Michigan Association of Police Takes Defense of Privacy Right to State's High Court

The legal battle to protect police officers' right to privacy in matters regarding information compelled by Garrity may be decided by Michigan's Supreme Court.

M.A.P. Labor Attorney Daniel J. Hoekenga has filed an application with the high court for leave to appeal a recent opinion upholding an Oakland County Circuit Court order requiring the release of Garrity statements.

The union's position is that both the Circuit Court and the Court of Appeal erred in ruling that personnel files of several Pontiac police officers must be made available to the Oakland Press newspaper, which demanded the materials under the Freedom of Information Act (FOIA).

Hoekenga said that the appellate court decision failed to recognize a key precedent which supports M.A.P.'s case.

"The Court of Appeals decision, which M.A.P. is challenging by its application, does not mention the express holding of Kent County Deputy Sheriffs v Kent County Sheriff (1999) that the obligations under the Public Employment Relations Act (PERA) predominate over those under FOIA," he explained.

"The Court of Appeals improperly refused to recognize that, in the Kent County case, it found that the documents were exempt from disclosure because the public interest in nondisclosure outweighed the public interest in disclosure. That ruling was made on exactly the same grounds that M.A.P. asserted in the Pontiac case in arguing that Garrity statements, and reports prepared in reliance upon such statements, ought to be exempt.

Hoekenga said those grounds, stated by the Court of Appeals in the Kent County case, were:

• Internal investigations are inherently difficult because employees are reluctant to give statements about the actions of fellow employees.
• If their statements would be a matter of public knowledge, employees might refuse to give any statements at all or be less than forthcoming and candid.
• Disclosure could be detrimental to some employees.
• Public disclosure of records relating to internal investigation of possible employee misconduct would destroy or severely diminish the Sheriff Department's ability to effectively conduct such investigations.

"Instead of following its own precedent, the Court of Appeals merely affirmed the lower court's declaration that provisions of M.A.P.'s collective bargaining agreement with the City of Pontiac requiring court action to release items from a police officer's personnel file were contrary to FOIA, Hoekenga said.

He emphasized that M.A.P.'s application for leave to appeal states that the circuit and appellate courts' rulings have the effect of destroying an important assurance given to police officers when they are compelled to give statements relating to the performance of their public duty.

"This assurance is that such compelled statements will not be used nor disclosed to anyone else for any purpose but internal discipline, as the United States Supreme Court indicated in Garrity v New Jersey (1967)," he declared. "It was the 'quid pro quo' for being allowed to compel such statements.

"M.A.P. continues to pursue the case because of its concern about protecting its members' right - and the right of all public employees - not to have statements required of them as a condition of their continued employment.

"Since the Court of Appeals has applied different standards for exemption from FOIA to unions than it does to newspapers, legislative action to clarify what is exempt from disclosure may be in order."

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