Michigan Federation of Teachers & School Related Personnel v. University of Michigan
Michigan Federation of Teachers & School Related Personnel v. University of Michigan
Opinion of the Court
In this case, we must decide if the home addresses and telephone numbers of University of Michigan employees sought through a Freedom of Information Act (FOIA) request are exempt from disclosure under FOIA’s privacy exemption.
Accordingly, the decision of the Court of Appeals is reversed and the circuit court’s grant of summary disposition in favor of defendants is reinstated.
FACTS AND PROCEDURAL HISTORY
Plaintiff Michigan Federation of Teachers submitted a FOIA request to defendant University of Michigan’s chief FOIA officer, seeking numerous items of information that defendant possessed regarding every University of Michigan employee. The information sought included first and last names, job title, compensation rate, and work address and telephone number. Two additional items of information sought by plaintiff, which are the subject of this appeal, are the employees’ home addresses and telephone numbers.
Defendant timely responded to the FOIA request and provided nearly all the information plaintiff sought. With respect to the home addresses and telephone numbers, defendant released the information of 20,812 employees who had given defendant their permission to publish their home addresses and telephone numbers in the University of Michigan’s faculty and staff directory. Defendant did not turn over the home addresses and telephone numbers of the remaining 16,406 employees who had withheld permission to publish that information in the directory. Thus, defendant denied the FOIA request in part, relying on the privacy exemption and stating that the information’s release would constitute an unwarranted invasion of these employees’ privacy.
Plaintiff filed suit in the Washtenaw Circuit Court, seeking to compel the release of the remaining home addresses and telephone numbers. The parties filed cross-motions for summary disposition. Defendant at
The circuit court granted defendant’s motion for summary disposition. It ruled that the employees’ home addresses and telephone numbers were information of a personal nature and that “one would be hard pressed to argue that disclosure ‘contributes significantly to public understanding of the operations or activities of the government.’ ”
The Court of Appeals reversed the circuit court in an unpublished opinion per curiam.
Judge Wilder concurred with the majority’s decision under Bradley, but raised two points. First, he suggested that Bradley’s reading of the statutory language was inconsistent with its plain meaning and was worthy of reexamination. Second, he questioned whether the advent of the national do-not-call registry
Defendant filed an application seeking leave to appeal, which this Court granted.
This Court reviews de novo the trial court’s decision to grant a motion for summary disposition.
[b]ecause our judicial role precludes imposing different policy choices than those selected by the Legislature, our obligation is, by examining the statutory language, to discern the legislative intent that may reasonably be inferred from the words expressed in the statute. If the language of a statute is clear and unambiguous, the plain meaning of the statute reflects the legislative intent and judicial construction is not permitted. We must give the words of a statute their plain and ordinary meaning.[10 ]
ANALYSIS
1. BACKGROUND TO FOIA AND THE PRIVACY EXEMPTION
Consistent with the legislatively stated public policy supporting the act,
The FOIA exemption at issue in this case is the privacy exemption, MCL 15.243(l)(a), which states:
(1) A public body may exempt from disclosure as a public record under this act any of the following:
(a) Information of a personal nature if public disclosure of the information would constitute a clearly unwarranted invasion of an individual’s privacy.
This Court has attempted to construe this provision on many occasions since the enactment of the Michigan FOIA in 1976 and struggled for nearly as many years to reach a consensus regarding its proper interpretation. Kestenbaum v Michigan State Univ,
Chief Justice Fitzgerald’s opinion held that the release of the computer tape would violate the privacy exemption. Focusing on the statutory requirement that “the public disclosure of the information would constitute a clearly unwarranted invasion of an individual’s privacy,” Chief Justice FITZGERALD opined that
there has remained throughout this country’s legal history one recognized situs of individual control — the dwelling place. Without exception, this bastion of privacy has been afforded greater protection against outside assaults than has any other location.[20 ]
He reasoned that disclosure of the magnetic tape would constitute an invasion of privacy because
any intrusion into the home, no matter the purpose or the extent, is definitionally an invasion of privacy. A fortiori, the release of names and addresses constitutes an invasion of privacy, since it serves as a conduit into the sanctuary of the home.[21 ]
Further, where the student information would be distributed in electronic rather than print form, Chief Justice FITZGERALD argued presciently that this invasion was “clearly unwarranted” because “the pervasiveness
Justice Ryan’s opinion would have ordered the release of the computer tape. Examining the privacy exemption, Justice RYAN argued for a two-part inquiry to analyze MCL 15.243(l)(a). First, the requested information must be “of a personal nature.” Second, if the information is of a personal nature, its disclosure must constitute a “clearly unwarranted invasion of an individual’s privacy.” Justice RYAN argued that the information sought was not “of a personal nature” because he was “satisfied that names, addresses, telephone numbers, and other standard identifying information simply are not embarrassing information ‘of a personal nature’ for the overwhelming majority of students at Michigan State University.”
[m]ost citizens voluntarily divulge their names and addresses on such a widespread basis that any alleged privacy interest in the information is either absent or waived. People applying for employment reveal their names and addresses on their resumes; cashing a check or using a credit card requires the release of one’s address; and ordering magazines or otherwise communicating through the mail reveals one’s address. Being a licensed driver, a car owmer, a property owner or taxpayer, an officer of a corporation, an applicant for a marriage license, or a registered voter requires revelation, at a minimum, of one’s name and address, information which is often routinely made available to the public. While some people might prefer that their names and addresses not be known to certain individuals such as advertisers, bill collectors, or*668 freeloading relatives, that preference is simply not based on the fact that one’s address is a “personal”, intimate, or embarrassing piece of information. We leave for another day the question whether, in certain unusual circumstances, ordinarily impersonal information might take on an intensely personal character.[24 ]
Justice RYAN concluded by arguing that even if the information was “of a personal nature,” its disclosure was not a “clearly unwarranted invasion of privacy” because the students had ways to avoid unwanted mailings and because “the public benefits of voter registration and political campaigning contemplated in this case clearly outweigh any minimal invasion of privacy.”
After Kestenbaum, this Court decided several cases without being able to provide a majority rule for the proper construction of the privacy exemption. In Tobin v Civil Service Comm,
In Swickard v Wayne Co Med Examiner,
In Booth Newspapers, Inc v Univ of Mich Bd of Regents,
In Bradley, the central case under consideration in the present appeal, this Court decided whether the personnel records of public school teachers and administrators were exempt from disclosure under the privacy exemption. The Bradley Court affirmed that this exemption contains two elements: first, that the information sought is “of a personal nature” and, second, that the disclosure of the information would be a “clearly unwarranted invasion of privacy.” With respect to the first element, the majority observed:
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 .... ” We have also defined this threshold inquiry in terms of whether the requested information was “personal, intimate, or embarrassing.” 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’ ____”[40 ]
Using this new definition, the majority concluded that the personnel records sought in Bradley were not “of a personal nature” because they did not contain any “embarrassing, intimate, private, or confidential” matters.
The Mager Court then moved to the second prong of the test — whether “disclosure of the information would constitute a clearly unwarranted invasion of an individual’s privacy” — and devised what has since been labeled the “core purpose test.” Mager took guidance from the United States Supreme Court’s decision in United States Dep’t of Defense v Fed Labor Relations Auth,
In Herald Co, this Court unanimously held that the defendant, Bay City, violated FOIA when it refused to disclose public records concerning the final candidates
Although the records failed to satisfy the first prong of the privacy exemption, this Court went on to discuss why the records would also fail the second prong. Citing the Mager core-purpose test, this Court noted that disclosure of the information concerning the final candidates for fire chief would serve the policy underlying FOIA because it would facilitate the public’s access to information regarding the affairs of their city government. Thus, the invasion of privacy, assuming there was one, was not “clearly unwarranted.”
2. “INFORMATION OF A PERSONAL NATURE”
In answering the first question whether the home addresses and telephone numbers of university employees are “information of a personal nature,” we also reconsider whether Bradley's exposition of that phrase fully captures its intended meaning. The concurring judge on the Court of Appeals suggested, and defendant argues, that the Bradley articulation is too narrow.
We hold that the Bradley formulation, as far as it goes, is a correct description of what information is “of a personal nature.” Thus, we continue to hold that “intimate” or “embarrassing” details of an individual are “of a personal nature.” However, a case such as this leads us to conclude that “intimate” and “embarrassing” do not exhaust the intended scope of that statutory phrase. Indeed, the Bradley Court itself noted, whether
With the test thus clarified, the next question is whether employees’ home addresses and telephone numbers reveal embarrassing, intimate, private, or confidential details about those individuals. We hold that they do. Where a person lives and how that person may be contacted fits squarely within the plain meaning of this definition because that information offers private and even confidential details about that person’s life. As Chief Justice FITZGERALD noted in Kestenbaum,
The potential abuses of an individual’s identifying information, including his home address and telephone number, are legion. For example, some of the affiants in this case attested that they do not want their information added to mass mailings, perhaps seeking to avoid the inevitable harassing telephone calls of telemarketers or deluge of junk mail. On a more serious level, other affiants stated that their physical safety or the safety of their families would be jeopardized if their identifying information fell into the wrong hands, such as those of an ex-spouse or a disgruntled patient. These realistic concerns illustrate in practical ways why an individual’s home address and telephone number are “information of a personal nature.”
It is trae that home addresses often are publicly available through sources such as telephone directories and voter registration lists, but “[i]n an organized society, there are few facts that are not at one time or another divulged to another.” The privacy interest protected by [the federal exemption] “encompass[es] the individual’s control of information concerning his or her person.” An individual’s interest in controlling the dissemination of information regarding personal matters does not dissolve simply because that information may be available to the public in some form.[61 ]
An individual’s home address and telephone number might be listed in the telephone book or available on an Internet website, but he might nevertheless understandably refuse to disclose this information, when asked, to a stranger, a co-worker, or even an acquaintance. The disclosure of information of a personal nature into the public sphere in certain instances does not automatically remove the protection of the privacy exemption and subject the information to disclosure in every other circumstance.
Finally, while it is not critical to our holding that home addresses and telephone numbers are “information of a personal nature,” the fact that in this case certain university employees actively asserted control over their identifying information by withholding their home addresses and telephone numbers from publication in the university faculty and staff directoxy undoubtedly lends credence to that conclusion.
Having reached this conclusion, we must move to the second prong of the privacy exemption and determine
CONCLUSION
We hold that information is “of a personal nature” if it constitutes intimate, embarrassing, private, or confidential details about an individual. In this case, employees’ home addresses and telephone numbers are information “of a personal nature.” Moving to the second prong of the privacy exemption, we conclude that the
Accordingly, we reverse the judgment of the Court of Appeals and reinstate the trial court’s order granting defendant summary disposition.
MCL 15.243(l)(a).
455 Mich 285; 565 NW2d 650 (1997).
Michigan Federation of Teachers & School Related Personnel, AFT, AFL-CIO v Univ of Michigan, unpublished opinion per curiam of the Court of Appeals, issued March 22, 2007 (Docket No. 258666).
Michigan Federation, supra at 3, citing Tobin v Civil Service Comm, 416 Mich 661, 671; 331 NW2d 184 (1982), and State Employees Ass’n v Dep’t of Mgt & Budget, 428 Mich 104, 124; 404 NW2d 606 (1987).
Michigan Federation, supra at 3, citing Mager v Dep’t of State Police, 460 Mich 134; 595 NW2d 142 (1999); Detroit Free Press, Inc v Dep’t of State Police, 243 Mich App 218; 622 NW2d 313 (2000); Clerical-Technical
PL 108-82, § 1, 117 Stat 1006.
480 Mich 902 (2007). The order granting leave asked the parties to address
(1) whether this Court should reconsider its construction of MCL 15.243(l)(a)’s statutory phrase “information of a personal nature” as meaning information that “reveals intimate or embarrassing details of an individual’s private life,” as set forth in Bradley v Saranac Bd of Ed, 455 Mich 285, 294 (1997); (2) whether, on the facts presented in this case, information that might otherwise be considered “ordinarily impersonal ... might take on an intensely personal character,” (quoting Kestenbaum v Michigan State Univ, 414 Mich 510, 547 [1982]), such that the privacy exemption might properly be asserted as*664 argued by the defendant; and (3) if the Bradley test is not modified, whether the advent of the National Do-Not-Call Registry, PL 108-82, § 1, 117 Stat 1006, as well as the creation of the host of methods, unknown to the Court in 1997, which are designed for illicit purposes such as identity theft, have any impact on whether the disclosure of the home addresses and telephone numbers requested is inconsistent with “the customs, mores, or ordinary views of the community” (quoting Bradley, at 294) by which the applicability of the privacy-exemption is evaluated.
Herald Co v Bay City, 463 Mich 111, 117; 614 NW2d 873 (2000).
Wood v Auto-Owners Ins Co, 469 Mich 401, 403; 668 NW2d 353 (2003); Herald Co, Inc v Eastern Michigan Univ Bd of Regents, 475 Mich 463, 471-472; 719 NW2d 19 (2006).
Herald Co, 463 Mich at 117-118 (citations omitted).
MCL 15.231(2).
MCL 15.232(e).
MCL 15.232(d).
MCL 15.233.
MCL 15.243.
See Herald Co, 463 Mich at 119 n 6 (“It is worth observing that the FOIA does not prevent disclosure of public records that are covered by § 13 exemptions. Rather, it requires the public body to disclose records unless they are exempt, in which case the FOIA authorizes nondisclosure at the agency’s discretion.”) (emphasis in original; citations omitted).
MCL 15.240(4).
414 Mich 510; 327 NW2d 783 (1982).
Chief Justice Fitzgerald, joined by Justices Williams and Coleman, wrote the opinion affirming the Court of Appeals. Justice Ryan wrote an opinion advocating reversal of the Court of Appeals, joined by Justices Kavanagh and Levin. The late Justice Blair Moody did not participate.
Id. at 531. Even, in 1982, which some might consider part of the technological “stone age,” Chief Justice Fitzgerald warned that “[w]hile it is true that the computer era has brought untold benefits for society, it also is fraught with potential dangers to our notions of individual autonomy.” Id. at 531-532.
416 Mich 661; 331 NW2d 184 (1982).
In a reverse FOIA case, the plaintiff seeks to prohibit the release of public records sought by a third party, rather than compel their disclosure. Id. at 663.
Id. at 667. Justice Riley did not participate in the decision.
422 Mich 432; 373 NW2d 713 (1985).
Justices Levin and Ryan wrote opinions affirming the Court of Appeals, with Justice Boyle concurring in both. Justices Riley and Brickley wrote opinions that would have reversed the Court of Appeals. Chief Justice Williams joined Justice Riley’s opinion. Justice Cavanagh did not participate. Thus, this Court divided 2-2-2-1 on the proper analysis.
428 Mich 104; 404 NW2d 606 (1987).
Although Justice Cavanagh’s lead opinion was joined by Justices Levin and Archer, it did not garner a majority on every point. Justices Brickley and Boyle concurred in the result, but disagreed with the lead opinion’s rationale. Chief Justice Riley dissented, arguing that the privacy exemption precluded disclosure of the addresses. Justice Griffin did not participate.
438 Mich 536; 475 NW2d 304 (1991).
Justice Griffin concurred in the result only. Justices Levin and Mallett dissented.
Id. at 547, quoting The American Heritage Dictionary of the English Language, Second College Edition (1976).
Swickard, 438 Mich at 556 (“Our review of the common law and constitutional law is helpful insofar as we are given points of reference through a highly subjective area of the law where the Legislature has provided little statutory guidance on the notion of privacy contained in the FOIA.”).
444 Mich 211; 507 NW2d 422 (1993).
Id. at 233. Justices Boyle and Riley dissented separately from the majority on the FOLA issue. Justice Griffin joined Justice Riley’s dissent.
Bradley, 455 Mich at 294.
Id. at 295. Justice Boyle, joined by Justices Cavanagh and Kelly, dissented in part from the majority and criticized the majority for
460 Mich 134; 595 NW2d 142 (1999).
463 Mich 111; 614 NW2d 873 (2000).
Mager, 460 Mich at 143, quoting Bradley, 455 Mich at 294.
Mager, 460 Mich at 144. Justice Cavanagh concurred in the result only.
510 US 487; 114 S Ct 1006; 127 L Ed 2d 325 (1994).
5 USC 552(b)(6) (“This section does not apply to matters that are ... (6) personnel and medical files and similar files the disclosure of which would constitute a clearly unwarranted invasion of personal privacy.”).
Mager, 460 Mich at 145, quoting Dep’t of Defense, 510 US at 495.
Mager, 460 Mich at 145, quoting United States Dep’t of Justice v Reporters Comm for Freedom of the Press, 489 US 749, 773; 109 S Ct 1468; 103 L Ed 2d 774 (1989).
Mager, 460 Mich at 146 n 23, quoting Dep’t of Defense, 510 US at 501.
Herald, Co, 463 Mich at 123-124, quoting Mager, 460 Mich at 142, quoting Bradley, 455 Mich at 294.
Herald Co, 463 Mich at 125.
Id. at 127. Since we decided Bradley and Mager, the Court of Appeals on several occasions has upheld a public body’s decision to withhold identifying information under the privacy exemption. See, e.g., Kocher v Dep’t of Treasury, 241 Mich App 378; 615 NW2d 767 (2000) (addresses of property owners in unclaimed property holder reports); Detroit Free Press, Inc v Dep’t of State Police, 243 Mich App 218; 622 NW2d313 (2000) (whether certain Michigan state legislators held concealed weapons permits); Larry S Baker, PC v City of Westland, 245 Mich App 90; 627 NW2d 27 (2001) (names, addresses, injury codes, and accident dates of all
Indeed, this was also the position of Justices Boyle, Cavanagh, and Kelly, who dissented in Bradley. See Bradley, 455 Mich at 307-308.
Bradley, 455 Mich at 295 (emphasis added).
The American Heritage Dictionary of the English Language, New College Edition, p 978 (1976).
While Bradley might not have created the most satisfying rubric for interpreting the privacy exemption, and while we might have approached the privacy exemption differently were we writing on a blank slate, we also consider that “the mere fact that an earlier case was wrongly decided does not mean overruling it is invariably appropriate.” Robinson v Detroit, 462 Mich 439, 465; 613 NW2d 307 (2000). Bradley is not so unworkable or badly reasoned, in our view, that we must overrule rather than modify it.
Kestenbaum, 414 Mich at 524-525. This case is not the first occasion where this Court has considered whether home addresses and telephone numbers are “information of a personal nature.” This Court has a checkered history of splintered and equally divided decisions attempting to determine whether this type of information is “of a personal nature.” Compare Kestenbaum with United Plant Guard Workers and State Employees Ass’n. Under the more accurate definition of “information of a personal nature” we adopt today, however, we settle the question and hold that home addresses and telephone numbers constitute private information about individuals.
This Court held in Bradley, and elsewhere, that the customs, mores, and ordinary views of the community inform our understanding of the privacy exemption, particularly where the Legislature has provided little statutory guidance about the FOIA’s conception of privacy. See Mager, 460 Mich at 140 quoting Swickard, 438 Mich at 556 (“Our review of the common law and constitutional law is helpful insofar as we are given points of reference through a highly subjective area of the law where the Legislature has provided little statutory guidance on the notion of privacy contained in the FOIA.”).
Although we need not reach the analysis that considers the customs, mores, and ordinary views of the community, we are mindful of changes
In 2004, the Michigan Legislature enacted 2004 PA 452, the Identity Theft Protection Act, MCL 445.61 et seq., whose title states, among other things, that it is an act “to prohibit certain acts and practices concerning identity theft.” It seeks to protect “personal identifying information,” which includes “a person’s name, address, [and] telephone number,” the very type of information sought by plaintiff in this case. MCL 445.63(o). See also, e.g., Identity Theft and Assumption Deterrence Act, as amended by PL 105-318, 112 Stat 3007; Identity Theft Penally Enhancement Act, as amended by PL 108-275, 118 Stat 831; Fair and Accurate Credit Transactions Act of 2003, PL 108-159,117 Stat 1952; see also recent state legislation regarding identity theft, e.g., Ala Code 13a-8-190 et seq.; Alas Stat 11.46.565 et seq.; Ariz Rev Stat Ann 13-2008 et seq.; Ark Code Ann 5-37-227 et seq.; Cal Penal Code 530.5 et seq.; Colo Rev Stat 18-5-901 et seq.; Conn Gen Stat 53a-129a et seq.; Del Code Ann tit 11, § 854 et seq.; DC Code 22-3227.01 et seq.; Fla Stat 817.568; Ga Code Ann 16-9-120 et seq.; Hawaii Rev Stat 708-839.6 et seq.; Idaho Code Ann 18-3124 et seq.; 720 111 Comp Stat 5/16g-l et seq.; Ind Code 35-43-5-3.5; Iowa Code 715a.8 et seq.; Kan Stat Ann 21-4018; Ky Rev Stat Ann 514.160 and 514.170; La Rev Stat Ann 14:67.16; Md Code Ann, Crim Law 8-301 et seq.; Mass Gen Laws ch 266, § 37e; Minn Stat 609.527; Miss Code Ann 97-45-1 et seq.; Mont Code Ann 45-6-332; Neb Rev Stat 28-608; Nev Rev Stat Ann 205.461 et seq.; NH Rev Stat Ann 638.25 et seq.; NJ Stat Ann 2c:21-17 et seq.; NM Stat 30-16-24.1; NY Penal Law 190.77 et seq.; NC Gen Stat 14-113.20 et seq.; ND Cent Code 12.1-23-11; Ohio Rev Code Ann 2913.49; Okla Stat tit 21, § 1533.1 et seq.; Or Rev Stat 165.800; 18 Pa Cons Stat 4120; RI Gen Laws 11-49.1-1 et seq.; SC Code Ann 16-13-500 et seq.; SD Codified Laws 22-40-8 et seq.; Tenn Code Ann 39-14-150; Tex Penal Code Ann 32.51; Utah Code Ann 76-6-1101 et seq.; Vt Stat Ann tit 13, § 2030; Va Code Ann 18.2-186.3; Wash Rev Code 9.35.001 et seq.; W Va Code 61-3-54; Wis Stat 943.201; Wyo Stat Ann 6-3-901.
Were it necessary to rely on the customs, mores, and ordinary views of the community, we think this recent, positive law enacted by our Legislature (and other jurisdictions) signals that the customs, norms, and
Mager, 460 Mich at 144 (“[T]he privacy exemption in the federal FOIA is worded differently than the corresponding state provision. For that reason, federal decisions concerning the privacy exemption are of limited applicability in Michigan. Nonetheless, federal law is generally instructive in FOIA cases.”), citing Evening News Ass’n v City of Troy, 417 Mich 481, 494-495; 339 NW2d 421 (1983). The federal privacy exemption, 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.” Both the Michigan and federal exemptions refer to disclosure that would constitute a clearly unwarranted invasion of an individual’s, or personal, privacy, but the federal exemption covers “personnel and medical files and similar files” while the Michigan exemption covers, more generally, “information of a personal nature.”
Dep’t of Defense, 510 US at 500 (citations omitted). Dep’t of Defense relied heavily on United States Dep’t of Justice v Reporters Comm for
See Dep’t of Defense, 510 US at 501 (“Whatever the reason that these employees have chosen not to ... provide ... their addresses, however, it is clear that they have some nontrivial privacy interest in nondisclosure.”).
Plaintiff relies on the doctrine of expressio unius est exclusio alterius to argue that identifying information can never be exempt under the privacy exemption because a subset of identifying information is exempted specifically in the law-enforcement exemption, MCL 15.243(l)(s). Under this doctrine, “the expression of one thing suggests the exclusion of all others.” Pittsfield Charter Twp v Washtenaw Co, 468 Mich 702, 712;
Plaintiff notes that the law-enforcement exemption (not to be confused with the law-enforcement-purposes exemption, MCL 15.243[l][b]) exempts from disclosure, among other things, the addresses and telephone numbers of active or retired law-enforcement officers or agents, as well as the names, addresses or telephone numbers of their family members, relatives, children, or parents, unless the public interest in disclosure outweighs the public interest in nondisclosure in the particular instance. Plaintiff contends that the express exemption of this identifying information in the law-enforcement exemption suggests that the Legislature intended the disclosure of identifying information of other public employees.
Plaintiffs reliance on expressio unius est exclusio alterius is misplaced. It overlooks the fact that each FOIA exemption, by its plain language, advances a separate legislative policy choice. We do not necessarily infer from the express exemption of law-enforcement-related identifying information in one FOIA exemption that the Legislature intended to make the remaining FOIA exemptions unavailable to exempt identifying information of non-law-enforcement public employees. The different policies underlying these exemptions manifest themselves in differently worded standards for disclosure. The Legislature defined the scope of the privacy exemption generally and did not articulate each and every instance where information would be “of a personal nature” and when its disclosure “would constitute a clearly unwarranted invasion of an individual’s privacy.” By contrast, the Legislature specifically targeted the law-enforcement exemption to exempt from disclosure specific public records originating from law-enforcement agencies “[u]nless the public interest in disclosure outweighs the public interest in nondisclosure in the particular instance.” Simply because the Legislature saw fit to enact a specific provision to protect law-enforcement-related information from disclosure, it does not follow that non-law-enforcement-related identifying information can never be exempt. In short, plaintiff would have us compare apples to oranges.
See Mager, 460 Mich at 145, quoting United States Dep’t of Justice v Reporters Comm for Freedom of the Press, 489 US 749, 773; 109 S Ct 1468; 103 L Ed 2d 774 (1989).
MCL 15.231(2) (“It is the public policy of this state that all persons, except those persons incarcerated in state or local correctional facilities, are entitled 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, consistent with this act. The people shall be informed so that they may fully participate in the democratic process.”).
Concurring in Part
(concurring in part and dissenting in part). The issue is whether the privacy exemption
FACTS
Plaintiff Michigan Federation of Teachers and School Related Personnel, AFT, AFL-CIO made a FOIA request to defendant University of Michigan. Plaintiff
Plaintiff brought suit in Washtenaw Circuit Court seeking disclosure of this information. Both parties moved for summary disposition. In support of its motion, defendant included affidavits from six employees detailing their reasons for withholding consent. The reasons were wide-ranging. One employee was concerned that an ex-spouse could use the information to locate and hurt her. Another simply believed it would be unfair to disclose unlisted addresses and telephone numbers.
The circuit court granted summary disposition to defendant. It reasoned that the home addresses and telephone numbers of employees who had refused to give permission to publish that information was information of a personal nature. The court added that disclosure of this information would not contribute significantly to public understanding of the operations or activities of government.
In an unpublished opinion per curiam, the Court of Appeals reversed the circuit court decision.
This Court granted defendant’s application for leave to appeal to “reconsider its construction of [the privacy exemption].”
THE PRIVACY EXEMPTION
The privacy exemption to FOIA provides:
(1) A public body may exempt from disclosure as a public record under this act. ..
(a) Information of a personal nature if public disclosure of the information would constitute a clearly unwarranted invasion of an individual’s privacy.[6 ]
For years this Court has struggled to give meaning to this statutory provision. The Court arrived at its most recent interpretation in Bradley v Saranac Community Schools Bd of Ed.
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.” In the past, we have used two slightly different formulations to describe “personal nature.” The first defines “personal” as “of or per-*686 tabling to a particular person; private; one’s own.... Concerning a particular individual and his intimate affairs, interests, or activities; intimate ....” We have also defined this threshold inquiry in terms of whether the requested information was “personal, intimate, or embarrassing.” 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.’ ”[8 ]
Defendant asks us to overrule Bradley’s interpretation of the phrase “of a personal nature,” arguing that Bradley incorrectly interpreted the statutory language. The majority partly accepts the invitation, holding that the Bradley formulation of the phrase is overly narrow.
INFORMATION “OF A PERSONAL NATURE”
I did not join the majority opinion in Bradley. Instead, I joined Justice Boyle’s partial dissent. Justice BOYLE took issue with the majority’s constricted interpretation of the phrase “of a personal nature,”
Although the majority does not explicitly recognize it, its interpretation of the phrase “of a personal nature” is consistent with the definitions arrived at in Kestenbaum and Swickard. In fact, the majority’s interpretation represents a synthesizing of the two. When one combines the definitions in Kestenbaum and Swickard, information is “of a personal nature” if it reveals private, intimate, or embarrassing information about a particular person. The majority holds that “intimate, embarrassing, private, or confidential information is ‘of a personal nature . . . .’ ”
But Bradley, being precedent of this Court, should be followed unless weighty reasons exist for abandoning it. As the United States Supreme Court recently recognized, “considerations [of stare decisis] impose a considerable burden upon those who would seek a different interpretation that would necessarily unsettle. . . Court precedents.”
Accordingly, it appears that, since Bradley was decided, increasing incidents of identity fraud have caused a change in behavior. When the facts underlying a court decision drastically change and render the decision outdated, a reexamination of the decision is required.
As a consequence, I concur with the majority’s decision to expand Bradley’s interpretation of the privacy exemption. But I part company from the majority in its application of the new interpretation.
APPLICATION OF THE NEW INTERPRETATION OF THE PRIVACY EXEMPTION
I differ in two respects with the majority’s application of the law to the facts of this case. First, defendant
Second, I disagree with the majority’s decision insofar as it holds that the home addresses and telephone numbers of all defendant’s employees are exempt. Merely because some of defendant’s employees keep their addresses and telephone numbers private does not mean that the addresses and telephone numbers of all the employees is information “of a personal nature.”
Employees whose addresses and home telephone numbers are unlisted and who refused to allow defendant to publish them in the school directory have done everything possible to keep that information private. And, by taking action to protect their addresses and telephone numbers from mass dissemination, these individuals have indicated that they consider the information private. Thus, it is reasonable to conclude that the home addresses and telephone numbers of those employees is information “of a personal nature.”
Under the privacy exemption, information that is “of a personal nature” is exempt if disclosure of it would constitute a “clearly unwarranted invasion of an individual’s privacy.”
But it does not follow that the home addresses and telephone numbers of all defendant’s employees is information “of a personal nature.”
Individuals who have allowed their information to be made public cannot be heard to argue that the information is private. It is illogical to decide that information pertaining to an individual is private information if the individual himself or herself does not treat it that way. Therefore, the home addresses and telephone numbers of those employees who either have a listed telephone number or who have allowed defendant to publish their information is generally not “of a personal nature.” If information is not “of a personal nature,” the privacy exemption does not apply to it.
Of course, public information could be “of a personal nature” if disclosure of it reveals something intimate or embarrassing about an individual. For instance, in Mager v Dep’t of State Police,
CONCLUSION
I agree with the decision to expand Bradley’s interpretation of the privacy exemption to provide that private information is “of a personal nature.” But unlike the majority, I do not believe that the home addresses and telephone numbers of all defendant’s employees come within the terms of the privacy exemption. I would hold that the home addresses and telephone numbers of employees whose telephone numbers are unlisted and who have not allowed defendant to publish this information are exempt from disclosure. But defendant must disclose the home addresses and telephone numbers of its other employees.
MCL 15.243(l)(a).
MCL 15.231 et seq.
When I use the term “unlisted” in this opinion, I am referring to information that is not published in the public telephone directory.
Michigan Federation of Teachers & School Related Personnel, AFT, AFL-CIO v Univ of Michigan, unpublished opinion per curiam of the Court of Appeals, issued March 22, 2007 (Docket No. 258666).
480 Mich 902 (2007).
MCL 15.243(l)(a).
Bradley v Saranac Community Schools Bd of Ed, 455 Mich 285; 565 NW2d 650 (1997).
Id. at 306-307 (Boyle, J., dissenting in part).
Kestenbaum v Michigan State Univ; 414 Mich 510; 327 NW2d 783 (1982).
Swickard v Wayne Co Med Examiner; 438 Mich 536; 475 NW2d 304 (1991).
Kestenbaum, 414 Mich at 547 (opinion of Ryan, J.).
Swickard, 438 Mich at 547, quoting The American Heritage Dictionary of the English Language, Second College Edition (1976).
Ante at 676 (emphasis deleted).
The majority’s interpretation differs from those of Kestenbaum and Swickard in that neither case defined the phrase “of a personal nature” to include confidential information. They did provide that private information is “of a personal nature.” If information is confidential, it is necessarily private. Thus, as I see it, private information includes confidential information. Therefore, any discrepancy between the Kestenbaum and Swickard definitions and the majority’s interpretation is a distinction without a difference.
CBOCS West, Inc v Humphries,_US_,_; 128 S Ct 1951, 1958; 170 L Ed 2d 864 (2008).
See The President’s Identity Theft Task Force, Combating Identity Theft: A Strategic Plan, April 2007, p 1 <http://www.identiiytheft.gov/ reports/StrategicPlan.pdf> (accessed May 29, 2008).
Id. at 39.
Id. at 11-12.
Parker v Port Huron Hosp, 361 Mich 1, 24-25; 105 NW2d 1 (1960); Brown v Bd of Ed, 347 US 483, 492-495; 74 S Ct 686; 98 L Ed 873 (1954).
MCL 15.243(l)(a).
The burden is on the public body to justify its refusal to disclose the requested information. MCL 15.240(4). The public body does not justify its refusal by showing that some of the requested information is exempt. It must show that all the requested information is exempt.
Mager v Dep’t of State Police, 460 Mich 134; 595 NW2d 142 (1999).
Reference
- Full Case Name
- Michigan Federation of Teachers & School Related Personnel, Aft, Afl-Cio v. University of Michigan
- Cited By
- 36 cases
- Status
- Published