The Michigan Freedom of Information Act (FOIA); Whether a city police department’s use-of-force policy is subject to disclosure; Exemption under MCL 15.243(1)(s)(vi); Whether the policy reveals the contents of a law enforcement “staff manual”

On remand from the Supreme Court, the court held that the trial court clearly erred in ruling that the FOIA staff manual exemption under MCL 15.243(1)(s)(vi) applied and prevented disclosure of defendant-city’s police department’s unredacted use-of-force policy. Thus, it reversed summary disposition for the city and remanded for entry of summary disposition for plaintiff- Hjerstedt. “MCL 15.243(1)(s)(vi) exempts ‘the contents of staff manuals provided for law enforcement officers or agents’ from disclosure ‘[u]nless the public interest in disclosure outweighs the public interest in nondisclosure in the particular instance[.]’” The court noted that FOIA does not define “staff manuals,” and no case law has interpreted the provision. It did “not quibble with the trial court’s definition of a staff manual. Indeed, the common understanding of a staff manual can be described as a book or compendium of policies given to staff (e.g., law enforcement officers), informing them about workplace expectations and instructions on how to conduct business.” But it noted there was no record evidence “that the city’s use-of-force policy is contained in a staff manual or handbook that was disseminated to law enforcement officers. Rather, it is part of a standing general order that was issued” in 2013. The only evidence the city offered to support that the policy was a staff manual was the police chief’s “conclusory statement that he considered it to be a staff manual without any further explanation. As the party asserting the exemption, the city has the burden of establishing its applicability.” The court concluded “the term ‘staff manual’ was intended to be used synonymously with terms such as ‘employee handbook’ and be limited to tools provided to employees to outline terms of employment, internal employment-related procedures, and, at times, workplace policies. The city’s use-of-force policy is contained in a stand-alone general order that does not fit within this definition and thus was not exempt from disclosure under subparagraph (s)(vi).” The court directed that on “remand the trial court shall: (1) order disclosure of the unredacted use-of-force policy; (2) award Hjerstedt reasonable attorney fees, costs, and disbursements under MCL 15.240(6); and (3) determine whether Hjerstedt is entitled to punitive damages under MCL 15.240(7).”