In Bitterman v Village of Oakely
, No. 320985, the Court of Appeals held that citizens can request the names of those who donate private funds to public use under the Freedom of Information Act (FOIA) without triggering FOIA’s privacy exemption. In addition, information regarding police reservists is only exempt from FOIA requests under its law enforcement exemption if their powers and duties actually relate to law enforcement. Thus, the Court of Appeals reversed the circuit court’s grant of summary disposition in favor of the Village to the extent that the court declined to order disclosure of the names of police fund donors, and remanded for further proceedings as to whether the Village’s police reservists qualify as law enforcement officers or agents within FOIA’s law enforcement exception.
Pursuant to FOIA, Shannon Bitterman requested records, documents, and information about Village police reservists and the names, full addresses, and telephone numbers of donors of the Village of Oakley Police Donation fund. The Village denied the requests citing various exemptions and Bitterman filed suit. The circuit court ruled that the names, addresses, and telephone numbers of the police fund donors were exempt from disclosure under the privacy exemption, MCL 15.243(1)(a), and that the names of active police reservists were exempt from disclosure pursuant to subsection (viii) of the law enforcement exemption, MCL 15.243(1)(s). But the court held that the names of inactive police reservists were not exempt pursuant to either exemption and ordered their disclosure.
As a preliminary matter, the Court of Appeals first held that, because a denial must be reviewed based on information available at the time of the FOIA request, it would not consider the fact that the Village police department’s operations were recently halted and all of the reservists became inactive when evaluating the applicability of the relevant exemptions. The Court also concluded that the issue was not moot because, despite the Village’s decision to release the reservists’ names, they have not yet been released to the public.
The Court then concluded that the privacy exemption was not applicable to the names of police fund donors. The fact that the donors used private assets to contribute to the police fund does not necessarily make the information of a personal nature: Bitterman did not seek disclosure of the amount of each donor’s contribution, and the private funds were donated for public use. Even if the information were of a personal nature, the public’s interest in governmental accountability would likely prevail over the donors’ expectation of privacy: the information could shine light on whether donors are allowed to become police reservists in exchange for their donations as Bitterman alleges, especially given the “striking” ratio of 100 reservists to 300 residents.
Finally, because the Court found the record to be devoid of the reservists’ powers or duties relating to law enforcement or preserving the peace, it could not properly resolve whether they should be considered “law enforcement officers” for the purpose of the FOIA exemption. The Court noted that the title of “police reservist” would seem to fall within the exemption, but Bitterman alleged that the “pay to play” scheme allows reservists to use the title without actually doing any law enforcement related duties. The Court therefore remanded the issue for further development by the trial court.