_______________________________ 

Michigan Supreme Court 

Lansing, Michigan 

Chief Justice: Justices: 

Clifford W. Taylor Michael F. Cavanagh 

Elizabeth A. Weaver Opinion 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
 
v 

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

SUPREME COURT 

DIANE BUKOWSKI and MICHIGAN 

CITIZEN, 

Plaintiffs-Appellees, 

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
 
 

v 

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

SUPREME COURT 

DIANE BUKOWSKI and MICHIGAN 

CITIZEN, 

Plaintiffs-Appellees, 

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 
 

v 

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

SUPREME COURT 

DIANE BUKOWSKI and MICHIGAN 

CITIZEN, 

Plaintiffs-Appellees, 

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