                          STATE OF MICHIGAN

                            COURT OF APPEALS



ESPN, INC.,                                                          FOR PUBLICATION
                                                                     August 18, 2015
               Plaintiff-Appellee,                                   9:25 a.m.

v                                                                    No. 326773
                                                                     Ingham Circuit Court
MICHIGAN STATE UNIVERSITY,                                           LC No. 15-000100-CZ

               Defendant-Appellant.


Before: SAWYER, P.J., and M. J. KELLY and SHAPIRO, JJ.

PER CURIAM.

       In this dispute over the application of the privacy exemption to Michigan’s Freedom of
Information Act (FOIA), see MCL 15.231, et seq., defendant, Michigan State University, appeals
by right the trial court’s order requiring it to reveal the redacted names of student-athletes who
were listed as suspects in incident reports requested by plaintiff, ESPN, Inc. Under the
circumstances of this case, we conclude that the trial court did not err when it determined that the
exemption did not apply. Accordingly, we affirm.

                                        I. BASIC FACTS

       In September 2014, ESPN submitted a request under FOIA to the University asking it to
provide ESPN with incident reports involving a list of student-athletes over a specific period of
time. The University produced two sets of records, but redacted the names and identifying
information of the suspects, victims, and witnesses. As authority for its decision to redact the
names and identifying information, the University cited the privacy exemptions set forth in MCL
15.243(1)(a) and MCL 15.243(1)(b)(iii) of FOIA.

        In February 2015, ESPN sued the University to obtain the records with the names of the
suspects, victims, and witnesses. After holding a hearing, the trial court ordered the University
to disclose the names of the suspects if they were one of the 301 student-athletes identified by
ESPN in its request. The Court, however, agreed that the privacy exemption applied to the




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names and identifying information of the victims and witnesses, even if the victims or witnesses
were one of the student-athletes identified in the request.1

       The University then appealed in this Court.

                                II. THE PRIVACY EXEMPTION

                                  A. STANDARD OF REVIEW

        The University argues that the trial court erred when it determined that the names of the
suspects identified in the incident reports were not exempt from disclosure under FOIA. This
Court reviews de novo whether the trial court properly interpreted and applied FOIA. Herald
Co, Inc v Eastern Mich Univ Bd of Regents, 475 Mich 463, 470; 719 NW2d 19 (2006). This
Court reviews the trial court’s factual findings for clear error, but reviews its discretionary
determinations—such as its application of the balancing test under FOIA—for an abuse of
discretion. Id. at 472. A trial court abuses its discretion when its decision falls outside the range
of principled outcomes. Id.

                                          B. ANALYSIS

       The Legislature determined that a public body “may exempt” from FOIA’s general
disclosure requirement information that is “of a personal nature” if the disclosure of the personal
information would “constitute a clearly unwarranted invasion of an individual’s privacy.” MCL
15.243(1)(a).2 The exemption has two prongs, which both must be met in order for the
exemption to apply: “First, the information must be ‘of a personal nature.’ Second, it must be
the case that the public disclosure of that information ‘would constitute a clearly unwarranted
invasion of an individual’s privacy.’ ” Mich Federation of Teachers v Univ of Mich, 481 Mich
657, 675; 753 NW2d 28 (2008).

        The first prong of the privacy exemption, will be satisfied if the information contains
“ ‘intimate’ or ‘embarrassing’ details of an individual” because these are of a personal nature.
Mich Federation of Teachers, 481 Mich at 675. Further, records containing “private or
confidential information relating to a person, in addition to embarrassing or intimate details, is
‘information of a personal nature.’ ” Id. at 676.

        In Rataj v Romulus, 306 Mich App 735, 753; 858 NW2d 116 (2014), this Court stated
that a person’s name—standing alone—is not information of a personal nature and, on that basis,
determined that the privacy exemption did not apply to the names that had been redacted from an
incident report. The Court in Rataj cited three decisions for this general proposition, but did not


1
  ESPN has not challenged the trial court’s determination that the privacy exemption applies to
the names and identifying information of the victims and witnesses.
2
  On appeal, the parties confine their discussion to whether the trial court properly applied the
privacy exemption stated under MCL 15.243(1)(a). We shall similarly limit our analysis to that
exemption.


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analyze those authorities; instead, it merely concluded that the names were not information of a
personal nature. Id. Moreover, to the extent that the decision in Rataj can be understood to
stand for the proposition that a name can never constitute information of a personal nature, that
conclusion appears to conflict with this Court’s earlier decision in State News v Mich State
University, 274 Mich App 558, 578; 735 NW2d 649 (2007) (holding that people linked with a
crime, whether as a perpetrator, witness, or victim, have an interest in not sharing this
information with the public), rev’d not in relevant part 481 Mich 692 (2008), and is inconsistent
with our Supreme Court’s application of the first prong for determining whether the privacy
exemption applies.

        It is accurate to state that a person’s name does not by itself provide information of a
personal nature; but this is true only to the extent that the name is not associated with any
personal information about the person named. In order for a name to be useful, the name must
normally be associated with some other information. In the context of a police report, a person’s
name is useful because the report will contain information about the person’s actual or purported
involvement in the incident. That is, the report will associate the name with specific facts or
allegations that may or may not be information of a personal nature. And, in analyzing the first
prong of the test for the privacy exemption, our Supreme Court has recognized that the relevant
inquiry is whether the information associated with the name is information of a personal nature.

        In Mager v Dep’t of State Police, 460 Mich 134, 135; 595 NW2d 142 (1999), the plaintiff
requested that the Michigan State Police provide him with a list of the names and addresses of
the persons who owned registered handguns. In determining whether the request was exempt
from disclosure under the first prong of the test, the Court did not examine whether the
disclosure of names alone constituted information of a personal nature; instead, it stated that the
relevant inquiry was whether associating those names with “the fact of gun ownership is
‘information of a personal nature.’ ” Id. at 143. The Court then held that gun ownership
constituted information of a personal nature: “A citizen’s decision to purchase and maintain
firearms is a personal decision of considerable importance. We have no doubt that gun
ownership is an intimate or, for some persons, potentially embarrassing detail of one’s personal
life.” Id. at 143-144. Similar to the analysis in Mager, when examining whether the disclosure
of a name amounts to information of a personal nature, Michigan courts have consistently
framed the inquiry as one involving the information associated with the person named. See, e.g.,
Mich Fed of Teachers, 481 Mich at 676 (holding that the names of employees along with their
addresses and telephone numbers were information of a personal nature); Practical Political
Consulting, Inc v Secretary of State, 287 Mich App 434, 455, 461; 789 NW2d 178 (2010)
(stating that the relevant inquiry was whether the voter’s name coupled with his or her party
preference amounted to information of a personal nature and concluding that party preference is
not such information); Detroit Free Press, Inc v Southfield, 269 Mich App 275, 282; 713 NW2d
28 (2005) (framing the issue as whether the names of pensioners with the amounts of their
pensions constitutes information of a personal nature).

        In order to protect the privacy of the person named in a report, a public body might redact
the information of a personal nature associated with the named person or, as was the case here,
might redact the name of the person involved, but leave the information unredacted. Thus, the
issue here is not whether the names of the suspects in the reports amount to information of a
personal nature, but whether the revelation of the names when coupled with the information in

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the reports constitutes information of a personal nature and, if so, whether the method for
protecting the private information was minimally sufficient to avoid an unwarranted invasion of
privacy.

        As this Court has explained, just being linked with a criminal incident is information of a
personal nature: “people linked with a crime, whether as a perpetrator, witness, or victim, have
an interest in not sharing this information with the public.” State News, 274 Mich App at 578.
Having one’s name appear in a report of a criminal investigation—even in the absence of
specific details—necessarily links the person named to the criminal investigation. Even if being
identified in a report of a criminal investigation were not by itself information of a personal
nature, such a report may include private or confidential details about the persons named in the
report. A report of an investigation involving allegations of sexual assault may, by way of
example, include intimate details on the suspect’s sex life. For that reason, it may sometimes be
necessary to examine the facts and allegations associated with the person named in the report to
determine whether the disclosure of the person’s name amounts to information of a personal
nature. See id. at 580-582 (stating that the report at issue in that case had to be examined
individually to separate the exempt information from the nonexempt information). Nevertheless,
in this case, it is unnecessary to examine individually each report to ascertain whether the report
includes information of a personal nature about the student-athletes who were identified as
suspects. Even if the reports reveal such information, the trial court did not err when it
determined that the disclosure of the information did not constitute a clearly unwarranted
invasion of an individual’s privacy under the second prong of the test. See Mich Federation of
Teachers, 481 Mich at 675.3

        The second prong asks “whether disclosure of the information at issue would constitute a
clearly unwarranted invasion of an individual’s privacy.” Id. at 682. In making this
determination, Courts “ ‘must balance the public interest in disclosure against the interest [the
Legislature] intended the exemption to protect.’ ” Mager, 460 Mich at 145, quoting United
States Dep’t of Defense v Fed Labor Relations Auth, 510 US 487, 495; 114 S Ct 1006; 127 L Ed
2d 325 (1994). “ ‘[T]he only relevant public interest in disclosure to be weighed in this balance
is the extent to which disclosure would serve the core purpose of the FOIA, which is contributing
significantly to public understanding of the operations or activities of the government.’ ” Id.,
quoting Fed Labor Relations Auth, 510 US at 495 (emphasis in original). Requests for
information on private citizens accumulated in government files which reveal little to nothing
about the inner working of government will fail this balancing test. Id. at 145-146, citing Dep’t
of Justice v Reporters Committee for Freedom of the Press, 489 US 749, 773; 109 S Ct 1468;
103 L Ed 2d 774 (1989).




3
  For this reason, we decline to address the University’s argument that the trial court should have
reviewed the unredacted reports in camera to ascertain whether there was information of a
personal nature.


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         The disclosure of the names of the student-athletes who were identified as suspects in the
reports serves the public understanding of the operation of the University’s police department.
ESPN seeks the information to learn whether policing standards are consistent and uniform at a
public institution of higher learning. The disclosure of the names is necessary to this purpose. In
order to determine whether the student-athletes were treated differently from the general student
population or from each other on the basis of the student-athlete’s participation in a particular
sport or the renown of the student-athlete, it is necessary to know the student-athlete’s name and
the nature of the allegations involved in the investigation. Only then can ESPN compare and
contrast the information within the requested reports to both other incident reports and other
cases disclosed via news media. Further, ESPN requires the student-athletes’ names in order to
facilitate further investigation into whether other governmental agencies agreed with the
University’s handling of a particular student-athlete’s case. Consequently, even if revealing the
names of the student-athletes in the context of the reports amounts to the revelation of
information of a personal nature, that revelation is not unwarranted. MCL 15.243(1)(a). Under
the circumstances, the public’s interest in government accountability must prevail “over an
individual’s, or a group of individuals’, expectation of privacy.” Practical Pol Consulting, 287
Mich App at 464.

                                       III. CONCLUSION

        On this record, we cannot conclude that the trial court abused its discretion when it
balanced the public’s interest in understanding how the University’s police department handles
criminal investigations involving student-athletes against the student-athletes’ privacy interests
and determined that the balance favored disclosure. Herald Co, 475 Mich at 472. The trial court
did not err when it ordered the University to disclose the names of the student-athletes at issue.

       Affirmed.



                                                            /s/ David H. Sawyer
                                                            /s/ Michael J. Kelly
                                                            /s/ Douglas B. Shapiro




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