KENT COUNTY DEPUTY SHERIFFS’ FOR PUBLICATION
ASSOCIATION, October 26, 1999
9:15 a.m.
Plaintiff-Appellee,
v No.210754
Kent Circuit Court
KENT COUNTY SHERIFF and KENT LC No.96-012380 AZ
COUNTY,
Defendants-Appellants.
Before: Hoekstra, P.J., Saad and R. B. Burns,* JJ
SAAD, J.
In this lawsuit brought under the Freedom of Information Act
(FOIA)1, and the Employee Right to Know Act (ERKA)2, Plaintiff
Kent County Deputy Sheriffs’ Association (Association) seeks
release of documents from defendants Kent County Sheriff and Kent
County3. Plaintiff wants defendant’s internal affairs files,
i.e., the records and witness statements defendant kept relating
to defendant’s investigation of two deputy sheriffs disciplined
for violating agency rules. In an earlier agency proceeding
between the same parties, but involving different deputies, the
Association sought the internal affairs files from defendant, but
the Michigan Employment Relations Commission (MERC) ruled that
the files were exempt from disclosure under the Public Employment
Relations Act (PERA).4 Because plaintiff’s request here involves
a potential grievance arbitration under a collective bargaining
agreement, and an unfair labor practice under the PERA if the
request is wrongfully denied, defendant, relying on the MERC
ruling in an identical case, responded that the MERC had
exclusive jurisdiction over the matter. Defendant also argued
that if the FOIA or ERKA were to be interpreted to require
disclosure, then these statutes would be in conflict with the
PERA, which protects these records from disclosure and which
takes precedence over the FOIA. Defendant also contends that the
investigatory files are not subject to disclosure under either
the FOIA or the ERKA. The trial court disagreed with defendant,
and ordered release of the documents. Defendant appeals, and we
reverse.
I. NATURE OF THE CASE
The PERA governs public sector labor law, and its provisions
have been held to take precedence over other conflicting laws to
ensure uniformity, consistency and predictability in the
critically important and complex field of public sector labor
law. Rockwell v Crestwood School Dist, 393 Mich 616, 629; 227
NW2d 736 (1975). The MERC is the sole state agency charged with
the interpretation and enforcement of this highly specialized and
politically sensitive field of law. Id., 630, MCL 423.216; MSA
17.455(16).
“A major purpose of the FOIA is to enable the general public
to obtain full and complete information regarding governmental
decision making.” Herald Co v City of Bay City, 228 Mich App
268, 286; 577 NW2d 696 (1998). A party claiming that material is
exempt from disclosure under the FOIA bears the burden of proving
that one of the statutory exemption applies. Id. The FOIA has
been interpreted broadly to allow public access, and its
exceptions are interpreted narrowly so its disclosure provisions
are not undermined. Lepp v Cheyboygan Area Schools, 190 Mich App
726, 729; 476 NW2d 506 (1991), Bradley v Saranac Community
Schools Bd of Ed, 455 Mich 285, 293; 565 NW2d 650 (1997).
In the labor law arena, unions frequently seek information
and materials from management that the union asserts is necessary
to bargain collectively (regarding, for example, wages, overtime,
pensions). In the private sector, under the federal Labor
Management Relations Act (LMRA) 29 USC 141 et seq., the National
Labor Relations Board (NLRB) has exclusive jurisdiction to
resolve unfair labor practice disputes. 29 USC 160. Unless the
information is protected from disclosure, an employer’s failure
to comply with the union’s request for information and documents
constitutes an unfair labor practice—a failure to bargain in good
faith. General Motors Co v NLRB, 700 F2d 1083, 1088 (CA 6, 1983);
29 USC 158(a)(5). See also AFSCME Local 2343 v Federal Labor
Relations Authority, 330 US App 136; 144 F3d 85 (CA DC, 1998);
NLRB v US Postal Service, 888 F2d 1568, 1570 (CA 11, 1989).
Analogously, in Michigan’s public sector, the employer’s failure
to release non-protected information constitutes an unfair labor
practice under the PERA, as interpreted and enforced by the MERC.
MCL 423.210(1)(e); MSA 17.455(10)(1)(e). Questions of what
information is vital to bargaining—and thus subject to
disclosure—and what information is proprietary and
confidential—and thus protected from disclosure—go to the heart
of the collective bargaining and grievance arbitration law of
labor management relations. See Detroit Edison Co v NLRB, 440 US
301, 303; 99 S Ct 1123; 59 L Ed 2d 333 (1979); NLRB v Truitt Mfg,
351 US 149; 76 S Ct 753; 100 L Ed 1027 (1956).
In a dispute which involved the same parties and the precise
issue now before us, the MERC determined that defendant law
enforcement agency was not obliged to provide the Association
with copies of internal affairs records relating to Association
members’ alleged misconduct. Kent County and Kent County Sheriff,
1991 MERC Lab Op 374; 4 MPER ¶ 22071. Recently, the MERC
reiterated this position in City of Battle Creek v Police
Officers Labor Council, 12 MPER ¶ 30008 (1998), which also
involved a police officers’ union’s attempt to obtain internal
affairs records. In an apparent attempt to avoid an unfavorable
ruling from the MERC, the Association here sought to get the
information by using the FOIA. Therefore, the issue of first
impression raised by this appeal is: does a public sector labor
union’s FOIA request for information from a public sector
employer create an unfair labor practice issue that falls within
the MERC’s exclusive jurisdiction? We answer yes, and hold that
the circuit court lacks jurisdiction over the Association’s FOIA
and ERKA action. We also hold that the PERA, as the dominant law
in public sector labor relations, precludes the Association’s
FOIA and ERKA actions. Furthermore, we conclude that the
documents are not subject to disclosure under the FOIA.
II. FACTS AND PROCEEDINGS
Plaintiff Association and defendant, a public employer, are
parties to a collective bargaining agreement, subject to the
PERA. The Association represents the deputy sheriffs employed by
defendant, including corrections officers John Biddington and
Rodney Perdue. This case arose when the sheriff disciplined
officers Biddington and Perdue for alleged misconduct.
Biddington was dismissed after an off-duty incident in which he
propositioned a woman in a restaurant to perform sexual acts for
money. Perdue was suspended for twelve days without pay for
using excessive force against a jail inmate.
Pursuant to the collective bargaining agreement, the
officers filed grievances. Anticipating that Perdue’s grievance
would proceed to arbitration, the Association requested that
defendant provide it with a copy of the internal affairs
investigation file. This file consisted of documents defendant
compiled in the course of investigating the charges against
Biddington and Perdue, and presumably included statements by
other officers with knowledge of the incidents. Defendant denied
the request, asserting that it had no obligation to release the
documents. Defendant relied on a previous MERC ruling which
decided the precise issue between these parties in an unfair
labor practice proceeding. Kent County and Kent County Sheriff,
1991 MERC Lab Op 374; 4 MPER ¶ 22071. There, the MERC determined
that “internal investigations conducted for the purpose of
determining whether or not there was employee misconduct, fall
within the confidential information exception” to an
“[e]mployer’s general obligation to provide information that is
relevant and necessary to the performance of the [u]nion’s duty
as the collective bargaining representative.” Id. Consequently,
defendant’s refusal to release the documents did not constitute
an unfair labor practice.
Having already lost on this issue under the PERA before the
MERC, the Association tried another way to obtain the
investigation documents, this time via a FOIA and ERKA request
for all reports concerning disciplinary action for both Perdue
and Biddington. Although defendant released certain documents in
response to this request, it maintained that the remaining
records were not subject to disclosure under either the FOIA or
ERKA. The Association filed suit, alleging that defendant’s
refusal to release the internal affairs records violated the FOIA
and the ERKA, as well as the Michigan Constitution’s fair and
just treatment clause, Const 1963, art 1, § 17. The Association
stated in its complaint that it needed the grievants’ statements,
the witnesses’ identities and statements, and the medical reports
and other documents in order to “prepare for arbitration”
(emphasis supplied).
Defendant contended that the Association’s FOIA action to
obtain documents unavailable through the MERC was a thinly
disguised claim of an unfair labor practice and attempt to
circumvent the MERC’s exclusive jurisdiction. Defendant further
argued that neither the FOIA, nor the PERA, nor the Constitution
required release of these documents. Alternatively, defendant
argued that if the FOIA or ERKA did, in fact, mandate disclosure,
then these statutes would be in conflict with the PERA, which
protected the confidentiality of these records, and which took
precedence over the FOIA and ERKA.
The trial court rejected defendant’s arguments and ordered
defendant to release the documents pursuant to the FOIA.
Defendant now appeals. By order of this panel, execution of the
trial court’s order has been stayed pending the outcome of this
appeal.
III. ANALYSIS
A. The MERC’s Exclusive Jurisdiction over Unfair Labor Practice
Claims
The crux of defendant’s argument is that the Association’s
FOIA claim is, in substance, a claim that defendant committed an
unfair labor practice by refusing to disclose records the
Association allegedly sought to prepare for arbitration. Raising
an issue of first impression in this Court, defendant maintains
that the MERC has exclusive jurisdiction over unfair labor
practice claims, and that the Association cannot bestow the
circuit court with jurisdiction by disguising the unfair labor
practice claim as a FOIA or ERKA claim. We agree. Because a
public employer’s response to a union’s request for documents and
other information is properly characterized as an unfair labor
practice issue, the MERC has exclusive jurisdiction over this
matter, and the trial court has no jurisdiction to consider the
matter as a FOIA or ERKA claim.
Our state’s Constitution provides that the “legislature may
enact laws providing for the resolution of disputes concerning
public employees, except those in the state classified civil
service.” Const, 1963, Art 4, § 47. Our Legislature exercised
this authority by enacting the PERA. Our Supreme Court has
“consistently construed the PERA as the dominant law regulating
public employee labor relations.” Rockwell, 393 Mich 629
(emphasis added). The PERA charges the MERC with jurisdiction to
remedy unfair labor practices. MCL 423.216; MSA 17.455(16).
Accordingly, our Supreme Court has held:
MERC alone has jurisdiction and administrative
expertise to entertain and reconcile competing
allegations of unfair labor practices and misconduct
under the PERA. [Id., 630 (emphasis added).]
Therefore, if defendant’s refusal to release documents pertaining
to the pending grievance would, if wrongful, be an unfair labor
practice, then the matter is within the MERC’s exclusive
jurisdiction.
Unquestionably, the Association’s claim that defendant
should release the investigation files raises an unfair labor
practice issue. It is a thoroughly entrenched principle of labor
law that a union is entitled to receive from the employer
information and documents the union needs to carry out its duties
to represent its members. Detroit Edison Co, supra, 440 US
301and Truitt Mfg, supra, 351 US 149. Because “one of the duties
of a labor union is the processing of grievances” the union has a
qualified right to information needed in the grievance process.
Resorts International Hotel Casino, 996 F2d 1553, 1556 (CA 3,
1993). Accordingly, an employer’s failure to provide the union
with the information it needs to evaluate and process grievances
may constitute an unfair labor practice. General Motors, supra,
700 F2d 1088 . See also AFSCME Local 2343, supra, 330 US App
136, and US Postal Service, supra, 888 F2d 1570. Specifically,
the employer’s failure to provide necessary information
constitutes a refusal to bargain collectively with the employees'
representative—an unfair labor practice under both the National
Labor Relations Act and the PERA. General Motors, supra; 29 USC
158(a)(5); MCL 423.210(1)(e); MSA 17.455(10)(1)(e). Consistent
with these principles, Michigan public sector unions appear
before the MERC to challenge as unfair labor practices employers’
refusal to provide information. See Kalamazoo City Education
Ass’n v Kalamazoo Public Schools, 406 Mich 579, 590; 281 NW2d 454
(1979) and Crestwood Education Ass’n v MERC, 71 Mich App 347,
353; 248 NW2d 266 (1976). Exercising its proper jurisdiction
over this matter, the MERC has determined that confidentiality
concerns outweigh a union’s need for law enforcement records
pertaining to internal investigation of officers’ misconduct.
City of Battle Creek, supra; Kent County, supra.
Defendant is thus correct in its assertion that the
Association’s claim is, in substance, an unfair labor practice
claim. The Association does not deny that defendant’s conduct
raises a question of unfair labor practices. However, it
maintains that the MERC’s jurisdiction over the unfair labor
practice does not affect its statutory rights to seek the
documents under the FOIA and ERKA. We disagree. It is well
established in Michigan labor law that the MERC’s exclusive
jurisdiction forecloses actions under other statutes or legal
theories where the alleged wrongdoing raises an unfair labor
practice issue.
In Rockwell, supra 393 Mich 616, our Supreme Court set forth
the broad parameters of the MERC’s exclusive jurisdiction over
unfair labor practice claims. In Rockwell, public school
teachers who had been discharged for striking claimed that they
were entitled to a pre-termination hearing under the teachers’
tenure act5 and the Due Process Clause. Id., 624-625. The
school board maintained that the teachers were entitled only to a
post-termination hearing, in accordance with § 6 of the PERA.
Id. The Court ruled that the teachers’ rights with regard to
discipline for illegal striking was governed by the PERA, and
that the appropriate forum for the dispute was the MERC:
This Court has consistently construed the PERA as
the dominant law regulating public employee labor
relations.
* * *
The teachers’ tenure act was not intended, either
in contemplation or design, to cover labor disputes
between school boards and their employees. . . .
The State Tenure Commission has no authority to
entertain an unfair labor practice charge against a
school board. Its jurisdiction and administrative
expertise is limited to questions and traditionally
arising under the teachers’ tenure act.
MERC alone has jurisdiction and administrative
expertise to entertain and reconcile competing
allegations of unfair labor practices and misconduct
under the PERA. [Id., 629-630 (emphasis added).]
In sum, any complaint by the teachers that they had been
wrongfully discharged for striking was, in substance, a complaint
of an unfair labor practice. Accordingly, the teachers’ remedy
could only come through the PERA, as administered by the MERC.
Applying Rockwell here, we find that the Association’s FOIA and
ERKA claims are on the same footing as the tenure act claims.
Similarly, in Lamphere Schools v Lamphere Federation of
Teachers, 400 Mich 104; 252 NW2d 818 (1977), a school district
sued a teachers union in tort, alleging monetary damages incurred
during a peaceful, but illegal strike. Id., 107. The Supreme
Court held that this suit was not legally tenable:
First and foremost, after a careful study of both
the specific language and the history of the PERA, we
are convinced that the Legislature intended the PERA to
occupy the public labor relations field completely in
this context. Accordingly, except for the historical
equitable relief of injunction, the remedies of
discipline-discharge provided for under § 6 of the PERA
are intended to be the sole and exclusive remedies
available to a school district in dealing with a
peaceful strike by a teachers’ federation. [Id., 107.]
Reviewing the language of the PERA’s title, the Court found it
salient that one purpose of the act was to “prescribe means of
enforcement and penalties for the violation of the provisions of
this act.” Id., 110-111, quoting 1947 PA 336, as amended by 1965
PA 379. The Court concluded that “it require[d] little
extrapolation to ascertain” that the Legislature “intended to
proscribe strikes by public employees and to prescribe the means
of enforcement and penalties for such strikes.” Id., 111. The
plaintiff school district contended that the PERA’s remedies were
not exclusive, because the PERA did not provide school districts
with any remedy against teachers unions “which foment teachers’
strikes.” Id. The Court rejected this argument because the PERA
provided for “exclusive, after-the-fact statutory remedies as to
both teachers and their federations for participation in such
strikes”, albeit not monetary damages. Id., 111-112. The Court
held that the school district could seek no other remedies than
those provided by the PERA. Id., 117.
Furthermore, the Court in Lamphere Schools reiterated the
Rockwell Court’s conclusion that “MERC alone has jurisdiction and
administrative expertise to entertain and reconcile competing
allegations of unfair labor practices and misconduct under the
PERA.” Id., 118, quoting Rockwell, supra 630 (emphasis added by
Lamphere Schools Court). The Lamphere Schools Court held that
the plaintiff’s tort action against the teachers union was
contrary to the MERC’s exclusive jurisdiction over unfair labor
practice claims:
If this Court permitted plaintiff school district
to pursue any of the three civil tort actions pled
(causing teachers to breach a duty, tortious
interference with existing individual contractual
relationships, civil conspiracy), such a result would
necessarily circumvent the authority of MERC to
determine charges of unfair labor practices. This
becomes apparent since the defendant federations, as
representatives of the teachers, would inevitably
defend proposed civil actions by alleging unfair labor
practices. Then the determination of whether or not an
unfair labor practice occurred would inexorably fall to
the forum in which the tort action was brought—the
circuit court. [Id., 118-119.]
The Court further commented on the policy implications of eroding
the MERC’s jurisdiction in this context:
The circuit courts would be forced to make the same
unfair labor practice determinations as to the
federations heretofore exclusively reserved to MERC.
The unpleasant specter of the courts and MERC sharing
this authority, combined with the very real possibility
of conflicting decisions, could only further confuse
labor relations in the public sector. [Id., 119.]
These policy considerations are compelling here. The MERC, as
the state agency charged with enforcement of our state’s public
sector labor law, has established a confidentiality exception to
the employer’s obligation to disclose, and it has determined that
this exception covers law enforcement internal investigation
files. Battle Creek; Kent County. If this category of unfair
labor practice claims could be recast as FOIA or ERKA claims, the
Lamphere Schools Court’s “unpleasant specter” would be realized,
and conflicting decisions would muddle the field of public sector
labor law in Michigan. The PERA has been given precedence over
other laws to ensure a consistent and coordinated body of public
sector labor law in this state. Consistent with this objective,
MERC is the exclusive agency which interprets these complex and
balanced interests of labor and management. To allow this
delicate balance to be upset by conflicting decisions from trial
courts “could only further confuse labor relations in the public
sector.” Id.
In another relevant case, Ramsey v City of Pontiac, 164 Mich
App 527; 417 NW2d 489 (1987), the plaintiff, a police officer,
alleged that his superiors promised him a promotion. In reliance
on this promise, the plaintiff resigned a desirable position in
order to gain road patrol experience as required for the
promotion. Id., 529. The promotion never came. Id., 531.
Because plaintiff’s union representative did not believe that
plaintiff had grounds for a grievance, plaintiff filed his own
individual grievance, which was denied. Id., 531-532. Plaintiff
then filed a lawsuit against the city, the chief of police, the
mayor, and the unions alleging breach of contract with respect to
the promotion offer, breach of the collective bargaining
agreement with respect to the union’s failure to pursue a
grievance, misrepresentation, promissory estoppel, and
intentional infliction of emotional distress. Id., 532. After
rejecting plaintiff’s breach of contract claims and breach of the
duty of fair representation, the Court rejected his claims of
misrepresentation, intentional infliction of emotional distress,
and promissory estoppel:
We believe plaintiff’s tort claims are factually
indistinguishable and inseparable from his claim that
the bargaining agreement was violated and a possible
unfair labor practice claim which he did not allege.
The union properly refused to pursue the grievance
under the agreement. Any unfair labor practice claim
would fall within the exclusive jurisdiction of the
[MERC]. Therefore, we find no error in precluding
plaintiff from pursuing these identical claims under
different names. [Id., 539 (emphasis added).]
As with Rockwell and Lamphere Schools, we find the plaintiff’s
claim in Ramsey to be analogous to plaintiff’s FOIA/ERKA claims
here. Plaintiff’s contention that it is entitled to the internal
affairs files under these statutes is “factually
indistinguishable and inseparable” from its claim that it needs
the documents to pursue the officers’ grievances. Accordingly,
MERC’s exclusive jurisdiction precludes the FOIA/ERKA lawsuit.
Clearly, the PERA is the exclusive remedy for any unfair
labor practice charge, and MERC has exclusive jurisdiction to
adjudicate such charges. A plaintiff cannot obtain another
remedy by framing the unfair labor practice as a different
species of common-law or statutory claim and invoking the
jurisdiction of a different tribunal. If the allegations forming
the plaintiff’s cause of action implicate an unfair labor
practice question, the claim is barred by MERC’s exclusive
jurisdiction. Here, plaintiff’s claim that defendant must
provide the internal affairs file raises a question of
defendant’s obligation to provide the union with requested
information. MCL 423.210(1)(e); MSA 17.455(10). Because the
Association’s claim, if meritorious, clearly constitutes an
unfair labor practice by the employer, its resolution falls
within the MERC’s exclusive jurisdiction. The trial court
therefore erred when it ordered defendant to release these
documents.
We reject plaintiff’s contention that Local 312 of the
AFSCME, AFL-CIO v City of Detroit, 207 Mich App 472, 525 NW2d 487
(1994) requires a contrary result. There, the plaintiff union
prevailed in a circuit court FOIA action against the defendant
employer. Id., 473. On appeal, this Court considered the narrow
issue of whether the union qualified as a “person” entitled to
seek public records under the FOIA. Id.. The Court merely
stated that there was “no sound policy reason for distinguishing
between persons who are involved in litigation-type proceedings
and those who are not.” 6 Id. The opinion makes no reference at
all to the issue of the MERC’s exclusive jurisdiction over unfair
labor practice claims, and thus has no precedential value on this
issue. MCR 7.215(H)(1). Because the question in Local 312 is
not the same as the question here, the doctrine of stare decisis
does not apply.7 Sizemore v Smock, 430 Mich 283, 291 n 15; 422
NW2d 666 (1988).
B. The PERA Takes Precedence Over the FOIA
Were we to find that the circuit court has jurisdiction to
adjudicate this matter, we would nonetheless reverse the trial
court on the alternative ground that the PERA’s dominance in the
field of labor relations precludes the Association’s FOIA action.8
The PERA’s remedies for PERA violations are exclusive, and
aggrieved parties to labor disputes are not entitled to relief
via other statutes or common law theories. See Jackson Fire
Fighters Association, Local 1306, IAFF, AFL-CIO v City of Jackson
(On Remand), 227 Mich App 520, 525; 575 NW2d 823 (1998);
Rockwell, supra; Lamphere Schools, supra.
In Rockwell, supra teachers terminated for illegal striking
challenged their termination under the teachers’ tenure act. Our
Supreme Court rejected this claim because the striking teachers’
rights were delineated by the PERA, which took precedence over
the teachers’ tenure act and precluded the action under the
latter statute:
The teachers’ tenure act was not intended, either
in contemplation or design, to cover labor disputes
between school boards and their employees. The 1937
Legislature in enacting the teachers’ tenure act could
not have anticipated collective bargaining or meant to
provide for the resolution of labor relations disputes
in public employment. [Id., 630.]
Accordingly, in the context of a labor dispute over an illegal
strike, the teachers could not derive from the tenure act any
rights not afforded by the PERA.
Continuing its analysis, the Rockwell Court commented that
the PERA’s public policy goal of uniformity in the law of public
sector labor relations would be thwarted if the teachers were
permitted to seek relief under the tenure act:
A construction of the statutes providing uniform
treatment of all public employee labor relations
questions is more likely to effect a sound and
expeditious resolution of labor disputes. Requiring
hearings under both the teachers’ tenure act and the
Michigan labor relations statutes, with review of the
former by the circuit court and of the latter by the
Court of Appeals, could result in competing claims and
conflicting adjudications with untoward and costly
delay. [Id., 631.]
Applied here, the Rockwell analysis leads to the conclusion
that the Association cannot assert the FOIA to obtain materials
not discoverable under the PERA. The FOIA, like the teachers’
tenure act, was never intended to resolve management-labor
disputes, and therefore cannot serve as a means of circumventing
the PERA. Furthermore, allowing unions the option of seeking
grievance-related information under either the PERA or the FOIA
would lead to the conflicting results and uncertainty the
Rockwell Court sought to avoid.
Processing grievances is undoubtedly among a union’s most
important functions. The exchange of information during this
process is crucial to the disposition of grievance claims.
Issues over release of documents are hotly contested: the union
wants access to all existing information; the employer wants to
protect confidential information from disclosure. The dispute is
more contentious when a union seeks internal affairs files from a
law enforcement agency. The agency’s interest in confidentiality
is acute, because disclosure will discourage officers in the
future from revealing information concerning another officer’s
misconduct. In short, controversies over the exchange of
information lie at the very heart of labor law, and should
therefore be governed solely by the PERA, which was specifically
designed to address and balance all the competing interests in
labor-management disputes.
In sum, the Legislature intended the PERA to be the dominant
law of public sector labor-management relations in Michigan. The
issue of information exchange during grievance arbitration is
central to labor-management relations. Accordingly,
controversies over information disclosure can be resolved only
under the PERA, not under the general FOIA provisions.9
C. Exemption of Records from Disclosure
Alternatively, defendant claims that they did not violate
the FOIA, the ERKA or the Michigan Constitution, Const 1963, art
1, § 17, and, therefore, were entitled to summary disposition
under MCR 2.116(C)(10). We agree.
The internal investigation documents requested by plaintiff
are exempt from disclosure under the FOIA exemption for certain
public records of a law enforcement agency. MCL 15.243(1)(t);
MSA 4.1801(13)(1)(t). The FOIA requires the disclosure of all
public records that are not specifically exempted under MCL
15.243; MSA 4.1801(13) (§ 13). Lepp v Cheyboygan Area Schools,
190 Mich App 726, 729; 476 NW2d 506 (1991). Exemptions from the
FOIA are to be narrowly construed and the burden of proof is on
the public body claiming an exemption. Bradley v Saranac
Community Schools Bd of Ed, 455 Mich 285, 293; 565 NW2d 650
(1997). Whether records fall within one of the statutory
exemptions is a question of law, which we review de novo. Id.
Defendant claims an exemption under § 13(1)(t) of the FOIA,
which addresses law enforcement agency records. § 13 provides
that a public body may exempt from disclosure personnel records
of a law enforcement agency unless the public interest in
disclosure outweighs the public interest in nondisclosure. MCL
15.243(1)(t)(ix); MSA 4.1801(13)(1)(t)(ix).
Here, the trial court erroneously concluded that the
investigation records were not exempt from disclosure under
Section 13(1)(t)(ix) of the FOIA. Internal investigation records
of a law enforcement agency may be exempted from disclosure as
personnel records under Section 13(1)(t)(ix). MCL
15.243(1)(t)(ix); MSA 4.1801(13)(1)(t)(ix); Newark Morning Ledger
Co v Saginaw Co Sheriff, 204 Mich App 215, 223; 514 NW2d 213
(1994).
Once particular records qualify under a listed exemption for
law enforcement agency records, the remaining inquiry is “whether
the public interest in disclosure outweighs the public interest
in nondisclosure in the particular instance.” MCL 15.243(1)(t);
MSA 4.1801(13)(1)(t); Newark Morning Ledger, supra 224.
Defendant sufficiently established that public interest favored
nondisclosure. The affidavit of the undersheriff justified
confidentiality on these grounds:
1. Internal investigations are inherently difficult because
employees are reluctant to give statements about the actions of
fellow employees.
2. If their statements would be a matter of public knowledge
they might refuse to give any statements at all or be less than
totally forthcoming and candid.
3. Also, disclosure could be detrimental to some employees.
4. Public disclosure of records relating to internal
investigations into possible employee misconduct would destroy or
severely diminish the Sheriff Department’s ability to effectively
conduct such investigations.
We agree that these reasons soundly establish that the public
interest favors nondisclosure of these records. Plaintiff fails
to persuade us that the public interest in meaningful arbitration
of grievances favors disclosure. Instead, we agree with the MERC
that “requiring prearbitration disclosure of witness statements
would not advance the grievance and arbitration process, on the
ground that employee witnesses might be coerced or intimidated to
change their testimony or not testify at all.” Kent County,
supra, 4 MPER ¶ 22071, p 197.
The trial court did not reach the questions of disclosure
under the ERKA or Const 1963, art 1, § 17. We decline to address
these issues because they are unnecessary for our review and
because the record relating to these issues is not fully
developed.
Reversed.
/s/ Henry William Saad
/s/ Joel P. Hoekstra
/s/ Robert B. Burns
_______________________________
1 MCL 15.231 et seq.; MSA 4.1801(1) et seq.
2 MCL 423.502 et seq.; MSA 17.62 et seq.
3 Both defendants, Kent County Sheriff and Kent County, will be
referred to by the singular “defendant”.
4 MCL 423.201 et seq.; MSA 17.455(1) et seq.
5 MCL 38.71 et seq.; MSA 15.1971 et seq.
6 After this Court decided Local 312, the Legislature amended the
FOIA by providing that “[r]ecords or information relating to a
civil action in which the requesting party and the public body
are parties” are exempt from disclosure. MCL 15.243(w); MSA
4.1801(13)(w). Thus, persons involved in litigation are no
longer entitled to use the FOIA as a pre-trial discovery
procedure.
7 Furthermore, the page-and-a-half decision includes only a
cursory statement of fact that is insufficient to establish that
an unfair labor practice question was ever raised or even
implicated.
8 Though we need not decide this question, we seriously question
the proposition that the FOIA applies to a public sector union’s
request for information from a public sector employer whose
employees the union represents. We believe that the FOIA was
never intended to apply to the complex field of labor-management
relations in the public sector. Rather, the FOIA was designed to
help the citizen learn more about his government and subject
government to public scrutiny. Allowing a union to use the FOIA
to obtain information for labor arbitration when that kind of
information has been previously held to be nondisclosable by the
MERC would undermine the public policy and purpose of both the
FOIA and PERA.
9 The Association places great emphasis on this Court’s
conclusory statement in Local 312, supra that “[t]he PERA and the
FOIA are not conflicting statutes such that the PERA would
prevail over the FOIA.” Id., 473. The Association’s reliance,
however, is misplaced, because Local 312 is not factually
relevant here. The Local 312 opinion gives only a cursory
discussion of facts and legal arguments, leaving us unable to
ascertain the exact nature of the purported conflict in that
case. Here, however, the nature of the potential conflict
between the PERA and FOIA is clear: the documents the
Association seeks under the FOIA are not subject to disclosure
under the PERA as that statute has been construed by the MERC.
Battle Creek, supra, Kent County, supra. See Grandville
Municipal Executive Ass’n v City of Grandville, 453 Mich 428,
437; 553 NW2d 917 (1996), holding that this Court affords great
deference to the MERC’s interpretation of the PERA. Furthermore,
the Court’s reasoning in Local 312 is of questionable validity
following the 1996 amendments to the FOIA. The Local 312 Court
drew an analogy between the labor-management dispute over
information disclosure and a civil lawsuit discovery dispute.
(The Court “decline[d] [the employer’s] invitation to create an
FOIA exception based on the status of the person requesting
public documents” because it found “no sound policy reason for
distinguishing between persons who are involved in litigation-
type proceedings and those who are not.” Id., 473. However, §
13 of the FOIA now exempts from disclosure “[r]ecords or
information relating to a civil action in which the requesting
party and the public body are parties. MCL 15.243(w); MSA
4.1801(13)(w).
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