Walen v. Department of Corrections 443 Mich. 240

Cavanagh, C.J.

This case involves the Freedom of Information Act (foia),1 the Administrative Procedures Act (apa),2 and the Department of Corrections Act (doca).3 We are asked to determine whether the foia applies to Department of Corrections disciplinary hearings. The foia covers any "contested case,” as defined by the apa. The hearing handbook’s4 definition of department disciplinary hearings falls within the apa definition of "contested case.” In its brief to this Court, the department states that it "does not contest that a prison disciplinary hearing meets the parameters” of the apa definition. The Court of Appeals held that because the apa, § 115,5 exempts department *243disciplinary hearings from the apa, chapters 4 and 8, the hearings are exempt from the apa’s definition of "contested case.” Therefore, the foia does not apply. We hold that the Freedom of Information Act does apply to Department of Corrections disciplinary hearings.

I

Pursuant to MCL 15.233(1); MSA 4.1801(3)(1), plaintiff, a Michigan prisoner, requested permission to inspect various final orders and decisions of the Department of Corrections hearings and records on which the decisions were made. Plaintiff instituted the present action after the department denied his request. The trial court granted defendant’s motion for summary disposition, holding that the foia publication requirement did not apply to department disciplinary hearings, and that only the affected prisoner could mandate a copy of the proceeding.6

The Court of Appeals affirmed in a two to one decision,7 holding that the Legislature exempted disciplinary hearings from the publication requirement when it enacted MCL 24.315; MSA 3.560(215). We granted leave to appeal and now reverse.

II

A review of the statutes shows that the foia applies to department disciplinary hearings. Because the statutes do not conflict, and the language is plain and unambiguous, interpreting the *244statutes is unnecessary.8 Jones v Grand Ledge Public Schools, 349 Mich 1, 9-10; 84 NW2d 327 (1957). See also Gilroy v General Motors Corp (After Remand), 438 Mich 330, 341; 475 NW2d 271 (1991).

A

We must first examine the foia provisions9 that require disclosure of records to the public. The foia, § ll(l)(a),10 requires state agencies to "publish and make available to the public all of the following: (a) Final orders or decisions in contested cases and the records on which they were made.” The foia does not define the term "contested case,” but defers to the term’s meaning as ascribed in the apa, chapters 1 through 7.11

The apa, chapter 1, defines "[contested case” as "a proceeding, ... in which a determination of the legal rights, duties, or privileges of a named party is required by law to be made by an agency *245after an opportunity for an evidentiary hearing.”12 The hearing handbook explains that the department must conduct all hearings that "may result in the loss by a prisoner of a right . . . .”13 The department admits and the Court of Appeals held that "a prison disciplinary case falls within the definition of a 'contested case.’ ” 189 Mich App 373, 376; 473 NW2d 722 (1991). We agree.

The apa, chapter 8, § 122,14 states that for purposes of chapter 8, a contested case "does not include a case that is settled or a case in which a consent agreement is entered into or a proceeding for establishing a rate or approving, disapproving, or withdrawing approval of a form.” Chapter 8, however, does not apply here. The foia only requires the court to apply the definition of "contested case” as used in the first seven chapters of the apa. Additionally, the apa, chapter 7, § 115, states that department disciplinary hearings are exempt from chapter 8 of the apa.

The remaining provisions of the apa do not redefine "contested case,” but merely defer to the chapter 1 definition. If the Legislature intended to define "contested case” for department disciplinary hearings differently from the express apa definition, then the Legislature could have adopted explicit language expressing that intent or amending MCL 15.241(6); MSA 4.1801(H)(6). See Gordon SelWay, Inc v Spence Bros, Inc, 438 Mich 488, 506; 475 NW2d 704 (1991).

B

The apa, chapter 7, § 115, also exempts department disciplinary hearings from the apa’s con*246tested case procedures, chapter 4. Although exempt from those procedures, department disciplinary hearings are not exempt from the definition of "contested case.” We believe the Legislature intended only to remove department disciplinary hearings from the apa’s procedural requirement for contested cases. This is evidenced by the fact that such hearings are not exempt from the remaining chapters of the apa. The Court of Appeals recognized that the hearings are subject to chapter 6 of the apa, which applies only to a "contested case:”

When a person has exhausted all administrative remedies available within an agency, and is aggrieved by a final decision or order in a contested case, whether such decision or order is affirmative or negative in form, the decision or order is subject to direct review, by the courts as provided by law. [MCL 24.301; MSA 3.560(201). Emphasis added.]

Since department disciplinary hearings are subject to chapter 6, it must be because they are "contested cases.”15

The Court of Appeals believes "that the reason the Legislature did not simply define 'contested cases’ as not including prison disciplinary hearings was the fact that for the purposes of judicial review, the apa still applied. However, this is not true for disclosure requirements.” 189 Mich App 377. There is no evidence that would draw this Court to that conclusion. We will not hold that department disciplinary hearings meet the defini*247tion of a "contested case” for one provision, but not another, absent evidence that the Legislature intended that result. The House Legislative Analysis, HB 4105, June 19, 1979, does not suggest that removing department disciplinary hearings from the foia was even considered:

The manner in which these disciplinary hearings are conducted has been the subject of a great deal of controversy in recent years, and the issue of how best to structure the hearings has been highlighted by a recent Michigan Court of Appeals decision. In that decision, Lawrence v Michigan Department of Corrections [88 Mich App 167; 276 NW2d 554 (1979)], the court ruled that disciplinary hearings in Michigan correctional facilities fall within the definition of contested cases in the Administrative Procedures Act (a.p.a.), and must be conducted according to its provisions. These provisions include a number of rights which have not been part of the department’s disciplinary hearings policy, such as the right to counsel, and the right to cross-examine witnesses. Many people feel that some of the a.p.a. requirements are inappropriate to the prison disciplinary hearings process.

The Legislature refused to exempt department disciplinary hearings from the apa altogether16 because "the quality of prison disciplinary hearings could be improved by incorporating some of the a.p.a. due process provisions.”17 Id. By allowing department disciplinary hearings to remain subject to the definition of "contested case” for pur*248poses of the apa, the Legislature also intended to allow the hearings to remain subject to § 11 of the foia. It is a well-known principle that the Legislature is presumed to be aware of, and thus to have considered the effect on, all existing statutes when enacting new laws. Malcolm v East Detroit, 437 Mich 132, 138; 468 NW2d 479 (1991).

A recent amendment to the doca also provides evidence that the Legislature did not intend to exempt department disciplinary hearings from the foia. MCL 791.230; MSA 28.2300 specifically describes prison-related documents that are exempt from disclosure under the foia if requested by or on behalf of a prisoner. Exempt items include log books and daily reports of department employees, staffing charts and daily assignment sheets. Final orders or decisions of prison disciplinary hearings are not exempt under this section.18 If the Legislature intended to exempt final orders or decisions, then those items could certainly have been included in the list of exempted material.

C

The Court of Appeals also suggests that the "creation of the procedure to obtain information on prison misconduct hearings evidences the legislative intent that prison misconduct hearings are not 'contested cases’ for the purposes of the foia.” 189 Mich App 377. We disagree. The procedure to which the Court of Appeals referred is exclusively for the prisoner who was the subject of the hearing. The hearing handbook requires sending a copy of the decision to the subject of the hearing. It also requires the decision to be posted for the reporting officer to examine. The foia does not discuss send*249ing a copy to the subject of the hearing, but applies to the general public.

Together, the provisions ensure that the subject of the hearing automatically receives a copy and that the records are made available to the public, unless otherwise exempt from disclosure. The intent behind requiring publication to the public and requiring the subject of the hearing to receive a copy differ, but the distinction does not suggest an intent to exempt department disciplinary hearings from the foia.

III

Defendant requests prospective application of our decision because retrieving the requested documents would be an onerous task.19 We stated in Washtenaw Co v State Tax Comm, 422 Mich 346, 378-379; 373 NW2d 697 (1985), that a "considerable administrative burden” can justify limiting a holding to a prospective application.

Whether there is an onerous burden in this case cannot be determined until after the trial court decides whether the records are exempt by any provision within the foia. Only then can it be determined what course of action the department would be required to take and whether that action creates an onerous burden.

A

Section 11 of the foia compels the Department *250of Corrections to "publish and make available to the public” the final orders and decisions of disciplinary hearings. Section 11 explicitly defines the term publish:

Publications may be in pamphlet, looseleaf, or other appropriate form in printed, mimeographed, or other written matter.

"[M]ake available to the public” simply means that members of the public can obtain access to documents required to be published by following the procedures set forth in § 3. In short, § 11 describes what is to be published and the acceptable form of publication, while § 3 describes the rights and opportunities publication creates.20

The foia is composed of eleven sections,21 each serving as a piece of the foia puzzle. Section 3 explains how a person may utilize his right to inspect the public record, but explicitly "does not require a public body to create a new public record, except as required in sections 5 and 11 . . . .” MCL 15.233(3); MSA 4.1801(3X3). Only these sec*251tions, and primarily § 11, require a state agency to create a public record. It follows from the structure of the statute that § 11, which offers no explanation about how inspection will take place, is essentially concerned with compelling agencies to create certain records. A contrary construction would render § 3 meaningless.22

The Department of Corrections conceded in its brief that the requested final orders and decisions are in written form and are retained in prisoner files. The § 11 publication requirement permits records to be maintained in such written form, thus the agency has satisfied the publication requirement. Nonetheless, the agency still must allow the public access to the documents-pursuant to § 3.23 Therefore, on remand, the question should be whether the prisoner’s § 3 request is sufficiently descriptive to allow the Department of Corrections to find the desired public record in light of the extensive redaction the § 13 exemptions will doubtlessly require.24 If the request is not sufficiently *252descriptive, the prisoner’s request should be denied. MCL 15.235; MSA 4.1801(5).

IV

The Court of Appeals erred in holding that by removing Department of Corrections disciplinary hearings from certain chapters of the apa, the Legislature intended to alter the definition of the term "contested case.” Accordingly, we reverse the judgment of the Court of Appeals and remand this case for further proceedings consistent with this opinion.

Brickley, Boyle, Griffin, and Mallett, JJ., concurred with Cavanagh, C.J.

Riley, J.

(concurring in part and dissenting in part). I agree with the majority’s finding that the Michigan Freedom of Information Act1 applies to Department of Corrections disciplinary hearings and join in that holding. However, because the majority eviscerates § 11 of the foia by holding that it does not permit public access to records *253independent of § 3 of the foia, I respectfully dissent.

I

Even before the enactment of the foia, "Michigan had an established history of requiring public agency disclosure . . . .” Evening News Ass’n v Troy, 417 Mich 481, 494-495; 339 NW2d 421 (1983). In Nowack v Auditor General, 243 Mich 200, 203-204; 219 NW 749 (1928), this Court explained that the citizens of Michigan possess a common-law right to access government documents:

If there be any rule of the English common law that denies the public the right of access to public records, it is repugnant to the spirit of our democratic institutions. Ours is a government of the people. Every citizen rules. . . . Undoubtedly, it would be a great surprise to the citizens and taxpayers of Michigan to learn that the law denied them access to their own books for the purpose of seeing how their money was being expended and how their business was being conducted. There is no such law and never was either in this country or in England. Mr. Justice Morse was right in saying:

"I do not think that any common law ever obtained in this free government that would deny to the people thereof the right of free access to, and public inspection of, public records.” Burton v Tuite, 78 Mich 363, 374 (7 LRA 73) [44 NW 282 (1889)].

There is no question as to the common-law right of the people at large to inspect public documents and records. The right is based on the interest which citizens necessarily have in the matter to which the records related.[2]

*254The foia was enacted to continue this tradition of openness:

It is the public policy of this state that all persons are entitled to full and complete information regarding the aifairs of government and the official acts of those who represent them as public officials and public employees, consistent with this act. The people shall be informed so that they may fully participate in the democratic process. [MCL 15.231(2); MSA 4.1801(1X2).]

Hence, the foia mandates disclosure and publication of public records. Section 3(1) of the act, in pertinent part, mandates:

Upon an oral or written request which describes the public record sufficiently to enable the public body to find the public record, a person has a right to inspect, copy, or receive copies of a public record of a public body, except as otherwise expressly provided by section 13.[3]

Section 54 delineates the specific mechanics of obtaining a § 3 request, and provides that members of the public may file an action in circuit court, pursuant to § 10 of the act,5 to compel an agency to disclose records when in violation of §§ 3 and 5._

*255Furthermore, § 11 mandates that "[a] state agency shall publish and make available to the public” public records.6 Such publication "may be in pamphlet, looseleaf, or other appropriate form in printed, mimeographed, or other written matter.” Not unlike § 5, § 11 authorizes a cause of action "to compel a state agency to comply with this section.”

As found by the majority, disciplinary hearings by the Department of Corrections clearly fall within the foia’s mandate of public access. The majority also found that " 'make available to the public’ simply means that members of the public can obtain access to documents required to be published by following the procedures set forth in § 3. In short, § 11 describes what is to be published and the acceptable form of publication, while § 3 describes the rights and opportunities publication creates.” Ante at 250.

II

A

The role of this Court regarding statutory analysis is to determine and enforce the Legislature’s intentions. People ex rel Platt v Oakland Co Bank, 1 Doug 282, 287 (Mich, 1844). Because the Legislature is presumed to understand the meaning of its statutes, "[statutory analysis necessarily begins with the wording of the statute itself.” Carr v General Motors Corp, 425 Mich 313, 317; 389 NW2d 686 (1986). Each word of an act, therefore, is "presumed to be made use of for some purpose,” and "so far as possible, effect must be given to every clause and sentence.” Univ of Michigan Bd of Regents v Auditor General, 167 Mich 444, 450; *256132 NW 1037 (1911).7 Moreover, unless circumstances dictate otherwise,8 the Court should utilize the common understanding of words and phrases. Oakland Co Bank, supra.9 Accordingly, the Court may not substitute or redefine a word. People v Crucible Steel Co of America, 150 Mich 563, 567; 114 NW 350 (1907).10 Thus, a cardinal rule of statutory construction is that "[legislative intent is to be derived from the actual language of the statute, and when the language is clear and unambiguous, no further interpretation is necessary.” Storey v Meijer, Inc, 431 Mich 368, 376; 429 NW2d 169 (1988).11 Hence, "[p]ossible or even probable meanings, when one is plainly declared in the instrument itself, the courts are not at liberty to search for elsewhere.” 1 Cooley, Constitutional Limitations (8th ed), pp 125-127.

*257If, however, the plain meaning of a statutory provision is unclear, then legislative intent may be determined by an examination of the statute’s purpose, In re Forfeiture of $5,264, 432 Mich 242, 248; 439 NW2d 246 (1989), as well as the entirety of the statute’s structure and framework. Joslin v Campbell, Wyant & Cannon Foundry Co, 359 Mich 420, 426; 102 NW2d 584 (1960).

B

The unambiguous language of § 11 provides that "[a] state agency shall publish and make available to the public” certain records. The majority’s analysis distorts the common meaning of "publish” by interpreting it as the mere retention of records. Ante at 250. If the Legislature intended to so tailor § 11, it certainly could have utilized more precise terms such as "store,” "maintain,” "keep,” or "retain.” The Legislature, however, chose and enacted the term "publish.” Because the Legislature did not define "publish” in its definition section of the foia,12 an examination of its common meaning is appropriate. The Random House Dictionary of the English Language: Second Unabridged Edition, p 1563, defines "publish” as: "to issue (printed or otherwise reproduced textual or graphic material, computer software, etc.) for sale or distribution to the public,” "to issue publicly the work of,” "to announce formally or officially; proclaim; promulgate,” and "to make publicly or generally known.”13 Similarly, Roget’s International Thesaurus (New York: 1961), 531.7 publication, p 363, notes "propagate, promulgate, circu*258late, spread, spread about or abroad, broadcast, diffuse, disseminate,” "divulge,” "make known, make public,” "put forth,” "issue,” "declare,” "announce,” "proclaim,” et al., in the primary listing for the term. Common legal definitions do not differ. For instance, Black’s Law Dictionary (6th ed), p 1233, includes "[t]o make public; to circulate; to make known to people in general,” "[t]o issue; to put into circulation,” "[a]n advising of the public or making known of something to the public for a purpose.” The vast array of legal authorities compiled in Corpus Juris Secundum concur.14 None of these sources define the term as mere storage or retention. The common understanding of "publish” certainly includes at least the production of information that is readily available for public review, if not the outright binding or distribution of materials for public consumption.

More important, the majority misconstrues "make available to the public” to mean "make available to the public as solely delineated in § 3.”15 No such limitation exists in the statutory *259language of § 11 or elsewhere in the foia. Each section is independent, and neither refers to the other for definition — there simply is no statutory language to justify intertwining the sections.16 Moreover, examining the statute as a whole, the majority’s interpretation of § 3 renders the phrase superfluous: §§ 3 and 5 already ensure that records are available to the public through a specific request to a governmental agency. Furthermore, both §§ 3 and 11 provide for a cause Of action to compel an agency to disclose information unlawfully withheld from the public, evidencing a scheme intended to grant § 11 an independent mechanism for public access to documents.

The public, therefore, may gain public access to public records independent of § 3 by obtaining documents published as mandated under § 11. Hence, the foia permits public review of records in two fashions: (1) through a specific search utilizing §§ 3 and 5, and (2) through general access utilizing § 11. A member of the public may gather information through a § 3 request that relates to a specific person or topic, or he may perform wide-ranging general research by examining materials published through § 11. For example, a reporter wishing to gather information regarding the dnr’s activities regarding Detroit’s Belle Isle could file a § 3 foia request specifically asking for such information. On the other hand, another reporter wishing to thoroughly research dnr practices, perhaps to search for a pattern of corruption or abuse,17 could examine published materials via § 11. Con*260trary to the assertions of the majority, this construction of the statute does not render § 3 meaningless. In fact, this interpretation is the only one that maintains the integrity of both sections by preserving the meaning of the phrase "publish and make available to the public.”

Furthermore, the majority’s interpretation conflicts with the broad mandate of the foia, which is to ensure that "all persons are entitled to full and complete information regarding the affairs of government ... so that they may fully participate in the democratic process.”18 The inability of a citizen to formulate a specific § 3 request should not deny him the ability to examine records, otherwise government practices unknown to the general populace could never be exposed to public scrutiny because no member of the general public could possess the exact knowledge to formulate a specific § 3 request.19

Hence, I respectfully dissent.

Levin, J., concurred with Riley, J.