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v Case No. 20-000166-MZ

MICHIGAN STATE UNIVERSITY, Hon. Cynthia Diane Stephens


Pending before the Court is defendant’s June 03, 2021 objection to the Special Master

report. All of the objections, except certain documents the court finds to be exempt from disclosure

based upon the attorney client privilege, are DENIED.

The plaintiff filed a FOIA case seeking disclosure of information concerning a public

employee. The defendant filed a Motion to Dismiss. This court found that dismissal was not

warranted and adjourned the motion for further fact finding. A Special Master reviewed the

documents and filed a recommendation to which defendant filed several objections. They object

to disclosure of pages 74, 82, 88, 91, 159, 160 of the defendant’s response and to the revelation of

certain names located in internal communications. The bases for those objections fall into three

categories: disclosure of the names of addressees of several documents where listserv addresses

were redacted; objection to disclosure of the contents of “advisory or preliminary” documents not

alleged to be attorney client privileged where the defendant’s need for frank discussion outweighed

the public’s interest in disclosure; and disclosure documents alleged to be attorney client

privileged. This court rejects all objections except as to certain documents the court finds to be

exempt from disclosure based upon the attorney client privilege.



The defendant objected to disclosure of the internal listserv addresses of the several

documents. Based upon MCL 15.243(l)(z). Factually the redactions were internal email

addresses. The objection cited cybersecurity and addressed the internal email address of the

recipients. While the cybersecurity concern may be a basis for non-disclosure of the actual internal

email addresses, the recommendation of the Special Master did not require that those addresses be

disclosed. The Special Master was generous in her analysis in this case where the defendant’s

argument was cursory. However, in the response to the defendant’s objections, the plaintiff had

no quarrel with the master’s acceptance of the validity of a potential for a cyber breach. The

Master essentially took judicial notice that cyber security is a valid institutional concern. She also

clearly considered that the public had an interest in knowing who was involved in the personnel

depictions of the public institution. She balanced the need for cyber security against the public’s

interest and forged a remedy of disclosing the names. I cannot find either clear error in her fact

finding nor an abuse of discretion in fashioning the remedy and will not disturb it. The Special

Master’s recommendation is adopted as the order of this Court.

II. ADVISORY MCL 15.243(13)(1)(M)

The Defendant asserts these documents are exempt from disclosure under MCL

15.243(13)(1)(m). Defendant argues that exemption “protects communications within public

bodies of an advisory nature from public disclosure to the extent that they cover the other purely

factual matters does apply to any of the documents produced because the public interest in

disclosure of the “issues in question” are not clearly outweighed by the public interest in protecting

any advisory communications from disclosure.” A review of these documents supports

defendant’s position that there were preliminary documents providing advice as to a course of

action prior to the final decision. However, as both the plaintiff and the special master noted, there

was no document specific information upon which a trier of law could weigh whether the

defendant’s interest outweighs that of the public. The documents are not of a personal nature and

therefore there is no invasion much less “unwarranted invasion” of privacy as described in

Bitterman v Village of Oakley, 309 Mich App 53 (2015). However, sincere the defendant’s

position may be in this regard it did not provide this court nor the Special Master a factual basis

upon which to determine the equities. This absence of either fact or case specific argument on

each non-disclosed document or class of document is fatal. Importantly the burden accrues to

public body to establish the efficacy of a claimed exemption from disclosure. Mich Federation-of

teachers and Sch Related Personnel, AFT, AFL-CIO, v University of Mich, 481 Mich 67, 753

NW2d 28 (2008). The presumption here is for disclosure. Practical Political Consulting v

Secretary of State, 287 Mich App 434, 789 NW2d 178 (2010). The Special Master’s

recommendation is adopted as the order of this Court.


Finally, defendant asserts that the following documents are exempt under attorney client

privilege which are found on pages 108-109.

The content on these pages emanated from the Office of General Counsel and was sent by

the administrative assistant to the attorney requesting certain documents. The author was clearly

authorized to make inquiry under the auspices of the attorney. Unlike the exemption under MCL

15.243 (13)(1)(m), the attorney client exemption is broad in nature. I depart from the Special

Master’s recommendation regarding those documents and will not order disclosure.

Because a review of the record supports the plaintiff’s claim that the failure to disclose was

in part improper the plaintiff is awarded reasonable attorneys fees and costs as authorized by FOIA.

IT IS HEREBY ORDERED that plaintiff may present a bill of costs within 14 days of this

order and the defendant shall have 14 days from filing to respond. If the parties do not reach an

agreement by April 15, 2022 they shall inform this court’s successor Judge Douglas Shapiro.

This is not a final order that does not resolve the last pending claim or close the case.

March 14, 2022 ____________________________________

Cynthia Diane Stephens
Judge, Court of Claims


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