WHITBECK, J.
This appeal concerns the provisions of the Freedom of Information Act (FOIA) relating to public records.
The records here relate to the 2008 presidential primary election, in which there was to be a "separate record" kept containing the printed name, address, and qualified voter file number of each elector and the "participating political party" ballot selected by that elector. The main "participating" political parties were the Democratic Party and the Republican Party. The 2008 presidential primary in Michigan was conducted amid a swirl of controversy, charges, and counter-charges. Ultimately, a federal court found the act that authorized that primary to be unconstitutional on equal protection grounds. But these complexities should not cloud the basic issue. That issue here is whether we should shield from public disclosure the "separate records" that contain information as to which ballot—not which candidate—each voter selected in the 2008 presidential primary. We do not view FOIA and the cases interpreting it as providing such a shield. We therefore affirm the decision of the trial court.
The law relating to recent presidential primary elections in Michigan falls into three categories:
More specifically, the law in these three categories contained the following provisions:
There is a significant difference between the three categories. Under the 1988-1995 closed primary system, an elector had to "declare" a "party preference" 30 days in advance in order to vote in a presidential primary. Under the 1995-2007 open primary system, by contrast, there were no requirements regarding party preference or ballot selection, by declaration or otherwise, and any qualified elector could vote in any of the parties' respective presidential primaries. In 2008, an elector was not required to "declare" a "party preference" but rather that elector was required to "indicate" which "participating political party ballot he or she wish[ed] to vote...." And the elector could indicate his or her choice of ballot when he or she appeared at the polling place to vote in the presidential primary, rather than 30 days in advance.
The three categories also had significantly different record-keeping requirements. In summary, the law in these three categories contained the following provisions:
Thus, from 1988 to 1995, under the closed presidential primary system, the registration affidavits contained extensive information about electors, including an elector's declaration of party preference (or no preference) for the purpose of voting in a presidential primary. But from 1995 to 2007, under the open presidential primary system, the elector's declaration of party preference was no longer kept in the registration affidavits. In 2008, however, there was to be a "separate record" in the semi-open presidential primary that contained the printed name, address, and qualified voter file number of each elector and the selection of the participating political party ballot by that elector.
The law in these three categories also contained significantly different restrictions upon disclosure. In summary, the law in these three categories contained the following provisions:
As noted, the changes to the election law that the Legislature adopted in 2007 for the 2008 presidential primary repealed the 1995 FOIA provision and substituted an exemption from disclosure for the information acquired or in the possession of a public body that indicated which participating political party ballot an elector selected at a presidential primary. However, after the 2008 primary, a federal court declared § 615c of 2007 PA 52 unconstitutional on equal protection grounds.
On March 26, 2008, plaintiff, Practical Political Consulting, Inc., through Jon Hansen, faxed a handwritten request to officials of the Secretary's department requesting "a copy of all vote history of the 1/15/08 presidential primary including which ballots each voter selected (D or R)." Practical Political Consulting, again through Jon Hansen, then sent a confirming e-mail requesting "all voter history pertaining to that (the January 15, 2008 presidential primary) election including which ballot, D or R, each voter selected." Although the language of these two requests is somewhat different, the substance is essentially the same. Collectively, therefore, they constitute the March 26, 2008 FOIA request.
On April 17, 2008, the Secretary, through FOIA Coordinator Melissa Malerman, denied Practical Political Consulting's request. The Secretary set forth three grounds for this denial. First, she asserted that the "party preference information collected during the primary" was not a public record as defined by FOIA. Second, the Secretary asserted that the "party preference data" was exempt from disclosure under § 13(1)(a) of FOIA, the privacy exemption.
Importantly, the Secretary then went on to offer the release of the names and addresses of those who voted in the January 15, 2008, primary. She stated:
Practical Political Consulting then brought suit against the Secretary, as allowed by FOIA.
The specific statutory exemption at issue here, the 1995 FOIA provision, is contained in amended § 495a of the Michigan Election Law relating to restrictions on disclosure.
The second subsection, amended § 495a(2), of the 1995 FOIA provision is, however, forward looking and directly relevant. This subsection states:
As noted above, 2007 PA 52 repealed the 1995 FOIA provision. But a federal court later found § 615c of 2007 PA 52 to be unconstitutional. Because 2007 PA 52 contained a nonseverability clause, the entire act, including the repealer, was null and void. Therefore, the 1995 FOIA provision, including amended § 495a(2), is now back in effect. Under that subsection, the question before us is twofold. First, was the March 26, 2008, FOIA request a request for a copy of an identifiable public record specifically described and exempted from disclosure under amended § 495a(2)? Second, even if the March 26, 2008, FOIA request was not a request for a copy of an identifiable public record specifically described and exempted from disclosure under amended § 495a(2), was the information in that public record specifically described and exempted from disclosure under amended § 495a(2)?
Section 1(1) of FOIA
Here, the public records in question are the "separate record[s]" created under § 615c(3) of 2007 PA 52
But it is also equally clear that these "separate record[s]" are not specifically described and exempted from disclosure under amended § 495a(2). That subsection refers to "voter registration record[s]." Presumably, these "voter registration record[s]" include "registration affidavits," along with considerable other information, declarations of party preference by electors
The "voter registration record[s]" that amended § 495a(2) exempts from disclosure are completely distinct from the "separate record[s]" kept under § 615c(3) of 2007 PA 52. And there is simply no way of reasonably construing the statutory exemption from disclosure for "voter registration record[s]" under amended § 495a(2) as specifically describing and exempting the "separate record[s]" kept under § 615c(3) of 2007 PA 52. These "separate record[s]" are not "voter registration record[s]" at all. Rather, they are records of the participating political party ballots— along with the printed name, address, and qualified voter file number of each elector—that electors selected at their polling places in order to vote in the 2008 presidential primary.
As such, these "separate record[s]" have nothing whatever to do with voter registration. Again, they are simply the names, addresses, and the qualified voter file number of electors voting in the 2008 presidential primary along with the participating political party ballot selected by such electors in that presidential primary. Because they are not "voter registration record[s]," they are not exempt from disclosure under amended § 495a(2).
There is, however, a more subtle point to be explored. Section 13(1)(d) of FOIA, the provision that contains the statutory exemption,
Perhaps the best way of illustrating this rather technical linguistic distinction is by example. Under the 1988-1995 closed presidential primary system, in order to vote in a presidential primary an elector had to declare a party preference (or that the elector had no party preference).
By contrast, the "information" kept under § 615c(3) of 2007 PA 52 is "information" regarding the participating political party ballots—along with the printed name, address, and qualified voter file number of each elector—that electors selected in order to vote in the 2008 presidential primary. Such "information" is not the "declaration of party preference" (or no party preference) that amended § 495a(2)
To illustrate, again by way of example, in 2008, a Democrat, knowing that the Democratic Party candidates were choosing not to campaign in the presidential primary in Michigan, could have selected the ballot for and voted in the Republican Party's presidential primary. That Democrat was not making a "declaration" of party preference. Rather, he or she was simply choosing to vote in the Republican Party's 2008 presidential primary. This choice—a ticket to ride obtained at the polling place, good for that day only and not applicable to any other trains (in the form of future presidential primaries) that might leave the station—is not voter registration information and it certainly is not a declaration of party preference. Thus, amended § 495a(2)
The fact that eligibility to vote was "conditioned"
Section 13(1)(a) of FOIA sets out the "privacy exemption" to disclosure under FOIA as follows:
It is well at the outset to be clear about exactly what information is at issue here. First, the information at issue is not the names and addresses of the persons who voted in the 2008 presidential primary. As the Secretary concedes, she has released the names and addresses of registered voters in the past. And there is ample precedent, in a number of different contexts, for the release of names and addresses.
Second, the information at issue is not simply the listing of the number of votes
Rather, it is the names and addresses of the persons who voted in the 2008 presidential primary coupled with the party preference that those persons indicated in order to obtain a ballot relating to one of the participating political parties. It is this information that the Secretary asserts is exempt from disclosure under the privacy exemption of FOIA.
We are to engage in a two-pronged inquiry to ascertain whether the privacy exemption is applicable. First, we must determine whether the information is "`of a personal nature.'" Second, we must determine whether the "public disclosure of that information `would constitute a clearly unwarranted invasion of an individual's privacy.'"
In interpreting statutes, our goal is to ascertain the Legislature's intent.
The dissent similarly relies on the deus ex machina of public outcry to underpin its analysis of the enactment of the 1995 FOIA provision.
Upon this highly suspect basis, the dissent piles a goodly number of imaginary horribles that it anticipates may occur if the Secretary releases the names and addresses of the persons who voted in the 2008 presidential primary coupled with the party preference that those persons ostensibly
We can only emphasize that this is pure speculation, with not a speck of evidence— other than the alleged "public outcry" over disclosure of party declaration information taken whole cloth from a single legislative analysis by an unknown author—to support it.
Moreover, the future use of the information is irrelevant to determining whether the privacy exemption applies.
We also note the dissent's reliance
In essence, then, in 2007 PA 52, the Legislature created a structure that was whole and complete unto itself. But the Legislature also provided that if any component of that structure were to be removed, the entire edifice would crumble. Therefore, the exemption from disclosure under the FOIA provision of 2007 PA 52, like all other provisions of the statute, would fall of its own weight and would henceforth be "invalid, inoperable, and
Although the Secretary and the dissent discount its importance, the decision in Ferency v. Secretary of State
It is helpful to break this quotation down in order to understand it fully. The disclosure of party affiliation in question was the declaration of party preference that, under the 1988-1995 closed primary system, an elector had to make 30 days in advance in order to vote in a party's presidential primary. As noted, in effect, the elector was then declaring that he or she was a Democrat, a Republican, or a member of another party.
By contrast, in 2008, an elector was not making a declaration of a party preference. Rather, that elector was simply indicating the ballot—Democratic, Republican, or a third party—that he or she wished to vote. Certainly, the indication of a ballot that an elector wished to vote in the 2008 presidential primary is information of a less personal nature than is a declaration of a party preference that an elector was required to make, if he or she wished to vote in a presidential primary, between 1988 and 1995.
It is possible to distinguish Ferency on the ground that it relates to information that was to be given to a political party rather than, as is the case here, information that is available to the general public. This is certainly relevant to the party's interest in conducting its presidential primaries. But we do not understand how a wider distribution to the general public, as would be the case here, as contrasted to a more limited distribution to the political parties, as was the case between 1988 and 1995, makes the information in question here any more personal in nature than it would otherwise be.
Last, and perhaps most fundamentally, the whole thrust of the sacrosanct concept of ballot secrecy
We therefore conclude that the indication of a ballot that an elector wished to vote in the 2008 presidential primary is not information of a personal nature.
Even if the disclosure of information regarding the ballots that electors voted in the 2008 presidential primary is the disclosure of personal information, this is not enough to exempt this information from disclosure. Such disclosure must also constitute a "clearly unwarranted" invasion of an individual's privacy.
In Michigan, from 1988 to 1995, there was no restriction upon the release not only of electors' names and addresses but also upon their declarations of party preference. This disclosure of the names and addresses was a warranted invasion of personal privacy because that disclosure was necessary to inform the general public whether voters were properly registered and whether they were voting in the proper precinct. Disclosure of such information, if requested, was necessary to hold government accountable for the integrity and purity of this state's elections.
This is the core purpose of FOIA. That purpose is to provide the people of this state with full and complete information regarding the government's affairs and the official actions of governmental officials and employees.
The Secretary clearly recognizes the concept of accountability. But she turns away from that concept when she argues that, assuming the public has an interest in knowing how public officials performed their tasks associated with the 2008 presidential primary, "the linking of party preference information with voter name, address, and qualified voter number, does nothing to inform the public about how local clerks of the Secretary ... are performing their statutory and public duties with regard to elections." To the contrary, we conclude that disclosure of such information would inform the public to what extent the Secretary and the various local clerks carried out the requirements of 2007 PA 52. Indeed, there is no other way by which these individuals can be held accountable for their implementation of a then-valid statute. And, we emphasize, there is no doubt that the public has a strong and ongoing interest in knowing how public officials perform the tasks that the law assigns to them.
Thus, there is a strong—not a "virtually nonexistent"
And, we emphasize, if there ever was an area in which that disinfectant is the most needed, it is in the conducting of elections. Elections constitute the bedrock of democracy and the public's interest in the purity of such elections is of paramount importance. If we cannot hold our election officials accountable for the way in which they conduct our elections, then we risk the franchise itself. And we cannot hold our election officials accountable if we do not have the information upon which to evaluate their actions. We therefore conclude that, even if the indication of a ballot that an elector wished to vote in the 2008 presidential primary were to be viewed as being of a personal nature, its disclosure would
FOIA is a pro disclosure statute that we are to interpret broadly to allow public access. Conversely, we are to interpret its exemptions narrowly so that we do not undermine its disclosure provisions.
As we have outlined above, these "separate record[s]" are not specifically described and exempted from disclosure under amended § 495a(2). The "voter registration record[s]" that amended § 495a(2) exempts from disclosure are completely distinct from the "separate record[s]" kept under § 615c(3) of 2007 PA 52. Further, "information" kept under § 615c(3) of 2007 PA 52 is not an elector's "declaration of party preference" (or no preference). And it is only such declarations of party preference that amended § 495a(2) exempts from disclosure. With this in mind, we conclude that the statutory exemption to disclosure under FOIA applies neither to these "separate record[s]," nor to the information contained therein.
Moreover, the disclosure of information regarding the ballots that electors voted in the 2008 presidential primary is not the disclosure of personal information. But even if it were, such disclosure would not constitute a "clearly unwarranted" invasion of an individual's privacy. Thus, we conclude that the privacy exemption to disclosure under FOIA also does not apply to these "separate record[s]" or to the information contained in them.
Affirmed. No costs, a public question being involved.
BORRELLO, P.J., concurred.
KIRSTEN FRANK KELLY, J., (dissenting).
I respectfully dissent from my distinguished colleagues' conclusion that the requested records are not exempt from disclosure under the statutory and privacy exemptions of the Freedom of Information Act (FOIA), MCL 15.231 et seq. In my view, the information collected during the 2008 presidential primary is information protected by statute and its disclosure would constitute a "clearly unwarranted invasion" of an individual's privacy, and thus is exempt from disclosure under the FOIA.
Michigan's election law governs the selection of public officials to public office and is meant to ensure the purity and integrity of elections. 1954 PA 116, enacting MCL 168.1 et seq.; Taylor v. Currie, 277 Mich.App. 85, 96, 743 N.W.2d 571 (2007). A particular set of rules applies to
In 1988, Michigan used a closed primary system. MCL 168.495(1)(k), as amended by 1988 PA 275 (1988 election law). In order to vote in the primary, individuals were required to declare their party preference on their registration record at least 30 days before the primary. MCL 168.523(3), as amended by 1988 PA 275. An individual who properly declared himself or herself as a Republican, for example, would be eligible to vote only for Republican candidates, as well as nonpartisan candidates. The converse would be true for a Democrat. Voters who did not declare a preference were not eligible to vote in the presidential primaries. For voters who did submit a declaration, the information regarding the voters' party preference was captured, recorded, and maintained on their registration files with the Secretary of State. MCL 168.495a, as added by 1988 PA 275. The 1988 election law did not address whether this information, including voters' identifying information and party preference information, was disclosable to the general public or whether this information could be deleted from a voter's file.
The requirement that voters declare a political preference, and the lack of protection as to that information, caused a public outcry.
Also in 1995, the Legislature further amended the election law to provide that voters' declarations of party preferences are not disclosable through the FOIA. MCL 168.495a, as amended by 1995 PA 213 (the 1995 FOIA provision). Specifically, that provision provided:
In other words, as of 1995, Michigan employed an open primary system that did not require a declaration of, and did not record, electors' political preferences, and which also prohibited the disclosure through the FOIA of voter registration records containing any such political preference. Between 1995 and 2007, a number of additional amendments were made to Michigan's presidential primary election law, the last in 2003, but none of these affected the election system's status as an open primary system that prohibited disclosure of voter registration records containing political preferences. See 1999 PA 72, 2003 PA 13.
Before the 2008 presidential primary, the Legislature again amended Michigan's election law to employ a semi-closed primary process. See MCL 168.615c, as added by 2007 PA 52 (2007 election statute). Under this new amendatory act,
Significantly, the 2007 election statute also included a nonseverability clause. 2007 PA 52, enacting § 1. That provision provided:
In addition, the 2007 election statute repealed certain sections of Michigan's election law, including the 1995 FOIA provision, MCL 168.495a. 2007 PA 52, enacting § 2 (the repealer). In its place, the 2007 election law provided its own FOIA provision, which provided:
The 2007 election statute went into effect on September 4, 2007.
The 2008 primary election was carried out according to the 2007 election statute. However, shortly after the 2008 primary, a federal district court declared § 615c of the 2007 election statute unconstitutional as a violation of the United States Constitution's Equal Protection Clause in Green Party of Mich. v. Mich. Secretary of State, 541 F.Supp.2d 912, 924 (E.D.Mich., 2008). Accordingly, because of the 2007 election law's non-severability clause, the entire amendatory act fell together and it became null and void. See, e.g., John Spry Lumber Co. v. Sault Savings Bank, Loan & Trust Co., 77 Mich. 199, 200-202, 43 N.W. 778 (1889) (concluding that all provisions of a nonseverable unconstitutional statute fall together, leaving the prior law intact); M & S Builders v. Dearborn, 344 Mich. 17, 19-20, 73 N.W.2d 283 (1955) (finding that a repeal became invalid with the rest of an amendment that was declared invalid, thus reviving the prior law). Thus, the repealer was struck down, as was the 2007 election law's FOIA provision. As a result, and as the parties agree, Michigan's prior election law, as it stood in 2003, applies to this matter.
On March 26, 2008, the same day the federal court announced its decision, plaintiff, Practical Political Consulting, Inc., submitted a FOIA request to defendants. Specifically, plaintiff requested "all voter history [of the 2008 presidential primary election] including which ballot, [Democratic or Republican], each voter selected." This information was the information collected pursuant to the 2007 election statute.
On April 17, 2008, defendants denied the FOIA request, reasoning that the requested documents were not public records and were exempt from disclosure under the statutory exemption of the FOIA, MCL 15.243(1)(d), which provides:
Defendants also reasoned that the party preference information was exempt under the FOIA's privacy exemption, which states:
More specifically, defendants posited that the information was protected from disclosure under either the 2007 election statute's FOIA provision or its predecessor provision, the 1995 FOIA provision, MCL 168.495a; and, further, that the records contained information of a personal nature, the disclosure of which would not provide meaningful insight into the workings of the government, and would be a clearly unwarranted invasion of individuals' privacy.
As a result of defendants' denial, plaintiff sought a judgment in the trial court declaring defendants to be in violation of the FOIA. On the parties' cross-motions for summary disposition, the trial court ruled in plaintiff's favor. It found that the records created were public records and that neither exemption applied.
Defendants appeal as of right, asserting that the records, and the information contained therein, are exempt under the FOIA.
Whether a public record is exempt from disclosure pursuant to the FOIA is a question of law reviewed de novo. Herald Co., Inc. v. Eastern Mich. Univ. Bd. of Regents, 475 Mich. 463, 471-472, 719 N.W.2d 19 (2006). In addition, review of the trial court's decision on the parties' motions for summary disposition is also de novo.
The purpose of Michigan's FOIA statute is to provide the people of Michigan full and complete information regarding the government's affairs and the official actions of governmental officials and employees. MCL 15.231(2); Taylor v. Lansing Bd. of Water & Light, 272 Mich.App. 200, 204, 725 N.W.2d 84 (2006). Disclosure of this information is designed to promote governmental accountability and is imperative to a democracy; full disclosure of governmental activity informs the citizenry so that they may fully participate in the democratic process. See MCL 15.231(2); State News I, supra at 567-568, 735 N.W.2d 649. Stated differently, the FOIA functions to allow the citizenry to hold public officials accountable for the decisions they make on behalf of those citizens. See, e.g., Detroit Free Press, Inc. v. City of Warren, 250 Mich.App. 164, 168-169, 645 N.W.2d 71 (2002) ("Under ... FOIA, citizens are entitled to obtain information regarding the manner in which public employees are fulfilling their public responsibilities."); Manning v. East Tawas, 234 Mich.App. 244, 248, 593 N.W.2d 649 (1999) (noting that the FOIA is a manifestation of the state's public policy recognizing the need that public officials be held accountable for their official actions and citizens be informed); Thomas v. New Baltimore, 254 Mich.App. 196, 201, 657 N.W.2d 530 (2002) (explaining that the FOIA was enacted "recognizing the need for citizens to be informed so that they may fully participate in the democratic process and thereby hold public officials accountable for the manner in which they discharge their duties"). Accordingly, Michigan's FOIA statute requires a public body to disclose public records to individuals who request to inspect, copy, or receive copies of its public records. MCL 15.233; Scharret v. City of Berkley, 249 Mich.App. 405, 411-412, 642 N.W.2d 685 (2002).
However, certain public records need not be disclosed if they are exempt from disclosure under one of the exemptions articulated in MCL 15.243. If the requested public records fall within one of these exceptions, it is within the public body's discretion whether to release the information. Bradley v. Saranac Community Sch. Bd. of Ed., 455 Mich. 285, 293, 565 N.W.2d 650 (1997). In determining whether an exemption applies, the identity of the requester is irrelevant, as is the initial and the future use of the information. State Employees Ass'n v. Dep't of Mgt. & Budget, 428 Mich. 104, 121, 404 N.W.2d 606 (1987) (opinion by CAVANAGH, J.). Moreover, only the circumstances known to the public body at the time of the request are relevant to whether an exemption precludes disclosure. State News v. Mich. State Univ., 481 Mich. 692, 703, 753 N.W.2d 20 (2008) (State News II). Further, because the FOIA's core purpose is the disclosure of public records, the courts of this state have narrowly construed the FOIA's exemptions in favor of disclosure. State News I, supra at 567, 735 N.W.2d 649.
On appeal, defendants first argue that the trial court erred by determining that the information collected at the 2008 primary election was not exempt from disclosure under the FOIA's statutory exemption. I would agree.
By its terms, this exemption incorporates statutes that specifically exempt certain records or information from disclosure through the FOIA. Accordingly, there must be a statute specifically exempting the "[r]ecords or information specifically described" in order for this exemption to apply. Significantly, the provision uses the conjunction "or" between the words "[r]ecords" and "information." The term "or" is to be interpreted literally unless it renders a statute dubious; the word "or" denotes a choice or alternative. Random House Webster's College Dictionary (1997); see Amerisure Ins. Co. v. Plumb, 282 Mich.App. 417, 429, 766 N.W.2d 878 (2009). Thus, a statute may specifically describe records that are exempt from disclosure or may specifically describe information that is exempt from disclosure. The term "record" means information preserved in writing or some other documentary medium, whereas "information" denotes knowledge communicated or received. Random House Webster's College Dictionary (1997). Accordingly, the FOIA's statutory exemption, MCL 15.243(1)(d), protects from disclosure records that are specifically described by statute or information that is specifically described by statute.
Here, the relevant statutory provision, the 1995 FOIA provision, states:
It is plaintiff's contention that when these subsections are read together, subsection (2) only applies to voter registration records created before the 1995 FOIA provision. I disagree. Subsection (1) of this provision permits a clerk or other authorized person to remove, in his or her discretion, "a party preference or no party preference as previously provided under this act for the purpose of voting in a statewide presidential primary election...." This subsection specifically references removal of party preference information that was previously captured and recorded pursuant to previous versions of the election law.
Comparatively, subsection (2) prohibits disclosure through the FOIA of "a copy of a portion of a voter registration record that contains a declaration of party preference
Given the plain language of these two provisions, it is my view that the Legislature intended to accomplish two things through the 1995 FOIA provision. First, under subsection (1), it permits the removal of all party preference information previously captured. Clearly, this position does not diverge from the majority's view on this point. Second, it prohibits the disclosure of party preference information in the future. The Legislature did not intend to limit subsection (2)'s terms to political preference information collected under the prior law because the Legislature explicitly chose not to use the phrase "as previously provided under this act," or other similar limiting language. See cf. Houghton Lake Area Tourism & Convention Bureau v. Wood, 255 Mich.App. 127, 151, 662 N.W.2d 758 (2003) (explaining doctrine of expressio unius est exclusio alterius). Thus, contrary to plaintiff's argument, the protection from disclosure provided by subsection (2) applies to all portions of voter registration records containing a party declaration, including those records created in the future. It is in the application of this provision to the present matter that my viewpoint diverges from the majority's opinion.
The majority agrees with plaintiff that § 495a(2) does not apply to the records created in the 2008 primary because neither the records nor the information specifically described is the same as that protected by the 1995 FOIA provision, § 495a(2). While it may be true that the "voter registration record[s]" protected by § 495a(2) are not the exact same records in form that are specifically described, the substance, or the information specifically described by § 495a(2) and contained in those records, is the same.
Section 495a(2), the 1995 FOIA provision, specifically protects from disclosure through the FOIA an elector's "declaration of party preference...." A "declaration" is a "proclamation," an "announcement," or an "act of declaring" something. Random House Webster's College Dictionary (1997). "Preference" is defined as "something preferred [or given priority]; choice; [or] selection." Random House Webster's College Dictionary (1997). Clearly, an elector arriving at the polls for the 2008 primary had to proclaim which party he or she preferred to vote for in order to vote, just as voters who voted in previous closed primaries had to declare which party they wished to vote for in order to vote. In both instances, eligibility to vote was conditioned upon a party preference declaration. In my view, this information is specifically described and protected by the 1995 FOIA provision, § 495a(2).
The majority, however, like plaintiff, attempts to draw a distinction between a voter's "declaration of party preference" in the closed primaries and a voter's selection of a party ballot in the semi-closed primary of 2008, to conclude that the information described is not protected by the 1995 FOIA provision, § 495a(2). Stated more succinctly, the majority posits that the selection of a party ballot is not synonymous with a declaration of party preference. This is an exercise in semantics and, in my view, the "distinction" created
I would also conclude, contrary to the majority's position, that the requested records are exempt under the FOIA's privacy provision. That exemption excludes from disclosure public records that would result in an unwarranted invasion of an individual's privacy. MCL 15.243(1)(a) states:
In Mich. Federation of Teachers, supra at 675, 753 N.W.2d 28, the Michigan Supreme Court articulated the applicable test under this provision as a two-pronged inquiry. To satisfy the test, (1) the information must be "of a personal nature" and (2) "it must be the case that the public disclosure of that information would constitute a clearly unwarranted invasion of an individual's privacy." Id. (quotation marks omitted).
Before engaging in this analysis, I note that this notion of the right to privacy embodied by MCL 15.243(1)(a) is not defined by the Legislature. In recognition of the nebulous nature of that term,
As already stated, the first prong of the test is satisfied if the requested information is of a "personal nature." Information is of a personal nature if it is "intimate, embarrassing, private, or confidential...." Mich. Federation of Teachers, supra at 676, 753 N.W.2d 28 (emphasis omitted). The inquiry must be guided by, and evaluated in light of, "the customs, mores, or ordinary views of the community...." Herald Co. v. Bay City, 463 Mich. 111, 123-124, 614 N.W.2d 873 (2000) (quotation marks and citations omitted). In considering the information in this context, it is important to recognize that simply because the information may be disclosed in one public sphere, does not necessarily mean that the information is not of a personal nature. Mich. Federation of Teachers, supra at 680, 753 N.W.2d 28. Moreover, an individual's ability to control the dissemination of the information, for example, by choosing to withhold it from disclosure despite the fact that it may be available elsewhere, is indicative of whether the information is of a personal nature. Id.
Oddly, in determining whether the subject information is of a personal nature, the majority ignores this well-established jurisprudence and relies entirely on the language of the 1995 FOIA provision, § 495a(2), and a single case interpreting that provision in an unrelated context. I cannot make sense of, let alone agree with, such a myopic application of the law. In any event, an application of these well-established rules dictates the conclusion that the information is of a personal nature. Specifically, the information requested implicates two separate privacy interests—an individual's privacy interest in his or her political convictions and an individual's privacy interest in his or her personal identifying information—each of which is discussed separately.
Here, the party preference information, if disclosed, would reveal to the general public that an individual voted on a strictly Republican, or strictly Democratic, ballot in the 2008 presidential primary election. Disclosure would reveal that a person voted for particular types of candidates and an inference could be drawn as to whom an individual voted for on the basis of the makeup of the ballot. It is not difficult to see why an elector might consider this information "intimate, ... private, or confidential" and would want to keep this information confidential. Envision a situation, for example, where an elector votes inconsistently with his or her normal political preference.
Having listed these possible ramifications as reasons why a person may consider their political preference to be private, I must object to the majority's accusation that such concerns are based on pure speculation, are "imaginary horribles," and are invented out of "whole cloth." First, these concerns are based on plain and simple common sense. It is not surprising, given this nation's political history, that politics, political speech, and support for or opposition to a particular candidate can create arguments and result in heated debates. The majority's refusal to recognize these commonsense concerns and the historical and social context in which a FOIA privacy analysis must be undertaken is baffling.
Second, the newspaper articles, editorials, and letters to the editor referred to in defendants' reply brief on appeal reinforce my position. These articles show that a great deal of discussion was generated regarding the revealing of electors' political preferences during the 1992 presidential primary election. A sampling of these articles include:
While it would not be appropriate for this Court to take judicial notice of these articles for the truth of the matters asserted therein, see People v. McKinney, 258 Mich.App. 157, 161 n. 4, 670 N.W.2d 254 (2003), I would take judicial notice of the fact that a plethora of articles were published and that strong sentiments were in fact expressed. The clear conclusion to be drawn is that the public was, indeed, concerned about the privacy of their political convictions and that their concerns were very real. This evidence discredits the majority's contention that no evidence exists to support the public's concern over the privacy of their political information.
But further, these articles are not the only evidentiary measure by which to determine whether the information requested is of a personal nature. Legislative changes are also indicative of the customs, mores, and ordinary views of the community. See Mich. Federation of Teachers, supra at 677 n. 59, 753 N.W.2d 28. It is not difficult to understand why the caselaw has adopted consideration of legislative changes as an indicator of what a community considers to be important: it is a basic principle of the separation of powers doctrine that the people speak through their elected representatives, not through the courts.
Here, a review of relevant legislative changes lends additional credence to my view, and is additional evidence, that an individual's party preference information is of a personal nature. Michigan's election law has protected this particular information from disclosure for nearly 15 years, since the 1995 FOIA provision was added to the statute. See MCL 168.495a, as amended by 1995 PA 213; MCL 168.615c(4), as added by 2007 PA 52. Equally significant is the fact that the Legislature amended the election law in 1995 from a closed primary system to an open primary system in response to the public's concern regarding the privacy of their political convictions. MCL 168.495, as amended by 1995 PA 87; see also Senate Fiscal Agency Bill Analysis, HB 4435, May 30, 1995. And, just a few months later, the Legislature added the 1995 FOIA provision in order to protect from disclosure party preference information, previously collected or collected in the future. MCL 168.495a, as amended by 1995 PA 213. The 1995 FOIA provision remained the law until the 2007 election statute repealed it and replaced it with its own version that continued to protect party preference information from disclosure
Given these unequivocal legislative amendments and the Legislature's explicit decision to continue protecting from disclosure party preference information, there can be no clearer signal that the customs, mores, and ordinary views of the community regard party preference as information of a "personal nature." See Mich. Federation of Teachers, supra at 677 n. 59, 753 N.W.2d 28 (noting recent legislative changes as indicative of a community's mores).
As I have pointed out, the majority's opinion largely ignores this analysis and asserts that I have wrongly considered a 1995 Senate Fiscal Agency Bill Analysis in support of my conclusion that the Legislature changed the law in reaction to the public's outrage. However, the majority overlooks, or chooses to ignore, the fact that this analysis is not one of statutory interpretation, where the traditional rules of construction would apply, and would generally preclude the consideration of a legislative bill analysis, but rather is an analysis whether certain information should be considered of a personal nature under the FOIA's privacy exemption. And, our Supreme Court has directed that this inquiry be undertaken with the mores, values, and ordinary customs of the community in mind, which may include a consideration of legislative changes. Thus, in my view, the legislative changes, the legislative bill analysis, and the various news articles, are some evidence of the community's values and mores, and are indicative of its ordinary customs.
I must emphasize that the majority has taken a "hear no evil, see no evil" approach to this matter by ignoring the social and historical context in which these legislative changes were made. It is true that a Senate Fiscal Agency Analysis reflects the opinion of one legislative analyst, not the Legislature. However, it does not logically follow that the Legislature had deaf ears to the ongoing discussion occurring in the public and that it simply amended the election law randomly. Rather, the clear inference is that the Legislature's amendment at that particular time, amidst the public debate, was in reaction to the public's concerns. The majority displays its opinion in a vacuum. I would conclude, on the basis of the foregoing, that an individual's political preference information is of a personal nature.
The second privacy interest implicated in this matter is the individual's interest in protecting his or her personal identifying information. Of initial importance is the fact that information regarding a voter's political preference would be coupled with a voter's name and home address. In Mich. Federation of Teachers, our Supreme Court, noting the "checkered history" of conflicting jurisprudence on the issue whether home addresses and telephone numbers are of a personal nature, held that personal identifying information, including "home addresses and telephone numbers[,] constitute private information about individuals." Mich. Federation of Teachers, supra at 677 n. 58, 753 N.W.2d 28. The Court stated, "The potential abuses of an individual's identifying information,
Similarly, in United States Dep't of Defense v. Fed. Labor Relations Auth., 510 U.S. 487, 500-501, 114 S.Ct. 1006, 127 L.Ed.2d 325 (1994), the United States Supreme Court considered the names and home addresses of nonunion employees to be private information of which the employees had "some nontrivial privacy interest in [its] nondisclosure...." In that case, several unions were seeking the names and home addresses of nonunion employees through the federal FOIA statute. Id. at 489-490, 114 S.Ct. 1006. The Court noted the innumerous and unwanted intrusions into the home that disclosure would result in, including unwanted mail and possibly visits, and reasoned that it was "reluctant to disparage the privacy of the home, which is accorded special consideration in our Constitution, laws, and traditions." Id. at 501, 114 S.Ct. 1006. Ultimately, the Court did not release the records in light of the public's nonexistent interest in the records. Id. at 502, 114 S.Ct. 1006.
The same concerns are at play in the instant case. Disclosure of electors' names, party preferences, and home addresses would subject many individuals to unwanted mass mailings and a deluge of junk mail. Anyone in the general public, including commercial vendors and other special interest groups, would be able to access the information and would be able to solicit electors through the mail or in person by going door-to-door. Many individuals would find this intrusion into their homes to be an unwanted annoyance and a hassle. It is also not difficult to see, as I have already discussed, how the party preference information in particular could subject some individuals to unwanted attention, discomfort, harassment, or retaliation. Given the foregoing, and the Court's decision in Mich. Federation of Teachers as well as the Supreme Court's decision in United States Dep't of Defense, I would hold that voters' names and home addresses, when coupled with their party preferences in the 2008 primary election, is personal information that is intimate and private, and is undoubtedly of a "personal nature."
I also disagree with the majority's conclusion, relying on dicta from Ferency v. Secretary of State, 190 Mich.App. 398, 476 N.W.2d 417 (1991), that the requested information is not of a personal nature because an individual has no privacy expectation in his or her party affiliation voluntarily disclosed in a primary election. I respectfully submit that the majority's reliance on Ferency is misplaced.
In Ferency, the plaintiff sued alleging that Michigan's 1988 election law violated several provisions of Michigan's Constitution. Relevant to this appeal was the plaintiff's argument that the 1988 election law violated the secrecy of the ballot, Const. 1963, art. 2, § 4, because the 1988 election law required voters to declare their party preference in order to vote in the primary. Ferency, supra at 413, 476 N.W.2d 417. The Ferency Court disagreed. It reasoned that electors' exact votes could not be ascertained by knowledge
The Ferency Court's statements, while largely dicta, indicate that electors have no privacy interest in their party preference when they voluntarily decide to disclose it to their party. These statements further suggest that the individual's privacy interest must be balanced against a party's legitimate interest in restricting voter access to its primary elections, e.g., by preventing nonparty members from hijacking the party by voting for the weaker party candidate. Id. This latter concern implicates political parties' freedom of association in the context of primary elections and balances that interest against electors' interest in the secrecy of the ballot. See, e.g., California Democratic Party v. Jones, 530 U.S. 567, 583-585, 120 S.Ct. 2402, 147 L.Ed.2d 502 (2000).
However, to the limited extent that Ferency is instructive, its rationale does not support a conclusion that voters have no privacy interest in their political preferences declared for purposes of voting in a primary. Ferency balanced voters' privacy interests against political parties' interests in controlling the type of voters who vote in their primaries. It also indicated that voters have no privacy interest when they consent to disclosure of their political party preferences to their parties. Let me be clear that I agree with this statement; certainly, a voter's name, home address, and party preference is not of a private nature when the voter consents to its disclosure to his or her party of choice. However, this does not translate to mean that a voter has no legitimate privacy interest in preventing the disclosure of that same information to others or to the general public. Here, it is the public's right to know the information and to hold the government accountable for its actions that must be balanced against individuals' privacy interests. A voter may, understandably, refuse to disclose that information to an employer, a friend, or even a family member. "The disclosure of information of a personal nature into the public sphere in certain instances does not automatically remove the protection of the privacy exemption and subject the information to disclosure in every other circumstance." Mich. Federation of Teachers, supra at 680, 753 N.W.2d 28; see also United States Dep't of Defense, supra at 500, 114 S.Ct. 1006 ("An individual's interest in controlling the dissemination of information regarding personal matters does not dissolve simply because that information may be available to the public in some form."). This nuance is one that the majority has overlooked. I would conclude that the information requested is of a personal nature.
But simply because the information sought is of a personal nature does not necessarily compel the conclusion that its disclosure is prohibited. Rather, it is the second prong of the test announced in Mich. Federation of Teachers that must be considered: whether public disclosure of the party preference information coupled with voters' names and addresses would constitute a "clearly unwarranted invasion" of an individual's privacy. Mich.
Here, defendants concede that the Secretary of State's office has released the names and addresses of registered voters. And, although this information is of a personal nature, see Mich. Federation of Teachers, supra at 677 n. 58, 753 N.W.2d 28, it is clear that disclosure of these names and addresses alone is a warranted invasion of personal privacy. Namely, disclosure of that information is necessary to inform the general public whether voters are properly registered and whether they are voting in the proper local precinct. Disclosure of such information, if requested, is necessary to hold the government accountable for the integrity and purity of this state's elections.
However, the public's interest in the disclosure of voters' names and addresses coupled with their party preference information is negligible. Contrary to the majority's conclusion, I simply fail to see how disclosure of this information in this form is necessary to shed light on the government's operations. Indeed, disclosure would reveal whether the Secretary of State's office actually performed the task required of it under 2007 PA 52. This result, however, could just as easily be obtained by releasing redacted versions of the records, i.e., by redacting voter's names and addresses and releasing the ballot selections alone.
Finally, weighing this virtually nonexistent public interest in disclosure against electors' interests in controlling their personal information dictates the conclusion that disclosure would be an unwarranted invasion of voters' privacy. Because the public's interest in the information is small, even a very slight privacy interest would suffice to outweigh the public's interest in the records. Thus, it is not necessary to quantify the privacy interest involved. However, I would go so far as to surmise that the interest involved is, at the very least, a moderate to strong one. As I have already discussed, electors have an interest in avoiding harassment, reprisal, or retaliation that may result from public disclosure of such information. Obviously, some electors will have a more heightened interest in keeping this information private than others. For example, disclosure could potentially be particularly damaging to a public official or to an employee of a nonprofit political organization. Moreover, many voters may wish to avoid the perceived annoyance and hassle of receiving large amounts of junk mail and solicitations that would result from the disclosure of their particular political convictions. Indeed, the privacy interest implicated here is far from insubstantial in consideration of the fact that the information would be accessible to all members of the public, including commercial advertisers and other solicitors. I would follow the lead of the United States Supreme Court and avoid a decision that would disparage the privacy of the home. United States Dep't of Defense, supra at 501, 114 S.Ct. 1006. Accordingly, I would conclude that the public's interest is outweighed by the privacy interest the Legislature intended to protect under MCL 15.243(1)(a).
I would reverse.
While Legislative history is not relevant in construing the meaning of a statute, amendments to legislation are relevant in the context of the FOIA's privacy exemption. When FOIA exemptions are at issue, Legislative enactments may be considered as some evidence of the community's mores and values. See Mich. Federation of Teachers v. Univ. of Mich., 481 Mich. 657, 677 n. 59, 753 N.W.2d 28 (2008) (noting recent legislative changes as indicative of a community's customs).
Thus, like the Ferency case, California Democratic Party considers electors' privacy interests in primary elections, but only through the lens of the First Amendment.
