Lead Opinion
This consolidated case presents the issue whether the personnel records of public school teachers and administrators are exempt from disclosure under the Freedom of Information Act. MCL 15.231; MSA 4.1801(1). We hold that the requested records must be disclosed because they are public records and are not within any exemption under the
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In 1993, the father of one of Ms. Bradley’s students made an FOIA request to the Saranac Community School District, seeking copies of Ms. Bradley’s personnel file. Ms. Bradley objected to the release of her performance evaluations, disciplinary records, and complaints filed against her. The school district informed Ms. Bradlеy that it planned to release all the requested information, subject to the redaction of certain passages. The school district indicated that it was releasing the documents because it believed that it was compelled to do so.
Ms. Bradley sought a declaratory judgment and an injunction in the Ionia Circuit Court, contending that the requested material was exempt from disclosure under subsections 13(l)(a) and (n) of the FOIA. The circuit court entered a temporary restraining order. Following an in-camera inspection, during which it compared the original documents with a set of redacted documents, the circuit court ruled that the documents should be released in the edited form.
Separately, in the same year, the Parents Support Network submitted аn FOIA request to the Lansing School District Board of Education, seeking copies of the written performance evaluations for nine principals employed by the school district. Representing the administrators, the Lansing Association of School Administrators (lasa) filed an action for a preliminary injunction and a permanent injunction in the Ingham Circuit Court to bar the school board from disclosing the requested material. Lasa alleged that the docu
The plaintiffs in both cases appealed, and the Court of Appeals consolidаted the cases. In a per curiam opinion, the Court of Appeals affirmed the decisions of the circuit courts.
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THE FREEDOM OF INFORMATION ACT
The issue presented by this consolidаted case is whether the Michigan FOIA compels disclosure of the personnel records of public school teachers and administrators.
i. reverse foia
While we agree with the conclusion
For example, in Bradley, the plaintiff sought a declaratory judgment that her personnel records were exempt from disclosure under the FOIA because the school district had informed her that it was releasing the information under the belief that it was compelled to do so. If the plaintiff had prevailed in showing that
Similarly, lasa’s complaint asserted that the requested documents were exempt from disclosure under the FOIA and that certain administrative review procedures prevented the circulation of evaluation documents. If LASA had prevailed in its argument that its records were exempt, it could have enforced the confidentiality provision of the collective bargaining agreement to prevent disclosure of the evaluatory documents.
Because a favorable ruling on the applicability of the FOIA exemptions to their personnel records could have permitted the plaintiffs their requested relief under the FOIA,
2. APPLICATION OF THE FOIA TO THE • PLAINTIFFS’ PERSONNEL RECORDS
The Michigan FOIA provides for the disclosure of “public records” in the possession of a “public body.”
3. EXEMPTIONS UNDER THE FOIA
The appellants contend that their personnel records are exempt from the mandatory disclosure requirements of the foia because their records fall within two exemptions — subsections 13(l)(a) and (n). Additionally, appellants lasa submit that subsection 13(1) (m) exempts their records. Beсause this issue raises a question of law, we review the Court of Appeals ruling de novo.
a. SUBSECTION 13(l)(a)
The foia’s privacy exemption, subsection 13(l)(a), provides:
A public body may exempt from disclosure as a public record under this act:
(a) Information of a personal nature where the public disclosure of the information would constitute a clearly unwarranted invasion of an individual’s privacy. [MCL 15.243(l)(a); MSA 4.1801(13)(l)(a).]
In the past, we have used two slightly different formulations to describe “personal nature.” The first definеs “personal” as “[o]f or pertaining to a particular person; private; one’s own .... Concerning a particular individual and his intimate affairs, interests, or activities; intimate . . . .”
In these cases, the requested records were provided, under seal, to this Court for our evaluation. With regard to Ms. Bradley, her file contained documents pertaining to corrective or disciplinary actions, complaints filed, and performance evaluations. As for the administrators, their requested records contained administrative performance reviews.
Because we conclude that the records are not of a “personal nature,” it is unnecessary for us to consider whether disclosure of the personnel files is a “clearly unwarranted invasion of privacy.”
b. SUBSECTION 13(l)(n)
The plaintiffs also contend that the requested information is exempt from disclosure under the foia because of subsection 13(l)(n), which exempts
[communications and notes within a public body or between public bodies of an advisory nature to the extent that they cover other than purely factual materials and are preliminary to a final agency determination of policy or action. This exemption does not apply unless the public body shows that in the particular instance the public interest in encouraging frank communications between officials*296 and employees of public bodies clearly outweighs the public interest in disclosure.
This exemption does not apply to the plaintiffs personnel records for at least two reasons. First, the complaints from parents are not “communications and notes within a public body or between public bodies”
Second, the apрellants lack standing to assert this exemption. Subsection 13(l)(n) requires the public body that possesses the records to show that the public interest in disclosure is outweighed by the public interest in encouraging frank communications between officials and the employees of public bodies. Consequently, the proper party to raise this exemption is the school district, not the appellants. This conclusion is consistent with our Court of Appeals interpretation of this exemption.
For the reasons stated above, we hold that the plaintiffs’ personnel records are not exempt from the FOIA. under subsection 13(l)(n).
c. SUBSECTION 13(1) (m)
Lasa argues that subsection 13(l)(m) exempts its personnel records. The following information is exempt under subsection 13(l)(m):
*297 Medical, counseling, or psychological facts or evaluations concerning an individual if the individual’s identity would be revealed by a disclosure of those facts or evaluation[25 ]
The plaintiffs assert that their performance evaluations are “counseling evaluations” for purposes of this exemption. Neither this Court nor the Court of Appeals has addressed whether employment-related personnel evaluations are counseling evaluations. However, the Attorney General has addressed this issue, concluding that
the context within which the word “counseling” appears indicates the Legislature’s intent that this apply only where there is a professional relationship between counselor and counselee, not where there is an employment relationship[26 ]
We agree with the Attorney General’s analysis that the Legislature’s use of the term “counseling” does not appear to include an employment relationship. Further, we acknowledge that the apparent purpose of this exemption is to prevent the disclosure of a person’s identity through the release of medical, counseling, or psychological records. The exemption’s concern is not with the release of the underlying information, only with the release of the patient’s identity. In particular, we note that the exemption prevents the disclosure of certain records only if disclosure would reveal the patient’s identity. If the patient’s identity were already public information, the exemption would appear inapplicable. In the present case, the parties seeking the plaintiffs’ records requested them
d. LEGISLATIVE INTENT
Our conclusion that the plaintiffs’ personnel records are not exempt under the foia is bolstered by the absence of any indications that the Legislature intended a different result. As the Court of Appeals noted below, the Legislature specifically exempted the personnel records of law enforcement agencies from disclosure.
This Court has recognized that the Michigan FOIA is patterned after the federal foia.
The plaintiffs assert that the integrity of the evaluation process will be compromised by the disclosure of their personnel records. They suggest that the evaluators will be less inclined to candidly evaluate their employees if the evaluations are to be made public. We draw the opposite conclusion. Making such documents publicly available seems more likely to foster candid, accurate, and conscientious evaluations than suppressing them because the person performing the evaluations will be aware that the documents being prepared may be disclosed to the public, thus subjecting the evaluator, as well as the employee
An argument similar to the plaintiffs’ argument was rejected by the United States Supreme Court in Univ of Pennsylvania v EEOC.
Although it is possible that some evaluators may become less candid as the possibility of disclosure increases, others may simply ground their evaluations in specific examples and illustrations in order to deflect potential claims of bias or unfairness. Not all academics will hesitate to stand up and be counted when they evaluate their peers.[33 ]
Like the United States Supreme Court, we are not ready to assume the worst about those in the public schools who are in a position to evaluate others.
We conclude that the rеquested information does not fit within any of the exemptions of § 13 of the foia. Because none of the exemptions apply, the requested information must be disclosed.
4. COMMON-LAW PRIVACY
Relying on our statement in Tobin, supra, that any right to prohibit disclosure must have a basis inde
Although the Legislature has provided scant guidance on the concept of privacy,
Thus, in a reverse foia action, a determination whethеr the foia requires disclosure of the requested documents should be the first step in an action challenging an foia request. A finding that the documents are public records under the FOIA, and no exemptions
Principles of common-law privacy do come into play when the court is determining whether information of a рersonal nature constitutes a “clearly unwarranted invasion of an individual’s privacy.”
5. CONSTITUTIONAL LAW
The Court of Appeals, sua sponte, ruled that the federal right of privacy did not prevent the disclosure of the requested records. This argument was not raised by any party at any stage of the litigation. While we believe that the Court of Appeals determination was correct,
6. THE COLLECTIVE BARGAINING AGREEMENT
Separately, lasa contends that the foia permits public bodies to exempt the deliberative process of their subordinates from public scrutiny. Both parties agreed in their collective bargaining agreement that the evaluation of school administrators would be conducted according to the appellee school district’s Administrative Performance Review Handbook. The handbook’s evaluation form declares that “[t]his evaluation document will be reviewed only by appropriate administrative personnel of the Lansing School District.”
We agree with the Court of Appeals that the defendant school district cannot “eliminate its statutory obligations to the public merely by contracting to do so with plaintiff LASA.”
7. REDACTIONS
Finally, we turn to whether redaction is appropriate, and, if so, what may be redacted. The parties have asked for guidance in the matter of redactions, and we are sympathetic to their concerns.
In the present case, defendant Saranac Schools provided the circuit court with original and redacted versions of Ms. Bradley’s records. As mentioned above, copies were provided to this Court. The proposed redactions were extensive, to say the least. Here is an excerpt from a memo from the principal to the plaintiff requesting that she take corrective action.
You must [blank]. There are [blank] and [blank] all [blank] on [blank] and [blank]. You were given several [blank] by other teachers plus the [blank] you already have. You have plenty of [blank] to [blank] these [blank] in. Take care of this situation. [Memo of February 23, 1993, to Christine Bradley from David Benjamin.]
Redactions such as those made in this case are entirely at cross purposes with the foia, whiсh entitles all persons to “full and complete information regarding the affairs of government and the official acts of those who represent them as public officials and public employees,”
8. CONCLUSION
We conclude that the Freedom of Information Act compels the disclosure of the appellants’ personnel records. Because the requested information consisted of information related to the appellants’ public employment, we hold that the appellants’ personnel records are not within the privacy exemption of subsection 13(1)(a). The records are not exempt under subsection 13(l)(n) because the appellants do not have standing to raise the exemption.
We affirm the decision of the Court of Appeals that the plaintiffs’ records must be disclosed, but reject its analysis. We remand this cаse to the trial court with orders to release the records in an unedited format, subject to the redactions discussed above.
Notes
Id. at 86.
Id. at 93.
Booth Newspapers, Inc v Univ of Michigan Bd of Regents,
MCL 15.231(2); MSA 4.1801(1)(2).
With the exception of its ruling regarding the redactions, discussed below.
In a reverse FOIA action, the plaintiffs seek to enjoin rather than compel disclosure of public records. Tobin, n 2 supra at 670-671.
Tobin, n 2 supm at 669 (holding that “[ajny asserted right by third parties to prohibit disclosure must have a basis independent of the FOIA”).
Id.
MCL 15.233; MSA 4.1801(3).
“Public body” means: “A . . . school district . . . .” MCL 15.232(b)(iii); MSA 4.1801(2)(b)(iii).
“Public record” means a writing prepared, owned, used, in the possession of, or retained by a public body in the performance of an official function, from the time it is created. This act separates public records into 2 classes: (i) those which are еxempt from disclosure under section 13, and (ii) all others, which are subject to disclosure under this act. [MCL 15.232(c); MSA 4.1801(2)(c).]
Swickard v Wayne Co Medical Examiner,
Booth, n 5 supra at 232.
Tobin, n 2 supra at 667.
Cardinal Mooney High School v Michigan High School Athletic Ass’n,
Booth, n 5 supra at 232.
Swickard, n 14 supra at 547, quoting The American Heritage Dictionary of the English Language: Second College Ed.
Kestenbaum v Michigan State Univ,
Swickard, n 14 supra at 547.
See Booth, n 5 supra at 232.
Emphasis added.
In re Subpoena Duces Tecum to the Wayne Co Prosecutor (On Remand),
MCL 15.243(l)(m); MSA 4.1801(13)(l)(m).
OAG, 1979-1980, No 5,500, pp 255, 273 (July 23, 1979).
MCL 15.243(l)(tXix); MSA 4.1801(13)(l)(t)(ix):
A public body may exempt from disclosure as a public record under this act:
* ** *
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:
* * *
Disclose personnel records of law enforcement agencies. [Emphasis added.]
Stowers v Wolodzko,
Smith v Employment Security Comm,
Tobin, n 2 supra at 671.
5 USC 552(b)(6) exempts “personnel and medical files and similar files the disclosure of which would constitute a clearly unwarranted invasion of personal privacy
Id. at 200-201.
Id.
MCL 15.232(c); MSA 14.1801(2)(c); Swickard, n 14 supra at 544.
Tobin, n 2 supra at 668-669.
Albro v Allen,
Swickard, n 14 supra at 556.
MCL 15.243(l)(a); MSA 4.1801(13)(l)(a).
MCL 15.232(c); MSA 4.1801(2)(c).
MCL 15.243(l)(a); MSA 4.1801(13)(l)(a); Swickard, n 14 supra at 546-547; State Employees Ass’n v Dep’t of Management & Budget,
See Booth, n 5 supra at 234 (holding that subsection 13[l][a] does not apply if the information is not of a personal nature).
See Tobin, n 2 supra at 677-678.
Lansing Bd of Ed, n 1 supra at 93, citing Citizens Ins Co of America v Federated Mut Ins Co,
MCL 15.232(c); MSA 4.1801(2)(c).
See Tobin, n 2 supra.
MCL 15.231(2); MSA 4.1801(1)(2) (emphasis added).
Id.
Booth Newspapers, Inc v Kalamazoo School Dist,
Concurrence Opinion
(concurring in part and dissenting in part). The question presented is whether the performance evaluations, disciplinary records, and complaints filed against public school teachers and administrators are exempt from disclosure under the Freedom of Information Act. I concur in the majority’s conclusion that the performance evaluations, disciplinary actions, and complaints in issue are subject to mandatory disclosure under the foia. I disagree, however, with the majority’s conclusion that the requested documents are not personal in nature. In my judgment, performance evaluations, disciplinary actions, and complaints are “[i]nformation of a personal nature.” MCL 15.243(l)(a); MSA 4.1801(13)(l)(a). Inasmuch as I believe disclosure of the records in this case would not constitute a clearly unwarranted invasion of privacy, I agree that the requested records are not exempt from disclosure under the personal privacy exemption of subsection 13(l)(a). I also agree that the documents are not exempt under subsections 13(l)(m) or (n) of the foia. I write separately only to express my disagreement with the majority’s analysis under subsection 13(l)(a).
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The first step in analyzing the applicability of the subsection 13(l)(a) privacy exemption is to determine if the requested documents are “[i]nformation of a personal nature.” Information is of a “personal nature” if it is “personal, intimate, or embarrassing.”
Without question, performance evaluations, disciplinary actions, and complaints about public employees are personal in nature. To say they are not would be to ignore the “customs, mores, or ordinaiy views of the community . . . .” Swickard, supra at 547; Booth Newspapers, Inc v Univ of Michigan Bd of Regents,
The personal nature of performance evaluations has been well described. In Brown v Seattle Public
The sensitivity of any human being to disclosure of information that may be taken to bear on his or her basic competence is sufficiently well known to be an appropriate subject of judicial notice. . . . This sensitivity goes beyond mere embarrassment, which alone is insufficient grounds for nondisclosure .... Employee evaluations qualify as personal information that bears on the competence of the subject employees[5 ]
In Federal Labor Relations Authority v United States Dep’t of Commerce, 295 US App DC 263, 268; 962 F2d 1055 (1992), mandatory personnel evaluations were described as “intensely personal” documents. Likewise, in Connolly v Bromery, 15 Mass App 661, 664;
[T]he evaluation report is very personal and directly affects the employee. To publish or disclose such personal opinions may embarrass or humiliate the employee among his fellow employees, friends or family. It may affect his future employment. Humiliation or embarrassment could flow even though the rating would be “outstanding” as this rating may create envy or jealousy in other employees[6 ]
m
Having concluded that the requested information is personal, the next step is to determine whether disclosure of the material would constitute a clearly unwarranted invasion of the plaintiffs’ privacy. Some invasion of privacy will inevitably occur upon disclosure of personal information. Only when that invasion rises to the level of being clearly unwarranted does the privacy exemption apply.
After reviewing redacted and unredacted versions of the requested records, I am persuaded that disclo
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Although I concur in the majority’s result, I believe the majority’s reliance on Univ of Pennsylvania v EEOC,
In Univ of Pennsylvania v EEOC, the commission exercised its subpoеna powers under title VII of the Civil Rights Act of 1964 to gain access to information including confidential letters, written letters of evaluation, and documents reflecting internal deliberations relating to teacher tenure proceedings at the University of Pennsylvania. Access was necessary to enable the commission to investigate allegations of racial or sexual discrimination in the university’s tenure process. Without access to these documents the EEOC would be unable to determine whether the allegations had merit. Id. at 186. By failing to comply with the commission’s request, the university essentially thwarted the EEOC’s investigation.
As part of its argument, the University of Pennsylvania claimed that “[a]s more and more peer evaluations are disclosed to the eeoc and bеcome public, a ‘chilling effect’ on candid evaluations and discussions of candidates will result.” Id. at 197. Before concluding that disclosure would not have a chilling effect on candid evaluations, the Supreme Court noted that it is unlawful under title VII for “any officer or employee of the Commission to make public in any manner whatever any information obtained by the Commission pursuant to its authority under [§ 2000e-8]” of the act. Id. at 192. Violations of § 2000e-8 carry with it criminal penalties. Id. In other words, pursuant to title VII, disclosure to the EEOC does not equal disclosure to the general public, and serious sanctions await any EEOC officer or employee who publicly discloses accessed information. In this context the Supreme Court declined to recognize a special privi
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For the reasons stated above, I hold that plaintiffs’ performance evaluations, disciplinary actions, and complaints are not exempt from disclosure under subsection 13(l)(a) of the foia. Accordingly, I concur with the majority to remand this case to the trial cоurt with orders to release the records, subject to the redactions discussed by the majority.
Kestenbaum v Michigan State Univ,
Swickard v Wayne Co Medical Examiner,
Ante, p 294.
In Swickard, the word “private” was used to help define the meaning of “personal.” In that definition, “private” was used in the same manner as the word “intimate.” It does not follow that the word “private” in the Swickard definition requires that information relate to an individual's pri
Id. at 617-618, citing Detroit Edison Co v NLRB,
For additional cases that recognize the personal nature of performance evaluations, see Dawson v Daly, 120 Wash 2d 782, 797;
Ante, p 295.