In the recent case of Hjerstedt v. City of Sault Ste. Marie, the Michigan Court of Appeals overturned a trial court’s decision and ruled that the unredacted use-of-force policy must be turned over under FOIA. This outcome marks a significant deviation from historical protection of the internal policies and procedures of law enforcement agencies and signals that our appellate courts are moving toward favoring more transparency and the public’s right to access information regarding law enforcement practices.
In June 2020, following the nationwide push for police reform, Hjerstedt requested the police’s use-of-force policy under the state’s Freedom of Information Act (FOIA). Initially denied by the city, a heavily redacted version was later released. Hjerstedt filed a lawsuit, with both parties submitting motions for summary disposition. The trial court sided with the city, dismissing Hjerstedt’s complaint, believing the redacted policy was exempt from FOIA disclosure.
Hjerstedt appealed, arguing that none of the exemptions applied. The trial court had found the redacted material exempt under MCL 15.243(1)(n), which covers law enforcement communication codes or plans for deploying personnel. “Plans for deployment of law enforcement personnel” refers to a procedure for positioning law enforcement personnel for a specific use or purpose. Use-of-force policies do not outline specific deployments of law enforcement personnel to specific locations or threats. Therefore, the court held that a general policy regarding factors for officers to consider when using force is too broad to be considered a “plan for deployment.”
Additionally, the trial court found the redacted material exempt under MCL 15.243(s)(v), which covers “operational instructions for law enforcement officers or agents.” The critical inquiry was whether the use-of-force policy contained instructions relating to operations. The court held that there is a conceptual difference between policy and operations, and the use-of-force policy in this case deals only with policy, not containing any “operational instructions.”
Lastly, the trial court found the redacted material exempt under MCL 15.243(s)(vii), which covers law enforcement agency records that would endanger officers’ lives or safety if disclosed. The court held that the city’s affidavits and testimony only speculated that disclosure “would or could” impact safety, which was insufficient to meet the required positive conclusion that release “would” endanger public safety.
Consequently, the Court of Appeals reversed the trial court’s decision, ordering the disclosure of the unredacted use-of-force policy and awarding Hjerstedt reasonable attorney fees.
This case underscores the shift in our courts to allow more transparency in law enforcement and the public’s right to access information on the practices and policies that guide our police departments.
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John Gillooly, Editor of Gov Law, is a Shareholder in our Detroit Office. John can be reached at 313.446.1530 or jgillooly@garanlucow.com.
