Bradley v. Saranac Community Schools Board of Education

565 N.W.2d 650, 455 Mich. 285

• Court: Michigan Supreme Court
• Decided: July 22, 1997
• Docket: Docket Nos. 106020, 106070, Calendar Nos. 11, 12
• Status: Published

Opinions

Brickley, J.

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 foia. The decision of the Court of Appeals is affirmed in part and reversed in part.

i

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. Bradley 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 an 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 documerits were exempt from disclosure under subsections 13(l)(a) and (n) of the Freedom of Information Act, and because of certain administrative protections. The circuit court ruled in favor of the school district.

The plaintiffs in both cases appealed, and the Court of Appeals consolidated the cases. In a per curiam opinion, the Court of Appeals affirmed the decisions of the circuit courts.¹ Relying on Tobin v Civil Service Comm, 2 the Court of Appeals concluded that the appellants were raising a “reverse FOIA” claim, i.e., seeking to prevent disclosure of public records under the FOIA. Reasoning that the FOIA, as a pro-disclosure statute, could not provide the plaintiffs with their desired relief, the Court of Appeals evaluated the plaintiffs’ claims “ ‘as if the FOIA did not exist’ . . . .”³ Bypassing the FOIA, the Court of Appeals examined the common law and the constitutional right to privacy for a reason to prevent disclosure, and, finding none, ordered that the documents be disclosed, subject to “appropriate redactions.”⁴

n

THE FREEDOM OF INFORMATION ACT

The issue presented by this consolidated case is whether the Michigan FOIA compels disclosure of the personnel records of public school teachers and administrators.

The foia “protects a citizen’s right to examine and to participate in the political process.”⁵ By requiring the public disclosure of information regarding the affairs of government and the official acts of public officials and employees, the act enhances the public’s understanding of the operations or activities of the government.⁶

i. reverse foia

While we agree with the conclusion⁷ of the Court of Appeals, we arrive at that destination by a different route. The Court of Appeals did not evaluate this case under the FOIA because it concluded that this action was a “reverse foia” action.⁸ While that description may be apt, it does not automatically lead to the conclusion that the foia is irrelevant. As the plaintiffs’ cases demonstrate, an action challenging an FOIA request may turn on an interpretation of whether the FOIA requires disclosure, notwithstanding that the FOIA does not prevent disclosure.⁹

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 her personnel file was exempt, she may have been able to persuade the school district not to release the information.

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,¹⁰ the Court of Appeals erred in not analyzing this case 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.”¹¹ Plaintiffs do not dispute that their school districts are “public bodfies],”¹² or that the contents of their personnel records are “[p]ublic records.”¹³

The foia requires the full disclosure of public records, unless those records are exempted under § 13.¹⁴ The exemptions in § 13 are narrowly construed, and the burden of proof rests on the party asserting the exemption.¹⁵ If a request for information held by a public body falls within an exemption, the decision becomes discretionary.¹⁶

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. Because this issue raises a question of law, we review the Court of Appeals ruling de novo.¹⁷

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).]

The privacy exemption consists of two elements, both of which must be present for the exemption to apply. First, the information must be of a “personal nature.” Second, the disclosure of such information must be a “clearly unwarranted invasion of privacy.”¹⁸

In the past, we have used two slightly different formulations to describe “personal nature.” The first defines “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 . . . .”¹⁹ We have also defined this threshold inquiry in terms of whether the requested information was “personal, intimate, or embarrassing.”²⁰ Combining the salient elements of each description into a more succinct test, we conclude that information is of a personal nature if it reveals intimate or embarrassing details of an individual's private life. We evaluate this standard in terms of “the ‘customs, mores, or ordinary views of the community’ . . . .”²¹

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.

Significantly, none of the documents contain information of an embarrassing, intimate, private, or confidential nature, such as medical records or information relating to the plaintiffs’ private lives. Moreover, the appellants have not alleged specific private matters that would be revealed by the disclosure of their personnel records. Instead, the requested information consists solely of performance appraisals, disciplinary actions, and complaints relating to the plaintiffs’ accomplishments in their public jobs. Because the requested information does not disclose intimate or embarrassing details of the plaintiffs’ private lives, we hold that the requested records do not satisfy the personal-nature element of the privacy exemption.

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.”²² We hold that the foia’s privacy exemption does not apply under these facts.

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 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”²³ because the documents were created by parents, not by the school district.

Second, the appellants 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.²⁴

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):

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 by name, and not by job title. Thus, this exemption would not apply even if the plaintiffs’ records were “counseling evaluations” because the plaintiffs’ identities were already known. We conclude that subsection 13(l)(m) does not exempt the plaintiffs’ employment records.

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.²⁷ This Court recognizes the maxim expressio unius est exclusio alterius; that the express mention in a statute of one thing implies the exclusion of other similar things.²⁸ Because the Legislature realized that the FOIA could require the disclosure of the personnel records of law enforcement personnel, the conclusion that the Legislature rejected the opportunity to extend this exemption to other public employees is inescapable. Additionally, accepting the appellants’ interpretation of the foia would render the law enforcement exemption redundant, thus violating another rule of statutory construction: namely, that no part of a statute should be treated as mere surplusage or rendered nugatory.²⁹

This Court has recognized that the Michigan FOIA is patterned after the federal foia.³⁰ Unlike the Michigan foia, the federal foia has a specific exemption for personnel records.³¹ Because the Legislature modeled its foia on the federal version, we must conclude that by not adopting the specific language of the federal privacy exemption the Legislature intended that the personnel records of non-law enforcement public employees be available to the public.

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 being evaluated, to public scrutiny. The knowledge that their efforts may be brought before the public at some distant date may encourage those who evaluate their peers to accurately reflect the achievements, or lack thereof, of those being evaluated.

An argument similar to the plaintiffs’ argument was rejected by the United States Supreme Court in Univ of Pennsylvania v EEOC.32 In that case, the Court concluded that the release of written evaluations of college professors, which had been prepared to assist in tenure decisions, would not create a “chilling effect” on candid evaluations.

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.³⁴

We conclude that the requested 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.³⁵

4. COMMON-LAW PRIVACY

Relying on our statement in Tobin, supra, that any right to prohibit disclosure must have a basis independent of the foia,³⁶ the Court of Appeals presumed that a common-law invasion of privacy would prevent the disclosure of documents requested under the foia. This presumption was erroneous because an applicable statute always surmounts a conflicting common-law rule.³⁷

Although the Legislature has provided scant guidance on the concept of privacy,³⁸ it has specified that only clearly unwarranted invasions of privacy would be exempted.³⁹ By using a higher standard, the Legislature permits disclosures of public records that are invasions of privacy, as long as that invasion of privacy is not clearly unwarranted. Therefore, an invasion of privacy that is less than clearly unwarranted cannot stand as an obstacle to disclosure. This fact underscores the logic of analyzing a reverse foia claim under the foia. If a court determines that the privacy exemption does not apply, no further analysis under invasion of privacy is necessary. After all, if an invasion of privacy does not satisfy the heightened clearly unwarranted standard under the privacy exemption, a lesser finding of invasion of privacy cannot serve as a basis to preclude disclosure because the foia, as a statute, governs regardless of whether there may have been a claim under common law.

Thus, in a reverse foia action, a determination whether 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 apply, requires that the documents be disclosed.⁴⁰ Additionally, a finding that the privacy exemption does not apply obviates the need for an analysis under the common law, because, irrespective of whether there was a common-law claim, the foia governs the resolution of the case. Therefore, Beaumont v Brown,⁴¹ which plaintiffs argue prevents the release of the requested documents under the common-law right of privacy, is overruled to the extent that it conflicts with the foia.

Principles of common-law privacy do come into play when the court is determining whether information of a personal nature constitutes a “clearly unwarranted invasion of an individual’s privacy.”⁴² Because we have already concluded that the requested information does not satisfy the “personal nature” element of the foia, we do not need to address whether the request of that information is a “clearly unwarranted invasion of an individual’s privacy.”⁴³

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,⁴⁴ we decline to fully address this argument without the benefit of briefing and oral argument from the parties.

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.”⁴⁵ The FOIA requires disclosure of all public records not within an exemption.⁴⁶ No exemption provides for a public body to bargain away the requirements of the foia.

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.

Redaction is appropriate whenever disclosure is discretionary.⁴⁷ This means that a public body is permitted to redact any information that falls within an exemption of the foia. For example, if details in the plaintiffs’ files had revealed “intimate or embarrassing details of the plaintiff’s private lives,” such as information relating to a medical condition, redaction would be appropriate.

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, which 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,”⁴⁸ consistent with the act. Once a document has been redacted to the extent that the example above was, its informative value is nil. One purpose of the foia is to allow citizens to obtain information about their government so that they may more fully participate in the democratic process.⁴⁹ This objective is hindered when a citizen requests information, only to be provided with an edited version that gives no indication of the true content of the document. While we have no doubt that the school district edited these documents with the best of intentions, this result is unacceptable. With regard to these documents, the only information that should have been blocked out was the names of the individual students and other persons not employed by the public body.⁵⁰

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 case to the trial court with orders to release the records in an unedited format, subject to the redactions discussed above.

Mallett, C.J., and Riley, and Weaver, JJ., concurred with Brickley, J.

1 216 Mich App 79; 549 NW2d 15 (1996).

2 416 Mich 661; 331 NW2d 184 (1983).

3 Id. at 86.

4 Id. at 93.

5 Booth Newspapers, Inc v Univ of Michigan Bd of Regents, 444 Mich 211, 231; 507 NW2d 422 (1993).

6 MCL 15.231(2); MSA 4.1801(1)(2).

7 With the exception of its ruling regarding the redactions, discussed below.

8 In a reverse FOIA action, the plaintiffs seek to enjoin rather than compel disclosure of public records. Tobin, n 2 supra at 670-671.

9 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”).

10 Id.

11 MCL 15.233; MSA 4.1801(3).

12 “Public body” means: “A . . . school district . . . .” MCL 15.232(b)(iii); MSA 4.1801(2)(b)(iii).

13 “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 exempt 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).]

14 Swickard v Wayne Co Medical Examiner, 438 Mich 536, 544; 475 NW2d 304 (1991).

15 Booth, n 5 supra at 232.

16 Tobin, n 2 supra at 667.

17 Cardinal Mooney High School v Michigan High School Athletic Ass’n, 437 Mich 75, 80; 467 NW2d 21 (1991).

¹⁸

19 Swickard, n 14 supra at 547, quoting The American Heritage Dictionary of the English Language: Second College Ed.

20 Kestenbaum v Michigan State Univ, 414 Mich 510, 549; 327 NW2d 783 (1982).

21 Swickard, n 14 supra at 547.

22 See Booth, n 5 supra at 232.

23 Emphasis added.

24 In re Subpoena Duces Tecum to the Wayne Co Prosecutor (On Remand), 205 Mich App 700, 706; 518 NW2d 522 (1994); Michigan Professional Employees Society v Dep’t of Natural Resources, 192 Mich App 483, 494; 482 NW2d 460 (1992).

25 MCL 15.243(l)(m); MSA 4.1801(13)(l)(m).

26 OAG, 1979-1980, No 5,500, pp 255, 273 (July 23, 1979).

27 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.]

28 Stowers v Wolodzko, 386 Mich 119; 191 NW2d 355 (1971).

29 Smith v Employment Security Comm, 410 Mich 231; 301 NW2d 285 (1981).

30 Tobin, n 2 supra at 671.

31 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

32 493 US 182; 110 S Ct 577; 107 L Ed 2d 571 (1990).

33 Id. at 200-201.

³⁴

35 MCL 15.232(c); MSA 14.1801(2)(c); Swickard, n 14 supra at 544.

36 Tobin, n 2 supra at 668-669.

37 Albro v Allen, 434 Mich 271, 286; 454 NW2d 85 (1990).

38 Swickard, n 14 supra at 556.

39 MCL 15.243(l)(a); MSA 4.1801(13)(l)(a).

40 MCL 15.232(c); MSA 4.1801(2)(c).

41 401 Mich 80, 95; 257 NW2d 522 (1977).

42 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, 428 Mich 104, 123; 404 NW2d 606 (1987); Kestenbaum, n 20 supra at 528, n 7.

43 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).

44 See Tobin, n 2 supra at 677-678.

45 Lansing Bd of Ed, n 1 supra at 93, citing Citizens Ins Co of America v Federated Mut Ins Co, 199 Mich App 345, 347; 500 NW2d 773 (1993); Shapiro v Steinberg, 176 Mich App 683, 687; 440 NW2d 9 (1989).

⁴⁶

47 See Tobin, n 2 supra.

48 MCL 15.231(2); MSA 4.1801(1)(2) (emphasis added).

⁴⁹

50 Booth Newspapers, Inc v Kalamazoo School Dist, 181 Mich App 752; 450 NW2d 286 (1989) (approving redactions of student’s names in public records relating to allegations of sexual misconduct).