In these consolidated cases, plaintiff Lansing Association of School Administrators and plaintiff Christine E. Bradley appeal as of right from two separate circuit court orders requiring defendants to disclose, pursuant to the Freedom of Information Act (foia), MCL 15.231 et seq.-, MSA 4.1801(1) et seq., portions of administrator and teacher personnel files, including performance evaluations, disciplinary records, and parent complaints. Because no common-law or constitutional right protects these documents from disclosure or provides a right to privacy or confidentiality regarding performance evaluations of public employees, we affirm.
*83 In Docket No. 163316, plaintiff Lansing Association of School Administrators (lasa), on behalf of its members, filed suit against defendant Lansing school board and other defendants to bar the school board from producing copies of performance evaluation documents for nine member principals and vice-principals pursuant to an FOIA request filed by the Parent Support Network. In its complaint, plaintiff lasa asserted that the requested documents were exempt from disclosure under the FOIA, pursuant to MCL 15.243(l)(a) and (n); MSA 4.1801(13)(l)(a) and (n), 1 and that administrative review procedures specifically protected against the circulation of evaluation documents to anyone except appropriate administrative personnel in the school district. Relying on OAG, 1990, No 6668, p 409 (November 28, 1990), the trial court held that a personnel evaluation conducted by a public body is not exempt from disclosure under the foia and that any provision within the parties’ collective bargaining agreement requiring the school district to exempt this information from disclosure was void as against public policy. The trial court and this Court *84 stayed further proceedings to enforce the court’s disclosure order, however, pending this appeal.
In Docket No. 168371, plaintiff Bradley filed her complaint against defendants Saranac Community Schools Board of Education and Saranac Community School District after Robert Karp, Jr., the father of one of Bradley’s pupils, presented defendants with an FOIA request for (1) progressive or disciplinary actions against plaintiff during the past six years, (2) written complaints against plaintiff for the past six years, (3) classroom assignment transfers, (4) teacher evaluations or service ratings for the past six years, and (5) liability insurance policies covering plaintiff. Defendants provided Kaip with the transfer and insurance information before the initiation of plaintiff’s lawsuit, which requested a declaratory judgment that the personnel evaluations, disciplinary memoranda, and written complaints were exempt from disclosure under the FOIA. 2 After reviewing copies of the requested documents in their original and redacted forms, the trial court denied plaintiff’s requested relief and ordered that Karp receive redacted copies of the documents. This order was also stayed pending appeal.
On appeal, plaintiffs assert that the personnel records at issue in these cases are exempt from disclosure under § 13(l)(a) or (n) of the foia, MCL 15.243(l)(a), (n); MSA 4.1801(13)(l)(a), (n). We review de novo the trial court’s rulings on questions of law in declaratory judgment actions. See
Feaster v Portage Public Schools,
The FOIA protects citizens’ rights to examine information regarding the formal acts of public officials and employees and to participate in the political process.
Booth Newspapers, Inc v Univ of Michigan Bd of Regents,
The foia requires disclosure of all public records and only authorizes nondisclosure, at the agency’s discretion, ■under certain enumerated exceptions. [MCL 15.243(1); MSA 4.1801 (13)(1).] Thus, the foia did not create any right to prevent disclosure, and ”[a]ny asserted right by third parties to prohibit disclosure must have a basis independent of the foia." Tobin, [supra at 668-669]. “In effect, a reverse foia suit to prevent disclosure of information within an foia *86 exemption must be evaluated as if the foia did not exist.”416 Mich 670 . [.Health Central, supra at 341 (emphasis added).]
Because the foia does not provide the relief that plaintiffs seek here and we must evaluate plaintiffs’ privacy claims “as if the foia did not exist,” Tobin, supra, we will not apply the public policies underlying the foia 3 or engage in any of the balancing tests weighing the right to privacy against the public’s right to full and complete information regarding the affairs of government. 4 Also, because the foia exemptions are inapplicable to this analysis, we believe that both the federal foia 5 and the opinion of the state attorney general addressing the exemptions to disclosure contained in § 13(1) 6 are irrelevant and provide no guidance in resolving this issue on appeal. Instead, pursuant to our Supreme Court’s instructions in Tobin, supra at 670-673, we must determine whether other substantive limitations to disclosure exist with respect to the requested information.
The Legislature has not defined the right to privacy, so we are left to apply the principles of privacy developed under our common law and our constitution.
State Employees Ass’n v Dep’t of Management & Budget,
“ ‘1. Intrusion upon the plaintiff’s seclusion or solitude, or into his private affairs.
“ ‘2. Public disclosure of embarrassing private facts about the plaintiff.
“ ‘3. Publicity which places the plaintiff in a false light in the public eye.
“ ‘4. Appropriation, for the defendant’s advantage, of the plaintiff’s name or likeness.’ Prosser, Privacy, 48 Cal L Rev 383, 389 (1960).” Beaumont v Brown,401 Mich 80 , 95, fn 10;257 NW2d 522 (1977); see also 3 Restatement Torts, 2d, § 652A, p 376. [Tobin, supra at 672.]
We find that none of the four types of invasion of privacy is implicated in this case.
The intrusion-into-seclusion theory of privacy requires the plaintiff to establish the following three elements: (1) the existence of a secret and private subject matter, (2) a right possessed by the plaintiff to keep that subject matter private; and (3) the obtaining of information about that subject matter by the defendant
through some method objectionable to the reasonable man. Tobin, supra
at 672, citing
Beaumont v Brown,
In the absence of any bright lines to guide litigants and courts who are struggling with the dilemma presented in this case, we feel compelled to propound at least one bright-line test for future plaintiffs filing reverse FOIA cases: because a written FOIA request does not, as a matter of law, constitute an objectionable method of obtaining allegedly private information from a public body, the reverse foia plaintiff has no claim under the common law for relief pursuant to the intrusion-into-seclusion branch of the invasion-of-privacy tort. Swickard, supra; Tobin, supra at 672-674.
*89
Under the second theory of privacy, public disclosure of embarrassing private facts, plaintiffs must show that the disclosed information is highly offensive to a reasonable person and of no legitimate concern to the public.
Swickard, supra; Fry v Ionia Sentinel-Standard,
On the face of plaintiffs’ complaints, we also find that neither false-light invasion of privacy nor misappropriation of a name or likeness provides plaintiffs with the common-law right to privacy that they need to preclude defendants from disclosing the requested personnel information in either of the consolidated cases before this Court. We find, therefore, that plaintiffs have no common-law right to privacy with respect to the personnel information that is the focus of Parent Support Network’s and Karp’s foia requests.
Moreover, while neither plaintiff has asserted a constitutional right to privacy, we will review this argument on appeal as an alternative rationale for relief. See
Goodridge v Ypsilanti Twp Bd,
While there is no “right of privacy” found in any specific guarantee of the Constitution, the Court has recognized that *91 “zones of privacy” may be created by more specific constitutional guarantees and thereby impose limits upon government power. See Roe v Wade,410 US 113 , 152-153 [93 S Ct 705 , 726;35 L Ed 2d 147 , 176-178] (1973). Respondent’s case, however, comes within none of these areas. . . . [0]ur other “right of privacy” cases, while defying categorical description, deal generally with substantive aspects of the Fourteenth Amendment. In Roe the Court pointed out that the personal rights found in this guarantee of personal privacy must be limited to those which are “fundamental” or “implicit in the concept of ordered liberty” as described in Palko v Connecticut,302 US 319 , 325 [58 S Ct 149 , 152;82 L Ed 288 , 292] (1937). The activities detailed as being within this definition were ones very different from that for which respondent claims constitutional protection — matters relating to marriage, procreation, contraception, family relationships, and child rearing and education. In these areas it has been held that there are limitations on the States’ power to substantively regulate conduct.
See also
Hobbins v Attorney General,
Against this backdrop, we submit that liberty and justice will not cease to exist if we fail to recognize plaintiffs’ right to privacy regarding school employ *92 ees’ personnel records. Id. at 207. We therefore find no infringement of any constitutional right to privacy.
Two other considerations also support our decision to affirm the decisions of the trial courts. First, the Legislature specifically exempted from disclosure the “personnel records of law enforcement agencies” in § 13(l)(t)(ix) of the foia, MCL 15.243(l)(t)(ix); MSA 4.1801(13)(l)(t)(ix). 9 From this, we surmise that the Legislature anticipated that personnel records of public employees would be the target of foia requests, but it saw fit to protect only those records concerning law enforcement officers, not teachers. Also, the Legislature chose not to adopt as the wording for § 13(l)(a) the more specific wording found in the federal FOIA exemption from disclosure for “personnel and medical files and similar files.” 5 USC 552(b)(6.) This further persuades us that it was not the Legislature’s intent to protect the personnel records of school administrators and teachers from FOIA requests. Finally, counsel for plaintiff Bradley admitted that the personnel records at issue would be discoverable in a civil case or teacher tenure proceeding, barring any applicable privilege. Plaintiffs have asserted no privilege, and we find none, that would prevent disclosure of these records pursuant to discovery procedures. Thus, with respect to this issue of first impression, we remain unpersuaded that the trial courts erred in ordering disclosure of the requested personnel records pursuant to the foia.
Plaintiff lasa also argues on appeal that the trial court erred in ruling that contractual provisions
*93
between the parties guaranteeing confidentiality in the performance evaluation process for school administrators are null and void. We disagree. The parties’ collective bargaining agreement provided for the evaluation of administrators’ performance, pursuant to defendant school district’s Administrative Performance Review Handbook. The review form provided that “[t]his evaluation document will be reviewed only by appropriate administrative personnel of the Lansing School District.” We find that defendant school district may not eliminate its statutory obligations to the public merely by contracting to do so with plaintiff lasa. See, e.g.,
Citizens Ins Co of America v Federated Mutual Ins Co,
Accordingly, plaintiffs have no substantive right independent of the foia to the nondisclosure of the requested information. Consequently, plaintiffs are not entitled to injunctive relief preventing such disclosure. Accord Tobin, supra at 674, 677-678. We find no abuse of discretion in the trial courts’ respective decisions ordering the release of the requested information, subject to the appropriate redactions approved by the courts.
Affirmed.
Notes
Sections 13 of the foia states in relevant part:
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.
(n) 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 and employees of public bodies clearly outweighs the public interest in disclosure. . . .
See n 1.
See
Swickard v Wayne Co Medical Examiner,
Swickard, supra
at 543-544;
State Employees Ass’n v Dep’t of Management & Budget,
5 USC 552(b) et seq.
See OAG, 1990, No 6668, p 409 (November 28, 1990); OAG, 1987-1988, No 6504, p 295 (March 4, 1988); OAG, 1979-1980, No 5500, p 255 (July 23, 1979).
In Tobin, supra, our Supreme Court held that in a reverse FOIA case, no common-law or constitutional right to privacy existed to prohibit the disclosure of a list of names and addresses for all classified civil service employees to various labor organizations who needed the information in order to solicit members during their organizational campaigns. Because it found no common law or constitutional right to privacy protecting this information, the Court held that the plaintiffs were not entitled to injunctive relief to prevent disclosure. Id. at 664, 672-678.
See also
Ridenour v City of Dearborn School Dist Bd of Ed,
From defendant’s viewpoint, disclosure of performance evaluations to the public is an intrusion of privacy which outweighs the *90 public’s right to know. Such a perspective overlooks the public interest in the area of government. People have a strong interest in public education. Because a large portion of the tax dollar goes for the support of the schools, the taxpayer is increasingly holding the boards and administrators accountable for these moneys. Further, the public continues to have an increasing interest in the educational process and expects this public body to be accountable for its actions.
These personnel records are exempt from disclosure under 13(l)(t)(ix) “[u]nless the public interest in disclosure outweighs the public interest in nondisclosure.”
“It is well established that the courts of this state will not enforce, either in law or in equity, a contract which violates a statute or which is contrary to public policy.” Shapiro, supra.