FEDERATED PUBLICATIONS, INC., d/b/a
UNPUBLISHED
LANSING STATE JOURNAL, and DETROIT
June 18, 1999
FREE PRESS, INC.,
Plaintiffs-Appellees,
v
No. 210335
Ingham Circuit Court
MICHIGAN DEPARTMENT OF CONSUMER &
LC No. 98-087674 AZ
INDUSTRY SERVICES,
Defendant-Appellant.
Before: Neff, P.J., and Hood and Murphy, JJ.
PER CURIAM.
Defendant appeals as of right from an order of summary disposition in
favor of plaintiffs pursuant to MCR 2.116(C)(10). The trial court ruled
that call logs, related to long distance telephone calls made by members of
the Liquor Control Commission and paid for by the state of Michigan, were
not exempt from disclosure under either the privacy or the law enforcement
exclusions of the Michigan Freedom of Information Act (FOIA). MCL 15.231 et
seq.; MSA 4.1801(l) et seq. The court further determined that defendant had
acted arbitrarily and capriciously when it refused to release the logs, and
thus awarded each plaintiff $500 in punitive damages. We affirm in part and
reverse in part.
I
Initially, defendant argues that the trial court erred in finding that
the calls logs were not exempt from disclosure under the FOIA's privacy and
law enforcement exemptions. We disagree.1
The declared public policy of Michigan, as expressed by the FOIA, is
to give all people access to information about governmental affairs and
thus enable them to fully participate in the political process. MCL
15.231(2); MSA 4.1801(l)(2). To this end, the FOIA mandates full disclosure
of all public records which are not specifically exempted under the Act.
MCL 15.233(l); MSA 4. 1801(3)(1). These exemptions are to be narrowly
construed, and the burden of proving the need for a particular exemption
rests on the public body asserting it. Booth
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Newspapers, Inc v University of Michigan Bd of Regents, 444 Mich 211, 232;
507 NW2d 422 (1993).
A
The privacy exemption contained in MCL 243(l)(a); MSA 4.1801(13)(1)(a)
consists of two elements, both of which must be present for the exemption
to apply. First, the requested information must be of a "personal nature."
Second, the disclosure of such information must be a "clearly unwarranted
invasion of privacy." Bradley v Saranac Community Schools Bd of Ed, 455
Mich 285, 294; 565 NW2d 650 (1997). The call logs at issue here, which
contained telephone numbers of persons called by LCC commissioners, do not
satisfy the first element of this test.
Information is of a "personal nature" for purposes of the privacy
exception of the FOIA "if it reveals intimate or embarrassing details of an
individual's private life." Id. at 294. In making this determination, we
must consider "the 'customs, mores, or ordinary views of the community.’”
Id., quoting Swickard v Wayne Co Medical Examiner, 438 Mich 536, 543; 475
NW2d 304 (1991). Names and telephone numbers do not meet this requirement
and thus are not of a “personal nature." See Tobin v Michigan Civil Service
Comm, 416 Mich 661, 672-673; Oakland Press v Pontiac Stadium Building
Authority, 173 Mich App 41, 45; 433 NW2d 317 (1988). Therefore, it is
unnecessary for us to consider the whether the release of the call logs is
a "clearly unwarranted invasion" of privacy. The trial court did not err in
rejecting plaintiff’s assertion of the privacy exemption.2
B
Likewise, the trial court properly determined that the law
enforcement exemption to the FOIA did not apply to plaintiffs' requests.3
This exemption permits nondisclosure of "investigating records compiled for
law enforcement purposes." MCL 15.243(l)(b); MSA 4.1801(13)(b). It is
without question that the call logs of the LCC were not compiled for the
purpose of any investigation, but rather for normal office record-keeping
purposes. The fact that the LCC may have some law enforcement
responsibilities does not change this result.
II
Next, defendant argues that the trial court erred when it did not
allow it to separate and redact exempt from nonexempt information from the
logs. Defendant's argument puts the cart before the horse. Redaction is
appropriate only where a valid exemption applies to a portion of the
requested public records. MCL 15.244(l); MSA 4.1801(14)(1); Bradley, supra
at 304. Because defendant was unable to meet its burden of proving that
disclosure of the call logs was discretionary, there was no reason to
proceed to redaction.
III
Defendant's final challenge is to the trial court's award of punitive
damages, costs, and attorney fees. Because plaintiffs prevailed in their
FOIA action, they were entitled to costs and reasonable attorney fees. MCL
15.240(6); MSA 4.1801(10)(6).4
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However, we find clear error in the trial court's award of punitive
damages pursuant to MCL 15.240(7); MSA 4.1801(10)(7). Although
unsuccessful, defendant's assertion of the privacy exemption was not
"arbitrary and capricious," as those terms have been defined in relation to
the FOIA. See Tallman v Cheboygan Area Schools, 183 Mich App 123, 126- 454
NW2d 171 (1990); Williams v Martinucci, 88 Mich App 198, 201-202; 276
NW2d876 (1979). Accordingly, we reverse this portion of the trial court's
order.
Affirmed in pan and reversed in pan.
/s/ Janet T. Neff
/s/ Harold Hood
/s/ William B. Murphy
1Because the call logs have already been disclosed, the substance of the
dispute is technically moot. Herald Co, v Ann Arbor Public Schools, 224
Mich App 266, 275; 568 NW2d 411 (1997). We address the substance of the
trial court's ruling regarding disclosure, however, because it is relevant
to other issues raised by defendant on appeal.
2We note defendant's request that this Court adopt the "core purpose" test
in which federal courts balance the extent to which disclosure would serve
the "core purpose” of the FOIA against the privacy interest at stake.
United States Dep't of Defense v Federal Labor Relations Authority, 510 US
487, 495; 114 S Ct 1006; 127 L Ed 2d 325 (1994). We decline to do so,
noting that the justices of our Supreme Court have disagreed on this issue.
See, e.g., Swickard, supra at 569-570 (Levin, J.).
3Defendant asserts that the trial court barred it from raising the law
enforcement exemption to disclosure. However, the record before us clearly
demonstrates that defendant was allowed to argue the law enforcement
exemption, and that during oral argument, both defendant and the trial
court agreed that defendant's stronger argument was the privacy exemption.
Moreover, in light of our determination that the law enforcement exemption
does not apply, any resultant error would be harmless.
4Defendant does not challenge the amount of attorney fees awarded.
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