ass’n, supra at 503. 16to recur, yet evade judicial review. Id.; see also In re Midland Publishing , 420 Mich 14 8, 152, n 2; 362 NW2d 580 (1984). Appl yi ng these principles to the present case, we hold that any existing “controversy” regarding whether the citizen complaint reco rd s were properly ordered to be disclosed was rendered moot by their release. 10 A decision from this Court regarding the releasedrecords would have no practical legal effect. Defendants are advocating the nondisclos ur e of the citizencomplaint records; they want to ensure th at these records remain secret. Yet, because the city has alread y publicly released these records, they are obviously no longer “secret.” No decision by this Court can transform disclosed records into nondisclosed records. Furt her, this case does not present an issue tha t i s likely to recur yet regularly evade judicial review. Qu ite simply, all that the city would have had to do here to secure review of th is issue was to appeal the disclosure order to this Court. A similar cours e of actio n is open to a public body that finds itse lf situated in the city’s circumstances in the future.

10 See, e.g., Regional Mngt CorpInc v Legal Services Corp , 186 F3d 457 (CA 4, 1999). 17B. D EPARTMENT -I NITIATED C OMPLAINTS The Court of Appeals, not having had the benefit of this opinionclarifying the appropriate standar ds o f review applicable to this FOIA ma tter, en gaged in a de novo review of the circuit court’s determination that the de partmentinitiated inve stigation 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 reconsiderationof its determ in ation that the circuit court erredin holding that the department-initiated internal affairs inve stigation files were exempt from disclosure. Shouldthe Court of Appeals on remand find th at it is not “left with the definite and firm convictionthat a mistake has been made,” Miller , supra at 337, it must affirm the circuit court’s grant of summary disposition. VI. C ONCLUSION We hold that: (1) Depending on the langu a ge of the particular FOIA exemption at issue, the circuit court may be entitledto 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 erro ne ous standard
18of review. (2) The public body has the burden of establishing that records are exempt from disclosure under the FOIA. (3) Inapplyin g the public interest balancing test pursuant to § 243(1)(s), the circuit court should consider the fact that the r ec ords 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 i n light of the principles expressed in this opinion. We do not retain jurisdiction. C ORRIGAN , C.J., and C AVANAGH , K ELLY , T AYLOR , andY OUNG , JJ., concurred with M ARKMAN , J.

19S 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 certainclasses 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 rec ord within an exemptible class of records is to be

acco rd ed weight in favor of nondisclosure where the statute requires a balancing of the public interest in di sclosure

versus the public interest in nondisclosure. T he 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 “s ustain its denial” of disclosure of exemptible records. MCL 15.240(4). Thus, I do not agree with the majo rity suggestion that the “ci rcuit court must consider the fact that the inclusion o f

a recordwithinan 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 Fre edom of Information Act to affordthe public “full and complete informationregarding the affairs of gover nment . . . .” MCL 15.231(2). In light of t his express policy, one would assume that the Legis latur e intendedthat the balancing of t he public interest in disclosure versus its interest in nondisclosure un der MCL

215.243(1)(s) at least be conducted onlevel ground. According weight to nondisclosure because of the Legisl atu re’s mere inclusionof a class of records among those that are exemptible tips the scale in f avor of nondisclosure and is, therefore, inconsi st ent with a fair balancing of the public interest.

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