The following opinion is presented on-line for informational use only and does not replace the official version. (Mich Dept of Attorney General Web Site - www.ag.state.mi.us)


STATE OF MICHIGAN

FRANK J. KELLEY, ATTORNEY GENERAL

Opinion No. 5419

December 29, 1978

SHERIFFS:

Freedom of Information Act

FREEDOM OF INFORMATION ACT:

Office of sheriff subject to

The office of county sheriff is subject to the provisions of the Freedom of Information Act.

Honorable Perry Bullard

State Representative

The Capitol

Lansing, Michigan 48909

You have asked my opinion on the following question:

(1) Is the office of county sheriff subject to the provisions of the Freedom of Information Act, 1978 PA 442; MCLA 15.231 et seq; MSA 4.1801(1) et seq?

The office of sheriff is provided for in Const 1963, art 7, Sec. 4 which, in part, states:

'There shall be elected for four year terms in each organized county a sheriff. . . .'

The sheriff has a responsibility to perform all reasonable services within the jurisdiction of its office for which the county may be liable. 1919 PA 237, Sec. 7; MCLA 45.407; MSA 5.917. In Brownstown Township v Wayne County, 68 Mich App 244, 248-249, 242 NW 2d 538, (1976) the Court stated:

'We construe the provision 'reasonable service' to mean the sheriff must perform the duties of the office of sheriff as recognized at common law as well as those statutory duties which do not destory the sheriff's power to perform the duties of the office at common law.

'Michigan's most authoritative case on the duties of the sheriff at common law is White v East Saginaw, 43 Mich 567, 570; 6 NW 86 (1880). That case quoted approvingly from People v Edwards, 9 Cal 286 (1858).

"'[T]he duties of sheriff, as such, relate to the execution of the orders, judgments, and process of the courts; the preservation of the peace; the arrest and detention of persons charged with the commission of a public offense; the service of papers in actions, and the like; they are more or less directly connected with the administration of justice; they have no relation to the collection of revenue."'

The Freedom of Information Act applies to those public bodies defined at Sec. 2(b)(iii) of the Act; MCLA 15.232(b)(iii); MSA 4.1801(2)(b)(iii), to include:

'A county, city, township, village, intercounty, intercity, or regional governing body, council, school district, special district, or municipal corporation or a board, department, commission, council, or agency thereof.' [Emphasis added]

Thus, as an agency or department of a county, the office of county sheriff falls within the definition of public body as defined by Sec. 2(b)(iii) of the Freedom of Information Act, supra.

The legislature further indicated its intent to include the office of sheriff within the parameters of the Act by providing at Sec. 2(b)(iv); MCLA 15.232(b)(iv); MSA 4.1801(2)(b)(iv), that a 'public body' shall include:

'Any other body which is created by state or local authority or which is primarily funded by or through state or local authority.'

It has been argued that the phrase: 'any other body which is created by state or local authority,' does not apply to any constitutionally created office, such as the office of county sheriff. If this were the legislature's intent, it would not have provided for a separate exemption for county clerks, another constitutional office, when acting in the capacity of clerk to the circuit court, Sec. 2(b)(v); nor would the legislature have provided for non-disclosure of public records of sheriffs' agencies or departments in particular instances, Sec. 13(1)(t).

Furthermore, irrespective of the foregoing, 1919 PA 237, Sec. 1; MCLA 45.401; MSA 5.911, provides for payment of salaries to the sheriff and deputy sheriffs out of the general fund of the county. Thus, the office of sheriff is primarily funded by or through state or local authority, and subject to the provisions of the Act, supra, Sec. 2(b)(iv).

However, it should be noted that Sec. 13(1) of the Act, supra, permits a public body to exempt from disclosure certain public records, which include in pertinent part:

'(b) Investigating records compiled for law enforcement purposes, but only to the extent that disclosure as a public record would do any of the following:

(i) Interfere with law enforcement proceedings.

(ii) Deprive a person of the right to a fair trial or impartial administrative adjudication.

(iii) Constitute an unwarranted invasion of personal privacy.

(iv) Disclose the identity of a confidential source, or if the record is compiled by a criminal law enforcement agency in the course of a criminal investigation, disclose confidential information furnished only by a confidential source.

(v) Disclose law enforcement investigative techniques or procedures.

(vi) Endanger the life or physical safety of law enforcement personnel.

(c) A public record which if disclosed would prejudice a public body's ability to maintain the physical security of custodial or penal institutions occupied by persons arrested or convicted of a crime or admitted because of a mental disability, unless the public interest in disclosure under this act outweighs the public interest in non-disclosure.

o) Records of law enforcement communication codes, or plans for deployment of law enforcement personnel, which if disclosed would prejudice a public body's ability to protect the public safety unless the public interest in disclosure under this act outweighs the public interest in non-disclosure in the particular instance.

t) Unless the public interest in disclosure outweighs the public interest in nondisclosure in the particular instance, public records of a police or sheriff's agency or department, the release of which would do any of the following:

(i) Identify or provide a means of identifying an informer.

(ii) Identify or provide a means of identifying a law enforcement undercover officer or agent or plainclothes officer as a law enforcement officer or agent.

(iii) Disclose the personal address or telephone number of law enforcement officers or agents or any special skills that they might have.

(iv) Disclose the name, address, or telephone numbers of family members, relatives, children, or parents of law enforcement officers or agents.

(v) Disclose operational instructions for law enforcement officers or agents.

(vi) Reveal the contents of staff manuals provided for law enforcement officers or agents.

(vii) Endanger the life or saefty of law enforcement officers or agents of their families, relatives, children, parents, or those who furnish information to law enforcement departments or agencies.

(viii) Identify or provide a means of identifying a person as a law enforcement officer, agent, or informer.

(ix) Disclose personnel records of law enforcement agencies.

(x) Identify or provide a means of identifying residences which law enforcement agencies are requested to check in the absence of their owners or tenants.' (Emphasis added)

It is, therefore, my opinion that the office of county sheriff is subject to the provisions of the Freedom of Information Act, supra.

Frank J. Kelley

Attorney General