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November 22, 2013

Documents related to 37-year-old murder still part of ongoing investigation, and not subject to FOIA requests

In King v. Oakland County Prosecutor, the Michigan Court of Appeals held that the trial court followed proper procedures and ruled with sufficient specificity when it denied a Freedom of Information Act (“FOIA”) request seeking information about a 36-year-old murder.

In 1976 and 1977, four children were abducted and killed in Oakland County. The fourth child killed was Timothy King. In 2010, Barry King and Christopher King, Timothy King’s father and brother respectively, filed FOIA requests with the Oakland County Prosecutor seeking documents regarding Christopher Busch’s possible involvement in the four murders. The Prosecutor denied the Kings’ FOIA requests, claiming the requested documents were exempt from disclosure because they were part of an ongoing investigation. The trial court upheld the prosecutor’s denials. The court of appeals affirmed.

Under the Michigan FOIA, public bodies must disclose all public records that the Act does not exempt from disclosure. MCL 15.231 et seq. One such exemption states that the public body does not have to turn over investigating records compiled for law enforcement purposes, but only if the disclosure “would . . . interfere with law enforcement proceedings.” MCL 15.243(1)(b)(i). This ongoing investigation exemption is what the prosecutor and trial court relied upon in denying the Kings’ requests. Utilizing an established procedure, the trial court conducted in camera review of affidavits and documents submitted by the prosecutor to support its claim to the exemption. The court then issued an opinion stating in part that the requested information “could” compromise or interfere with an ongoing investigation, and that the information was “inextricably intertwined with other sensitive information.” In a subsequent order denying the Kings’ motion for reconsideration, the court corrected itself and stated that disclosure “would” interfere with an ongoing investigation. On appeal, the Kings argued that the trial court relied on the wrong standard by finding the documents “could” rather than “would” compromise the investigation, that the trial court’s findings were not particularized enough, that the in camera review procedure used by the trial court was improper, and that the prosecutor violated its constitutional duty to confer with the Kings.

The court of appeals held that the trial court’s reconsideration order was enough to clarify that it had employed the correct standard in upholding the exemption. The court also concluded that the trial court’s explanation that the information was “inextricably intertwined with other sensitive information” was sufficiently particularized. It further explained that the trial court’s in camera review procedure was expressly permitted under a prior case. Finally, it held that the King’s constitutional claim failed on the basis that the Crime Victim Rights Act, which implemented the constitutional provision at issue, only applied to crimes committed on or after October 9, 1985. Timothy King’s murder was in 1977.

The court affirmed, but noted that the Kings could still make another FOIA request if circumstances indicate the exemption may no longer apply.

Judge Murray dissented in part arguing that the trial court’s conclusions were not sufficiently particularized and should have stated “how” the release of information would interfere with the investigation.

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