Local Government Law Bulletin March 27, 2023 Alexander P. Henderson

Use of Law Enforcement Record Exemptions under FOIA

Requests for police records under the Freedom of Information Act (“FOIA”) often require municipalities to make difficult determinations regarding whether sensitive information in the requested records is exempt from disclosure or must be released. Balancing tests weighing the public interest in disclosure versus nondisclosure further complicate determinations as to the applicability of FOIA’s exemptions relevant to law enforcement records. Consideration of subjective factors, such as the public interest balancing test, necessarily obscures the predictability of whether a claimed exemption will withstand judicial scrutiny. However, a recently-issued Michigan Court of Appeals opinion provides some insight as to whether several FOIA exemptions may even be potentially applicable to certain law enforcement records, regardless of the public interest balancing test.

The case, Hjerstedt v City of Sault Ste. Marie, involves a FOIA request for the Sault Ste. Marie Police Department’s use-of-force policy. After the requestor appealed the city’s initial denial of the request, the city commission voted to release a heavily redacted copy of the policy, with significant redactions in the policy’s sections pertaining to use-of-force considerations and the escalation and de-escalation of force. On appeal to the Michigan Court of Appeals, the city argued that the redacted information was exempt from disclosure under MCL 15.243(1)(n), (s)(v), and (s)(vii). Although each of these three exemptions are subject to a public interest balancing test, the Court determined that none of the claimed exemptions applied to the requested record without needing to consider the balancing test.

MCL 15.243(1)(n) is an exemption for “[r]ecords of law enforcement communication codes, or plans for deployment of law enforcement personnel, that if disclosed would prejudice a public body’s ability to protect the public safety, unless the public interest in disclosure . . . outweighs the public interest in nondisclosure in the particular instance.” It was undisputed that the redacted information did not contain “communication codes,” so the Court limited its review to whether the redacted portions of the policy contained “plans for deployment of law enforcement personnel.” According to the Court’s decision, “‘plans for deployment of law enforcement personnel’ refers to a procedure for placing or arranging law enforcement personnel in a position for a particular use or purpose.” (Emphasis added.) Therefore, the Court held, “a general, department-wide policy regarding various 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.’”

MCL 15.243(1)(s) provides several exemptions for law enforcement agency records that would have certain effects if released, subject to a public interest balancing test. MCL 15.243(1)(s)(v) pertains to “records of a law enforcement agency, the release of which would . . . [d]isclose operational instructions for law enforcement officers or agents.” The Hjerstedt opinion draws a distinction between “policy” and “operational instructions.” “Policy” refers to formal rules, understandings, or a plan of action selected and established to guide present and future decisions, whereas “operational instructions” are instructions that are given in specific situations regarding operations, and which may involve the execution or implementation of policy. The Court determined that the requested use-of-force policy did not contain “operational instructions,” and was thus not exempt from disclosure, because the policy outlined broad policy prescriptions to guide decisions rather than give instructions in specific situations.

MCL 15.243(1)(s)(vii) concerns law enforcement agency records that, if released, “would . . . [e]ndanger the life or safety of law enforcement officers or agents or their families, relatives, children, parents, or those who furnish information to law enforcement departments or agencies.” In the Hjerstedt opinion, the Court focused on the operative meaning of the word “would” in the exemption, and determined that the exemption requires a positive finding that disclosure would, in fact, endanger the life or safety of a person described in the exemption. The Court held that the exemption did not apply to the requested use-of-force policy because, although the city presented evidence that disclosure of the policy could endanger its police officers, it failed to present sufficient evidence establishing that disclosure would endanger its police officers.

It is important to note that a governmental entity claiming an exemption in a FOIA case has the burden of proving the applicability of the exemption. Therefore, municipalities should consult with a municipal attorney prior to redacting or withholding records that are requested under FOIA. The municipal attorneys at Mika Meyers are available to answer questions regarding the applicability of exemptions to FOIA.

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