In this аction involving the Freedom of Information Act (FOIA), MCL 15.231 et seq.; MSA 4.1801(1) et seq., plaintiff The Herald Company, Inc., sought disclosure of records pertaining to intervenor Ernest Gillum and maintained by defendant Ann Arbor Public Schools. The trial court ordered disclosure of some records, but prevented disclosure of other records. Gillum аppeals as of right and plaintiff cross appeals as of right from this order. We reverse in part and remand for further proceedings.
According to defendant, plaintiffs interest in information about Gillum came after Gillum pleaded guilty of carrying a concealed weapon. Plaintiff madе an FOIA request to defendant on February 5, 1995, seeking disclosure of various records involving Gillum. Around the same time, Gillum offered to resign his teaching position if permitted to take sick leave until November 10, 1995, an offer that defendant accepted. Defendant granted certain portions of plaintiff’s request, but refused to disclose Gillum’s performance evaluations, Gillum’s disciplinary records, Gillum’s attendance records, certain complaint letters about Gillum, a tape-recorded interview of Gillum, and an unredacted memorandum dated January 18, 1995, that was written by Jane Johnson, a school administrаtor.
On April 5, 1995, plaintiff filed this complaint regarding each part of its FOIA request that was denied and moved to compel production. Following an in camera review, the circuit court ordered disclosure of the performance evaluations and disciplinary records, without identificatiоn of the evaluators. However, the court ordered that the other records remain undisclosed.
i
Gillum argues on appeal that his performance evaluations and disciplinary records fell
After the circuit court ruled against Gillum with regard to these records, it denied Gillum’s request for a stay of disclosure pending appeal. Although this Court initially granted a stay, it later granted plaintiff’s motion to lift the stay. When the disclosure that a suit seeks has already been made, the substance of
the controversy disappears and becomes moot.
Densmore v Dep’t of Corrections,
n
On cross appeal, plaintiff argues that the circuit court erred in exempting the unredacted
We review de novo the trial court’s rulings regarding questions of law in declaratory judgment actions.
Lansing Ass’n of School Administrators v Lansing School Dist Bd of Ed,
The FOIA protects a citizen’s right to examine and to participate in the political process.
Booth Newspapers, Inc v Univ of Michigan Bd of Regents,
Here, the trial court stated that defendant was not required to disclose this memorandum because it was “one of unsubstantiated, unsolicited, and unverified remarks in the form of ‘observations.’ ” To the extent that this remark indicаtes that the trial court relied on § 13(1)(a) of the FOIA (the privacy exemption) in asserting that Jane Johnson’s memorandum was exempt from disclosure, the court abused its discretion. The privacy exemption allows a public body to conceal public records containing “[information of а personal nature where the public disclosure of the information would constitute a clearly unwarranted invasion of an individual’s privacy.” MCL 15.243(1)(a); MSA 4.1801(13)(1)(a); Booth, supra, p 232. The trial court’s reliance on the fact that the remarks in the memorandum were “unsubstantiated, unsolicited, and unverified remarks in the form of ‘observations’ ” applied an incorrect legal standard. Rather, two factors must exist to exempt information under this provision: (1) the information sought must be of a “personal nature,” and (2) the disclosure of such information must constitute a “clearly unwarranted” invasion of privacy. Booth, supra, p 232.
In determining whether the infоrmation withheld is of a “personal nature,” “ ‘the customs, mores, or ordinary views of the community’ ” must be taken into account.
Id.,
pp 232-233, quoting
Swickard v Wayne Co Medical Examiner,
We disagree with the circuit court to the extent that it held that the disclosure of this information would constitute a “clearly unwarranted” invasion of privacy. As in
Swickard, supra,
p 549, the common-law privacy right that would be threatened by disclosure is the public disclosure of embarrassing private facts. This tort requires that the disclosed information be highly offensive to a reasonable person and of no legitimate concern to the public.
Id.
Here, the memorandum discussed Gillum’s professional performance as a teacher and in the classroom, an issue of legitimate concern
Gillum argues that defendant was not required to disclose this memorandum under the “intra-agency”
exemption, MCL 15.243(1)(n); MSA 4.1801(13)(1)(n). This subsection exempts from disclosure “[c]ommunications 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.” Id.;
Milford v Gilb,
It is thе intent of the foia to deter efforts of agency officials to prevent disclosure of mistakes and irregularities committed by them or the agency and to prevent needless denials of information.
Schinzel v Wilkerson,
in
Plaintiff argues that the circuit court abused its discretion in ruling that Gillum’s attendance records were subject to the “physician-patient privilege” and the “medical, counseling, and psychological facts” exemptions. We agree in part.
As an initial matter, we note that, although a trial court may justify an exemption with respect tо a class of documents, any category must be clearly described and drawn with sufficient precision so that all documents within a particular category are similar in nature.
Newark Morning Ledger Co v Saginaw Co Sheriff,
A
The FOIA exempts “[i]nformation or records subject to the physician-patient privilege . . . .” MCL 15.243(1)(i); MSA 4.1801(13)(1)(i). The physician-patient privilege provides, in part:
Except as otherwise provided by law, a person duly authorized to practice medicine or surgery shall not disclose any information that the person has aсquired in attending a patient in a professional character, if the information was necessary to enable the person to prescribe for the patientas a physician, or to do any act for the patient as a surgeon. [MCL 600.2157; MSA 27A.2157.]
The purpose of the privilege is to protеct the doctor-patient relationship and ensure that communications between the two are confidential.
Swickard, supra,
pp 560-561. The privilege was not recognized at common law, and therefore, the statute controls the scope of the privilege in Michigan.
Scott v Henry Ford Hosp,
Here, the records that defendant created about Gillum’s attendance do not contain any information that a physician acquired while attending Gillum in a professional character. See, generally, MCL 600.2157; MSA 27A.2157. Accordingly, the trial court abused its discretion in applying the physician-patient privilege to these documents.
On the other hand, it is clear that some of the records that Gillum submitted to defendant are medical records that would ordinarily fall within the ambit of the privilege. See
Popp v Crittenton Hosp,
B
The FOIA also exempts “[m]edicai, counseling, or psyсhological facts or evaluations concerning an individual if the individual's identity would be revealed by a disclosure of those facts or evaluation.” MCL 15.243(1)(m); MSA 4.1801(13)(1)(m). With regard to the records that defendant itself created, the only aspect of these records that would possibly fall within this exemption arе notations next to some entries that read “FAMILL” or “PERSILL.” Plaintiff has indicated that it would accept “shell” attendance records without these notations. The trial court abused its discretion in not ordering disclosure of
such redacted records. See
Hubka, supra,
On the other hand, some of the attendancе records that Gillum submitted to defendant contain medical and psychological facts about Gillum. Accordingly, we remand for more particularized findings regarding which of Gillum’s attendance records are disclosable under this exemption and which are not.
Newark Morning Ledger, supra,
pp 225-226;
Hubka, supra,
c
Gillum argues that his attendance recоrds fall under the “privacy” exemption. However, because the circuit court did not address this issue, it is not preserved for appellate review.
People v Connor,
rv
Plaintiff argues that the circuit court abused its discretion in not ordering disclosure of complaint letters of parents. In its decision, the circuit court simply cited a case
v
Plaintiff argues that the circuit court abused its discretion in not ordering disclosure of the tape recording of an interview between the school district, Gillum, and the school district’s attorney. We agree that this recording did not fall within the attorney-client privilege exemption.
The foia excludes from disclosure “[information or records subject to the attorney-client privilege.” MCL 15.243(1)(h); MSA 4.1801(13)(1)(h). The attorney-client privilege attaches to communications made by a client to an attorney acting as a legal adviser and made for the purpose of obtaining legal advice.
Taylor v Blue Cross & Blue Shield of Michigan,
Here, the interview was adversarial. Its stated purpose was to get Gillum’s version оf events, not to address how the school was going to defend itself against a potential lawsuit. Accordingly, the attorney-client privilege did not apply. Id. We reverse the trial court’s determination that the tape of this interview fell within the attorney-client privilege exemption and remand for the trial court to determine whether the tape fell within the “intra-agency” or “privacy” exemptions.
Reversed in part and remanded for proceedings consistent with this opinion. We do not retain jurisdiction. No taxable costs are awarded pursuant to MCR 7.219, because no party prevailed in full.