Amicus Brief

Herald Company, Inc v Eastern Michigan University Board of Regents

Case Year: 2005
Case Forum: Michigan Supreme Court
Keywords: Freedom of Information Act (FOIA), exemptions, disclosure, public interest
Amicus Counsel:

Don M. Schmidt | Miller, Canfield, Paddock, & Stone | 444 West Michigan Ave | Kalamazoo, MI 49007


The outcome of this case will significantly affect the ability of
public bodies in Michigan to investigate and uncover public wrongdoing. If the decision of the Court of Appeals is reversed, public bodies will lose one of their most important and effective
tools in fighting the misuse of public office and/or public funds, e.g., their ability to maintain the confidentiality of statements made by individuals who provide critical information about
such public wrongdoing. There is no question that the media (and the public) are generally entitled to full and complete disclosure regarding the actions of public bodies and officials. This policy is clearly embodied in the broad disclosure provisions of the Michigan Freedom of Information Act, MCL 15.231(2). There is also no question that, under certain circumstances, the Michigan legislature has determined that the public interest is better served when a public body is able to exempt from the media and the public certain information. This policy is clearly embodied in MCL 15.243, which sets forth categories of exemptions from disclosuren under FOIA. This case represents a tension between these two very important public policy issues and requires a balancing of the two. This Court has previously recognized and acknowledged in a FOIA case the importance of maintaining confidentiality in internal investigations.


Michigan Supreme Court:
We affirm the result reached by the Court of Appeals. We hold that the circuit court reached a decision that was within the principled range of outcomes when it determined the balance of competing interests favored nondisclosure and that it therefore did not abuse its discretion. We also hold that, pursuant to MCL 15.244, the public body must “to the extent practicable, facilitate a separation of exempt from nonexempt information” and “make the nonexempt material available for examination and copying.” Accordingly, we remand this case to the circuit court to separate this material from the Doyle letter and make the nonexempt material available to plaintiff.

MSC requested LDF amicus brief? No

As part of the Board’s investigation into alleged overexpenditures for the president’s residence, in the summer of 2003, Jan Brandon, a member of the Board, requested a letter from University Vice President of Finance Patrick Doyle regarding the construction of the president’s house. In particular, Brandon desired to learn more about the University president’s role in the construction project. There was a controversy regarding construction costs, and the Board needed information to aid it in determining the appropriate course of action. Doyle’s letter, dated September 3, 2003, contained his candid appraisal of the conduct of the president regarding the construction.
On September 10, 2003, Herald sent the Board an FOIA request for documents relating to the construction of the president’s residence. Citing MCL 15.243(1)(m), the Board’s FOIA coordinator provided a written explanation for the Board’s refusal to provide a copy of the Doyle letter in response to Herald’s FOIA request that concluded with “EMU has determined that in this particular instance the public interest in encouraging frank communications between officials and employees of EMU clearly outweighs the public interest in disclosure.” Thereafter, Herald brought suit, and asked the trial court to review the Doyle letter in camera and order its disclosure. Herald claimed, inter alia, that the claimed public interest in encouraging frank communications between public officials and employees did not clearly outweigh the public interest in disclosure because “the Doyle letter speaks to critical issues involving the President’s financial accountability and his management style.”


Case Number: 2005-01
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