Earlier this month, a Michigan Court of Appeals affirmed a trial court's order that Michigan State disclose the names of suspects redacted from university police incident reports. ESPN, Inc. v. Michigan State University, No. 326773 (Mich. App. Ct. Aug. 18, 2015). The appellate court found that the public's interest in government accountability took priority over any student-athlete's expectation of privacy.
In ESPN, the University appealed the trial court's ruling based on the privacy exception to the state's Freedom of Information Act (FOIA), MCL 15.231, et seq. In September 2014, ESPN submitted a FOIA request to the University seeking incident reports involving several student-athletes. The University produced certain records, but redacted names and identifying information of the suspects, victims, and witnesses, pursuant to MCL 15.243(1)(a) and (1)(b)(iii). Specifically, subsection 15.243(1)(b)(iii) prohibits disclosure of certain investigating records that would constitute an "unwarranted invasion of personal privacy." The trial court ordered disclosure of the suspects' names, but not the names and information of the victims and witnesses, "even if the victims or witnesses were one of the student-athletes identified in the request." The University appealed. (ESPN did not challenge the trial court's determination that the privacy exemption applied to the victims' and witnesses' respective information.)
The appellate court applied a two-prong analysis to determine whether the privacy exception applied: (1) "the information must be of a personal nature"; and (2) "whether disclosure of the information would constitute a clearly unwarranted invasion of an individual's privacy." Both prongs must be met for the exemption to apply.
The court of appeals found the second prong dispositive. Specifically, disclosure of the names of the student-athletes identified as suspects "is necessary" to "learn whether policing standards are consistent and uniform at a public institution of higher learning." The appellate court further explained that, "[u]nder the circumstances, the public's interest in government accountability must prevail over an individual's, or a group of individual's, expectation of privacy." (internal quotations and citation omitted.)
In light of the Ohio Supreme Court's recent decision, Schiffbauer v. Banaszak, Slip Opinion No. 2015-Ohio-1854 (May 21, 2015), which issued a peremptory writ of mandamus compelling a private university's police department to produce public records, Michigan's ESPN decision is significant because it may guide Ohio courts as they navigate application of Schiffbauer. For more on Schiffbauer, and other recent public records decisions from the Ohio Supreme Court, see my article in the July/August edition of the Ohio State Bar Association's Ohio Lawyer magazine.
