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STATE NEWS, Plaintiff-Appellee, v MICHIGAN STATE UNIVERSITY, 
Defendant-Appellant.

No. 133682

SUPREME COURT OF MICHIGAN

2008 Mich. LEXIS 1393

March 4, 2008, Argued 
July 16, 2008, Decided 
July 16, 2008, Filed

 
PRIOR HISTORY:  [*1] 
   Ingham Circuit Court, Joyce Dragan-chuk, J. The Court of Appeals, 
WHITBECK, C.J., and BANDSTRA and SCHUETTE, JJ.

COUNSEL: Honigman Miller Schwartz and Cohn LLP (by Herschel D. Fink and Brian 
D. Wassom) for the plaintiff. De-troit.

Theresa Kelley for the defendant. East Lansing.

Amici Curiae: Debra A. Kowich, Gloria A. Hage, Eileen K. Jennings, Kenneth A. 
McKanders, Miles J. Postema, Paul J. Tomasi, Catherine L. Dehlin, Victor A. 
Zambardi, Louis Lessem, and Carol Hustoles for the Regents of the Univer-sity 
of Michigan, the boards of trustees of Central Michigan University, Ferris 
State University, Michigan Technologi-cal University, Oakland University, and 
Western Michigan University, the East-ern Michigan University Board of 
Re-gents, the Northern Michigan University Board of Control, and the Wayne 
State University Board of Governors.

Bernardi, Ronayne & Glusac (by Kath-erine W. MacKenzie) for the Michigan 
Association of Broadcasters and the Michigan Press Association. Plymouth.

Stuart J. Dunnings III, Charles Koop, and Kahla D. Arvizu for the Prosecuting 
Attorneys Association of Michigan, the Michigan Sheriffs' Association, and 
the Michigan Association of Chiefs of Po-lice.

JUDGES: Chief Justice: Clifford W. Taylor.  [*2] Justices: Michael F. 
Cavanagh, Elizabeth A. Weaver, Marilyn20Kelly, Maura D. Corrigan, Rob-ert P. 
Young, Jr., Stephen J. Markman. WEAVER, J. (concurring).

OPINION BY: Robert P. Young, Jr.

OPINION
BEFORE THE ENTIRE BENCH
YOUNG, J.
This case involves the applicability of the Freedom of Information Act (FOIA) 
privacy and law-enforcement-purposes exemptions to a police incident report. 
Following a notorious assault of several Michigan State University stu-dents 
in a dormitory room, plaintiff State News made a FOIA request that defen-dant 
Michigan State University disclose the report. Michigan State resisted this 
request, claiming that the FOIA privacy and law-enforcement-purposes 
exemp-tions permitted it to withhold the re-quested report. Litigation 
between the parties ensued, and the Court of Appeals eventually held that the 
circuit court had erred in determining that the entire re-port could be 
withheld. In its decision remanding the case to the circuit court, the Court 
of Appeals observed that the "subsequent availability of information as a 
result of later court proceedings in the criminal justice system may well 
strengthen or weaken the arguments of the parties to a FOIA dispute regarding 
the applicability" of  [*3] the exemp-tions at issue and instructed the 
circuit court to consider the effect of that avail-ability. 1 

1   State News v Michigan State Univ, 274 Mich App 558, 566-567, 583; 735 
NW2d (2007).
We conclude that this instruction from the Court of Appeals was errone-ous 
and hold that unless the exemption asserted provides otherwise, the 
applica-bility of a FOIA exemption=2
0is measured when the public body asserts the exemp-tion. The passage of time 
and the course of events after the assertion of a FOIA exception do not 
affect whether a public record was initially exempt from disclo-sure.
Accordingly, we reverse the judg-ment of the Court of Appeals in part and 
remand this case to the circuit court, in accordance with the remainder of 
the Court of Appeals judgment that ordered an in camera inspection of the 
police in-cident report for the circuit court to de-cide what information is 
exempt from disclosure and to make particularized findings to support its 
conclusion, as well as to separate, if possible, the ex-empt material from 
the nonexempt mate-rial.
FACTS AND PROCEDURAL HISTORY
On March 2, 2006, State News sub-mitted a FOIA request to Michigan State 
seeking disclosure of a police incident report that detailed  [*4] an 
incident at Hubbard Hall, a student dormitory at Michigan State, on February 
23, 2006. Three male assailants, one of whom was a Michigan State student, 
allegedly en-tered a dorm room, threatened three vic-tims with a gun, and 
poured gasoline on one of the individuals while threatening to light him on 
fire. The three men were later arraigned on charges of home inva-sion, 
felonious assault, and possessing a firearm during the commission of a 
fel-ony. In a story published several days later, the State News reported the 
names of the three men.
Michigan State denied the FOIA re-quest, citing the privacy exemption 2 and 
subsections 1(b)(i) to (iii) of the law-enforcement-
purposes exemption. 3 State News appealed administratively, and in a letter 
replying to State News, Michi-gan State University President Lou Anna K. 
Simon affirmed the original determi-nation to deny the FOIA request. State 
News then filed a complaint in the cir-cuit court, accompanied by a motion to 
show cause why Michigan State should not disclose the report and a motion for 
summary disposition. 4 The circuit court ordered a show cause hearing. 
Michigan State, in its response, attached affidavits from its FOIA officer, 
the Michigan  [*5] State University Chief of Police, and the Ingham County 
Chief Assistant Prosecuting Attorney to support its deci-sion to withhold the 
report. The affida-vits stated that the police incident report contained 
"incident report persons sheets," 5 "narrative incident reports," 6 physical 
evidence documents, 7 inmate profiles and booking photographs, and other 
information about the suspects.

2   MCL 15.243(1)(a).
3   MCL 15.243(1)(b)(i), (ii), and (iii).
4   State News initially filed suit in Oakland County, but the Oakland 
Circuit Court granted Michigan State's motion to transfer venue to Ingham 
County. State News refiled its complaint in the Ingham Circuit Court.
5   According to the affidavits, these documents contained "per-sonally 
identifiable information about the victims, witnesses, re-sponding police 
officers, and de-fendants (such as name, address, sex, race, weight, height, 
date of birth, driver's license number, stu-dent number, criminal history, 
and other personal and sensitive in
for-mation)."
6   According to the affidavits, these reports consisted of "state-ments from 
the responding officers, witnesses, victims, defendants, and a third party."
7   According to the affidavits, these documents consisted of "pho-tographs  
[*6] of evidence, prop-erty sheets, property inventory form[s], crime scene 
photographs, laboratory evidence documents, and advice of rights forms."
At the show cause hearing, the circuit court heard arguments from the parties 
and ruled from the bench in favor of Michigan State, concluding that the 
re-port in its entirety was exempt under both the privacy exemption and 
subsec-tions 1(b)(i) to (iii) of the law-enforcement-purposes exemption. 
How-ever, the court did not inspect the police incident report in camera 
before it reached its decision. With respect to the privacy exemption, the 
court found that some of the information sought, such as names, addresses, 
birthdates, driver's li-cense numbers, and criminal histories of the accused, 
victims, and witnesses, was information "of a personal nature" and that its 
disclosure would not further the core purpose of FOIA of shedding light on 
the workings of government. Thus, according to the circuit court, disclosure 
of this information would constitute a clearly unwarranted invasion of 
privacy.
Turning to the law-enforcement-purposes exemption, the court concluded that 
the analysis for the privacy exemp-tion also applied to subsection 1(b)(iii) 
of that  [*7] exemption, which protects against disclosure of investigating 
re-cords that would constitute an unwa
r-ranted invasion of personal privacy. With respect to subsections 1(b)(i) 
and (ii) of the law-enforcement-purposes ex-emption, the court found that 
Michigan State had made a particularized showing that disclosure of the 
report would inter-fere with law-enforcement proceedings or deprive a person 
of a fair trial. The court relied on affidavits from the police chief and the 
chief assistant prosecuting attorney stating that the potential existed for 
retaliation against witnesses and vic-tims, tainting of the jury pool, and 
taint-ing of witnesses' testimony if the report was disclosed to the public. 
The circuit court dismissed State News's complaint with prejudice.
State News appealed, and the Court of Appeals, in a published opinion per 
curiam, remanded this case to the circuit court for further proceedings. 8 
The panel identified several errors committed by the circuit court. It first 
addressed the circuit court's handling of the law-enforcement-purposes 
exemption. Citing Evening News Ass'n v City of Troy, 9 the Court of Appeals 
held that with respect to subsections 1(b)(i) and (ii), the circuit  [*8] 
court had failed to offer particular-ized reasons to justify its conclusion 
that the entire police incident report was ex-empt from disclosure. With 
respect to subsection 1(b)(iii), the panel, relying on United States Dep't of 
Justice v Report-ers Comm for Freedom of the Press, 10 suggested the 
possibility that the names or addresses of the suspects or other in-formation 
identifying them in the police incident report might be exemptible.

80  State News, 274 Mich App at 582-583.
9   417 Mich 481; 339 NW2d 421 (1983).
10   489 U.S. 749; 109 S Ct 1468; 103 L Ed 2d 774 (1989).
The panel then addressed the circuit court's handling of the privacy 
exemp-tion. It followed the two-part test for the privacy exemption developed 
by this Court in Bradley v Saranac Community Schools Bd of Ed, 11 and Mager v 
Dep't of State Police. 12 Concerning the first prong of the test, the panel 
stated that, "as a hypothetical matter," the names and addresses of the 
victims, witnesses, and suspects and other information iden-tifying them 
could constitute informa-tion "of a personal nature," but that the passage of 
time and the course of events might have rendered some, if not all, of this 
information matters of public knowledge  [*9] and therefore not of a personal 
nature. 13 Concerning the sec-ond prong, which requires that the dis-closure 
would create a clearly unwar-ranted invasion of an individual's pri-vacy, the 
panel tentatively concluded that Michigan State had failed to demon-strate 
that the release of the police inci-dent report would shed no light on its 
conduct as a public body. However, it declined to reach a firm conclusion 
with respect to the second prong because the panel could not review the 
report, which was not part of the circuit court record.

11   455 Mich 285; 565 NW2d 650 (1997). This Court recently slightly modified 
the Bradley test. See Michigan Federation of Teachers v Univ of Michigan,     
Mich
   ;     NW2d     (Docket No. 133819, de-cided July 16, 2008).
12   460 Mich 134; 595 NW2d 142 (1999).
13   State News, 274 Mich App at 578.
Next, the Court of Appeals, again cit-ing Evening News, held that on remand 
the circuit court should review the re-quested information in camera. In 
addi-tion, the panel held that the exempt and nonexempt material should be 
separated to the extent practicable, with the non-exempt material made 
available to State News. 14 

14   These aspects of the Court of Appeals judgment were not in-cluded  [*10] 
in this Court's limited order granting leave to appeal.
Michigan State sought leave to ap-peal in this Court. We granted leave to 
appeal on a limited basis and denied leave in all other respects. 15 

15   480 Mich 902 (2007).
STANDARD OF REVIEW
This Court reviews de novo as a question of law issues of statutory 
inter-pretation. 16 We give effect to the Legis-lature's intent as expressed 
in the lan-guage of the statute by interpreting the words, phrases, and 
clauses according to their plain meaning. 17 

16   Herald Co, Inc v Eastern Michigan Univ Bd of Regents, 475 Mich 463, 
471-472; 719 NW2d 19 (2006).
17   Bukowski v Detroit, 478 Mich 268, 273-274; 732 NW2d 75 (2007).
THE EFFECT OF THE PASSAGE OF TIME
We granted leave to appeal,
 
   "limited to the issue whether the Court of Appeals erred in instructing 
[the cir-cuit court], on remand, re-garding the "personal=2
0nature" of public records covered by the Freedom of Information Act privacy 
exemption 18 or the law enforcement purposes privacy exemption, 19 includ-ing 
whether the "personal na-ture" of such records may be affected by the 
contempora-neous or later public status of some or all of the informa-tion. 20

 
We are not determining in this appeal whether the police  [*11] incident 
report ultimately is exempt from disclosure. 21 

18   The privacy exemption, MCL 15.243(1)(a), provides:
 
   (1) A public body may exempt from disclosure as a public record under this 
act any of the fol-lowing:
(a) Information of a personal nature if public disclosure of the infor-mation 
would constitute a clearly unwarranted invasion of an individ-ual's privacy.

 

19   The law-enforcement-purposes exemption, MCL 15.243(1)(b), provides, in 
pertinent part:
 
   (1) A public body may exempt from disclosure as a public record under this 
act any of the fol-lowing:
* * *
(b) Investigating re-cords compiled for law enforcement purposes, but only to 
the extent that disclosure as a pub-lic record would do any of the following:
(i) Interfere with law enforcement proceed-ings.
(ii) Deprive a person of the right to a fair trial or impartial 
administra-tive adjudication.
(iii) Constitute an unwarranted invasion of personal privacy.

 

20   480 Mich 902 (2007) (citations omitted).
21   Recently, in Michigan Federa-tion of Teachers,     Mich at    , slip op 
at 2,=2
0we modified the definition of "information of a personal na-ture" in the 
privacy exemption to include "information of an embar-rassing, intimate, 
private, or confi-dential nature."  [*12] Thus, Brad-ley as modified by 
Michigan Fed-eration of Teachers now governs the privacy exemption. On 
remand, then, the modified definition set forth in Michigan Federation of 
Teachers must guide the circuit court's application of the privacy exemption.
In Michigan Federation of Teachers, we also addressed whether information can 
be "of a personal nature" and whether an individual retains a privacy 
interest in that information if it might be found elsewhere in the public 
do-main at the time of the FOIA re-quest. We held that "[t]he disclo-sure of 
information of a personal nature into the public sphere in cer-tain instances 
does not automati-cally remove the protection of the privacy exemption and 
subject it to disclosure in every other circum-stance." Id. at    , slip op 
at 24. Michigan Federation of Teachers quoted with approval the United States 
Supreme Court's observation that "'[a]n individual's interest in controlling 
the dissemination of in-formation regarding personal mat-ters does not 
dissolve simply be-cause that information may be available to the public in 
some form.'" Id. at    , slip op at 24, quot-ing United States Dep't of 
Defense v Fed Labor Relations Auth, 510 U.S. 487, 500; 114 S Ct 1006; 127 L 
Ed 2d 325 (1994).  [*13] As with the modified Bradley definition, these 
holdings must guide the cir-cuit court20on remand when it ap-plies the 
privacy exemption and the law-enforcement-purposes exemp-tion to the facts of 
this case.
The Court of Appeals made the fol-lowing observation about the effect of the 
passage of time on the FOIA exemp-tions in this case:
 
   We note at the outset that the passage of time may have affected aspects 
of this appeal and that, while we can make some observations based on the 
record, there are other as-pects about which we can only speculate. We know 
from the record that before it made its FOIA request to MSU, State News had 
already identified the three men ar-rested at Hubbard Hall. Thus, at least 
the names of these men and some identifying in-formation about them were in 
the public domain. We know from the record that when President Simon issued 
her April 6, 2006, denial, these men had already been ar-raigned on charges 
of home invasion, felonious assault, and felony-firearm. Further information 
about these men might therefore have been in the public domain at that time, 
but the record before us does not disclose what that in-formation might be. 
We also know from the record that when the  [*14] trial court is-sued its 
June 8, 2006, deci-sion, one of these men had been scheduled for trial and 
the preliminary examinations for the remaining two were scheduled for the 
next day. From the record before us, however, we do not know whether trials 
have now been held or, if so, what the results of those trials may have been 
and what information might have entered=2
0into the public domain during the course of later proceedings.
Rather obviously, public bodies and trial courts can only make decisions on 
FOIA matters on the basis of the in-formation that is before them at the 
time, and it is not the function of appellate courts to second-guess those 
decisions on the basis of information that later becomes available. Here, 
because we do not have the any information about what may have transpired 
af-ter the trial court's June 8 de-cision, we could not engage in such 
second-guessing in any event. We do observe, how-ever, that the subsequent 
availability of information as a result of later court proceed-ings in the 
criminal justice system may well strengthen or weaken the arguments of the 
parties to a FOIA dispute regarding the applicability of the privacy 
exemption and the law-enforcement-purpose  [*15] exemption.
As a practical matter, we suspect that this subsequent information, of which 
the trial court can take judicial notice on remand under appropriate 
procedures, will weaken MSU's position and strengthen State News's posi-tion. 
But, ironically, the newsworthiness of the infor-mation contained in the 
police incident report may also have decreased over time. How-ever, FOIA is 
not concerned with newsworthiness. Rather, it is concerned with requiring the 
disclosure of nonexempt public records so as to ensure accountability. 22

 
The panel reiterated this observation when it discussed the first prong of 
the privacy exemption and noted that "the passage of time and the course of 
events ma
y have rendered some, if not all, of this information matters of public 
knowledge and therefore not of a per-sonal nature." 23 

22   State News, 274 Mich App at 565-567 (citation omitted).
23   Id. at 578.
We agree with the Court of Appeals statement that "public bodies and trial 
courts can only make decisions on FOIA matters on the basis of the 
information that is before them at the time, and it is not the function of 
appellate courts to second-guess those decisions on the ba-sis of information 
that later becomes  [*16] available." We disagree, however, with the panel's 
further, contrary mus-ings that the passage of time and subse-quent events 
could negate the applicabil-ity of a FOIA exemption. Rather, we hold that 
unless the FOIA exemption provides otherwise, 24 the appropriate time to 
measure whether a public record is exempt under a particular FOIA ex-emption 
is the time when the public body asserts the exemption.

24   Certain FOIA exemptions con-tain explicit time limitations on their 
applicability. See, e.g., MCL 15.243(1)(e), (i), (j), (p), and (x). However, 
we note that the applica-bility of even those FOIA exemp-tions would be 
measured at the time the public body invoked the exemption to deny the FOIA 
re-quest.
The denial of a FOIA request occurs at a definite point in time. The public 
body relies on the information available to it at that time to make a legal 
judg-ment whether the requested public re-cord is fully or partially exempt 
from disclosure. The determinative lega
l question for a judicial body reviewing the denial is whether the public 
body erred because the FOIA exemption ap-plied when it denied the request. 
Subse-quent developments are irrelevant to that FOIA inquiry. 25 There is no 
indication  [*17] from the text of either the privacy or the 
law-enforcement-purposes ex-emption or from another, independent FOIA 
provision that the public body's assertion of a FOIA exemption may be 
reexamined by the circuit court or an appellate court while taking into 
consid-eration information not available to the public body when it denied 
the request.

25   Of course, release of the re-quested public record by the public body 
would render the FOIA ap-peal moot because there would no longer be a 
controversy requiring judicial resolution. See Federated Publications, Inc v 
City of Lansing, 467 Mich 98; 649 NW2d 383 (2002). Mootness is not at issue 
in this case, however.
Further, the procedures in FOIA for submitting a FOIA request, reviewing the 
FOIA request, and appealing that re-view suggest that the timing of the 
pub-lic body's response to the FOIA request is crucial to deciding whether 
the re-quested record is exempt. FOIA requires the public body to respond to 
a FOIA request within 5 business days, with a possible extension of not more 
than 10 business days. 26 There is no language in that provision or elsewhere 
in FOIA that requires a public body to continue to monitor FOIA requests once 
they have been  [*18] denied. 27 FOIA does not prevent a party that 
unsuccessfully
 re-quested a public record from submitting another FOIA request for that 
public re-cord if it believes that, because of changed circumstances, the 
record can no longer be withheld from disclosure.

26   MCL 15.235(2)(d).
27   MCL 15.233(1) grants a per-son the right to subscribe to future 
issuances of public records that are created, issued, or disseminated on a 
regular basis. This provision, however, is inapposite in this case for the 
obvious reason that a police incident report is a single public record that 
would not be created, issued, or disseminated on a regu-lar basis. Moreover, 
that provision does not necessarily entitle the re-questing party to the full 
contents of those public records.
CONCLUSION
We reverse the judgment of the Court of Appeals in part and hold that events 
that occur after a public body's denial of a FOIA request are not relevant to 
the judicial review of the decision. Thus, in this case, the passage of time 
and course of events have no bearing on whether Michigan State properly 
denied State News's FOIA request under the privacy exemption and the 
law-enforcement-purpose exemption. Accordingly, we remand this case  [*19] to 
the circuit court for further proceedings consistent with this decision. 28 

28   On remand, the parties and the circuit court should take cogni-zance of 
the special protection af-forded to crime victims by our con-stitution and 
legislative enact-ments, particularly those provisions that exempt certain 
information about victims from disclosure un-der FOIA. 
See Const 1963, art 1, ß 24; 1985 PA 87 the Crime Victim's Rights Act, MCL 
780.751 et seq. For instance, ß 8 of the Crime Vic-tim's Rights Act provides 
that cer-tain information about the victim is exempt from disclosure under 
FOIA, such as the home address, home telephone number, work ad-dress, and 
work telephone number unless the address is used to iden-tify the place of 
the crime, and any picture, photograph, drawing, or other visual 
representation of the victim, including any film, video-tape, or digitally 
stored image. MCL 780.758 (3)(a) and (b). See also MCL 780.769(2), 
780.769a(3), 780.771(4), 780.788(2), 780.798(5), 780.818(2), 780.830. As the 
circuit court reconsiders on remand whether the police incident report is 
exempt from disclosure in whole or in part, and whether any exempt material 
is separable from the nonexempt material,  [*20] it must respect the 
Legislature's de-termination that certain information about crime victims is 
exempt from disclosure.
Robert P. Young, Jr.
Clifford W. Taylor
Michael F. Cavanagh
Marilyn Kelly
Maura D. Corrigan
Stephen J. Markman

CONCUR BY: Elizabeth A. Weaver

CONCUR
WEAVER, J. (concurring).
I concur in the decision reached by the majority, but write separately to 
stress the two points I consider most im-portant with respect to a request 
for documents pursuant to the Freedom of Information Act (FOIA). 1 

1   MCL 15.231 et seq.
First, I agree that the appropriate time to measure if a public record is 
exempt under a particular FOIA exemption is when the pu
blic body asserts the exemp-tion. Second, while I agree that "[t]here is no 
language in [MCL 15.245(2)(d)] or elsewhere in FOIA that requires a public 
body to monitor FOIA requests once they have been denied," ante at 13, it is 
important to note that "FOIA does not prevent a party that unsuccessfully 
re-quested a public record from submitting another FOIA request for that 
public re-cord if it believes that, because of changed circumstances, the 
record can no longer be withheld from disclosure," ante at 13-14 (emphasis 
added). 2 

2   Moreover, to my understanding, when a  [*21] party resubmits a FOIA 
request because of "changed circumstances," it may very well be that those 
"changed circumstances" occurred over time. It is not the "passage of time" 
that is critical, but the "changed circumstances." For example, a document 
contain-ing information that had formerly been private, but subsequently 
be-came public, may no longer be ex-empt under FOIA.
Elizabeth A. Weaver