20230221_C358803_61_358803.Opn.Pdf

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

AMY HJERSTEDT, FOR PUBLICATION

February 21, 2023

Plaintiff-Appellant, 9:05 a.m.

v No. 358803

Chippewa Circuit Court

CITY OF SAULT STE. MARIE, LC No. 20-016126-CZ

Defendant-Appellee.

Before: PATEL, P.J., and BORRELLO and SHAPIRO, JJ.

PATEL, P.J.

George Floyd’s death in May 2020 prompted citizens to advocate for systemic change in

law enforcement across the country. The mass movement included inquiries into use-of-force

policies implemented by police departments in each state. Weeks after Floyd’s death, Amy

Hjerstedt requested a copy of the Sault Ste. Marie Police Department’s use-of-force policy

pursuant to Michigan’s Freedom of Information Act (“FOIA”), MCL 15.231 et seq. The city

denied the request, claiming the policy was exempt from disclosure. Hjerstedt appealed the denial.

The city commission voted to disclose a redacted copy of the policy based on a number of statutory

exemptions. Hjerstedt initiated this FOIA action challenging the city’s decision. The trial court

granted summary disposition in favor of the city and dismissed Hjerstedt’s complaint, concluding

that the unredacted policy was exempt from disclosure because it (1) was a record of law

enforcement communication codes or plans for deployment, MCL 15.243(1)(n); (2) disclosed law

enforcement operational instructions, MCL 15.243(s)(v); (3) would endanger the safety of law

enforcement officers, MCL 15.243(s)(vii); and (4) the public’s interest in disclosure did not

outweigh the public’s interest in nondisclosure.

Michigan has a strong public policy favoring public access to government information.

Consistent with this policy, FOIA provides that “all persons . . . are entitled to full and complete

information regarding the affairs of government” and mandates disclosure to keep the citizens

informed “so that they may fully participate in the democratic process.” MCL 15.231(2).

Although certain information may be exempt from disclosure, the statutory exemptions are not

intended to shield public bodies from the transparency that FOIA was designed to foster. We find

that the trial court erred by concluding that the unredacted policy was exempt from disclosure

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under MCL 15.243(1)(n), (s)(v), and (s)(vii). Accordingly, we reverse the court’s grant of the

city’s motion for summary disposition pursuant to MCR2.116(C)(10) and remand for further

proceedings.

I. FACTUAL BACKGROUND

On June 25, 2020, Hjerstedt submitted a FOIA request to the city seeking the “Sault Police

use of force policy/standard.” The city denied Hjerstedt’s request, claiming that the policy was

exempt from disclosure under MCL 15.243(1)(n) because “it would prejudice the city’s ability to

protect the public safety.” Hjerstedt appealed the denial,1 asserting that MCL 15.243(1)(n) was

misinterpreted because the use-of-force policy “does not include deployment plans or

communication codes.” The appeal was submitted to the city commission for consideration.

The city’s staff, including the city attorney and city manager, provided the city commission

with an analysis and a recommendation to disclose the use-of-force policy with redactions. The

staff maintained that the policy was part of the “general orders and policies for various basic

operations” of the police department and included

information, if made public, would inform individuals with criminal threat intent

or resistance when and how an officer would use his or her training and the

limitations therein in order to eliminate the threat or overcome the resistance

presented. This information would allow the opportunity for a subject to overpower

an officer’s efforts to eliminate the threat or resistance, placing the officer and/or

innocent citizen in jeopardy of severe injury or death.

The staff contended that the policy was exempt from disclosure because it (1) was an investigating

record that would endanger the safety of law enforcement officers if disclosed, MCL

15.243(1)(b)(vi); (2) was a record of law enforcement communication codes or plans for

deployment, MCL 15.243(1)(n); (3) disclosed law enforcement operational instructions, MCL

15.243(s)(v); (4) revealed the contents of law enforcement staff manuals, MCL 15.243(s)(vi); and

(5) would endanger the safety of law enforcement officers if disclosed, MCL 15.243(s)(vii). But

“given the social climate around Force of Use [sic] policies,” the staff recommended releasing

information that would not place the officers’ safety in jeopardy. The city commission voted to

release a redacted version of the policy. Hjerstedt received a heavily redacted copy of the policy.2

Hjerstedt initiated this FOIA action challenging the decision. The city moved for summary

disposition pursuant to MCR 2.116(C)(7) and (10), arguing that the redacted information was

exempt from disclosure under MCL 15.243(1)(n), (s)(v), (s)(vi), and (s)(vii) and necessary “for the

public and/or officer safety.” The city relied on affidavits from the city’s current and former police

chiefs who claimed that the disclosure of the information

1

Although Hjerstedt’s initial FOIA request does not reflect it, her FOIA appeal indicates that her

request was made on behalf of the League of Women Voters of Eastern Upper Peninsula.

2

The copy released to Hjerstedt included significant redactions in the sections pertaining to use-

of-force considerations as well as the escalation and de-escalation of force.

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would or could impact safety of the public and/or officers because it would inform

individuals with criminal intent or those who resist know [sic] when and how an

officer would use his or her training to respond and the limitations posed in order

to eliminate the threat or to overcome the resistance presented.

7. The information if disclosed would or could impact safety of the public

and/or officers because it would inform individuals with criminal intent or those

who resist also know the factors that are important for the officer to consider in

making a decision how to respond.

8. Armed with this information a potential suspect could circumvent the

officer’s actions thus placing both the suspect and officer in danger.

In response, Hjerstedt requested judgment as a matter of law under MCR 2.116(I)(2). She

also filed a cross-motion for summary disposition pursuant to MCR 2.116(C)(9) and (10). She

described the police chiefs’ affidavits as “conclusory,” “self-serving opinions” that did not actually

“address the purported exemptions.” She relied on unredacted use-of-force policies from the

Michigan State Police, Department of Homeland Security, Michigan Association of Chiefs of

Police, Lake County Sheriff Department, and Newaygo County Sheriff’s Department that were

available to the public online. Hjerstedt posited that the other departments’ unredacted policies

were nearly identical to the unredacted portions of the city’s policy. Because anyone could access

unredacted copies of the other departments’ policies, she asserted that the city’s argument that

disclosure of an unredacted copy of its policy would arm persons with information to circumvent

officers’ actions was meritless. Hjerstedt argued that the exemptions claimed by the city were

inapplicable and that the public’s interest warranted disclosure.

The city’s police chief, Wesley Bierling, testified that he believed the redactions were

necessary to protect the safety of officers and the public. Chief Bierling was not the city’s police

chief at the time that the redactions were made, and he was not the decision maker with regard to

Hjerstedt’s FOIA request. But he maintained that he would have made the same redactions.

Consistent with his affidavit, Chief Bierling testified that the redacted information “could or would

impact the safety of [the] officers and [the] public” because it could provide information on how

the officers “may use force, may consider using force, or may react to certain situations, and what

they would use in their decision-making process.” He was not concerned about what other

municipalities did with their policies, stating that it was “not an apples-to-apples comparison.” He

testified that when he makes a decision to redact public records, he “always err[s] on the side of

caution” in order to ensure officer safety.

In addition to the evidence and testimony presented by the parties, the trial court reviewed

an unredacted copy of the city’s use-of-force policy in camera. The court found that the redacted

portion of the policy involved “tactics and techniques or operational guidelines and according to

the affidavit of former City Police Chief, John Riley, disclosure of the information would impact

the public and/or officer safety because it would use his or her training to respond and the

limitations posed in order to eliminate the threat or to overcome the resistance presented.” The

court noted that the former chief’s decision was supported by Chief Bierling. The court found

“that the [d]isclosure of the unredacted Use of Force Policy would or could in fact impact the

officer’s [sic] ability to protect the public and/or themselves. The safety of the Sault Ste. Marie

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Police Officers’ safety [sic] is paramount and consequently the public interest is outweighed in the

disclosure of said policy.” The trial court granted the city’s motion for summary disposition and

dismissed Hjerstedt’s complaint, concluding that the city’s decision to redact the policy fit within

the exemptions set forth in MCL 15.243(1)(n), (s)(v), and (s)(vii).3 Hjerstedt now challenges the

trial court’s ruling.

II. STANDARD OF REVIEW

“We review de novo a trial court’s decision on a motion for summary disposition.” El-

Khalil v Oakwood Healthcare, Inc, 504 Mich 152, 159; 934 NW2d 665 (2019). In this case, the

trial court did not expressly indicate whether it granted the city’s motion under MCR 2.116(C)(7)

or (10), but because it considered affidavits and testimony beyond the pleadings, we can fairly

surmise that the motion was granted under MCR 2.116(C)(10). Cuddington v United Health Servs,

Inc, 298 Mich App 264, 270, 826 NW2d 519 (2012). A motion for summary disposition pursuant

to MCR 2.116(C)(10) tests the factual sufficiency of the complaint. Woodring v Phoenix Ins Co,

325 Mich App 108, 113; 923 NW2d 607 (2018). We consider all evidence submitted by the parties

in the light most favorable to the non-moving party. El-Khalil, 504 Mich at 160. Summary

disposition under MCR 2.116(C)(10) is only appropriate when there is no genuine issue of material

fact. Id. “A genuine issue of material fact exists when the record, giving the benefit of reasonable

doubt to the opposing party, leaves open an issue upon which reasonable minds might differ.”

Zaher v Miotke, 300 Mich App 132, 139-140; 832 NW2d 266 (2013).

The interpretation and application of a statute is a question of law that we review de novo.

Boyle v Gen Motors Corp, 468 Mich 226, 229; 661 NW2d 557 (2003). We likewise review “de

novo whether the trial court properly interpreted and applied the FOIA.” Mich Open Carry, Inc v

Dep’t of State Police, 330 Mich App 614, 621; 950 NW2d 484 (2019). The court’s factual findings

underlying its application of FOIA are reviewed for clear error. Id. “Clear error exists only when

the appellate court is left with the definite and firm conviction that a mistake has been made.”

Herald Com Inc v Eastern Mich Univ Bd of Regents, 475 Mich 463, 471; 719 NW2d 19 (2006)

(cleaned up). “[C]ertain FOIA provisions require the trial court to balance competing interests.”

Id. at 470. When we review “a decision committed to the trial court’s discretion, such as the

balancing test at issue in [FOIA] case[s], we “must review the discretionary determination for an

abuse of discretion and cannot disturb the trial court’s decision unless it falls outside the principled

range of outcomes.” Id. at 472.

III. ANALYSIS

Hjerstedt argues that the trial court erred in granting summary disposition in favor of the

city because none of the statutory exemptions were applicable. We agree.

Michigan’s FOIA grants the public an opportunity to “examine and review the workings

of government and its executive officials.” Messenger v Ingham Co Prosecutor, 232 Mich App

633, 641; 591 NW2d 393 (1998). FOIA commands that persons “are entitled to full and complete

3

Although the city also cited MCL 15.243(1)(s)(vi) in its motion for summary disposition, the

court did not rely on this statutory exemption in reaching its decision.

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information regarding the affairs of government and the official acts of those who represent them

as public officials and public employees . . . so that they may fully participate in the democratic

process.” MCL 15.231(2). Consistent with this policy, FOIA provides, in pertinent part, that

“[e]xcept as expressly provided in [MCL 15.243], upon providing a public body’s FOIA

coordinator with a written request that describes a public record sufficiently to enable the public

body to find the public record, a person has a right to inspect, copy, or receive copies of the

requested public record of the public body.” MCL 15.233(1). FOIA has been described repeatedly

by our Supreme Court as a “prodisclosure statute.” Sole v Michigan Economic Development Corp,

509 Mich 406, 413; __ NW2d__ (2022); Herald Co v Bay City, 463 Mich 111,119; 614 NW2d

873 (2000); Swickard v Wayne Co Med Examiner, 438 Mich 536, 544; 475 NW2d 304 (1991).

MCL 15.243 exempts certain information from disclosure. The public body has the burden

of proving the applicability of any statutory exemption that it claims applies to a FOIA request.

Detroit Free Press, Inc v Southfield, 269 Mich App 275, 281; 713 NW2d 28 (2005). “To meet

this burden, the public body claiming an exemption should provide complete particularized

justification, rather than simply repeat statutory language.” Detroit Free Press v Warren, 250

Mich App 164, 167; 645 NW2d 71 (2002). But FOIA's exemptions “must be narrowly construed

to serve the policy of open access to public records.” Mich Open Carry, 330 Mich App at 625.

In this case, the trial court found that the redacted material was exempted from disclosure

under MCL 15.243(1)(n), (s)(v), and (s)(vii). Resolution of this matter requires us to interpret

these statutory exemptions. “The principal goal of statutory interpretation is to give effect to the

Legislature’s intent, and the most reliable evidence of that intent is the plain language of the

statute.” South Dearborn Environmental Improvement Ass’n, Inc v Dep’t of Environmental

Quality, 502 Mich 349, 360-361; 917 NW2d 603 (2018). When determining the meaning of a

statute’s plain language, we examine “the statute as a whole, reading individual words and phrases

in the context of the entire legislative scheme.” Kemp v Farm Bureau Gen Ins Co of Mich, 500

Mich 245, 252; 901 NW2d 534 (2017). Accordingly, these exemptions should be construed in

accordance with FOIA’s stated purpose of supplying “full and complete information regarding the

affairs of government” to interested citizens. MCL 15.231(2). “Where the statutory language is

unambiguous, the plain meaning reflects the Legislature’s intent and the statute must be applied

as written.” Honigman Miller Schwartz & Cohn LLP v City of Detroit, 505 Mich 284, 294; 952

NW2d 358 (2020) (cleaned up).

A. MCL 15.243(1)(n)

First, the trial court found that the redacted material was exempted from disclosure under

MCL 15.243(1)(n), which exempts “[r]ecords of law enforcement communication codes, or plans

for deployment of law enforcement personnel, that if disclosed would prejudice a public body’s

ability to protect the public safety unless the public interest in disclosure under this act outweighs

the public interest in nondisclosure in the particular instance.”4 The trial court failed to articulate

any factual findings that the redacted portions of the policy were either communication codes or

4

Because Hjerstedt failed to address this statutory exemption in her brief on appeal, we are not

required to address the merits. MOSES, Inc v SEMCOG, 270 Mich App 401, 417; 716 NW2d 278

(2006). But our de novo review necessarily includes this issue.

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plans for deployment. The city has not asserted that the redacted portion of the policy contains

communication codes, and our review of the policy does not reveal any communication codes.

Accordingly, we will limit our review to whether the redacted portion contains “plans for

deployment of law enforcement personnel.”

As commonly understood, the phrase “deployment of [] personnel” means sending

personnel to address a particularized threat or situation. For example, in the context of military

deployment, units of the military are sent to specific locations to address and fulfill specific mission

requirements. The same is true for law enforcement personnel. Deployment of law enforcement

personnel can be to address a specific threat, such as responding to the scene of a vehicle crash or

active shooter situation, or a specific mission, such as manning a DUI checkpoint. But the common

thread is sending, i.e. deploying, law enforcement personnel somewhere to address a specific issue.

Construing these terms to serve FOIA’s policy of open access to public records, Mich Open

Carry, 330 Mich App at 625, “plans for deployment of law enforcement personnel” refers to a

procedure for placing or arranging law enforcement personnel in a position for a particular use or

purpose. For example, in the event of civil unrest in a community, a law enforcement agency may

have a plan for deployment that includes when and where law enforcement personnel will be sent

and how they will respond. Use-of-force policies do not outline specific deployments of law

enforcement personnel to specific locations or particularized threats.

We find that a general, department-wide policy regarding various factors for officers to

consider in deciding whether force should be used and, if so, the type of force to be used, is far too

general to be considered a “plan for deployment.” The trial court’s implicit finding that the

redacted material contained communication codes or plans for deployment of law enforcement

personnel was clear error. Because we find that the redacted portions of the policy do not contain

communication codes or plans for deployment, it is unnecessary for us to consider the balancing

test set forth in MCL 15.243(1)(n).

B. MCL 15.243(s)(v)

Next, the trial court found that the redacted material was exempted under MCL

15.243(s)(v), which exempts “operational instructions for law enforcement officers or agents”

from disclosure “[u]nless the public interest in disclosure outweighs the public interest in

nondisclosure in the particular instance[.]” FOIA does not define “operational instructions,” and

there is no caselaw interpreting this subparagraph. The trial court’s conclusion that this exemption

applied was conclusory, it did not include any factual support, and it did not include an analysis of

“operational instructions.” Hjerstedt argues that “[o]perational instructions or manuals prescribe

items such as uniforms, car operations, evidence handling, weapons deployment and use, firearm

handling and safety or procedure for arrests, searches, and seizures.” The city argues that

“ ‘operational instructions’ are ‘approved standard procedures for performing operations safely.’ ”

The phrase “operational instructions,” means instructions relating to operations. The

critical inquiry, then, is whether the use-of-force policy contains instructions relating to operations.

We hold that there is a conceptual difference between policy and operations, and that the use-of-

force policy in this case deals with policy, only, and does not contain any “operational

instructions.” The policy, thus, was not exempt from disclosure.

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Our Supreme Court, albeit in the employment context, recognized that a “policy” is “a

definite course or method of action selected (as by a government, institution, group, or individual)

from among alternatives and in the light of given conditions to guide and usu[ally] determine

present and future decisions; . . . a projected program consisting of desired objectives and the

means to achieve them . . . .” In re Certified Question, 432 Mich 438, 455–456; 443 NW2d 112

(1989) (cleaned up). The Supreme Court echoed this definition recently in Johnson v Vanderkooi,

502 Mich 751, 763–64; 918 NW2d 785 (2018) when examining the constitutionality of Grand

Rapids Police Department “photograph and print” policy: “An ‘official policy’ often refers to

formal rules or understandings . . . that are intended to, and do, establish fixed plans of action to

be followed under similar circumstances consistently and over time.” Id. (cleaned up).

Operational instructions, on the other hand, deal with how policy is implemented in specific

circumstances.

Justice Corrigan, in her partial concurring opinion in Coblentz v City of Novi, 475 Mich

558; 719 NW2d 73 (2006) (CORRIGAN, J., concurring in part and dissenting in part), examined the

distinction between policy and operational decisions. We find her analysis persuasive and adopt

it here. After acknowledging the definition of policy in In re Certified Question, she reasoned that

the definition should apply equally in FOIA cases.5 But she emphasized “that this definition does

not encompass every decision regarding a course of action made by a governmental entity.” Id. at

593. “[G]overnmental bodies adopt many courses of action that do not guide present or future

decisions. Such decisions may be categorized as ‘operational’ decisions rather than ‘policy’

decisions. Operational decisions concern routine, everyday matters and do not require evaluation

of broad policy factors.” Id. “Operational decisions may also be characterized as ‘the execution

or implementation of previously formulated policy.’ ” Id., quoting Hanson v Vigo Co Bd of

Comm’rs, 659 NE2d 1123, 1126 (Ind App, 1996). Justice Corrigan also cited to the Arizona Court

of Appeals, which offered this insightful analysis of contrasting examples of operational versus

policy decisions:

By way of illustration, a decision by the district board to construct a playground at

a school and allocate funds for that purpose would be a policy decision . . . .

Deciding what specific pieces of equipment to have on the playground would not

be a policy decision, but rather would be an operational level decision. See, e.g.,

Warrington v Tempe Elementary Sch Dist, [187 Ariz 249, 252; 928 P2d 673 (Ariz

App, 1996) ] (school district’s decision regarding placement of bus stop is an

operational level decision); Evenstad [v State], 178 Ariz [578] at 582–84; 875 P2d

[811] at 815–17 (App 1993) (issuance of driver’s license by MVD is an operational

level decision; prescribing rules for issuance is making of policy); Rogers v State,

51 Haw 293, 296–98[;] 459 P2d 378, 381 (Haw 1969) (operational level acts

concern routine, everyday matters, not requiring evaluation of broad policy factors;

5

Coblentz dealt with MCL 15.243(1)(f), which exempts from FOIA disclosure “[t]rade secrets or

commercial or financial information voluntarily provided to an agency for use in developing

governmental policy” if certain requirements are met. Justice Corrigan’s analysis focused on the

meaning of “governmental policy” in this subsection. While this case deals with subsection s(v),

the analysis of policy versus operational decisions is still germane.

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operational acts include kinds of road signs to place and which center line stripes

to repaint); Stevenson v State Dept of Transp, 290 Or 3, 9–12[;] 619 P2d 247, 251–

52 (Or 1980) (decision to build a highway rather than a railroad track is exercise of

governmental discretion or policy judgment entitled to immunity; planning and

design of the road does not involve use of discretion in the sense that a policy

decision is required). [Id. at 593 n 5, quoting Schabel v. Deer Valley Unified School

Dist. No. 97, 186 Ariz. 161, 166; 920 P2d 41 (Ariz App, 1996).]

The use-of-force policy in this case deals with policy, not operations. The term “operational

instructions” would specifically exclude “courses of action that . . . guide present or future

decisions.” Id. at 592-593. The use-of-force policy is clearly intended to guide the police in

making future decisions pertaining to when the use of force is appropriate and the degree of force

that may be appropriate. The policy does not give instructions on use of force in specific situations,

but rather outlines broad policy prescriptions that should guide law enforcement personnel when

engaging in use of force. The policy therefore does not contain “operational instructions” and is

not exempt from disclosure.

The trial court’s implicit finding that the redacted material contained operational

instructions was clear error. Because we find that the redacted portions of the policy are not

operational instructions, it is unnecessary for us to consider the balancing test set forth in MCL

15.243(1)(s)(v).

C. MCL 15.243(s)(vii)

Finally, the trial court found that the redacted material was exempted under MCL

15.243(s)(vii), which exempts from disclosure law enforcement agency records, “the release of

which would . . . [e]ndanger the life or safety of law enforcement officers” except in particular

circumstances where “the public interest in disclosure outweighs the public interest in

nondisclosure . . . .” The city submitted affidavits from former Chief Riley and current Chief

Bierling, both of whom speculated that disclosure of the unredacted portions of the policy “would

or could impact safety of the public and/or officers” and “a potential suspect could circumvent

[an] officer’s actions thus placing . . . [the] officer in danger.” (Emphasis added). But MCL

15.243(1)(s)(vii) requires a finding that the release would endanger public safety, not that it would

or could.

Our Supreme Court discussed the distinction between “would” and “could” in Evening

News Ass’n v Troy, 417 Mich 481, 505-506; 339 NW2d 421 (1983). The Court found that there

was a clear distinction between (1) the tentative opinion that an investigation “[c]ould indeed well

be jeopardized” by providing the information requested, and (2) the positive conclusion that

providing the information “would interfere” with the investigation. Id. While Evening News

involved the application of MCL 15.243(1)(b)(i), not MCL 15.243(1)(s)(vii), the exemption

required a positive conclusion that something would happen, just as in this case.6 “Could” and

6

MCL 15.243(1)(b)(i) exempts from disclosure public records that were “compiled for law

enforcement purposes, but only to the extent that disclosure as a public record would . . . [i]nterfere

with law enforcement proceedings.” (Emphasis added).

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“would” are “obviously not the same thing.” Id. at 506. Former Chief Riley and current Chief

Bierling’s speculative statements in their affidavits that endangerment “would or could” occur are

tentative opinions. Because MCL 15.243(1)(s)(vii) requires a positive conclusion, these tentative

opinions are insufficient to meet the city’s burden.

In addition to the affidavits, Chief Bierling testified that the redactions were necessary to

protect the safety of the public and police officers. Once again, he speculated that the redacted

information “could or would” impact the safety of the officers and the public because it could

provide information on how the officers “may use force, may consider using force, or may react

to certain situations, and what they would use in their decision-making process.” Chief Bierling’s

testimony that the redacted information “would or could” impact officer safety is a tentative

opinion, not a positive conclusion. Chief Bierling also testified that release of the unredacted

policy would presumably make his staff “nervous” because they would feel as though they did not

“have an edge.” Chief Bierling’s assumption that the release of information would make officers

nervous is a far cry from establishing that it would endanger them. Chief Bierling further testified

that he “always err[s] on the side of caution” in order to ensure officer safety when making a

decision to redact public records. But erring on the side of caution contradicts the mandates of

FOIA, which is a “prodisclosure statute.” Sole, 509 Mich at 413; Herald, 463 Mich at 119;

Swickard, 438 Mich at 544.

The trial court also failed to make a positive finding. The court found “that the [d]isclosure

of the unredacted Use of Force Policy would or could in fact impact the officer’s [sic] ability to

protect the public and/or themselves.” (Emphasis added). This is not the positive finding required

by MCL 15.243(1)(s)(vii).

Moreover, the city failed to identify any evidence to support former Chief Riley and Chief

Bierling’s speculative testimony that the disclosure “would or could” potentially endanger the

officers. It was the city’s burden to produce particularized evidence that disclosure would

endanger law enforcement personnel. See Evening News, 417 Mich at 501-502, 503. Former

Chief Riley and Chief Bierling’s speculative opinion testimony is based on the tenuous claim that

“potential suspects” could study the redacted portions of the policy and, somehow, circumvent an

officer’s use-of-force, which would allegedly aid the suspect in resisting arrest. The city failed to

present factual evidence that this scenario was certain to occur. As discussed previously, numerous

other jurisdictions (even those that routinely perform joint operations with the city’s police

department) have opted to make their use-of-force policies easily available to the public via the

internet. Given this easy and widespread exposure, and the similarity in subject matter discussed,

it is telling that the city could not produce any particularized evidence that the availability of these

policies has resulted in endangerment of the life or safety of law enforcement officers, their

families, or the general public. Chief Riley and Chief Bierling’s speculative affidavits are

insufficient to establish the necessary proof. The city has failed to present factual evidence to

establish that the public’s knowledge of the redacted portions of the policy would endanger the

officers.

The trial court clearly erred by finding that the redacted material “would or could in fact

impact the officer’s [sic] ability to protect the public and/or themselves.” Because we find that the

city failed to meet its burden to prove that officer endangerment necessarily “would” result from

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disclosure of the unredacted policy, it is unnecessary for us to consider the balancing test set forth

in MCL 15.243(1)(s)(vii).7

IV. CONCLUSION

The trial court clearly erred by finding that the unredacted policy was exempt from

disclosure under MCL 15.243(1)(n), (s)(v), and (s)(vii). We reverse the trial court’s grant of

summary disposition in favor of the city, and we remand for entry of judgment in favor of

Hjerstedt. On remand the trial court shall: (1) order disclosure of the unredacted use-of-force

policy; (2) award Hjerstedt the reasonable attorneys’ fees, costs, and disbursements under MCL

15.240(6); and (3) determine whether Hjerstedt is entitled to punitive damages under MCL

15.240(7).

Reversed and remanded for further proceeding consistent with this opinion. We do not

retain jurisdiction. Hjerstedt, as the prevailing party, may tax costs. MCR 7.219(A).

/s/ Sima G. Patel

/s/ Stephen L. Borrello

/s/ Douglas B. Shapiro

7

The city also claims that the redacted material is exempt from disclosure under MCL

15.243(1)(s)(vi). But the trial court clearly rejected this argument because it only found that the

material was exempt from disclosure under MCL 15.243(1)(n), (s)(v), and (s)(vii), and the city did

not file a cross-appeal. Notwithstanding, we find no merit in the city’s argument.

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