Gregory Allen Boswell v. Department of State Police ( 2020 )

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
GREGORY ALLEN BOSWELL, UNPUBLISHED
May 7, 2020
Plaintiff-Appellant,
v No. 351316
Court of Claims
DEPARTMENT OF STATE POLICE, LC No. 19-000124-MZ
Defendant-Appellee.
Before: CAVANAGH, P.J., and SAWYER and RIORDAN, JJ.
PER CURIAM.
In this action brought pursuant to the Freedom of Information Act (FOIA), MCL 15.231 et
seq., plaintiff, Gregory Allen Boswell, appeals by right the opinion and order of the Court of
Claims granting summary disposition in favor of defendant under MCR 2.116(C)(7) (period of
limitation bars a claim) and (C)(10) (no genuine issue of material fact). We affirm in part, vacate
in part, and remand for the trial court to review the disputed documents in camera to determine
whether they contain nonexempt material that should have been disclosed.
I. PERTINENT FACTS
On April 3, 2017, plaintiff submitted a FOIA request to the Michigan State Police (MSP),
in which he requested public records relating to his role as a confidential informant. On April 11,
2017, the MSP denied plaintiff’s request and stated that the requested records did not exist. On
April 20, 2017, plaintiff appealed the April 11, 2017 determination to the MSP Director, and in his
appeal he provided additional information regarding his FOIA request. On May 8, 2018, the MSP
upheld the denial, but included a responsive record, which was located after receiving the
information plaintiff included in his appeal.
On October 1, 2018, plaintiff submitted a second FOIA request in which he requested
public records relating to his role as a confidential informant for a specific operation and
investigation. On October 23, 2018, the MSP granted plaintiff’s request as to “existing, non-
exempt records,” provided plaintiff with a fee estimate to process the request, and charged a good-
faith deposit. On February 12, 2019, defendant made its final determination and provided plaintiff
with the nonexempt records and indicated that plaintiff’s request had been denied in part because
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four exemptions applied to his request. Defendant asserted that exemptions were proper under
MCL 15.243(1)(a), the “privacy exemption,” MCL 15.243(1)(b), the “investigating-records
exemption,” MCL 15.243(1)(d), which exempted LEIN information, and MCL 15.243(1)(w),
which exempted the disclosure of Social Security numbers.
Plaintiff filed a lawsuit challenging this decision and arguing that defendant had violated
the FOIA by wrongfully withholding public records . Defendant subsequently moved for summary
disposition under MCR 2.116(C)(7), arguing that plaintiff’s claims related to his 2017 FOIA
request were time-barred, and MCR 2.116(C)(10), defending the partial denial of plaintiff’s FOIA
request. Plaintiff argued that defendant should be precluded from asserting the statute of
limitations defense under the doctrine of equitable estoppel. Plaintiff also argued that summary
disposition was improper because defendant had failed to meet its burden of proof on the asserted
exemptions. Without reviewing the records, the trial court found that the partial denial of the FOIA
request on the basis of the four asserted exceptions was valid and concluded that summary
disposition was proper under MCR 2.116(C)(7) and (C)(10). Plaintiff now challenges the trial
court’s rulings and related findings.
II. DISCUSSION
A. STANDARD OF REVIEW
A trial court’s ruling on a motion for summary disposition is reviewed de novo. Arabo v
Mich Gaming Control Bd, 310 Mich App 370, 382; 872 NW2d 223 (2015). This Court’s review
is “limited to the evidence that had been presented to the circuit court at the time the motion was
decided.” Innovative Adult Foster Care, Inc v Ragin, 285 Mich App 466, 475-476; 776 NW2d
398 (2009).
“This Court reviews de novo whether the trial court properly interpreted and applied the
FOIA.” Mich Open Carry, Inc v Dep’t of State Police, ___ Mich App ___, ___; ___ NW2d ___
(2019) (Docket No. 348487); slip op at 3. The trial court’s factual findings underlying its
application of the FOIA are reviewed for clear error. Id. at ___; slip op at 3. “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 ___; slip op at 3.
This Court reviews a trial court’s discretionary determinations for an abuse of discretion.
King v Mich State Police Dep’t, 303 Mich App 162, 175; 841 NW2d 914 (2013). “A trial court
abuses its discretion when its decision falls outside the range of principled outcomes.” Id. This
Court reviews matters of statutory interpretation de novo. Arabo, 310 Mich App at 382. This
Court reviews de novo the application of equitable doctrines. Blackhawk Dev Corp v Village of
Dexter, 473 Mich 33, 40; 700 NW2d 364 (2005).
B. ANALYSIS
1. SUMMARY DISPOSTION UNDER MCR 2.116(C)(7) WAS PROPER
Plaintiff argues that the trial court erred by granting summary disposition under MCR
2.116(C)(7) regarding his claims related to his 2017 FOIA request. We disagree.
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“When reviewing a motion under MCR 2.116(C)(7), this Court must accept all well-
pleaded factual allegations as true and construe them in favor of the plaintiff, unless other evidence
contradicts them.” Dextrom v Wexford Co, 287 Mich App 406, 428; 789 NW2d 211 (2010). “If
no facts are in dispute, and if reasonable minds could not differ regarding the legal effect of those
facts, the question whether the claim is barred is an issue of law for the court.” Id. at 429. “A
court may grant summary disposition under MCR 2.116(C)(7) when a period of limitation bars a
claim.” Prins v Mich State Police, 291 Mich App 586, 589; 805 NW2d 619 (2011).
MCL 15.240(1) provides in pertinent part:
If a public body makes a final determination to deny all or a portion of a
[FOIA] request, the requesting person may do 1 of the following at his or her option:
(a) Submit 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.
(b) Commence a civil action in the circuit court, or if the decision of a state
public body is at issue, the court of claims, to compel the public body’s disclosure
of the public records within 180 days after a public body’s final determination to
deny a request.
A public body’s “final determination” is a “written notice denying a request for a public record in
whole or in part[.]” MCL 15.235(3).
Defendant issued a final determination in response to plaintiff’s 2017 FOIA request on
May 8, 2017. Plaintiff failed to timely challenge defendant’s decision with respect to his 2017
FOIA request because he did not file a complaint until August 6, 2019, which is more than 180
days after May 8, 2017.
Plaintiff argues that the court erred by granting summary disposition because defendant
should have been precluded from asserting the statute of limitations defense under the doctrine of
equitable estoppel.
Generally, to justify the application of estoppel, one must establish that there has
been a false representation or concealment of material fact, coupled with an
expectation that the other party will rely upon this conduct, and knowledge of the
actual facts on the part of the representing or concealing party. [Lothian v Detroit,
414 Mich 160, 177; 324 NW2d 9 (1982).]
As the trial court noted, there was no evidence of false representation or concealment of a
material fact by defendant regarding the 2017 FOIA request. Therefore, the trial court did not err
by granting summary disposition under MCR 2.116(C)(7).
2. SUMMARY DISPOSITION UNDER MCR 2.116(C)(10) WAS IMPROPER
Plaintiff argues that the trial court erred by granting summary disposition in favor of
defendant regarding his claims related to his 2018 FOIA request. We agree.
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Summary disposition is appropriate under MCR 2.116(C)(10) if “there is no genuine issue
as to any material fact, and the moving party is entitled to judgment or partial judgment as a matter
of law.” MCR 2.116(C)(10). “A genuine issue of material fact exists when the record, giving the
benefit of reasonable doubt to the opposing party, leaves open an issue upon which reasonable
minds might differ.” Bennett v Russell, 322 Mich App 638, 642; 913 NW2d 364 (2018) (quotation
marks and citation omitted). When reviewing a motion under MCR 2.116(C)(10), this Court
considers all the evidence submitted by the parties in the light most favorable to the nonmoving
party and grants summary disposition only where the evidence fails to establish a genuine issue
regarding any material fact. MCR 2.116(C)(10); MCR 2.116(G)(5).
In presenting a motion for summary disposition, the moving party has the
initial burden of supporting its position by affidavits, depositions, admissions, or
other documentary evidence. The burden then shifts to the opposing party to
establish that a genuine issue of disputed fact exists. Where the burden of proof at
trial on a dispositive issue rests on a nonmoving party, the nonmoving party may
not rely on mere allegations or denials in pleadings, but must go beyond the
pleadings to set forth specific facts showing that a genuine issue of material fact
exists. If the opposing party fails to present documentary evidence establishing the
existence of a material factual dispute, the motion is properly granted. [Quinto v
Cross and Peters Co, 451 Mich 358, 362-363; 547 NW2d 314 (1996) (citations
omitted).]
The trial court concluded that the redacted information was justified under MCL
15.243(1)(a) without reviewing the redacted documents in camera. We conclude that the trial
court should have reviewed the documents.
“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). “[T]he statutory exemptions must be narrowly construed to serve the policy
of open access to public records.” Mich Open Carry, Inc, ___ Mich App at ___; slip op at 6. When
determining whether an exemption applies, the court should: (1) receive a complete particularized
justification for the claimed exemption from the public agency, (2) conduct a de novo in camera
hearing to determine whether the claimed exemption applies, or (3) consider allowing plaintiff’s
counsel access to the documents in camera. Evening News Ass’n v Troy, 417 Mich 481, 515-516;
339 NW2d 421 (1983).
The burden is on the public body to establish that the records are exempt. MCL 15.240(4).
“[O]nly the circumstances known to the public body at the time of the request are relevant to
whether an exemption precludes disclosure.” Practical Political Consulting v Secretary of State,
287 Mich App 434, 458; 789 NW2d 178 (2010). “[T]he 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). “When
ruling whether an exemption under the FOIA prevents disclosure of particular documents, a trial
court must make particularized findings of fact indicating why the claimed exemption is
appropriate.” Messenger v Consumer & Indus Servs, 238 Mich App 524, 532; 606 NW2d 38
(2000).
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a. PRIVACY EXEMPTION, MCL 15.243(1)(a)
Plaintiff argues that defendant failed to provide adequate justification for the nondisclosure
of the redacted information under MCL 15.243(1)(a). We agree.
MCL 15.243(1)(a) allows a public body to exempt from disclosure “[i]nformation of a
personal nature if public disclosure of the information would constitute a clearly unwarranted
invasion of an individual’s privacy.” This “privacy exemption” has two prongs that must be
satisfied. Mich Federation of Teachers & Sch Related Personnel, AFT, AFL-CIO v Univ of Mich,
481 Mich 657, 675; 753 NW2d 28 (2008). “First, the information must be ‘of a personal nature.’
Second, it must be the case that the public disclosure of that information would constitute a clearly
unwarranted invasion of an individual’s privacy.” Id. Intimate, embarrassing, private, or
confidential information is “of a personal nature.” Id. at 676. The second prong asks “whether
disclosure of the information at issue would constitute a clearly unwarranted invasion of an
individual’s privacy.” Id. at 682. “In making this determination, courts must balance the public
interest in disclosure against the interest [the Legislature] intended the exemption to protect.”
ESPN, Inc v Mich State Univ, 311 Mich App 662, 669; 876 NW2d 593 (2015) (quotation marks
and citation omitted; alteration in original). “[T]he only relevant public interest in disclosure to
be weighed in this balance is the extent to which disclosure would serve the core purpose of the
FOIA, which is contributing significantly to public understanding of the operations or activities
of the government.” Id. (quotation marks and citations omitted; alteration and emphasis in
original). The invasion of privacy is “clearly unwarranted” when the interest in disclosure reveals
“little or nothing about a governmental agency’s conduct” or does not “further the stated public
policy undergirding the Michigan FOIA.” Mich Federation of Teachers & Sch Related Personnel,
481 Mich at 682.
The record provided insufficient facts from which the trial court could determine that the
redacted information was exempt. The trial court, without reviewing the unredacted documents,
concluded that the redacted information was of a “personal nature” because it contained private or
confidential information and that the disclosure of the information at issue would constitute a
clearly unwarranted invasion of an individual’s privacy. However, the trial court found that the
redacted information related to plaintiff and other individuals. While “[r]equests for information
on private citizens accumulated in government files that reveal little to nothing about the inner
working of government will fail this balancing test,” ESPN, Inc, 311 Mich App at 669, “where the
requested information pertains to the party making the request, it is unreasonable to refuse
disclosure on the grounds of invasion of privacy,” Lepp v Cheboygan Area Sch, 190 Mich App
726, 732; 476 NW2d 506 (1991). Additionally, although a person’s name may be considered
information of a “personal nature,” “the relevant inquiry is whether the information associated
with the name is information of a personal nature.” ESPN, 311 Mich App at 666. Here, the trial
court recognized that some of the redacted information related to plaintiff; however, it failed to
review the records to determine whether the redactions included nonexempt information.
MCL 15.240(4) provides that a court “may view the public record in controversy in private
before reaching a decision” as to whether the record is not exempt from disclosure; therefore, the
FOIA does not require that a court conduct an in camera review of the exempted records.
However, “[i]f the public body’s statement cannot adequately provide de novo review, a trial court
should conduct an in camera review of the requested documents.” Hyson v Dep’t of Corrections,
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205 Mich App 422, 424; 521 NW2d 841 (1994). Because the trial court relied on defendant’s
assertions that the documents included redacted information regarding plaintiff and others, it
abused its discretion when it failed to review the disputed records in camera to determine whether
the redacted portions of the documents were of a “personal nature” within the meaning of MCL
15.243(1)(a).
Plaintiff also argues that the trial court abused its discretion when it failed to properly weigh
the public’s interest under the second prong of the privacy exemption because the court found that
the only asserted interest in obtaining the records was to bolster plaintiff’s credibility in hopes of
advancing his career. We agree.
Plaintiff asserted that he requested the records to depict the operation and activities of the
government in the “war against drugs.” Therefore, the court clearly erred when it found that the
only asserted interest in disclosing the information was to “bolster [plaintiff’s] credentials in hopes
of advancing his career.” Additionally, because it was unclear whether all of the redacted
information was of a “personal nature,” the court erred by determining that disclosure of such
information would “constitute a clearly unwarranted invasion of an individual’s privacy.” Mich
Federation of Teachers & Sch Related Personnel, 481 Mich at 682.
Therefore, summary disposition was improper under MCR 2.116(C)(10) because the trial
court erred when it concluded that defendant stated a legally sufficient reason for asserting the
privacy exemption under MCL 15.243(1)(a). The trial court also abused its discretion when it
failed to review the documents in camera to determine whether the redacted information was
nonexempt material under MCL 15.243(1)(a).
b. INVESTIGATING-RECORDS EXEMPTION, MCL 15.243(1)(b)
Plaintiff also argues that defendant failed to provide adequate justification for the redacted
information under MCL 15.243(1)(b). To the extent that the redacted information is unrelated to
plaintiff, we disagree.
MCL 15.243(1)(b) allows a public body to exempt from disclosure
[i]nvestigating 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.
(iii) Constitute an unwarranted invasion of personal privacy.
(iv) Disclose the identity of a confidential source, or if the record is
compiled by a law enforcement agency in the course of a criminal investigation,
disclose confidential information furnished only by a confidential source.
(v) Disclose law enforcement investigative techniques or procedures.
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(vi) Endanger the life or physical safety of law enforcement personnel.
Defendant argued that the requested information would reveal the identity of a confidential
source, disclose confidential information furnished only by a confidential source, and endanger
the life or physical safety of law enforcement personnel. Plaintiff acknowledged that he requested
information related to a specific operation from a confidential source and argued that he was the
confidential informant; however, MSP asserted that it had no way of verifying plaintiff’s identity
and that disclosure of the confidential informant’s identity posed a large risk to the confidential
informant. The trial court concluded that defendant met its burden as to MCL 15.243(1)(b)(iv)
and (vi). As indicated, “where the requested information pertains to the party making the request,
it is unreasonable to refuse disclosure on the grounds of invasion of privacy.” Lepp, 190 Mich
App at 732. To the extent that the redacted information does not relate to plaintiff’s identity as the
confidential source, the trial court did not err when it determined that defendant stated a sufficient
reason for asserting the investigating-records exemption and redacting the identity of a confidential
source, confidential information furnished only by a confidential source, and names of law
enforcement personnel. However, the trial court abused its discretion when it failed to review the
documents in camera to determine whether all of the redacted information was nonexempt material
under MCL 15.243(1)(a).
c. LEIN RECORDS, MCL 15.243(1)(d)
Plaintiff also argues that the trial court erred by failing to review the LEIN records
exempted under MCL 15.243(1)(d) and MCL 28.214. “LEIN information or records are
specifically described as exempted from disclosure under MCL 28.214(5).” Mich Open Carry,
Inc, ___ Mich App at ___; slip op at 7. Defendant stated that the records responsive to plaintiff’s
request contained LEIN information and that the LEIN information was redacted from the records.
The trial court did not err when it found that defendant stated a legally sufficient reason for
exempting LEIN information from the responsive records, and the court did not abuse its discretion
when it did not review the documents in camera for this purpose. See id.
d. THE TRIAL COURT DID NOT ERR WHEN IT RELIED ON THE AFFIDAVIT OF
RENEE HULTBERG
Plaintiff argues that the court erred when it relied on the affidavit of Renee Hultberg, who
was employed by MSP and responded to plaintiff’s FOIA requests, and argues that summary
disposition was improper because the truth of a material fact depended on Hultberg’s credibility.
We disagree.
The trial court was required to consider Hultberg’s affidavit. MCR 2.116(G)(5) (“The
affidavits, together with the pleadings, depositions, admissions, and documentary evidence then
filed in the action or submitted by the parties, must be considered by the court when the motion is
based on subrule (C)(1)-(7) or (10).”). Plaintiff cites Palazzola v Karmazin Prod Corp, 223 Mich
App 141, 155; 565 NW2d 868 (1997), to support his argument that the court erred by relying on
Hultberg’s affidavit; however, unlike in Palazzola, in the instant case there was no existing
testimony that contradicted Hultberg’s affidavit. Id. at 154-155. Therefore, plaintiff’s argument
has no merit.
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e. THE TRIAL COURT DID NOT ERR WHEN IT FOUND THAT DEFENDANT’S
RESPONSE TO PLAINTIFF’S 2018 FOIA REQUEST COMPLIED WITH FOIA
Plaintiff argues that the trial court erred when it found that defendant adequately responded
to plaintiff’s October 1, 2018 FOIA request. We disagree.
Although the trial court did not explicitly make a ruling on this issue, the court granted
summary disposition in favor of defendant; therefore, it must have implicitly found that defendant
had complied with the FOIA. A public body’s failure to timely respond to a request as required
by the FOIA constitutes a final determination to deny the request. MCL 15.235(3). “[A] final
determination is not required until plaintiff has paid the deposit required by the [public body].”
Arabo, 310 Mich App at 388. Here, defendant provided its final determination on February 12,
2019, after plaintiff paid the deposit. Therefore, the trial court did not err when it implicitly found
that defendant’s final determination complied with the FOIA.
f. DISCOVERY
Plaintiff also claims that summary disposition was improper because discovery was
incomplete. We disagree.
“If a party opposes a motion for summary disposition on the ground that discovery is
incomplete, the party must at least assert that a dispute does indeed exist and support that allegation
by some independent evidence.” Bellows v Delaware McDonald’s Corp, 206 Mich App 555, 561;
522 NW2d 707 (1994). However, “there is no fair likelihood that further discovery would yield
support for plaintiff's action” because the factual dispute related to the FOIA documents. Liparoto
Const, Inc v Gen Shale Brick, Inc, 284 Mich App 25, 34; 772 NW2d 801 (2009). Nonetheless,
summary disposition was improper for the reasons stated earlier.
g. DENIAL OF FOIA RECORDS AND UNRESPONSIVE RECORDS
Plaintiff argues that defendant violated the FOIA by denying him access to available public
nonexempt records. Defendant asserted that it did not withhold any records in their entirety; rather,
defendant indicated it redacted information from the responsive records, which was supported by
Hultberg’s affidavit. The court did not explicitly rule on this issue; however, plaintiff did not
provide documentary evidence that other records existed. Therefore, the court did not clearly err
when it implicitly found that defendant had provided all of the nonexempt records to plaintiff.
Next, plaintiff argues that the court erred when it found that defendant did not violate the
FOIA when defendant provided two unrelated records in response to his request. Plaintiff failed
to raise this issue below; therefore this issue is waived. Walters v Nadell, 481 Mich 377, 387; 751
NW2d 431 (2008). Further, plaintiff provides no authority to support his assertion. See Mitcham
v Detroit, 355 Mich 182, 203; 94 NW2d 388 (1959) (“It is not enough for an appellant in his brief
simply to announce a position or assert an error and then leave it up to this Court to discover and
rationalize the basis for his claims, or unravel and elaborate for him his arguments, and then search
for authority either to sustain or reject his position.”).
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Plaintiff also argues that the court erred by finding that his 2018 FOIA request provided
more specific information than his 2017 FOIA request. A review of the record indicates that
plaintiff’s 2018 FOIA request included more specific information than the 2017 request; therefore,
the trial court did not clearly err when it found this fact. Plaintiff also argues that the court erred
when it suggested that plaintiff’s 2017 FOIA request did not include sufficient information;
however, as indicated, plaintiff’s claims regarding the 2017 FOIA request are time-barred.
For the foregoing reasons, we affirm in part, vacate in part, and remand for the trial court
to review the disputed records in camera to determine whether defendant’s rationale for redacting
the records under MCL 15.234(1)(a) and (1)(b) applied to all of the redacted material contained in
the requested records and whether the records contained nonexempt material that should have been
disclosed. The trial court should make this determination from the perspective of the time when
defendant asserted the FOIA exemptions on February 12, 2019.
Affirmed in part, vacated in part, and remanded for further proceedings consistent with this
opinion. We do not retain jurisdiction. No costs, neither party having prevailed in full.
/s/ Mark J. Cavanagh
/s/ David H. Sawyer
/s/ Michael J. Riordan
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