             If this opinion indicates that it is “FOR PUBLICATION,” it is subject to
                  revision until final publication in the Michigan Appeals Reports.




                            STATE OF MICHIGAN

                            COURT OF APPEALS


MICHIGAN STATE POLICE TROOPERS                                        UNPUBLISHED
ASSOCIATION, INC.,                                                    July 16, 2020

               Plaintiff-Appellant,

v                                                                     No. 350863
                                                                      Court of Claims
DEPARTMENT OF STATE POLICE,                                           LC No. 19-000030-MK

               Defendant-Appellee.


Before: CAVANAGH, P.J., and BECKERING and GLEICHER, JJ.

GLEICHER J. (dissenting).

        The Freedom of Information Act (FOIA), MCL 15.231 et seq., requires governmental
agencies to make records and documents publicly available upon request, unless they fall within a
statutory exemption. Pursuant to a FOIA request made by a reporter for the Detroit Free Press,
defendant Department of State Police released an internal affairs (IA) investigation report
concerning kickback allegations made against several Michigan State Police employees. Plaintiff
Michigan State Police Troopers Association, Inc. (MSPTA), the exclusive bargaining
representative for the Michigan State Police, lodged a grievance against defendant asserting that
the report was exempt from disclosure and that its release violated the parties’ collective bargaining
agreement.

        The grievance proceeded through several steps without resolution. On the eve of
arbitration, the parties agreed to hold the grievance process in abeyance so that the MSPTA could
file a declaratory judgment action in the Court of Claims seeking guidance regarding the legal
issues underlying their labor dispute. The Court of Claims summarily dismissed the action.
Regarding two counts of plaintiff’s complaint, the Court of Claims found that because the
disclosure had already occurred, no actual controversy existed. A third count was dismissed
because plaintiff failed to identify a legal basis for withholding disclosure other than the FOIA.

        The majority holds that plaintiff’s declaratory judgment requests are nonjusticiable, and
that plaintiff’s failure to plead a reason for withholding the report other than the FOIA doomed its
claim. I respectfully dissent.



                                                 -1-
                                                          I

       Plaintiff’s complaint sets forth three counts. Count I is grounded in MCL 15.243(1)(d),
which permits a public body to withhold “[r]ecords or information specifically described and
exempted from disclosure by statute.” Plaintiff asserts that the Bullard-Plawecki Employee Right
to Know Act (ERKA), MCL 423.509(2), requires that reports generated after IA investigations
must be kept in a separate, confidential file.1 Because these reports were confidential under the
ERKA, plaintiff argues, they constituted “records . . . exempted from disclosure by statute,” should
not have been “released,” and that similar reports should be withheld from disclosure in the future.

        Court II avers that the IA report qualified as a “personnel record” of a “law enforcement
agency” under the FOIA, rendering it exempt from disclosure under MCL 15.243(1)(s)(ix). That
subsection specifically states that “[u]nless the public interest in disclosure outweighs the public
interest in nondisclosure” the “personnel records of law enforcement agencies” may be exempt
from disclosure.

        Count III asserts that “[u]pon information and belief,” the IA report at issue “contained
involuntary statements from law enforcement officers.” Under the Disclosures by Law
Enforcement Officers Act (DLEOA), MCL 15.395 et seq., the complaint continues, involuntary
statements made by law enforcement officers are confidential and not subject to disclosure absent
written consent. These statements “may or may not have [been] redacted” when the reports were
shared with the newspaper. No written consent was provided, plaintiff alleges, rendering the
statements exempt from disclosure under MCL 15.243(1)(d).

        As to each count, plaintiff sought a declaratory judgement. Alternatively, plaintiff asked
the court to “enjoin” similar future disclosures. Regarding declaratory relief, in Count I plaintiff
requested that the court: “Declare that reports created by Defendant following internal affairs
investigations are exempt from disclosure under the FOIA; MCL15.243(1)(d), and ERKA; MCL
423.509(2).” Count II entreated that the court:

                  A. Declare that reports created by Defendant following internal affairs
          investigations are presumptively exempt from disclosure under the Michigan



1
    At the time of these events, the statute provided:
          If the employer is a criminal justice agency which is involved in the investigation
          of an alleged criminal activity or the violation of an agency rule by the employee,
          the employer shall maintain a separate confidential file of information relating to
          the investigation. Upon completion of the investigation, if disciplinary action is
          not taken, the employee shall be notified that an investigation was conducted. If
          the investigation reveals that the allegations are unfounded, unsubstantiated, or
          disciplinary action is not taken, the separate file shall contain a notation of the final
          disposition of the investigation and information in the file shall not be used in any
          future consideration for promotion, transfer, additional compensation, or
          disciplinary action. [MCL 423.509(2), as amended by 2018 PA 521.]



                                                    -2-
       Freedom of Information Act, pursuant to MCL 15.243(1)(s)(ix), unless the public
       interest in disclosure outweighs the public interest in nondisclosure.

               B. Declare the public interest in disclosure of the unfounded internal
       investigation reports of Defendant is outweighed by the public interest in
       nondisclosure of those unfounded internal investigation reports.

And Count III asked the court to: ‘Declare that involuntary statements by law enforcement officers
which are confidential under the DLEOA are also exempt from disclosure under Section 13(1)(d)
of FOIA; MCL 15.243(1)(d).’

        The Court of Claims ruled that as to counts I and III, “no live controversy” existed,
precluding declaratory relief. The matter was “not ripe for review,” the court explained, because
the IA report had already been released and no “future” such event appeared on the horizon. Count
II failed, the court continued, because plaintiff identified no basis to prohibit disclosure
independent of the FOIA. In light of the Supreme Court’s opinion in Tobin v Mich Civil Serv
Comm, 416 Mich 661, 667, 670; 331 NW2d 184 (1982), the Court of Claims elucidated, plaintiff’s
“reverse FOIA” claim brought solely on the basis of MCL 15.243(1)(s)(ix) was untenable.

                                                  II

        The majority affirms the Court of Claim’s justiciability ruling by holding that justiciability
principles, such as ripeness and mootness, preclude declaratory relief. Respectfully, the majority
has misconstrued the underlying facts and the governing law.

        In one sense, it is true that no “live controversy” currently swirls around the release of the
IA report. The report has been handed over to the Detroit Free Press—the genie is out of the bottle.
A labor dispute flowed from that hand-over, however, and the labor dispute lives on. Plaintiff
grieved defendant’s actions, claiming that the release of the report contravened the CBA. An
affidavit signed by a representative of plaintiff’s bargaining unit attested that during the grievance
proceedings,

       the parties agreed that further processing of the Grievance to arbitration under the
       collective bargaining agreement would not provide the answers and relief to the
       legal issues arising from the Grievance. It was agreed by the parties to hold the
       Grievance in abeyance while the MSPTA pursued action in court to address the
       legal issues that were not within an arbitrator’s jurisdiction under the collective
       bargaining agreement.[2]




2
 Defendant concurs with this version of the underlying events. And contrary to the majority, the
CBA did not vest the arbitrator with authority to construe and apply the ERKA or the FOIA.
Rather, the CBA states: “The arbitrator shall have no authority except to pass upon alleged
violations of the expressed written provisions of this Agreement, the unreasonableness or
misapplication of a rule and regulation, or that a work order was unreasonable and arbitrary, or



                                                 -3-
The grievance now awaits an arbitral determination of whether defendant violated the CBA by
releasing the report, and whether future releases containing “details of internal investigation
allegations made against MSPTA members” should be foreclosed or otherwise limited.

        Accordingly, the ongoing grievance process presents a live controversy. Despite that the
IA report has been released, the parties dispute whether doing so violated the CBA, and seek a
ruling that will guide defendant’s response when confronted in the future with FOIA request for
IA investigation information.

        MCR 2.605(A)(1) provides: “In a case of actual controversy within its jurisdiction, a
Michigan court of record may declare the rights and other legal relations of an interested party
seeking a declaratory judgment, whether or not other relief is or could be sought or granted.” Our
Supreme Court has explained that “[t]he declaratory judgment rule was intended and has been
liberally construed to provide a broad, flexible remedy with a view to making the courts more
accessible to the people.” Shavers v Attorney General, 402 Mich 554, 588; 267 NW2d 72 (1978).
Contrary to the majority’s view, the Supreme Court has consistently recognized that the
declaratory judgment avenue is available to guide and inform litigants before a legal insult occurs.
“One great purpose is to enable parties to have their differences authoritatively settled in advance
of any claimed invasion of rights, that they may guide their actions accordingly and often may be
able to keep them within lawful bounds . . . .” Merkel v Long, 368 Mich 1, 13; 117 NW2d 130
(1962) (quotation marks and citation omitted). “ ‘Courts continually declare rights which have not
become fixed under an existing state of facts, but are prospective only; they may not, however, be
so remote and speculative as to be hypothetical and abstract.’ ” Id., quoting Borchard, Declaratory
Judgments (2d ed), pp 422-424.

        This Court, too, has recognized that because declaratory relief is available “to guide or
direct future conduct, courts are not precluded from reaching issues before actual injuries or losses
have occurred.” UAW v Central Mich Univ Trustees, 295 Mich App 486, 495; 815 NW2d 132
(2012). All that is required is a presentation of facts demonstrating “an adverse interest
necessitating the sharpening of the issues raised.” Id. (quotation marks and citations omitted).
Plaintiff’s grievance presents facts giving rise to a legal question fulfilling this requirement.3

       UAW instructs that plaintiff’s complaint presents an actual controversy regarding
defendant’s past conduct in releasing the IA report, and how future requests for IA reports should




involves discrimination in application of a claim of suspension, discharge or demotion without just
cause.”
3
  Contrary to the majority’s view that plaintiffs seek only an “advisory opinion,” the ongoing labor
dispute demonstrates that a present legal controversy exists regarding the application of the FOIA
to the parties’ CBA. The parties’ interests are clearly adverse. “[W]hat is essential to an ‘actual
controversy’ under the Declaratory Judgment rule is that plaintiffs plead and prove facts which
indicate an adverse interest necessitating the sharpening of the issues raised.” Shavers, 402 Mich
at 589.


                                                -4-
be handled. The majority’s approach is inconsistent with the principles underlying the declaratory
judgment rule, which are:

       to enable the parties to obtain adjudication of rights before an actual injury occurs,
       to settle a matter before it ripens into a violation of the law or a breach of contract,
       or to avoid multiplicity of actions by affording a remedy for declaring in expedient
       action the rights and obligations of all litigants. [Rose v State Farm Mut Auto Ins
       Co, 274 Mich App 291, 294; 732 NW2d 160 (2006) (emphasis added).]

Plaintiff contends that defendant failed to properly interpret and apply two of the exemptions in
the FOIA which afforded defendant with the discretion to withhold the IA report. Given that
discretion, plaintiff argues, defendant violated the terms of the CBA by disclosing the report.
Under MCR 2.605(A)(1), the litigants are entitled to a determination of the scope and application
of the cited exemptions to enable the arbitrator to determine their impact on the CBA.

                                                 III

        The majority also errs by holding that on the merits, plaintiff failed to state a claim for
declaratory relief arising under the FOIA. Plaintiff’s requests for declaratory judgment seek
rulings that the IA reports were either precluded by the CBA, or “presumptively” exempt from
disclosure under various FOIA subsections. The majority reads the word “presumptively” out of
the equation, ignores the role of the ongoing grievance process, and summarily rejects plaintiff’s
FOIA claims. The majority has misunderstood the nature of the relief requested and has also
misconstrued the governing law.

                                                  A

         Count I of plaintiff’s complaint invokes MCL 15.243(1)(d), which permits a public body
to withhold “records or information specifically described and exempted from disclosure by
statute.” Plaintiff cites § 9(2) of the ERKA as the statutory basis for nondisclosure. This
subsection requires “criminal justice agencies” to “maintain a separate confidential file of
information relating to an investigation.” MCL 423.509(2). Plaintiff asserts that this “confidential
file” is not subject to disclosure to an employee, and therefore should be considered off-limits
when requested under the FOIA.

        The Court of Claims refused to address the merits of plaintiff’s ERKA claim based on its
determination that it was nonjusticiable. The majority affirms that ruling, characterizing as purely
“advisory” plaintiff’s request for declaratory judgment of its ERKA claim. “Plaintiff’s claims
were premised on an anticipated, future legal controversy,” the majority asserts, “therefore,
plaintiff was requesting an advisory opinion—in other words, advice—on the matter because no
actual pending FOIA request was being contested.”

        “Generally, an actual controversy exists where a declaratory judgment is necessary to guide
a plaintiff’s future conduct in order to preserve the plaintiff’s legal rights.” Citizens for Common
Sense in Gov’t v Attorney Gen, 243 Mich App 43, 55; 620 NW2d 546 (2000) (emphasis added).
The majority mistakenly believes that because defendant has not yet been confronted with another
FOIA request seeking information potentially exempt from disclosure under the ERKA, plaintiff
has no ability to seek a declaration that would guide the parties’ conduct. The parties agree—and


                                                 -5-
it makes perfect sense—that a future FOIA request concerning an internal investigation is
overwhelmingly likely. There are bound to be internal investigations in the future, and there are
bound to be FOIA requests for the details. “[C]ourts are not precluded from reaching issues before
actual injuries or losses have occurred.” UAW, 295 Mich App at 495. This means that adverse
parties, such as the litigants before us, are entitled to seek judicial guidance regarding a controversy
that is highly likely to reemerge. Without this guidance, plaintiffs allege, defendants are likely to
again disclose protected material. Such guidance is the marrow of the declaratory judgment
remedy.

        It bears mention that plaintiff’s ERKA claim finds strong support in Newark Morning
Ledger Co v Saginaw Co Sheriff, 204 Mich App 215; 514 NW2d 213 (1994). In Newark Morning
Ledger, the plaintiff sought access under the FOIA to many years of the defendant’s IA records.
Id. at 216. Defendant resisted disclosure, and the plaintiff filed suit. The trial court granted the
defendant’s motion for summary disposition, based on MCL 15.243(1)(t)(ix), which allows a
public body to withhold “personnel records of law enforcement agencies,” unless “the public
interest in disclosure outweighs the public interest in nondisclosure in the particular instance[.]”4
Newark Morning Ledger, 204 Mich App at 217.

         This Court rejected the defendant’s argument that it could avoid disclosure of an IA report
under MCL 15.243(1)(t)(ix) simply by placing it in an employee’s personnel file. Id. at 220 (“An
interpretation of the exemption that would allow a law enforcement agency to shield any record
from disclosure by merely placing it in a folder labeled ‘personnel file’ would undercut the policy
of full and complete disclosure mandated by the FOIA. Therefore, we conclude that the
Legislature did not intend that personnel records be solely defined by their location.”). But the
Court embraced the defendant’s argument under the ERKA that because an “unfounded,
unsubstantiated” IA report must be kept in a separate file inaccessible to the employee, the report
is also inaccessible to third parties under the FOIA. Id. at 221-222. Precisely the same argument
is made here.

         In Newark, we found the plaintiff’s ERKA argument potentially meritorious, explaining:

                  Thus, the Legislature, in an act designed to extend an employee’s ability to
         gain access to the employer’s files beyond the rights afforded to the public by the
         FOIA, determined that the employee should not be allowed access to the records of
         the employer's internal investigations. The Legislature’s clearly expressed intent
         in the ERKA to prohibit access by an employee to any internal investigations
         relating to that employee demonstrates that the Legislature intended that access to
         those records be severely restricted. We can reasonably infer that in drafting the
         FOIA, the Legislature had the same intent relative to records of closed internal
         affairs investigations such as those requested by plaintiff. The Legislature would
         not have denied an employee access to documents that were readily available to the
         public pursuant to the FOIA. Therefore, we conclude that the Legislature intended
         that the internal affairs investigatory records requested by plaintiff fall within the



4
    This subsection was relettered as subsection (s) by 2000 PA 88.


                                                  -6-
       meaning of the term “personnel record of law enforcement agencies” as used in the
       FOIA. [Id. at 223 (emphasis added, citation omitted).]

Notably, this Court did not decide whether the requested reports were subject to disclosure. Rather,
we remanded “to the trial court for additional findings” regarding the balancing of the public and
private interests at stake, and “for a determination whether the public interest in disclosure
outweighs the public interest in nondisclosure of some, all, or none of the documents in their
original or redacted versions.” Id. at 227.

       Absent a declaratory judgment, plaintiff will never be able to litigate the merits of its ERKA
claim before disclosure, or to prevent defendant from releasing material potentially exempted from
disclosure. In my view, the declaratory judgment remedy is custom made for situations such as
this.

                                                      B

        Count II of plaintiff’s complaint seeks a declaration that defendant may withhold
production of IA reports under MCL 15.243(1)(s)(ix) because they qualify as “personnel records”
under the FOIA. MCL 15.243(1)(s)(ix) specifically applies to the “public records of a law
enforcement agency,” and states that “[u]nless the public interest in disclosure outweighs the
public interest in nondisclosure,” the “personnel records of law enforcement agencies” may be
exempt from disclosure.

        The majority affirms the trial court’s ruling that plaintiff’s “reverse FOIA” claim is
precluded because plaintiff failed to identify a ground for prohibiting disclosure outside the FOIA
itself. Both the Court of Claims and the majority cite Tobin, 416 Mich 661, as the controlling
authority on this score.

         Although it did not expressly overrule Tobin, our Supreme Court’s opinion in Kent Co
Deputy Sheriff’s Ass’n v Kent Co Sheriff, 463 Mich 353; 616 NW2d 677 (2000), calls into question
the majority’s overbroad application of Tobin’s limitation on reverse-FOIA claims. In Kent Co,
463 Mich at 367, the Supreme Court affirmed this Court’s holding that the defendants “had the
right to exempt from disclosure the disputed records, under MCL 15.243(1)(t)(ix)[;]” no additional
statutory support was required. Moreover, even if Tobin remains good law, the majority misreads
it. As the Supreme Court more recently explained in Mich Federation of Teachers & Sch Related
Personnel, AFT, AFL-CIO v Univ of Mich, 481 Mich 657, 668; 753 NW2d 28 (2008), Tobin
actually held that the FOIA “ ‘authorizes, but does not require, nondisclosure of public records
falling within a FOIA exemption.’ ”

        Plaintiffs in this case seek nothing more than a ruling that echoes this statement from Mich
Federation of Teachers. Their complaint asks for a declaration that MCL 15.243(1)(s)(ix),
previously (t)(ix), affords defendant with the discretion to withhold IA reports. Because Tobin
does not bar such a determination, I would remand to the trial court for further consideration of
this argument.




                                                -7-
                                                      C

       The third and final count of plaintiff’s complaint alleges that “involuntary statements” that
are confidential under the DLEOA are exempt from disclosure under MCL 15.243(1)(d). Under
the DLEOA, a law officer’s “involuntary statement” is not subject to “public inspection.” MCL
15.395. Plaintiff alleges that MSPTA members were ordered to appear as witnesses in the
underlying investigations, were not informed that their appearance and participation were
voluntary, and were required to answer “unless 5th Amendment rights against criminal self-
incrimination [were] asserted.” In my view, plaintiff is entitled to a declaration as to whether such
compelled statements fall within the realm of information that may be withheld under the FOIA.

       In summary, I submit that this case was dismissed on an inappropriate ground by the Court
of Claims, and that the majority’s attempt to affirm that decision misapprehends the law and
ignores the underlying facts. I would reverse the Court of Claims and remand for further
proceedings.



                                                              /s/ Elizabeth L. Gleicher




                                                -8-
