Confidential Research & Investment Act’s (CRIIA) “intellectual property” exemption from the Freedom of Information Act (FOIA); MCL 390.1554(1)(a); MCL 15.243(1)(d); “‘Reasonable opportunity’ to ‘publish’ the ‘information’ ‘in a timely manner’ to the academic community”; Distinguishing People for the Ethical Treatment of Animals v Board of Supervisors of LA State Univ (LA) (PETA); State ex rel Physicians Comm for Responsible Med v Board of Trs of OH State Univ (OH); “Reasonable opportunity”; Discovery

The court held that because “the requested video records were not ‘published’ in the 2019 article and because defendant [board] established on this record that it had not yet had a ‘reasonable opportunity’ to publish the requested items ‘in a timely manner’ to the academic community,” the Court of Claims did not err in granting summary disposition to defendant under CRIIA’s intellectual property exemption from the FOIA. The court found “the 2019 article only contained an analysis of the data gathered from the videos, not the videos themselves.” Like the Court of Claims, it rejected “an interpretation of the CRIIA that would neutralize the intellectual property exemption merely because underlying data within a record sought for disclosure has been discussed or analyzed in a publication.” Because the court found that ‘“the information’ at issue is the videos themselves, and those videos were not published, plaintiff’s argument lacks merit.” Plaintiff’s reliance on PETA did not change the court’s conclusion. “Although at first glance PETA tends to support plaintiff’s argument for disclosure, upon closer examination we conclude that it is distinguishable.” It also found that “as with PETA, the Ohio decision is not squarely on point and offers only some illumination as to the issues before us. Instead, we are persuaded that, given the text and purpose of MCL 390.1554(1)(a) [], the information plaintiff seeks has not yet been ‘published.’” Next, as to plaintiff’s “argument that the records must be disclosed because a ‘reasonable opportunity’ had been provided for the videos to be published ‘in a timely manner[,]’” the court found “the inclusion of specific deadlines for the exemptions in MCL 390.1554(1)(b) and (c) and absence of any deadline for the exemption in MCL 390.1554(1)(d) supports an inference that the Legislature intended the duration of the intellectual property exemption in MCL 390.1554(1)(a) to be case-dependent.” Also, in “light of the purpose and language of the timing requirement, we conclude that the statute requires an opportunity to publish that is reasonable and timely for the field of study and type of intellectual property in question.” Plaintiff argued “that defendant has already made the information public.” The court rejected this argument, noting the statute does not “allow for such a bright-line rule.” Instead, the “standard is flexible according to the nature of the intellectual property at issue.” The court found that “defendant demonstrated that it had not yet had a ‘reasonable opportunity’ to publish the videos in a timely manner because its researchers were continuing to use them for research for three more years.” The court disagreed with plaintiff that its “conclusion will allow universities to self-determine the extent and duration of the exemption.”