S TAT E O F M I C H I G A N

IN THE 1401 CIRCUIT COURT

DANIEL W. RUDD,
Plaintiff, HON. TIMOTHY G. HICKS
v
File No. 17-004334-CZ
CITY OF NORTON SHORES,
Defendant.

Daniel Rudd Michael S. Bogren (P34835)

In Pro Persona Lisa A. Hall (P70200)
201 S. Lake Ave Attorneys for Defendant
Spring Lake, Ml 49456 PLUNKETT COONEY
231-557-2532 950 Trade Centre Way, Ste. 310
Kalamazoo, Ml 49002
269-226-8822

ORDER AND OPINION GRANTING PARTIAL

SUMMARY DISPOSITION TO EACH PARTY

INTRODUCTION
The parties have vigorously litigated1 this case. The court has considered

defendant's (variously identified by its name or simply "the City") repeated attempts for

summary disposition incrementally. Defendant's motion also allows the court to consider

granting plaintiff summary disposition pursuant to MCR. 2.116 (l)(2).

Norton Shores has delivered the documents2 ordered by the court at the last

hearing. The court has examined them in camera. The court sees no genuine issues of

1 Defendant's pending lawsuit against the city in the United States District Court, (file 1:18-cv-124)
undeniably complicates this litigation.
2 There appear to be a few missing. For example, the year 2014 starts with complaint 2014-03. However,
the sample supplied was sufficient for the court to conduct its work.
 material fact which require a trial. The court, following the April 30 hearing, grants

partial, but dispositive as to that part, relief to each side. The court denies plaintiff's
motion to compel the city to fiie an index of any records withheld.

The court cancels the trial, currently scheduled for May 7. The court's reasoning

follows.

ANALYSIS
Plaintiff's original Freedom of Information Act f FOIA") request sought several

things. The city delivered many of those. The primary issue remaining for litigation was

plaintiffs request for (1) "any/ail complaints submitted against the Norton Shores Police

Department's policies or employees from January 1, 2014 until the present, and (2) "a

copy of any corresponding written report, disposition or document describing the results
of the internal investigation."

The court has expfored the parties' positions in lively discussion during oral

arguments. In the end, the court grants plaintiff relief on one item: the citizen

complaints. In all other respects, the court grants summary disposition to the city.

The Freedom of Information Act, Generally

The FOIA reflects a careful balancing of various interests. Pursuant to MCL

15.243(1) (s)(ix), a public body may exempt from disclosure any public record that
reveal personnel records of law enforcement agencies, unless the public interest in

disclosure outweighs the public interest in nondisclosure.

When analyzing a claim of exemption from disclosure under the FOIA, case law

and statutes set forth a series of principles to guide trial courts:

 (1) The burden of proof is on the party claiming exemption from disclosure;
(2) Exemptions must be Interpreted narrowly;
(3) The public body shall separate the exempt and nonexempt material and make
the nonexempt material available for examination and copying;
(4) [Detailed] affidavits describing the matters withheld must be supplied by the agency
(5) Justification of exemption must be more than 'conclusory', i.e. simple repetition of the
statutory language. A bill of particulars is In order. Justification must indicate factually
how a particular document, or category of documents, interferes with law
enforcement proceedings; and
(6) The mere showing of a direct relationship between records sought and an
investigation is inadequate. Evening News Asso v Troy, 417 Mich 481 503- 339
NW2d 421 (1983).

The court applies these rules, primarily numbers two and three (bolded here for effect),

to the two discrete types of information Rudd seeks.

But whether exempt or not, MCL 15.243(1)(s) requires one additional step. The

court must balance the public's interest in disclosure versus non-disclosure when

determining whether an agency must disclose personnel records of law enforcement

agencies.

In making both analyses, the court looks beyond the labels, or the way in which

documents were filed, in making its decisions. Their substantive nature is most

important.

Personnel Records/ Internal Affairs Investigations

The court agrees with the city that internal investigation records are exempt from

disclosure under the FOIA. While there is no specific statutory exemption for internal

affairs investigation, case law has included them within the "personnel records"

exemption. Newark Morning Ledger Co v Saginaw County Sheriff, 204 Mich App 215,

223; 514 NW2d 213 (1994).

The balancing test also favors non-disclosure, for many of the reasons recited in

Chief Jon Gale's affidavit, especially as it relates to complaints filed by one officer
 against another. He says there is a strong "chilling effect" because officers are often

reluctant to give such statements. This reluctance even extends to statements made

during the subsequent investigations after the original complaints are filed. The court

sees at least one additional problem- the challenges of working together as a team if

one officer knows that his partner filed the complaint.

For all these reasons, the investigative records are exempt.

Complaints Against the Citv

There is no specific statutory exemption for the complaints themselves. The

second Evening News principle requires any exemption to be narrowly construed. The

third requires the public body to separate the exempt and non-exempt materials. Norton

Shores's position is adverse to both of these concepts.

Principle 3, cited above, requires the City to separate the exempt and non-

exempt materials to the extent that it can.

The City's latest brief argues the opposite-something like this: "Every complaint

triggers an investigation. The entire investigation process was considered as a whole,

so all of the records associated with the process fall within the exemption." This does

not construe the exemption "narrowly." Under this interpretation, no complaint would

ever be disclosed, despite the absence of any statutory exemption.

Further, the City cannot put the complaint out of FOIA's reach by inserting it into

any personnel/internal affairs file. Newark at 204 Mich App 220. Interpreting MCL

15.243(1) (s) (ix) to allow a law enforcement to refuse disclosure of records by placing it

in a personnel file would, "undercut the policy of full and complete disclosure mandated

by FOIA." id.
 Many of the complaints disclosed stand on their own and can be severed from

the exemptible information. One complaint involves an officer's allegedly insensitive

treatment of a mother's remains. Several involve motor vehicle accidents involving

department personnel. One involves officers' failure to appear in court. Most of these

do not implicate the concerns listed in the Gale and Chandler affidavits.

The court must perform the balancing test as to this type of material as well.

Yes, the information in the complaints might be embarrassing to the police force to

some extent. Yes, there might be some chilling effect on the citizenry at large if the

names of the complainants are disclosed.

The public's interest in disclosure outweighs the reasons not to disclose.

Revelation of most of the complaints discloses very little to no confidential police work.

There is a public interest in knowing if an officer or department is involved in some

untoward behavior, or worse, a pattern of inappropriate conduct, such as a series of

motor vehicle accidents. Moreover, disclosure of the complainant could encourage

others to "go public" with their complaints.

Expansive use of the exemptions can also diminish the public's confidence in its

force, or create the appearance that there is a double standard for police officers'

mistakes or, in the worst scenario, unethical or criminal conduct. Public confidence in

the force could improve with knowledge that the City was, and did, monitor its own

officers' behavior. Suppressing this information generates its own issues.

Few of the cases cited by the City concern this particular request- for complaints

made. In most of the cases, plaintiffs specifically sought internal investigation files. In

Kent County Deputy Sheriff's Ass'n v Kent County Sheriff, 463 Mich 353; 616 NW2d
 677 (1999), plaintiff sought "internal affair files, i.e. records and witness statements

defendant kept relating to defendant's investigation of two deputy sheriffs disciplined for

violating agency rules." In Sutton v City of Oak Park, 251 Mich App 345, 347; 650

NW2d 404 (2002), plaintiff requested all documents relating to a specific internal

investigation. In Newark, supra at 216, plaintiff sought access to all records regarding

defendant's completed internal affairs investigations conducted since 1978, including all

factual findings and determinations."

The City's presentation, on this singular item, does not meet its statutory

burdens. Rather, it argues for an expansive, not limited, definition of the exemptions,

and merges non-exempt documents with those which are exempt, rather that insolating

them.

For all these reasons, the court grants relief to the plaintiff pursuant to MCR

2.116 (I) (2) and orders the City to provide Rudd with the initial complaints filed against

Norton Shores Police during the applicable time period.

The court will "carve out" one class of complaints which need not be disclosed.

Focusing on "the big picture," a complaint made by one Norton Shores officer against

another officer can be considered a personnel matter that need not be disclosed. The

court will consider the West Michigan Enforcement Team ("WEMET") as part of the

NSPD for this purpose, since (1) officers are "loaned" to WEMET and (2) there is some

concern that it might reveal some confidential police work. However, this exception

would not apply when the complainant is an officer in another jurisdiction like the

Muskegon County Sheriff or the City of Muskegon. There are some additional

procedural details outlined below.

 Plaintiff's Motion for an Index of Records Withheld

Citing Vaughn v Rosen, 484 F2d 820; 157 US App DC 340 (1973), Rudd argues

that the City is required under case-law to provide an accounting of the both the

classification and amount of every record which the City has denied disclosure.

Rudd's position is unpersuasive for two reasons. First Vaughn was decided by

the United States Court of Appeals for the District of Columbia Circuit, and is therefore

not binding upon this court. Second, even if the holding of Vaughn did bind this court, it

differs factually from the instant case.

While Rudd is correct that the court in Vaughn found that agencies should

provide an "itemized indexing" (i.e. "Vaughn Index") which cross-references the

agency's justification for refusal with the actual portions of the document, Vaughn

involved records so extensive that in camera review would be unreasonable and

impractical. Id. at 825. The Vaughn court reasoned that in cases where the documents

in issue could exceed hundreds or even thousands of pages, both trial and appellate

courts would benefit from a condensed index in order to narrow the courts inquiry. Id. at

825-827.

Here, the court was able to conduct in camera review of the records at issue. As

a result, the court is able to determine whether the city has properly characterized the

information claimed as exempt. Therefore, a Vaughn index would not serve its intended

purpose and is not necessary nor appropriate in this case.

CONCLUSION

The court has determined that the City properly characterized certain records as

personnel records of law enforcement agencies, and are therefore exempt under MCL
 15.243(1 )(s)(ix). However, the court is not persuaded by the City's argument that the
initial complaints are inseparable from personnel records simply based on the fact they

are filed alongside one another.

The court orders the City to deliver the requested documents to the court3 within

14 days. They must be organized and separated into non-exempt (as defined in this

opinion and order) and exempt categories. The City must prepare an index (for the court

only) with a description of the documents for which it claims exemptions. The
documents already received should be included in one final comprehensive package.

To provide some guidance, the court does not question the exemptions claimed

in the documents received so far. However, the new package of documents cannot

contain any missing numbers, such as those identified earlier in this opinion.

In all other respects, the court grants summary disposition to Norton Shores.

IT IS SO ORDERED. This is a final order and closes the case.

Dated: May _Jl, 2018 / /jsldj /._

HON. TIMOTHY G. HICKS
Circuit Judge (P35198)

CERTIFICATE OF MAILING
I hereby certify that on this y— day of May, 2018,1 personally mailed copies of this opinion and order to
the parties above named at their respective addresses, by ordinary/nail. J# r .

Autumn Ward, Circuit Court

Legal & Scheduling Secretary
3 Additional judicial review is necessary because (1) of the history of the case and (2) some of the
nuance contained in this decision.