If this opinion indicates that it is “FOR PUBLICATION,” it is subject to 

revision until final publication in the Michigan Appeals Reports.

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

C O U R T O F A P P E A L S

MICHIGAN STATE POLICE TROOPERS 

ASSOCIATION, INC.,

Plaintiff-Appellant,

UNPUBLISHED

July 16, 2020

v No. 350863

Court of Claims

DEPARTMENT OF STATE POLICE, LC No. 19-000030-MK

Defendant-Appellee.

Before: CAVANAGH, P.J., and BECKERING and GLEICHER, JJ.

GLEICHER J. (dissenting).

The Freedom of Information Act (FOIA), MCL 15.231 et seq., requires governmental

agencies to make records and documents publicly available upon request, unless they fall within a 

statutory exemption. Pursuant to a FOIA request made by a reporter for the Detroit Free Press, 

defendant Department of State Police released an internal affairs (IA) investigation report

concerning kickback allegations made against several Michigan State Police employees. Plaintiff 

Michigan State Police Troopers Association, Inc. (MSPTA), the exclusive bargaining 

representative for the Michigan State Police, lodged a grievance against defendant asserting that 

the report was exempt from disclosure and that its release violated the parties’ collective bargaining 

agreement.

The grievance proceeded through several steps without resolution. On the eve of 

arbitration, the parties agreed to hold the grievance process in abeyance so that the MSPTA could 

file a declaratory judgment action in the Court of Claims seeking guidance regarding the legal 

issues underlying their labor dispute. The Court of Claims summarily dismissed the action. 

Regarding two counts of plaintiff’s complaint, the Court of Claims found that because the 

disclosure had already occurred, no actual controversy existed. A third count was dismissed 

because plaintiff failed to identify a legal basis for withholding disclosure other than the FOIA.

The majority holds that plaintiff’s declaratory judgment requests are nonjusticiable, and 

that plaintiff’s failure to plead a reason for withholding the report other than the FOIA doomed its 

claim. I respectfully dissent. 
-2-

I

Plaintiff’s complaint sets forth three counts. Count I is grounded in MCL 15.243(1)(d), 

which permits a public body to withhold “[r]ecords or information specifically described and 

exempted from disclosure by statute.” Plaintiff asserts that the Bullard-Plawecki Employee Right 

to Know Act (ERKA), MCL 423.509(2), requires that reports generated after IA investigations 

must be kept in a separate, confidential file.1 Because these reports were confidential under the 

ERKA, plaintiff argues, they constituted “records . . . exempted from disclosure by statute,” should 

not have been “released,” and that similar reports should be withheld from disclosure in the future.

Court II avers that the IA report qualified as a “personnel record” of a “law enforcement 

agency” under the FOIA, rendering it exempt from disclosure under MCL 15.243(1)(s)(ix). That 

subsection specifically states that “[u]nless the public interest in disclosure outweighs the public 

interest in nondisclosure” the “personnel records of law enforcement agencies” may be exempt 

from disclosure. 

Count III asserts that “[u]pon information and belief,” the IA report at issue “contained 

involuntary statements from law enforcement officers.” Under the Disclosures by Law 

Enforcement Officers Act (DLEOA), MCL 15.395 et seq., the complaint continues, involuntary 

statements made by law enforcement officers are confidential and not subject to disclosure absent 

written consent. These statements “may or may not have [been] redacted” when the reports were 

shared with the newspaper. No written consent was provided, plaintiff alleges, rendering the 

statements exempt from disclosure under MCL 15.243(1)(d).

As to each count, plaintiff sought a declaratory judgement. Alternatively, plaintiff asked 

the court to “enjoin” similar future disclosures. Regarding declaratory relief, in Count I plaintiff 

requested that the court: “Declare that reports created by Defendant following internal affairs 

investigations are exempt from disclosure under the FOIA; MCL15.243(1)(d), and ERKA; MCL 

423.509(2).” Count II entreated that the court:

A. Declare that reports created by Defendant following internal affairs 

investigations are presumptively exempt from disclosure under the Michigan 

 

1 At the time of these events, the statute provided:

If the employer is a criminal justice agency which is involved in the investigation 

of an alleged criminal activity or the violation of an agency rule by the employee, 

the employer shall maintain a separate confidential file of information relating to 

the investigation. Upon completion of the investigation, if disciplinary action is 

not taken, the employee shall be notified that an investigation was conducted. If 

the investigation reveals that the allegations are unfounded, unsubstantiated, or 

disciplinary action is not taken, the separate file shall contain a notation of the final 

disposition of the investigation and information in the file shall not be used in any 

future consideration for promotion, transfer, additional compensation, or 

disciplinary action. [MCL 423.509(2), as amended by 2018 PA 521.]
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Freedom of Information Act, pursuant to MCL 15.243(1)(s)(ix), unless the public 

interest in disclosure outweighs the public interest in nondisclosure. 

B. Declare the public interest in disclosure of the unfounded internal 

investigation reports of Defendant is outweighed by the public interest in 

nondisclosure of those unfounded internal investigation reports.

And Count III asked the court to: ‘Declare that involuntary statements by law enforcement officers 

which are confidential under the DLEOA are also exempt from disclosure under Section 13(1)(d) 

of FOIA; MCL 15.243(1)(d).’

The Court of Claims ruled that as to counts I and III, “no live controversy” existed, 

precluding declaratory relief. The matter was “not ripe for review,” the court explained, because 

the IA report had already been released and no “future” such event appeared on the horizon. Count 

II failed, the court continued, because plaintiff identified no basis to prohibit disclosure 

independent of the FOIA. In light of the Supreme Court’s opinion in Tobin v Mich Civil Serv 

Comm, 416 Mich 661, 667, 670; 331 NW2d 184 (1982), the Court of Claims elucidated, plaintiff’s 

“reverse FOIA” claim brought solely on the basis of MCL 15.243(1)(s)(ix) was untenable. 

II

The majority affirms the Court of Claim’s justiciability ruling by holding that justiciability 

principles, such as ripeness and mootness, preclude declaratory relief. Respectfully, the majority 

has misconstrued the underlying facts and the governing law.

In one sense, it is true that no “live controversy” currently swirls around the release of the 

IA report. The report has been handed over to the Detroit Free Press—the genie is out of the bottle. 

A labor dispute flowed from that hand-over, however, and the labor dispute lives on. Plaintiff 

grieved defendant’s actions, claiming that the release of the report contravened the CBA. An 

affidavit signed by a representative of plaintiff’s bargaining unit attested that during the grievance 

proceedings,

the parties agreed that further processing of the Grievance to arbitration under the 

collective bargaining agreement would not provide the answers and relief to the 

legal issues arising from the Grievance. It was agreed by the parties to hold the 

Grievance in abeyance while the MSPTA pursued action in court to address the 

legal issues that were not within an arbitrator’s jurisdiction under the collective 

bargaining agreement.[2]

 

2 Defendant concurs with this version of the underlying events. And contrary to the majority, the 

CBA did not vest the arbitrator with authority to construe and apply the ERKA or the FOIA. 

Rather, the CBA states: “The arbitrator shall have no authority except to pass upon alleged 

violations of the expressed written provisions of this Agreement, the unreasonableness or 

misapplication of a rule and regulation, or that a work order was unreasonable and arbitrary, or
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The grievance now awaits an arbitral determination of whether defendant violated the CBA by 

releasing the report, and whether future releases containing “details of internal investigation 

allegations made against MSPTA members” should be foreclosed or otherwise limited. 

Accordingly, the ongoing grievance process presents a live controversy. Despite that the 

IA report has been released, the parties dispute whether doing so violated the CBA, and seek a 

ruling that will guide defendant’s response when confronted in the future with FOIA request for 

IA investigation information.

MCR 2.605(A)(1) provides: “In a case of actual controversy within its jurisdiction, a 

Michigan court of record may declare the rights and other legal relations of an interested party 

seeking a declaratory judgment, whether or not other relief is or could be sought or granted.” Our 

Supreme Court has explained that “[t]he declaratory judgment rule was intended and has been 

liberally construed to provide a broad, flexible remedy with a view to making the courts more 

accessible to the people.” Shavers v Attorney General, 402 Mich 554, 588; 267 NW2d 72 (1978). 

Contrary to the majority’s view, the Supreme Court has consistently recognized that the 

declaratory judgment avenue is available to guide and inform litigants before a legal insult occurs. 

“One great purpose is to enable parties to have their differences authoritatively settled in advance 

of any claimed invasion of rights, that they may guide their actions accordingly and often may be 

able to keep them within lawful bounds . . . .” Merkel v Long, 368 Mich 1, 13; 117 NW2d 130 

(1962) (quotation marks and citation omitted). “ ‘Courts continually declare rights which have not 

become fixed under an existing state of facts, but are prospective only; they may not, however, be 

so remote and speculative as to be hypothetical and abstract.’ ” Id., quoting Borchard, Declaratory 

Judgments (2d ed), pp 422-424.

This Court, too, has recognized that because declaratory relief is available “to guide or 

direct future conduct, courts are not precluded from reaching issues before actual injuries or losses 

have occurred.” UAW v Central Mich Univ Trustees, 295 Mich App 486, 495; 815 NW2d 132 

(2012). All that is required is a presentation of facts demonstrating “an adverse interest 

necessitating the sharpening of the issues raised.” Id. (quotation marks and citations omitted). 

Plaintiff’s grievance presents facts giving rise to a legal question fulfilling this requirement.3

UAW instructs that plaintiff’s complaint presents an actual controversy regarding 

defendant’s past conduct in releasing the IA report, and how future requests for IA reports should 

 

involves discrimination in application of a claim of suspension, discharge or demotion without just 

cause.”

3 Contrary to the majority’s view that plaintiffs seek only an “advisory opinion,” the ongoing labor 

dispute demonstrates that a present legal controversy exists regarding the application of the FOIA 

to the parties’ CBA. The parties’ interests are clearly adverse. “[W]hat is essential to an ‘actual 

controversy’ under the Declaratory Judgment rule is that plaintiffs plead and prove facts which 

indicate an adverse interest necessitating the sharpening of the issues raised.” Shavers, 402 Mich 

at 589. 
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be handled. The majority’s approach is inconsistent with the principles underlying the declaratory 

judgment rule, which are:

to enable the parties to obtain adjudication of rights before an actual injury occurs, 

to settle a matter before it ripens into a violation of the law or a breach of contract, 

or to avoid multiplicity of actions by affording a remedy for declaring in expedient 

action the rights and obligations of all litigants. [Rose v State Farm Mut Auto Ins 

Co, 274 Mich App 291, 294; 732 NW2d 160 (2006) (emphasis added).]

Plaintiff contends that defendant failed to properly interpret and apply two of the exemptions in 

the FOIA which afforded defendant with the discretion to withhold the IA report. Given that 

discretion, plaintiff argues, defendant violated the terms of the CBA by disclosing the report. 

Under MCR 2.605(A)(1), the litigants are entitled to a determination of the scope and application 

of the cited exemptions to enable the arbitrator to determine their impact on the CBA.

III

The majority also errs by holding that on the merits, plaintiff failed to state a claim for 

declaratory relief arising under the FOIA. Plaintiff’s requests for declaratory judgment seek 

rulings that the IA reports were either precluded by the CBA, or “presumptively” exempt from 

disclosure under various FOIA subsections. The majority reads the word “presumptively” out of 

the equation, ignores the role of the ongoing grievance process, and summarily rejects plaintiff’s 

FOIA claims. The majority has misunderstood the nature of the relief requested and has also 

misconstrued the governing law. 

A

Count I of plaintiff’s complaint invokes MCL 15.243(1)(d), which permits a public body 

to withhold “records or information specifically described and exempted from disclosure by 

statute.” Plaintiff cites § 9(2) of the ERKA as the statutory basis for nondisclosure. This 

subsection requires “criminal justice agencies” to “maintain a separate confidential file of 

information relating to an investigation.” MCL 423.509(2). Plaintiff asserts that this “confidential 

file” is not subject to disclosure to an employee, and therefore should be considered off-limits 

when requested under the FOIA.

The Court of Claims refused to address the merits of plaintiff’s ERKA claim based on its 

determination that it was nonjusticiable. The majority affirms that ruling, characterizing as purely 

“advisory” plaintiff’s request for declaratory judgment of its ERKA claim. “Plaintiff’s claims 

were premised on an anticipated, future legal controversy,” the majority asserts, “therefore, 

plaintiff was requesting an advisory opinion—in other words, advice—on the matter because no 

actual pending FOIA request was being contested.” 

“Generally, an actual controversy exists where a declaratory judgment is necessary to guide 

a plaintiff’s future conduct in order to preserve the plaintiff’s legal rights.” Citizens for Common 

Sense in Gov’t v Attorney Gen, 243 Mich App 43, 55; 620 NW2d 546 (2000) (emphasis added). 

The majority mistakenly believes that because defendant has not yet been confronted with another 

FOIA request seeking information potentially exempt from disclosure under the ERKA, plaintiff 

has no ability to seek a declaration that would guide the parties’ conduct. The parties agree—and 
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it makes perfect sense—that a future FOIA request concerning an internal investigation is 

overwhelmingly likely. There are bound to be internal investigations in the future, and there are 

bound to be FOIA requests for the details. “[C]ourts are not precluded from reaching issues before 

actual injuries or losses have occurred.” UAW, 295 Mich App at 495. This means that adverse 

parties, such as the litigants before us, are entitled to seek judicial guidance regarding a controversy 

that is highly likely to reemerge. Without this guidance, plaintiffs allege, defendants are likely to 

again disclose protected material. Such guidance is the marrow of the declaratory judgment 

remedy.

It bears mention that plaintiff’s ERKA claim finds strong support in Newark Morning 

Ledger Co v Saginaw Co Sheriff, 204 Mich App 215; 514 NW2d 213 (1994). In Newark Morning 

Ledger, the plaintiff sought access under the FOIA to many years of the defendant’s IA records. 

Id. at 216. Defendant resisted disclosure, and the plaintiff filed suit. The trial court granted the 

defendant’s motion for summary disposition, based on MCL 15.243(1)(t)(ix), which allows a 

public body to withhold “personnel records of law enforcement agencies,” unless “the public 

interest in disclosure outweighs the public interest in nondisclosure in the particular instance[.]”4 

Newark Morning Ledger, 204 Mich App at 217.

This Court rejected the defendant’s argument that it could avoid disclosure of an IA report 

under MCL 15.243(1)(t)(ix) simply by placing it in an employee’s personnel file. Id. at 220 (“An 

interpretation of the exemption that would allow a law enforcement agency to shield any record 

from disclosure by merely placing it in a folder labeled ‘personnel file’ would undercut the policy 

of full and complete disclosure mandated by the FOIA. Therefore, we conclude that the 

Legislature did not intend that personnel records be solely defined by their location.”). But the 

Court embraced the defendant’s argument under the ERKA that because an “unfounded, 

unsubstantiated” IA report must be kept in a separate file inaccessible to the employee, the report 

is also inaccessible to third parties under the FOIA. Id. at 221-222. Precisely the same argument 

is made here. 

In Newark, we found the plaintiff’s ERKA argument potentially meritorious, explaining:

Thus, the Legislature, in an act designed to extend an employee’s ability to 

gain access to the employer’s files beyond the rights afforded to the public by the 

FOIA, determined that the employee should not be allowed access to the records of 

the employer's internal investigations. The Legislature’s clearly expressed intent 

in the ERKA to prohibit access by an employee to any internal investigations 

relating to that employee demonstrates that the Legislature intended that access to 

those records be severely restricted. We can reasonably infer that in drafting the 

FOIA, the Legislature had the same intent relative to records of closed internal

affairs investigations such as those requested by plaintiff. The Legislature would 

not have denied an employee access to documents that were readily available to the 

public pursuant to the FOIA. Therefore, we conclude that the Legislature intended 

that the internal affairs investigatory records requested by plaintiff fall within the 

 

4 This subsection was relettered as subsection (s) by 2000 PA 88.
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meaning of the term “personnel record of law enforcement agencies” as used in the 

FOIA. [Id. at 223 (emphasis added, citation omitted).]

Notably, this Court did not decide whether the requested reports were subject to disclosure. Rather, 

we remanded “to the trial court for additional findings” regarding the balancing of the public and 

private interests at stake, and “for a determination whether the public interest in disclosure 

outweighs the public interest in nondisclosure of some, all, or none of the documents in their 

original or redacted versions.” Id. at 227.

Absent a declaratory judgment, plaintiff will never be able to litigate the merits of its ERKA 

claim before disclosure, or to prevent defendant from releasing material potentially exempted from 

disclosure. In my view, the declaratory judgment remedy is custom made for situations such as 

this.

B

Count II of plaintiff’s complaint seeks a declaration that defendant may withhold 

production of IA reports under MCL 15.243(1)(s)(ix) because they qualify as “personnel records” 

under the FOIA. MCL 15.243(1)(s)(ix) specifically applies to the “public records of a law 

enforcement agency,” and states that “[u]nless the public interest in disclosure outweighs the 

public interest in nondisclosure,” the “personnel records of law enforcement agencies” may be 

exempt from disclosure. 

The majority affirms the trial court’s ruling that plaintiff’s “reverse FOIA” claim is 

precluded because plaintiff failed to identify a ground for prohibiting disclosure outside the FOIA 

itself. Both the Court of Claims and the majority cite Tobin, 416 Mich 661, as the controlling 

authority on this score. 

Although it did not expressly overrule Tobin, our Supreme Court’s opinion in Kent Co 

Deputy Sheriff’s Ass’n v Kent Co Sheriff, 463 Mich 353; 616 NW2d 677 (2000), calls into question 

the majority’s overbroad application of Tobin’s limitation on reverse-FOIA claims. In Kent Co, 

463 Mich at 367, the Supreme Court affirmed this Court’s holding that the defendants “had the 

right to exempt from disclosure the disputed records, under MCL 15.243(1)(t)(ix)[;]” no additional 

statutory support was required. Moreover, even if Tobin remains good law, the majority misreads 

it. As the Supreme Court more recently explained in Mich Federation of Teachers & Sch Related 

Personnel, AFT, AFL-CIO v Univ of Mich, 481 Mich 657, 668; 753 NW2d 28 (2008), Tobin

actually held that the FOIA “ ‘authorizes, but does not require, nondisclosure of public records 

falling within a FOIA exemption.’ ” 

Plaintiffs in this case seek nothing more than a ruling that echoes this statement from Mich 

Federation of Teachers. Their complaint asks for a declaration that MCL 15.243(1)(s)(ix), 

previously (t)(ix), affords defendant with the discretion to withhold IA reports. Because Tobin

does not bar such a determination, I would remand to the trial court for further consideration of 

this argument.
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C

The third and final count of plaintiff’s complaint alleges that “involuntary statements” that 

are confidential under the DLEOA are exempt from disclosure under MCL 15.243(1)(d). Under 

the DLEOA, a law officer’s “involuntary statement” is not subject to “public inspection.” MCL 

15.395. Plaintiff alleges that MSPTA members were ordered to appear as witnesses in the 

underlying investigations, were not informed that their appearance and participation were 

voluntary, and were required to answer “unless 5th Amendment rights against criminal selfincrimination [were] asserted.” In my view, plaintiff is entitled to a declaration as to whether such 

compelled statements fall within the realm of information that may be withheld under the FOIA.

In summary, I submit that this case was dismissed on an inappropriate ground by the Court 

of Claims, and that the majority’s attempt to affirm that decision misapprehends the law and

ignores the underlying facts. I would reverse the Court of Claims and remand for further 

proceedings.

/s/ Elizabeth L. Gleicher