Freedom of Information Act request seeking a city police force’s use-of-force policy; Exemptions from disclosure; MCL 15.243; Plans for deployment; MCL 15.243(1)(n); Operational instructions; MCL 15.243(s)(v); Coblentz v City of Novi; Officer safety; MCL 15.243(s)(vii); “Would” or “could”; Evening News Ass’n v Troy

Holding that the trial court erred by finding defendant-city’s unredacted use-of-force policy (for its police department) was exempt from disclosure under MCL 15.243(1)(n), (s)(v), and (s)(vii), the court reversed summary disposition for defendant, and remanded for entry of judgment for plaintiff. It directed the trial court on remand to: “(1) order disclosure of the unredacted use-of-force policy; (2) award [plaintiff] the reasonable attorneys’ fees, costs, and disbursements under MCL 15.240(6); and (3) determine whether [plaintiff] is entitled to punitive damages under MCL 15.240(7).” Plaintiff requested a copy of the use-of-force policy pursuant to FOIA. Defendant denied the request, claiming the policy was exempt from disclosure. Plaintiff appealed. The city commission voted to disclose a redacted copy of the policy based on a number of statutory exemptions. Plaintiff filed this FOIA action challenging that decision. The trial court granted summary disposition for defendant, finding the unredacted policy was exempt from disclosure because it “(1) was a record of law enforcement communication codes or plans for deployment, (2) disclosed law enforcement operational instructions, (3) would endanger the safety of law enforcement officers, and (4) the public’s interest in disclosure did not outweigh the public’s interest in nondisclosure.” On appeal, the court agreed with plaintiff that the trial court erred by granting summary disposition for defendant because none of the statutory exemptions applied. First, the court held that a general, department-wide policy as to “factors for officers to consider in deciding whether force should be used and, if so, the type of force to be used, is far too general to be considered a ‘plan for deployment.’” Next, it found that the policy at issue dealt “with policy, not operations” and that the redacted portions were not operational instructions. Finally, MCL 15.243(1)(s)(vii) “requires a finding that the release would endanger public safety, not that it would or could.” The trial court erred by finding “the redacted material ‘would or could in fact impact the officer’s [sic] ability to protect the public and/or themselves.’” Under the circumstances, it was unnecessary for the court to consider the balancing test set forth in the exemptions.