Nichole Ruggiero v. Shiawassee County Sheriffs Office ( 2022 )

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
NICHOLE RUGGIERO, UNPUBLISHED
June 23, 2022
Plaintiff-Appellant,
v No. 359748
Shiawassee Circuit Court
SHIAWASSEE COUNTY SHERIFF’S OFFICE, LC No. 2019-004440-CZ
Defendant-Appellee.
Before: GLEICHER, C.J., and SAWYER and GARRETT, JJ.
PER CURIAM.
In this Freedom of Information Act (FOIA) lawsuit, Nichole Ruggiero argues that the
Shiawassee County Sheriff’s Office wrongfully denied her request for certain government e-mails.
She also contends that she is entitled to attorney fees and costs arising from this FOIA action.
Because the trial court properly granted summary disposition in favor of the Sheriff’s Office on
these issues, we affirm.
I. BACKGROUND
This case arises from an investigation into allegations that Kathleen McGuckin, a former
Sheriff’s Office employee, was diverting probationers and parolees into halfway houses that she
owned. In October 2019, McGuckin was fired by Shiawassee County Sheriff Brian BeGole
following an independent investigation for “multiple violations of the Sheriff’s Office policy and
orders.”1 In December 2019, Ruggiero submitted two record requests to the Sheriff’s Office under
1
It is unclear to what extent the investigation that led to McGuckin’s termination was related to
the subsequent investigation into the diversion of probationers and parolees into halfway houses.
The investigations do, however, appear to have some connection. In its motion for summary
disposition, the Sheriff’s Office wrote that the subsequent investigation “arose from information
obtained during the investigation that led to [McGuckin’s] initial termination.”
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the FOIA: one seeking e-mail communications concerning the investigation of McGuckin’s
activities and one seeking various jail records. Both requests were denied.
Ruggiero filed a civil complaint seeking an order compelling disclosure and awarding
attorney fees. After the litigation began, in response to a discovery request, the Sheriff’s Office
turned over the e-mails sought by Ruggiero in the first FOIA request because the investigation to
which they pertained had concluded. The parties filed cross motions for summary disposition,
with Ruggiero seeking attorney fees, and the Sheriff’s Office arguing that Ruggiero was not
entitled to attorney fees because the records were exempt from disclosure at the time of the FOIA
denial. With respect to the second FOIA request for jail records, the court granted Ruggiero’s
motion and denied the Sheriff’s Office’s motion. However, with respect to the first FOIA request
for the disclosure of e-mails, the court denied Ruggiero’s motion and granted the Sheriff’s Office’s
motion because the initial denial was proper under a FOIA exemption. This appeal pertains only
to the first FOIA request.
II. STANDARD OF REVIEW
Ruggiero argues that the Sheriff’s Office withheld documents that were not exempt from
disclosure under the FOIA. “In general, whether a public record is exempt from disclosure under
FOIA is a mixed question of fact and law.” Rataj v City of Romulus, 306 Mich App 735, 747; 858
NW2d 116 (2014). We review a trial court’s “legal determinations in a FOIA case” de novo.
Bitterman v Village of Oakley, 309 Mich App 53, 61; 868 NW2d 642 (2015). “De novo review
means that we review the legal issue independently” and without deference to the trial court.
Wright v Genesee Co, 504 Mich 410, 417; 934 NW2d 805 (2019). Our review of a trial court’s
factual findings is for clear error. Bitterman, 309 Mich App at 61. “A finding is clearly erroneous
where, after reviewing the entire record, this Court is left with a definite and firm conviction that
a mistake has been made.” Smith v Straughn, 331 Mich App 209, 215; 952 NW2d 521 (2020)
(quotation marks and citation omitted). We also examine discretionary determinations in a FOIA
case for an abuse of discretion. Bitterman, 309 Mich App at 61. “A trial court abuses its discretion
when its decision falls outside the range of principled outcomes.” Id. (quotation marks and citation
omitted).
Further, the trial court resolved the parties’ motions for summary disposition under MCR
2.116(C)(10). We review a trial court’s decision on a motion for summary disposition de novo.
Thomas v City of New Baltimore, 254 Mich App 196, 200; 657 NW2d 530 (2002). “In reviewing
a motion under MCR 2.116(C)(10), this Court must consider all documentary evidence in a light
most favorable to the nonmoving party” and may grant the motion “if there is no genuine issue of
material fact.” Id. at 200-201.
III. ANALYSIS
Ruggiero argues that she is entitled to an award of attorney fees because her FOIA request
for the e-mails was wrongfully denied, and her FOIA action had a substantial causal role in the
eventual disclosure of the records.
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A. DENIAL OF THE FOIA REQUEST
The FOIA, MCL 15.231 et seq., declares that the public policy of this state is to provide
citizens with “full and complete information regarding the affairs of government and the official
acts of those who represent them as public officials and public employees.” MCL 15.231(2).
“FOIA is a manifestation of this state’s public policy favoring public access to government
information, recognizing the need that citizens be informed as they participate in democratic
governance, and the need that public officials be held accountable for the manner in which they
perform their duties.” Rataj, 306 Mich App at 748 (quotation marks and citation omitted). In
accordance with this policy, the FOIA allows a person to file a written request with a public body
to disclose a “public record.” MCL 15.233(1). Unless subject to an exemption, an individual who
requests a public record “has a right to inspect, copy, or receive copies of the requested public
record of the public body.” Id. See also Thomas, 254 Mich App at 201 (“By its express terms, the
FOIA is a prodisclosure statute; a public body must disclose all public records not specifically
exempt under the act.”).2
Section 13 of the FOIA provides a list of exemptions that authorize a public body to
withhold certain records from disclosure. MCL 15.243. Consistent with the purpose of the FOIA,
“[c]ourts narrowly construe any claimed exemption and place the burden of proving its
applicability on the public body asserting it.” Detroit Free Press, Inc v City of Southfield, 269
Mich App 275, 281; 713 NW2d 28 (2005). “The denial of a FOIA request occurs at a definite
point in time,” and therefore “the appropriate time to measure whether a public record is exempt
under a particular FOIA exemption is the time when the public body asserts the exemption.” State
News v Mich State Univ, 481 Mich 692, 703; 753 NW2d 20 (2008).
Relevant to this appeal, the Sheriff’s Office relied on the following exemption3 in denying
Ruggiero’s FOIA request for the e-mail communications:
2
It is undisputed that the Sheriff’s Office is a “public body,” and that the e-mails at issue
constituted “public records” under the FOIA.
3
We disagree with Ruggiero’s assertion that the Sheriff’s Office forfeited its exemption defense
by ultimately disclosing the requested e-mails during discovery. According to Ruggiero, if the
Sheriff’s Office believed the FOIA request was properly denied in December 2019, “the required
process in this case would have been to still continue to withhold the responsive records but tell
[Ruggiero] to refile a new FOIA request for them.” To the contrary, the FOIA does not require a
public body to “monitor FOIA requests once they have been denied” to determine if the pertinent
records can be disclosed at a later date. State News, 481 Mich at 704. Rather, “a party that
unsuccessfully requested a public record” may file “another FOIA request for that public record if
it believes that, because of changed circumstances, the record can no longer be withheld from
disclosure.” Id. at 704-705. Ruggiero’s forfeiture argument would undermine the FOIA’s
prodisclosure purpose because it would discourage public bodies from disclosing records in the
course of litigation that may have properly been exempt at the time of denial but are no longer
exempt because of subsequent developments.
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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. [MCL 15.243(1)(b)(i).]
First, Ruggiero argues that the requested e-mails are not “investigating records compiled
for law enforcement purposes” because the investigation merely concerned an internal
employment situation. The law-enforcement-purposes exemption under MCL 15.243(1)(b) is “not
limited in application to police investigations of criminal matters.” Yarbrough v Dep’t of
Corrections, 199 Mich App 180, 185; 501 NW2d 207 (1993). Rather, it applies to any “ongoing
investigation into illegal acts, which investigation could possibly result in civil or criminal action.”
Id.In an affidavit, Sheriff BeGole stated that he had initiated an investigation into McGuckin’s
conduct on October 30, 2019, in conjunction with the county prosecutor’s office. This
investigation “related to a concern about a conflict of interest and/or potential violation of work
rules regarding the diversion of parolees / probationers from the County facility to [McGuckin’s]
personal business.” The allegations against McGuckin involved a potential misuse of government
resources and implicated possible claims of illegal activity. The trial court found that the ongoing
investigation into McGuckin’s conduct was for law enforcement purposes:
The investigation had not been completed, and no conclusion or resolution had been
reached, including determining any legal and/or criminal ramifications for any of
the parties involved. At the time the denial was made, it was not known whether
criminal charges would result from the investigation, and it is not dispositive that
no criminal charges were ultimately issued.
When the Sheriff’s Office denied Ruggiero’s FOIA request, the investigation into the conflict of
interest was in its early stages, and it was reasonable to believe, given the nature of the claims, that
the investigation “could possibly result in civil or criminal action.”4 See Yarbrough, 199 Mich
App at 185. Therefore, the trial court did not err by determining that records related to the ongoing
investigation were “compiled for law enforcement purposes.”
Next, Ruggiero challenges the applicability of the law-enforcement-proceedings
exemption under MCL 15.243(1)(b)(i). Specifically, she contends that the trial court erred by
finding that disclosure of the requested e-mails could interfere with a law enforcement proceeding.
MCL 15.243(1)(b)(i) requires that the defendant show, and the trial court find, that disclosure of
4
In a statement for a November 2019 news article, Sheriff BeGole said that the violations that led
to McGuckin’s termination were “not criminal.” However, he did not provide any details on the
nature of the subsequent investigation into the improper diversion of parolees and probationers.
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the FOIA-requested records would interfere with an ongoing law enforcement investigation. King
v Oakland Co Prosecutor, 303 Mich App 222, 231-232; 842 NW2d 403 (2013). Because “could”
and “would” are “obviously not the same thing,” it is insufficient for the trial court to merely find
that disclosure “could” jeopardize a law enforcement investigation. Evening News Ass’n v City of
Troy, 417 Mich 481, 506; 339 NW2d 421 (1983).
In its letter denying Ruggiero’s FOIA request, the Sheriff’s Office wrote that disclosure
“could alert potential witnesses or targets of the investigation as to the status of the investigation
or preliminary findings” and “would have a chilling effect on employees’ and other witnesses’
participation and cooperation with the investigation.” (Emphasis added.) Sheriff BeGole
explained in his affidavit that McGuckin had been the subject of a previous investigation that
resulted in her termination from the Sheriff’s Office. During this investigation, McGuckin “was
requested to provide her cell phone several times, but ultimately never did.” Sheriff BeGole
expressed concern that because McGuckin refused to provide information in this initial
investigation, she “would also attempt to hide or destroy evidence related to the second
investigation if she found out about it before it could be completed.” (Emphasis added.)
The trial court did not specifically address the use of “could” in the letter denying the FOIA
request. However, the court explained that Sheriff BeGole was concerned that “should
[McGuckin] become aware of the investigation, she would take steps to interfere with witnesses
and to dispose of evidence.” (Emphasis added.) The court found that this justification provided a
sufficiently particularized basis for the denial. By relying on this statement from Sheriff BeGole,
and using the language of “would,” the trial court applied the proper legal standard—concluding
that disclosure of the records would have interfered with law enforcement proceedings. See King,
303 Mich App at 232-233.
Moreover, the trial court and the Sheriff’s Office met their respective burdens to
demonstrate that releasing the requested e-mails would have interfered with the investigation into
McGuckin’s alleged conflict of interest. To properly claim the law-enforcement-proceedings
exemption, a public body must show “both that an investigation was open and ongoing and that
release of the requested documents ‘would’ interfere with law enforcement proceedings.” King,
303 Mich App at 231. Ruggiero does not dispute an investigation was ongoing, but argues that it
was unjustified to conclude that disclosure would interfere with the investigation.
In Evening News, 417 Mich at 492, our Supreme Court held that a “generic determination”
that requested records would interfere with law enforcement proceedings was insufficient to justify
a FOIA denial. The Supreme Court set forth six rules, distilled from an analysis of Michigan’s
FOIA and caselaw interpreting the comparable federal FOIA, that courts should use to review a
claim of exemption:
1. The burden of proof is on the party claiming exemption from disclosure.
2. Exemptions must be interpreted narrowly.
3. The public body shall separate the exempt and nonexempt material and make
the nonexempt material available for examination and copying.
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4. Detailed affidavits describing the matters withheld must be supplied by the
agency.
5. Justification of exemption must be more than conclusory, i.e., simple repetition
of statutory language. A bill of particulars is in order. Justification must indicate
factually how a particular document, or category of documents, interferes with law
enforcement proceedings.
6. The mere showing of a direct relationship between records sought and an
investigation is inadequate. [Id. at 502-503 (quotation marks, citations, and
alternations omitted).]
Additionally, recognizing the “procedural difficulties that inhere in determining whether a FOIA
exemption applies in light of the asserted confidentiality of the information contained in the
requested documents,” the Evening News Court created a three-step framework that trial courts
should use to analyze a claimed exemption. King, 303 Mich App at 228. This procedure provides
that either:
1. The court should receive a complete particularized justification as set forth in the
six rules above . . . ; or
2. [T]he court should conduct a hearing in camera based on de novo review to
determine whether complete particularized justification pursuant to the six rules
exists; or
3. [T]he court can consider allowing plaintiff’s counsel to have access to the
contested documents in camera under special agreement whenever possible.
[Evening News, 417 Mich at 516 (quotation marks and citations omitted).]
First, the claimed exemption by the Sheriff’s Office properly followed the rules outlined
by Evening News. Recognizing that the Sheriff’s Office had the burden to prove the applicability
of the FOIA exemption, Sheriff BeGole provided an affidavit explaining why the request for the
e-mails at issue was denied. The affidavit demonstrated “factually how a particular . . . category
of documents”—the e-mails—would interfere with law enforcement proceedings if released
during an active investigation. See Evening News, 417 Mich at 503. Sheriff BeGole specifically
explained that the requested e-mails relating to the conflict-of-interest investigation were withheld
because of his concern that McGuckin would attempt to destroy evidence if she found out about
the investigation while it was ongoing. The Sheriff’s Office supported this justification for
nondisclosure by presenting evidence that McGuckin had actually destroyed evidence in a separate
civil lawsuit against Sheriff BeGole. Specifically, the Sheriff’s Office attached an order from this
separate lawsuit that granted spoliation sanctions against McGuckin related to the deletion of
evidence from her cell phone. The Sheriff’s Office also submitted evidence of a text message from
October 2019, which it claims was sent by McGuckin to a potential witness in the conflict-of-
interest investigation, in which McGuckin requested that the recipient not provide any information
for the Sheriff’s Office’s investigation. This evidence provided a particularized, fact-specific basis
for concluding that McGuckin would have interfered with the investigation if the e-mails were
disclosed in December 2019.
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In fact, from reviewing the e-mails, it is clear that their disclosure would have revealed the
nature of the investigation and increased the risk that McGuckin would interfere with the ongoing
investigation. For example, an October 2019 e-mail written by the Shiawassee County Jail
Administrator to a representative from Professional Consulting Services (PCS), a third-party
operator of prisoner reentry programs, asked if “one of my employees has or is housing PCS
parolees for [it] could be a conflict of interest.”5 And another e-mail to a Michigan Department of
Corrections (MDOC) supervisor asked whether there was any other facility in Shiawassee County
where PCS parolees were being housed. Not only would disclosure of these e-mails have revealed
the nature of the investigation, but it would have also disclosed the names of potential witnesses
with relevant information. Therefore, McGuckin’s previous actions during investigations
provided a sufficiently particularized justification for asserting that these e-mails were exempt
from disclosure.
Ruggiero also argues that Sheriff BeGole’s concern about interference with the
investigation was pretextual and lacked a factual basis. In part, she contends that McGuckin
already knew about the investigation before the FOIA request. McGuckin stated in an affidavit
that MDOC officials told her about the conflict-of-interest investigation in October 2019, and
therefore the Sheriff’s concern about revealing the subject of the investigation was “pointless.”
Assuming this is true, there was no evidence of record indicating that Sheriff BeGole knew in
December 2019 that McGuckin was aware of the additional investigation. McGuckin’s knowledge
of the investigation, without evidence that Sheriff’s Office employees were aware of this
knowledge, does not invalidate the concern that Sheriff BeGole expressed in his affidavit that
disclosure of the e-mails would compromise the investigation.
Further, Ruggiero asserts that secrecy about the investigation could not have been
necessary because Sheriff BeGole made a public statement announcing that the investigation was
underway. Sheriff BeGole gave a statement to the media for a November 2019 article that “[t]here
is an ongoing investigation into other alleged violations for which I cannot discuss.” This cryptic
statement did not negate the Sheriff’s Office’s concern about revealing details of the investigation
to McGuckin. As the trial court accurately reasoned, “although Sheriff BeGole made a statement
there was an additional investigation underway, he declined to publicly state what the scope of that
investigation was, who the targets were, and what evidence [the Sheriff’s Office] may be seeking
in relation to that proceeding.” In particular, the Sheriff’s Office had a significant interest in
withholding information about the subject matter of its investigation, given the evidence that
McGuckin had interfered with witnesses and disposed of records in a separate civil lawsuit.
Therefore, the Sheriff’s Office sufficiently satisfied its burden to establish that disclosure of the
requested e-mails in December 2019 would have interfered with the ongoing law enforcement
investigation.
Second, the trial court also had to make particularized findings, in accordance with Evening
News, that the disclosure of the e-mails would have interfered with the investigation. The trial
5
The e-mail also includes a redacted name of the employee, which all evidence suggests is
McGuckin.
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court properly complied with the Evening News framework by finding that the Sheriff’s Office
had given a particularized justification for the denial of Ruggiero’s FOIA request.
Our decision in King is instructive on this issue. In King, 303 Mich App at 224, the
plaintiffs sought records from the Oakland County Prosecutor’s Office relating to a then-deceased
suspect’s possible involvement in an unsolved abduction and murder from the 1970s. The
prosecutor’s office denied the FOIA request, and the trial court upheld that decision, finding that
there was an active, ongoing law enforcement investigation, and disclosure of the requested
documents would interfere that investigation. Id. at 224-225. We affirmed, concluding that the
trial court applied the proper legal standard and made a sufficiently particularized finding that
disclosure would interfere with law enforcement proceedings. Id. at 231-233. The trial court had
reviewed the pertinent records in camera and determined that their release would compromise the
ongoing investigation because the records specific to the suspect were “inextricably intertwined”
with other sensitive information from the investigation. Id. at 233-234.
In this case, the trial court’s finding that disclosure would interfere with a law enforcement
investigation was more particularized than the “inextricably intertwined” justification upheld in
King. The trial court found that Sheriff BeGole’s concern that McGuckin would interfere with the
investigation was specific and justified by McGuckin’s previous actions. Particularly, the court
found that McGuckin had a “verified history of destroying evidence in relation to investigations
regarding her behavior and the halfway houses she operates.” This finding was not clearly
erroneous because it was supported, as previously explained, by the evidence of the spoliation
sanctions order and text message. Therefore, the trial court had a sufficient basis for concluding
that McGuckin had previously destroyed evidence and interfered with witnesses, and that the
Sheriff’s Office had a particularized concern that McGuckin would do so in this case. Accordingly,
the Sheriff’s Office properly denied the FOIA request at issue under MCL 15.243(1)(b)(i).6
B. ATTORNEY FEES AND COSTS
When a party “prevails” completely in its FOIA action, the trial court must award
reasonable attorney fees and costs under MCL 15.240(6). Local Area Watch v Grand Rapids, 262
Mich App 136, 150; 683 NW2d 745 (2004). When a party only prevails in part, the decision
whether to award attorney fees and costs is left to the discretion of the trial court. Id. at 151. In
this case, Ruggiero’s request for an order compelling disclosure of the e-mails was rendered moot
when the Sheriff’s Office turned over the records in response to a discovery request. However,
obtaining an order compelling disclosure is not the only manner in which a party “prevails” in a
FOIA action. “The mere fact that plaintiff’s substantive claim under the FOIA was rendered moot
by disclosure of the records after plaintiff commenced the circuit court action is not determinative
of plaintiff’s entitlement” to attorney fees under MCL 15.240(6). Thomas, 254 Mich App at 202.
Rather, a plaintiff prevails “where he is forced into litigation and is successful with respect to the
6
Because we conclude that the law-enforcement-proceeding exemption provided a proper basis
for the denial of Ruggiero’s FOIA request, we will not address the applicability of the exemptions
in MCL 15.243(1)(b)(ii) and (iii) that were initially cited by the Sheriff’s Office as alternative
justifications for the denial.
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central issue that the requested materials were subject to disclosure under the FOIA, even though
the action has been rendered moot by acts of the public body in disposing of the documents.” Id.
at 205 (quotation marks and citation omitted). The proper inquiry is whether the FOIA action was
“reasonably necessary to compel the disclosure” and whether the lawsuit had a “substantial
causative effect on the delivery” of the requested records. Id. at 204.
Ruggiero argues that she is entitled to attorney fees and costs because the continuing
prosecution of her lawsuit was reasonably necessary to compel disclosure of the e-mails and had
a substantial causative effect on this disclosure. Ruggiero’s FOIA request was denied on
December 4, 2019, this litigation began on December 11, 2019, and, according to Sheriff BeGole’s
affidavit, the investigation into McGuckin’s activities concluded “after” June 10, 2020. Ruggiero
filed a discovery request on December 23, 2020, seeking response to a number of interrogatories.
After this request went unanswered, Ruggiero moved to compel discovery. Before the scheduled
hearing on this motion, the Sheriff’s Office filed an answer and disclosed the requested e-mails,
with limited redactions, because “the investigation at issue in [Ruggiero’s] first FOIA request ha[d]
concluded.” Consequently, the trial court found that Ruggiero’s lawsuit did not substantially cause
the disclosure of the e-mails because the Sheriff’s Office produced the documents after the
conclusion of the investigation that formed the basis for its denial.
We agree that Ruggiero’s lawsuit did not have a “substantial causative effect” on the
disclosure of the requested e-mails. Given that the Sheriff’s Office properly asserted the law-
enforcement-proceedings exemption as the basis for its denial, Ruggiero has not succeeded “with
respect to the central issue that the requested materials were subject to disclosure under the FOIA
. . . .” Thomas, 254 Mich App at 205 (quotation marks and citation omitted). The asserted basis
for withholding disclosure of the e-mails—the existence of an ongoing investigation into
McGuckin’s conduct—supported the claimed exemption. Therefore, the conclusion of this
investigation, and not Ruggiero’s lawsuit, was the substantial causative effect of the disclosure.7
Affirmed.
/s/ Elizabeth L. Gleicher
/s/ David H. Sawyer
/s/ Kristina Robinson Garrett
7
The fact that the Sheriff’s Office voluntarily disclosed the e-mails during discovery does not
mean that Ruggiero’s lawsuit was “reasonably necessary to compel the disclosure.” Concluding
otherwise would mean that Ruggiero had “prevailed” for purposes of MCL 15.240(6), despite our
determination that the Sheriff’s Office properly withheld the records at issue. As stated earlier,
this result would undermine the FOIA’s prodisclosure purpose and discourage public bodies from
readily disclosing documents that are no longer exempt.
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