Michigan Open Carry Inc v. Department of State Police ( 2019 )

If this opinion indicates that it is “FOR PUBLICATION,” it is subject to
revision until final publication in the Michigan Appeals Reports.
STATE OF MICHIGAN
COURT OF APPEALS
MICHIGAN OPEN CARRY, INC., FOR PUBLICATION
December 17, 2019
Plaintiff-Appellant, 9:00 a.m.
v No. 348487
Court of Claims
DEPARTMENT OF STATE POLICE, LC No. 18-000087-MZ
Defendant-Appellee.
Before: SWARTZLE, P.J., and MARKEY and REDFORD, JJ.
PER CURIAM.
In this action brought pursuant to the Freedom of Information Act (FOIA), MCL 15.231
et seq., plaintiff Michigan Open Carry, Inc. (MOCI), appeals by right the opinion and order of
the Court of Claims denying MOCI’s motion for partial summary disposition under MCR
2.116(C)(10) and granting summary disposition in favor of defendant Department of State Police
(the Department) under MCR 2.116(I)(2). We affirm.
I. PERTINENT FACTS
In October 2017, MOCI submitted a FOIA request to the Department seeking “[r]ecords
created by and/or maintained by the Michigan Department of State Police from peace officers
and authorized system users compiled pursuant to MCL 28.421b(2)(f)[1] and MCL 28.425e(4)[2]
1
MCL 28.421b(2) provides that firearm records may be accessed and disclosed only for certain
enumerated purposes, including if
[a] peace officer or an authorized user has reason to believe that access to the
firearms records is necessary within the commission of his or her lawful duties.
The peace officer or authorized system user shall enter and record the specific
reason in the system in accordance with the procedures in section 5e. [MCL
28.421b(2)(f).]
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between October 1st, 2016 and September 30th, 2017.” MOCI further clarified that it was
seeking the “non-confidential separate public records associated with official acts of public
officials and public employees in accessing said confidential records in compliance with their
statutory duties.”
Following a 10-day extension, the Department responded with a series of numbers and
directed MOCI to visit the online website containing the Department’s Concealed Pistol Licenses
Reports for further elaboration. In response, MOCI filed an administrative, interagency appeal,
alleging that the information provided was not responsive to the submitted request and stating
that no justification for what essentially amounted to a denial had been given. Thereafter, a
FOIA Appeals Officer for the Department issued a letter indicating that the request had not been
denied and that the information provided was a summary of the information that was in the
Department’s possession.
In May 2018, MOCI filed a complaint in the Court of Claims challenging the appellate
decision made by the Department on MOCI’s FOIA request. Count I of the complaint alleged
that the Department violated the FOIA because MOCI’s interagency appeal was not decided by
“the head of the public body” and the FOIA does not permit the delegation of appellate decision-
making. Count II of the complaint alleged that the Department wrongfully denied the FOIA
request and acted arbitrarily and capriciously by failing to disclose records that were responsive
to MOCI’s FOIA request. Count III of the complaint, which was pleaded as an alternative to
Count II, alleged that the Department violated the FOIA by failing to disclose that the
information requested did not exist.
The Department denied any violations of the FOIA and indicated that if the information
provided by the Department was not the information sought by MOCI, then MOCI had failed to
sufficiently describe the requested information. The Department further asserted that the
information MOCI requested, as described in the complaint, was exempt from disclosure under
MCL 15.243; however, the Department did not raise the existence of an alleged exemption to
disclosure during the administrative appeal.
2
MCL 28.425e(4) provides:
Information in the [computerized database of individuals who apply for a
license to carry a concealed pistol] shall only be accessed and disclosed according
to an access protocol that includes the following requirements:
(a) That the requestor of the firearms records uses the law enforcement
information network [LEIN] or another system that maintains a record of the
requestor’s identity, time, and date that the request was made.
(b) Requires the requestor in an intentional query by name of the firearms
records to attest that the firearms records were sought under 1 of the lawful
purposes provided in section 1b(2).
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Following discovery, MOCI moved for partial summary disposition under MCR
2.116(C)(10). The Department responded and requested that summary disposition be instead
granted in its favor under MCR 2.116(I)(2). In a written opinion, the Court of Claims denied
MOCI’s motion for summary disposition and granted summary disposition in favor of the
Department. More specifically, in regard to Count I, the Court of Claims concluded that the
head of the public body did not need to personally issue the interagency appellate decision
because “another employee drafted a [decision] in which, by all accounts, the Director of the
Department of State Police acquiesced.” Further, the Court of Claims noted that MOCI, by filing
a complaint, had already exercised the remedy allowed by statute when the head of the public
body failed to respond to an appeal.
Additionally, the Court of Claims found that MOCI’s description of the information
sought in the FOIA request was sufficiently or adequately described and that the Department had
misconstrued the request. The Court of Claims determined, however, that the information sought
was exempt from disclosure under MCL 15.243(1)(d) because the only way to access the stored
records revealing the sought-after information is through the LEIN or a similar system.
Consequently, MCL 28.214(5) and MCL 28.425e(4) prohibited the disclosure of the requested
information. The Court of Claims ruled that the disclosure exemption was supported by King v
Mich State Police Dep’t, 303 Mich. App. 162; 841 NW2d 914 (2013). This appeal ensued.
II. REQUIREMENT THAT THE HEAD OF THE PUBLIC BODY
ISSUE DECISIONS ON APPEALS
MOCI first argues on appeal that the Court of Claims erred by concluding that the
Department had not violated the FOIA when it allowed someone other than Colonel Kriste
Kibbey Etue, the director and head of the public body, to address and respond to its interagency
FOIA appeal. MOCI contends, as it did in the Court of Claims, that the Legislature’s use of the
word “shall” requires that the duty of responding to an administrative appeal belongs solely to
the head of the public body. MOCI further maintains that there is no language in the FOIA
authorizing the head of a public body to delegate his or her duty to issue written decisions on an
appeal.
This Court reviews de novo whether the trial court properly interpreted and applied the
FOIA. See ESPN, Inc v Mich State Univ, 311 Mich. App. 662, 664; 876 NW2d 593 (2015). We
review for clear error the trial court’s factual findings underlying its application of the FOIA.
King, 303 Mich. App. at 174. A finding is clearly erroneous if, after reviewing the entire record,
this Court is left with a definite and firm conviction that a mistake was made. Id. at 174-175. In
Wayne Co v AFSME Local 3317, 325 Mich. App. 614, 633-634; 928 NW2d 709 (2018), this
Court recited the core principles of statutory construction:
The primary task in construing a statute is to discern and give effect to
the Legislature’s intent, and in doing so, we start with an examination of
the language of the statute, which constitutes the most reliable evidence of
legislative intent. When the language of a statutory provision is unambiguous, we
must conclude that the Legislature intended the meaning that was clearly
expressed, requiring enforcement of the statute as written, without any additional
judicial construction. Only when an ambiguity in a statute exists may a court go
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beyond the statute’s words to ascertain legislative intent. We must give effect to
every word, phrase, and clause in a statute, avoiding a construction that would
render any part of the statute nugatory or surplusage. [Citations omitted.]
MCL 15.240(1)(a) directs those wishing to appeal a denial of a FOIA request to
“[s]ubmit to the head of the public body a written appeal that specifically states the word
‘appeal’ and identifies the reason or reasons for reversal of the denial.” MCL 15.240(2) sets
forth the next step in the process:
Within 10 business days after receiving a written appeal pursuant to
subsection (1)(a), the head of a public body shall do 1 of the following:
(a) Reverse the disclosure denial.
(b) Issue a written notice to the requesting person upholding the disclosure
denial.
(c) Reverse the disclosure denial in part and issue a written notice to the
requesting person upholding the disclosure denial in part.
(d) Under unusual circumstances, issue a notice extending for not more
than 10 business days the period during which the head of the public body shall
respond to the written appeal. The head of a public body shall not issue more than
1 notice of extension for a particular written appeal.
“[I]f the head of the public body upholds all or a portion of the disclosure denial that is the
subject of the written appeal, the requesting person may seek judicial review of the nondisclosure
by commencing a civil action[.]” MCL 15.240(3).
In response to MOCI’s interagency appeal, Lori M. Hinkley, a FOIA Appeals Officer,
issued a formal written notice or opinion on Department letterhead that listed Colonel Kibbey
Etue at the top of the notice. At the time of MOCI’s written appeal and the decision, Hinkley
was not the head of the Department; Colonel Kibbey Etue was the director and head of the
Department. Again, MCL 15.240(1) and (2) provide that the “head of a public body,” upon
receipt of a written appeal, “shall” reverse a disclosure denial, issue a notice upholding a
disclosure denial, reverse in part and uphold in part a disclosure denial, or issue a notice
extending the time for the head of the public body to respond. We reject MOCI’s appellate
argument that Colonel Kibbey Etue had to personally address and decide MOCI’s appeal.
Nothing in the plain language of MCL 15.240 prohibits the head of a public body from
employing personnel to act on behalf and under the authority of the head of the public body. An
agent is an individual who has express or implied authority to represent or act on behalf of
another person known as the principal. Wigfall v Detroit, __ Mich __, __; __ NW2d __ (2019);
sip op at 8-9 n 16. There is no indication in the record that Hinkley lacked the authority to act on
behalf of Colonel Kibbey Etue and the Department in responding to and deciding MOCI’s
interagency appeal.
Moreover, MCL 15.233(3) provides that “[a] public body may make reasonable rules
necessary to protect its public records and to prevent excessive and unreasonable interference
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with the discharge of its functions.” According to the Department, it receives approximately
20,000 record requests a year, 80 percent of which are submitted under the FOIA. Colonel
Kibbey Etue could not discharge her functions as director of the Department if she had to
personally address, respond to, and decide FOIA denial appeals; requiring her to do so would
amount to excessive interference with the discharge of her functions. Thus, MCL 15.233(3)
supports use of Department agents such as Hinkley to act on behalf of the head of the
Department, Colonel Kibbey Etue.
III. ABILITY TO RAISE NEW EXEMPTIONS IN COURT OF CLAIMS
MOCI argues for the first time on appeal that the Department waived its right to assert an
exemption to the FOIA request in the Court of Claims by failing to claim an exemption as part of
its final decision on MOCI’s appeal within the Department. Additionally, MOCI argues that the
legal precedent allowing consideration of newly raised defenses and exemptions should be
overturned. We disagree.
In Residential Ratepayer Consortium v Pub Serv Comm #2, 168 Mich. App. 476, 481; 425
NW2d 98 (1987), this Court concluded that the FOIA’s “provision for de novo review in circuit
court suggests that the [public body] does not waive defenses by failing to raise them at the
administrative level.” This proposition was later applied in Stone St Capital, Inc v Bureau of
State Lottery, 263 Mich. App. 683, 688 n 2; 689 NW2d 541 (2004). Further, in Bitterman v
Village of Oakley, 309 Mich. App. 53, 60; 868 NW2d 642 (2015), the FOIA requester argued that
a public body should be “estopped from raising any new defenses in support of its decision to
deny her FOIA requests after it made its ‘final determination to deny the request[.]’ ” This Court
determined, however, that the argument was “without merit” because the “exact issue” had
already been addressed in Stone St Capital when this Court reaffirmed that a public body can
assert defenses in the circuit court despite their not being raised at the administrative level. Id. at
61.
An opinion of the Court of Appeals issued on or after November 1, 1990, is binding
precedent with respect to all future panels until it is reversed or modified (1) by a special panel of
the Court of Appeals or (2) by the Michigan Supreme Court. MCR 7.215(J)(1). Because neither
of these triggering events has occurred, Bitterman and Stone St remain binding precedent that a
public body may assert defenses or exemptions for the first time in the circuit court or Court of
Claims. We decline to request the convening of a special panel to create a conflict with the
existing binding precedent.
III. APPLICABILITY OF FOIA EXEMPTION UNDER MCL 15.243(1)(D)
MOCI argues that the Court of Claims erred by ruling that the information sought by
MOCI was exempt from disclosure. We disagree. This Court reviews de novo whether a
public record is exempt from disclosure under the FOIA. King, 303 Mich. App. at 174. The
lower court’s factual findings associated with its FOIA decision are reviewed for clear error. Id.
“The Legislature codified the FOIA to facilitate disclosure to the public of public records
held by public bodies.” Herald Co, Inc v Eastern Mich Univ Bd of Regents, 475 Mich. 463, 472;
719 NW2d 19 (2006). To that end, the FOIA must be broadly interpreted to allow public access
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to the records held by public bodies. See Practical Political Consulting, Inc v Secretary of State,
287 Mich. App. 434, 465; 789 NW2d 178 (2010). Relatedly, the statutory exemptions must be
narrowly construed to serve the policy of open access to public records. See Herald Co v Bay
City, 463 Mich. 111, 119; 614 NW2d 873 (2000).
A public body may claim a partial or total exemption from disclosure for the reasons
listed in MCL 15.243. Federated Publications, Inc v Lansing, 467 Mich. 98, 102; 649 NW2d
383 (2002), mod on other grounds in Herald Co, 475 Mich. 463 (2006). MCL 15.243(1)(d)
provides an exemption from disclosure for “[r]ecords or information specifically described and
exempted from disclosure by statute.” The burden of proving that an exemption applies rests
with the public body asserting the exemption. Rataj v City of Romulus, 306 Mich. App. 735, 749;
858 NW2d 116 (2014). When a public body specifically invokes MCL 15.243(1)(d), “it is
necessary to examine the statute under which the public body claims disclosure is prohibited.”
MLive Media Group v Grand Rapids, 321 Mich. App. 263, 270; 909 NW2d 282 (2017).
Moving outside the FOIA, we note that MCL 28.425e(1) requires the Department to
“create and maintain a computerized database of individuals who apply . . . for a license to carry
a concealed pistol.” Under MCL 28.425e(4)(a), the concealed pistol (CPL) database can only be
accessed through or via the LEIN “or another system that maintains a record of the requester’s
identity, time, and date that the request was made.”3 Furthermore, to make a query of an
individual listed in the CPL database, MCL 28.425e(4)(b) requires the requesting party to
identify one of the lawful purposes for doing so set forth in MCL 28.421b(2). MCL 28.421b
provides, in relevant part, as follows:
(1) Firearms records are confidential, are not subject to disclosure under
the freedom of information act, . . . and shall not be disclosed to any person,
except as otherwise provided by this section.
(2) Firearms records may only be accessed and disclosed by a peace
officer or authorized system user for the following purposes:
(a) The individual whose firearms records are the subject of disclosure
poses a threat to himself or herself or other individuals, including a peace officer.
(b) The individual whose firearms records are the subject of disclosure has
committed an offense with a pistol that violates a law of this state, another state,
or the United States.
(c) The pistol that is the subject of the firearms records search may have
been used during the commission of an offense that violates a law of this state,
another state, or the United States.
3
As indicated in the record, one of the other pertinent systems, in addition to the LEIN, is the
CPL program application.
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(d) To ensure the safety of a peace officer.
(e) For purposes of this act.
(f) A peace officer or an authorized user has reason to believe that access
to the firearms records is necessary within the commission of his or her lawful
duties. The peace officer or authorized system user shall enter and record the
specific reason in the system in accordance with the procedures in section 5e.
According to an affidavit submitted by Michigan State Police Field Support Section
Manager Kevin Collins, the information MOCI requested “can only be accessed by a peace
officer or authorized system user through either the LEIN or the CPL program application in the
MiCJIN which is a web portal that provides secure access to a variety of law enforcement
applications.” MCL 28.214(5) governs the disclosure of information stored in the LEIN and
other information systems maintained by the Michigan State Police, providing that “[a] person
shall not disclose information . . . in a manner that is not authorized by law or rule.” See also
Mich Admin Code, R 28.5208(4) (information from the LEIN or other information systems shall
generally not be disseminated to an unauthorized agency, entity, or person). We hold that the
statutory disclosure exemption in MCL 28.214(5) regarding the LEIN and other information
systems as applied to the FOIA exemption under MCL 15.243(1)(d) ultimately prohibits
dissemination of the information sought by MOCI.
MOCI acknowledges that MCL 15.243(1)(d), which is part of the FOIA, provides a
disclosure exemption for “[r]ecords or information specifically described and exempted from
disclosure by statute[,]” and that MCL 28.214(5) bars a person from disclosing LEIN
information “in a manner that is not authorized by law or rule.” But MOCI argues that the FOIA
itself constitutes an authorizing law for purposes of MCL 28.214(5); therefore, the requested
information should have been disclosed or produced. We reject this circular reasoning. MCL
28.214(5) precludes a person from disclosing LEIN information unless authorized by law or rule,
and MOCI fails to identify a specific FOIA provision that particularly authorizes disclosure of
LEIN information. MOCI’s general reference to the FOIA’s being a pro-disclosure law is
insufficient to qualify under MCL 28.214(5) as a law or rule that allows disclosure of LEIN
information.
MOCI also argues that the FOIA exemption under MCL 15.243(1)(d) refers to
information or records “specifically described” as exempted by a statute, but the provision in
MCL 28.214(5) regarding a LEIN disclosure exemption is not a specifically described exemption
and is instead a broad exemption covering all information in the LEIN. We find this argument
unavailing. Simply put, LEIN information or records are specifically described as exempted
from disclosure under MCL 28.214(5). The level of specificity in MCL 28.214(5) is adequate to
fall within the FOIA exemption in MCL 15.243(1)(d). Subcategories of LEIN information did
not have to be statutorily identified as being exempted before fitting the FOIA exemption in
MCL 15.243(1)(d).
MOCI next contends that the information sought is not actually in the LEIN but is instead
in “a non-LEIN database known as the CPL database.” MOCI maintains that simply because the
CPL database can be accessed by going through the LEIN does not somehow mean that the
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requested information is exempt under the LEIN exemption.4 Our discussion above was couched
in terms of the LEIN because of the manner in which MOCI framed its arguments, but our
analysis is equally applicable to information systems aside from the LEIN. The Criminal Justice
Information Policy Council (the Council) is governed by the CJIS Policy Council Act, MCL
28.211 et seq. See MCL 28.211a(a). The Council was “created in the department of state
police.” MCL 28.212(1). And the Council was mandated to “[e]stablish policy and promulgate
rules governing access, use, and disclosure of information in criminal justice information
systems, including the [LEIN] . . . and other information systems related to criminal justice or
law enforcement.” MCL 28.214(1)(a) (emphasis added). The LEIN disclosure exemption in
MCL 28.214(5) discussed above also encompasses other information systems, including the CPL
program application. Accordingly, in the face of MOCI’s CPL-related argument, our position
remains unchanged. Additionally, as noted earlier, MCL 28.421b(1) specifically provides that
firearm records are not subject to disclosure, even under the FOIA.
Further, as noted by the Court of Claims, this Court upheld a similar statutory restriction
on information in King, 303 Mich. App. at 177-178. In King, this Court concluded that because
polygraph reports were exempt from disclosure under the Forensic Polygraph Examiners Act
(FPEA), MCL 338.1701 et seq., the reports were also exempt from disclosure under the FOIA.
Id. This Court did not conclude that the FOIA was a law that authorized the information’s
disclosure; we instead concluded that the requested information was exempt from disclosure
under MCL 15.243(1)(d). Id. at 178. Here, similar to the circumstances in King, the Court of
Claims properly determined that the information MOCI requested was exempt from disclosure
under the FOIA because of the statutory prohibition on disclosure of the information under MCL
28.214(5).
We affirm. Having fully prevailed on appeal, the Department may tax costs under MCR
7.219.
/s/ Brock A. Swartzle
/s/ Jane E. Markey
/s/ James Robert Redford
4
In reviewing the record citation given by MOCI in support of its argument, we note the
documentation discusses the CPL program application, not the CPL database.
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