The opinion
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
EARL BOOTH, UNPUBLISHED
March 17, 2020
Plaintiff-Appellant,
v No. 346551
Court of Claims
DEPARTMENT OF CORRECTIONS and LC No. 17-000162-MZ
ANGELA D. GEIGER,
Defendants-Appellees.
Before: BOONSTRA, P.J., and RIORDAN and REDFORD, JJ.
PER CURIAM.
Plaintiff appeals by right the Court of Claims’ grant of summary disposition for his
employer, the Michigan Department of Corrections (DOC) and defendant Angela Geiger, a DOC
employee, regarding his suit to access a report from the DOC’s Allegations, Investigations,
Personnel Action System (AIPAS) that he claims defendants wrongfully refused to provide him in
violation of the Bullard-Plawecki employee right to know act (ERKA), MCL 423.501 et seq. We
affirm.
I. BACKGROUND
Plaintiff previously appealed to this Court the trial court’s grant of summary disposition to
defendants and we affirmed in part, reversed in part, and remanded for further proceedings. This
Court summarized the facts as follows:
Prior to the instant lawsuit, plaintiff filed a lawsuit against the DOC under
the Freedom of Information Act (FOIA), MCL 14.231 et seq., seeking various
records, including the AIPAS report in question in this case. This Court has twice
considered plaintiff’s appeals in the FOIA case. Booth v Dep’t of Corrections,
unpublished per curiam opinion of the Court of Appeals, issued June 9, 2015
(Docket No. 324319) (Booth I); Booth v Dep’t of Corrections, unpublished per
curiam opinion of the Court of Appeals, issued December 1, 2016 (Docket Nos.
331807 and 332014) (Booth II).
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In addition to his FOIA dispute with the DOC, plaintiff also pursued his
potential rights and remedies under the collective bargaining agreement (CBA)
between the DOC and the Michigan Corrections Organization SEIU Local 526M,
CTW (MCO SEIU). Plaintiff sought to exercise his contractual right to review his
personnel file and obtain copies of its contents. On April 13, 2017, plaintiff sent
an e-mail to Geiger, requesting a copy of AIPAS Report #9010, which plaintiff
described as “a Report in my Personnel File.” Geiger responded to plaintiff’s
request by e-mail, advising him that he could review his personnel file if he
scheduled an appointment with his human resources liaison. However, Geiger also
advised plaintiff of the DOC’s position that AIPAS reports are not part of the
personnel file and that plaintiff would not be provided with a copy of the AIPAS
report in question. Plaintiff filed the present suit in the Court of Claims, alleging
[among other claims the violation of the ERKA]. [Booth v Dep’t of Corrections,
unpublished per curiam opinion of the Court of Appeals, issued July 31, 2018
(Docket No. 339779), pp 1-2 (Booth III).]
In Booth III, defendants argued that the AIPAS report did not qualify as a personnel record
under ERKA because it fell under the exception set forth in MCL 423.501(1)(c)(v) for information
kept separately from other records and related to an investigation. Id. at 7. This Court noted that
the DOC previously defined AIPAS as “ ‘a database that tracks the [DOC’s] investigations of
employees to determine whether they have violated work rules and such reports address the
employee’s work performance.’ ” Id. at 8, quoting Booth I, unpub op at 4. Plaintiff argued that
the trial court erred by ruling that the report not only could be considered exempt from disclosure
but “in fact was exempt from disclosure under the ERKA.” This Court held that the trial court
prematurely granted defendants summary disposition because whether MCL 423.509(1)1 applied
to the report “[depended] entirely on its substantive contents.” Id. at 8. This Court stated that
“violating work rules is not the same as violating criminal laws” and that “[u]nder the
circumstances it was improper for the trial court simply to accept defendant’s bare assertion at face
value without at least reviewing the challenged AIPAS report in camera.” Id. This Court reversed
the trial court’s grant of summary disposition as to plaintiff’s ERKA claim and remanded with
instruction to review the AIPAS report in camera to determine whether MCL 423.509(1) applied,
and then conduct further proceedings. Id. at 7-8.
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MCL 423.509(1) provides:
If an employer has reasonable cause to believe that an employee is engaged
in criminal activity that might result in loss or damage to the employer’s property
or disruption of the employer’s business operation, and the employer is engaged in
an investigation, then the employer may keep a separate file of information relating
to the investigation. Upon completion of the investigation or after 2 years,
whichever comes first, the employee must be notified that an investigation was or
is being conducted of the suspected criminal activity described in this section.
Upon completion of the investigation, if disciplinary action is not taken, the
investigative file and all copies of the material in it must be destroyed.
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On remand, both parties submitted briefs that analyzed the AIPAS report under
MCL 423.509(2) which permits a criminal justice agency that is involved in an investigation of
alleged criminal activity or the violation of an agency rule to maintain a confidential file of
information related to the investigation separate from an employee’s personnel file and exempts
such from disclosure. The parties did not argue that MCL 423.509(1) applied. Plaintiff argued
that the AIPAS report concerned a work rule based on a DOC policy directive, and that MCL
423.509(2) did not apply because the DOC had not promulgated the policy directive under the
Administrative Procedures Act (APA), MCL 24.201 et seq. Defendants argued that
MCL 423.509(2) applied to “any agency rule, including work rules” and not merely limited to
rules promulgated under the APA. The trial court reviewed the AIPAS report in camera and noted
that the parties conceded that it did not contain allegations of criminal activity so that the disclosure
exception in MCL 423.509(1) did not apply. The trial court, however, concluded that the
MCL 423.509(2) exception applied and that, under ERKA, the rule being investigated did not need
to be promulgated under the APA, but need “only be a rule of the criminal justice agency.” The
trial court, granted defendants summary disposition under MCR 2.116(I)(1).
II. STANDARD OF REVIEW
We review de novo issues of statutory interpretation. Vanalstine v Land O’Lakes Purina
Feeds, LLC, 326 Mich App 641, 648; 929 NW2d 789 (2018). We also review de novo a trial
court’s ruling on a motion for summary disposition. Pugno v Blue Harvest Farms LLC, 326 Mich
App 1, 11; 930 NW2d 393 (2018). We review de novo a trial court’s conclusion that defendants
were entitled to judgment as a matter of law under MCR 2.116(I)(1). Sobiecki v Dept of
Corrections, 271 Mich App 139, 141; 721 NW2d 229 (2006) (quotation marks and citation
omitted). MCR 2.116(I)(1) provides that “[i]f the pleadings show that a party is entitled to
judgment as a matter of law, or if the affidavits or other proofs show that there is no genuine issue
of material fact, the court shall render judgment without delay.” “Under this rule, a trial court has
authority to grant summary disposition sua sponte, as long as one of the two conditions in the rule
is satisfied.” Al-Maliki v LaGrant, 286 Mich App 483, 485; 781 NW2d 853, 855 (2009).
III. ANALYSIS
Plaintiff argues that the term “agency rule,” as used in MCL 423.509(2), is limited to rules
promulgated by a criminal justice agency under the APA. Plaintiff contends that the trial court
erred by concluding that the DOC’s work rule constituted an “agency rule” that permitted the DOC
to exempt from disclosure the AIPAS report regarding its investigation of plaintiff’s workplace
conduct. We disagree.
In Newark Morning Ledger Co v Saginaw County Sheriff, 204 Mich App 215, 221; 514
NW2d 213 (1994), this Court clarified that:
the purpose of the ERKA is to establish an individual employee’s right to examine
the employee’s personnel records, i.e., the documents that are being kept by the
employer concerning that employee. In the ERKA, the term “personnel record” is
generally defined, but certain materials and information are identified that are
excluded from the definition, and are not available to the employee.
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Under MCL 423.503, an employer must provide an employee who makes a written request
an opportunity to review the employee’s personnel record if the employer has a personnel record
for that employee. MCL 423.501(c) in relevant part defines “personnel record” as
a record kept by the employer that identifies the employee, to the extent that the
record is used or has been used, or may affect or be used relative to that employee’s
qualifications for employment, promotion, transfer, additional compensation, or
disciplinary action. . . . A personnel record shall not include:
(v) Information that is kept separately from other records and that relates
to an investigation by the employer pursuant to section 9.
Section 9, MCL 423.509, sets forth the instances in which separate investigative files may
be kept and not disclosed by the employer to the employee. Defendants concede the inapplicability
of subsection (1) which applies to investigations of criminal activity by an employee. The relevant
statutory provision, subsection (2), provides:
An employer that is a criminal justice agency and that is involved in the
investigation of an alleged criminal activity or the violation of an agency rule by an
employee 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 must be notified that an investigation was conducted. If the
investigation reveals that the allegations are unfounded or unsubstantiated or if
disciplinary action is not taken, the separate file must contain a notation of the final
disposition of the investigation and information in the file must not be used in any
future consideration for promotion, transfer, additional compensation, or
disciplinary action. The employer may release information in the separate file to a
prospective employing law enforcement agency if the information is part of a
record regarding the reason or reasons for, and circumstances surrounding, a
separation of service under section 5 of the law enforcement officer separation of
service record act, 2017 PA 128, MCL 28.565. The employer shall release
information in the separate file to the Michigan commission on law enforcement
standards upon the request of the Michigan commission on law enforcement
standards.
In Newark, this Court considered the Legislature’s intent respecting the Michigan Freedom
of Information Act (FOIA) personnel record exemption from disclosure under MCL
15.243(1)(t)(ix). To discern that intent, this Court compared the two statutes and reflected upon
the Legislature’s intent as expressed in the ERKA, MCL 423.509, which excludes from personnel
records and exempts from disclosure internal investigations. This Court explained:
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
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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
meaning of the term “personnel record of law enforcement agencies” as used in the
FOIA. [Newark, 204 Mich App at 223.]
The parties and the trial court correctly agreed that the DOC is a criminal justice agency
for purposes of MCL 423.509(2). Plaintiff and defendants, however, disagree regarding the
applicability of this subsection. Defendants contend that the subsection applied in this case
because the AIPAS report related to its internal investigation of plaintiff’s workplace conduct
because it involved the investigation of the violation of an agency rule by an employee.
Defendants essentially argue that its workplace rule constitutes an agency rule and its investigation
report does not constitute a personnel record and is excluded under MCL 423.501(c)(v). Plaintiff
argues that MCL 423.509(2) only applies in two instances, neither of which occurred in this case:
(1) where a criminal justice agency is involved in an investigation of criminal activity by the
employee, or (2) where a criminal justice agency is involved in an investigation of a violation of
an “agency rule.” Plaintiff asserts that “agency rule” is a legal term of art that means a “rule”
promulgated by a criminal justice agency under the strictures of the APA. Plaintiff asserts that the
APA definition of the word “rule” found in MCL 24.207 applies and gives meaning to the term
“agency rule” as used in MCL 423.509(2). To be an “agency rule,” it had to be promulgated using
the legislatively prescribed multistep process provided in MCL 24.231-24.266. Plaintiff argues
that defendants’ investigation merely concerned a workplace rule and not such an “agency rule,”
and therefore, defendant could not refuse to provide him the AIPAS report regarding its
investigation of his workplace conduct.
In Boyd v Civil Service Comm’n, 220 Mich App 226, 235; 559 NW2d 342 (1996), this
Court explained:
The DOC is an administrative agency subject to the provisions of the
Administrative Procedures Act (APA). Martin v Dep’t of Corrections, 424 Mich
553, 556; 384 NW2d 392 (1986); MCL 24.313. The director of the DOC is
empowered under MCL 791.206 to promulgate rules regarding the control,
management, and operation of state prisons, as well as further rules “with respect
to the affairs of the department as the director considers necessary or expedient for
the proper administration of this act.”
In Clonlara, Inc v State Bd of Educ, 442 Mich 230, 239; 501 NW2d 88 (1993) (citation
omitted), our Supreme Court explained the different types and effect of rules agencies create:
Rules adopted by an agency in accordance with the APA have the force and
effect of law. They must be promulgated in accordance with the procedures set
forth in the APA, and are not valid if those procedures are not followed. Where,
however, the agency has not been empowered to promulgate rules, policy
statements issued by it need not be promulgated in accordance with APA
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procedures and do not have the force of law. Such statements are so-called
“interpretive rules.” As expressed by Professor Davis, “An interpretive rule is any
rule an agency issues without exercising delegated legislative power to make law
through rules.”
Under MCL 791.204(c), the DOC has exclusive jurisdiction over penal institutions. Under
MCL 791.206(1), the director of the DOC may promulgate rules under the APA to provide for “(a)
[t]he control, management, and operation of the general affairs of the department”, “(d) [t]he
management and control of penal institutions”, “(e) [t]he management and control of prison labor
and industry”, and (3) “the affairs of the department as the director considers necessary or
expedient for the proper administration of this act.” Under MCL 791.205, the director has
authority to appoint an assistant director in charge of penal institutions who is authorized to
“exercise and perform the respective powers and duties prescribed and conferred by this act, and
such other powers and duties as may be assigned by the director, subject at all times to his control.”
Clonlara and Boyd clarify that an agency like the DOC can create different rules to serve different
purposes, including formal rules promulgated under the APA that have the effect of law, as well
as, interpretive rules that do not have the force of law or constitute the exercise of delegated
legislative power.
In the ERKA, the Legislature did not define the term “agency rule” or specify the manner
in which that term should be understood for purposes of interpreting MCL 423.509(2). Neither
does MCL 423.509(2) or other provisions of the ERKA specify that the term “agency rule” must
be understood as a rule promulgated by a criminal justice agency pursuant to the APA. To resolve
the parties’ dispute over the meaning of the term “agency rule,” we must apply the principles of
statutory interpretation. In Brickey v McCarver, 323 Mich App 639, 642-643; 919 NW2d 412
(2018) (quotation marks, citations, and alteration omitted), this Court recently summarized the
rules of statutory interpretation as follows:
The primary rule of statutory interpretation is that we are to effect the intent
of the Legislature. To do so, we begin with the language of the statute, ascertaining
the intent that may reasonably be inferred from its language. Our primary focus in
statutory interpretation is the language of the statute under review. If the language
is unambiguous, the intent of the Legislature is clear and judicial construction is
neither necessary nor permitted.
The words of the statute provide the best evidence of legislative intent and
the policy choices made by the Legislature. Our role as members of the judiciary
is not to second-guess those policy decisions or to change the words of a statute in
order to reach a different result. In fact, a clear and unambiguous statute leaves no
room for judicial construction or interpretation. Therefore, we start by examining
the words of the statute, which should be interpreted on the basis of their ordinary
meaning and the context within which they are used in the statute.
Any issues relating to the soundness of the policy underlying the statute or
its practical ramifications are properly directed to the Legislature. We may not read
into the statute what is not within the Legislature’s intent as derived from the
language of the statute.
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In Farris v McKaig, 324 Mich App 349, 354; 920 NW2d 377 (2018) (quotation marks and
citations omitted), this Court further explained:
When interpreting an undefined statutory term, the term must be accorded its plain
and ordinary meaning. Consulting a lay dictionary is proper when defining
common words or phrases that lack a unique legal meaning, but when the statutory
term is a legal term of art, the term must be construed in accordance with its peculiar
and appropriate legal meaning.
MCL 8.3 prescribes that statutes shall be construed according to the rules stated in MCL
8.3a to MCL 8.3w. A legal term of art “must be construed in accordance with its peculiar and
appropriate legal meaning.” Brackett v Focus Hope, Inc, 482 Mich 269, 276; 753 NW2d 207
(2008), citing MCL 8.3a which provides:
All words and phrases shall be construed and understood according to the
common and approved usage of the language; but technical words and phrases, and
such as may have acquired a peculiar and appropriate meaning in the law, shall be
construed and understood according to such peculiar and appropriate meaning.
When interpreting a legal term of art, “courts should consult a legal dictionary.” Brackett,
482 Mich 276-277. If “agency rule” constitutes a legal term of art, as plaintiff contends, the
appropriate analysis would require consulting Black’s Law Dictionary for that specialized
meaning. Black’s Law Dictionary (11th ed), however, does not define the term “agency rule.”
That term does not appear to be a legal term of art with a legal dictionary definition. Merriam-
Webster’s Collegiate Dictionary (11th ed) similarly does not define the term “agency rule.”
Therefore, we consider the meaning of the separate words “agency” and “rule.” The DOC is a
criminal justice agency which constitutes a government agency. To find the meaning of
“government agency,” Black’s Law Dictionary (11th ed), p 840, refers to the term “agency” which
in turn is defined among other things as an “official body, esp. within the government, with the
authority to implement and administer particular legislation.” Black’s Law Dictionary (11th
ed), p 77. Merriam-Webster’s Collegiate Dictionary (11th ed), p 24, similarly defines the word
“agency” in relevant part as “an administrative division (as of government).” We conclude that
the word “agency” as used in the context of MCL MCL 423.509(2) must be understood to refer to
a governmental agency, an administrative division of government, as particularly specified within
the statutory provision, i.e., “a criminal justice agency” such as the DOC.
MCL 423.509(2) unambiguously specifies that, a separate confidential file may be
maintained concerning an investigation pertaining to “the violation of an agency rule by an
employee.” The plain language of the statute, read in context, indicates that the rule must be the
criminal justice agency’s rule. Black’s Law Dictionary (11th ed), p 1594, defines the word “rule”
as “an established and authoritative standard or principle; a general norm mandating or guiding
conduct or action in a given type of situation.” Black’s Law Dictionary (11th ed), p 1595,
alternatively defines the word “rule” under a category of “special rule” as a
regulation governing . . . an agency’s internal procedures; esp., the whole or any
part of an agency statement of general or particular applicability and future effect,
designed to implement, interpret, or prescribe law or policy or to describe the
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organization, approval, or practice requirements of the agency, including the
approval or prescription for the future of rates, wages, corporate or financial
structures, reorganizations of those structures, prices, facilities, appliances,
services, allowance for any of the foregoing, valuation, costs, and accounting within
the agency; or practices bearing on any of the foregoing.
Merriam-Webster’s Collegiate Dictionary (11th ed), p 1089, defines the word “rule” among other
things as “a prescribed guide for conduct or action” or “a regulation or bylaw governing procedure
or controlling conduct.” Both dictionaries provide similar general definitions of the word “rule.”
Black’s Law Dictionary’s special rule definition concerns administrative agency regulations
designed to implement, interpret or prescribe law or policy, etc. In MCL 423.509(2), the
Legislature did not indicate that the term “agency rule” must be understood exclusively in the
narrow sense of an agency regulation. Had it so intended, it could have done so. Because the term
“agency rule” is not a legal term of art, the words’ ordinary and plain meanings must apply for
proper interpretation of them as used in MCL 423.509(2).
We are not persuaded that this Court previously incorrectly explained in Newark that 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.” Newark, 204 Mich App at 223. As in Newark, we
conclude that the Legislature intended to exempt from disclosure internal investigations not only
of criminal activity but also internal investigations of employee violations of a criminal justice
agency’s rule that guides or controls employee conduct. Such rules are not and need not be
promulgated under the APA but fall within the authority the DOC has to administer correction
facilities and properly manage them in keeping with the policies created for those purposes.
Therefore, MCL 423.509(2) applied in this case to the internal investigation reported in the
separate AIPAS report regarding the DOC’s investigation of plaintiff’s workplace conduct.
The trial court appropriately declined to read into or add to MCL 423.509(2) a requirement
that the “agency rule” investigation may pertain only to a rule promulgated by a criminal justice
agency pursuant to the APA. The trial court, therefore, did not err by ruling that MCL 423.509(2)
applied in this case and exempted from disclosure under the ERKA the AIPAS report regarding
the DOC’s investigation of plaintiff’s workplace conduct.
Affirmed.
/s/ Mark T. Boonstra
/s/ Michael J. Riordan
/s/ James Robert Redford
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