Herald Co. v. Ann Arbor Public Schools

568 N.W.2d 411 (1997) 224 Mich. App. 266

The HERALD COMPANY, INC., d/b/a Booth Newspapers, Inc., and The Ann Arbor News, Plaintiff/Appellee/Cross-Appellant,
v.
ANN ARBOR PUBLIC SCHOOLS, Defendant/Appellee/Cross-Appellee, and
Ernest Day Gillum, Intervenor-Defendant/Appellant/Cross-Appellee.

Docket No. 186193.

Court of Appeals of Michigan.

Submitted December 3, 1996, at Detroit. Decided June 20, 1997, at 9:10 a.m. Released for Publication September 11, 1997.

Dykema Gossett P.L.L.C. by Jonathan D. Rowe, Bradley L. Smith, and Steven Marchese, Ann Arbor, for Plaintiff/Appellee/Cross-Appellant.

White, Przybylowicz, Schneider & Baird, P.C. by Thomas A. Baird and Douglas V. Wilcox, Okemos, for Ernest Day Gillum.

Before MacKENZIE, P.J., and WAHLS and MARKEY, JJ.

WAHLS, Judge.

In this action involving the Freedom of Information Act (FOIA), M.C.L. § 15.231 et seq.; M.S.A. § 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 appeals 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 made 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 plaintiffs 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 administrator.

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 identification 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 within the "privacy," "other statute," and "intra-agency" exemptions of the FOIA. Defendant argues on cross appeal that these records did not fall within these exemptions. This issue is moot.

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 plaintiffs 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, 203 Mich.App. 363, 366, 512 N.W.2d 72 (1994); Traverse City Record Eagle v. Traverse City Area Public Schools, 184 Mich. App. 609, 610, 459 N.W.2d 28 (1990). Similarly, Gillum's argument that the circuit court erred in ordering partial disclosure of the Johnson memorandum is moot. Densmore, supra, p. 366, 512 N.W.2d 72; Record Eagle, supra, p. 610,459 N.W.2d 28.

II

On cross appeal, plaintiff argues that the circuit court erred in exempting the unredacted Jane Johnson memorandum from disclosure. We agree to the extent that the circuit court relied on the "privacy" and "intra-agency" exemptions.

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., 216 Mich.App. 79, 84, 549 N.W.2d 15 (1996), aff'd. in part and remanded 455 Mich. 285, 565 N.W.2d 650 (1997) (hereinafter LASA). However, we review a decision whether to disclose exempted information for an abuse of discretion. LASA, supra, 216 Mich.App. at 84-85, 549 N.W.2d 15. When a public body refuses to disclose a requested document under the act, the public body bears the burden of proving that the refusal was justified under the act. Nicita v. Detroit (After Remand), 216 Mich.App. 746, 751,550 N.W.2d 269 (1996).

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, 444 Mich. 211, 231, 507 N.W.2d 422 (1993); Nicita, supra, p. 751, 550 N.W.2d 269. A policy of full disclosure underlies the FOIA. Booth, supra, p. 231, 507 N.W.2d 422; Nicita, supra, p. 751, 550 N.W.2d 269. All public records are subject to full disclosure unless the material is specifically exempted under § 13 of the FOIA, M.C.L. § 15.243; M.S.A. § 4.1801(13). Nicita, supra, p. 751, 550 N.W.2d 269. The exemptions to disclosure must be narrowly construed. Booth, supra, p. 232, 507 N.W.2d 422; Nicita, supra, p. 751, 550 N.W.2d 269.

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 indicates 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 a personal nature where the public disclosure of the information would constitute a clearly unwarranted invasion of an individual's privacy." M.C.L. § 15.243(1)(a); M.S.A. § 4.1801(13)(1)(a); Booth, supra, p. 232, 507 N.W.2d 422. 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, 507 N.W.2d 422.

In determining whether the information withheld is of a "personal nature," "``the customs, mores, or ordinary views of the community'" must be taken into account. Id., pp. 232-233, 507 N.W.2d 422, quoting Swickard v. Wayne Co. Medical Examiner, 438 Mich. 536, 547, 475 N.W.2d 304 (1991). The Supreme Court has defined "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...."`` Swickard, supra, p. 547, 475 N.W.2d 304 (citation omitted). Here, Johnson's memorandum contains personal information about Gillum and his family, quotations from and about him, as well as observations of his conduct. To the extent that the circuit court held that the Johnson memorandum was of a personal nature, we agree. Compare Booth, supra, p. 233, 507 N.W.2d 422 (travel expense records); Nicita, supra, p. 752, 550 N.W.2d 269 (business records).

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, 475 N.W.2d 304, 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 to the public. See id., p. 558, 475 N.W.2d 304 (circumstances surrounding the alleged suicide of a public figure are matters of legitimate public concern). Accordingly, construing the "privacy" exemption of the FOIA narrowly, Booth, supra, p. 232, 507 N.W.2d 422, disclosure of this memorandum would not constitute a "clearly unwarranted" invasion of privacy. LASA, supra, 216 Mich. App. at 89, 549 N.W.2d 15.

Gillum argues that defendant was not required to disclose this memorandum under the "intra-agency" exemption, M.C.L. § 15.243(l)(n); M.S.A. § 4.1801(13)(l)(n). This subsection exempts from disclosure "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." Id.; Milford v. Gilb, 148 Mich. App. 778, 782, 384 N.W.2d 786 (1985). In order to prevent disclosure under this subsection, the public body must first establish that (a) the documents cover other than purely factual materials and (b) the documents are preliminary to a final determination of policy or action. Id., pp. 782-783, 384 N.W.2d 786. If the documents meet this substantive test, however, the public body must also establish that the public interest in encouraging frank communications within the public body or between public bodies clearly outweighs the public interest in disclosure. Id, p. 783, 384 N.W.2d 786.

It is the 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, 110 Mich.App. 600, 604, 313 N.W.2d 167 (1981). Here, assuming arguendo that this memorandum covers other than purely factual materials and is preliminary to a final determination of policy or action, there is a significant public interest in disclosing a memorandum that contains public observations of a teacher who has been convicted of carrying a concealed weapon. See Milford, supra, p. 784, 384 N.W.2d 786; compare Favors v. Dep't of Corrections, 192 Mich.App. 131,136, 480 N.W.2d 604 (1991). Construing the "intra-agency" exemption narrowly, Booth, supra, p. 232, 507 N.W.2d 422, this public interest in disclosure was not clearly outweighed by the public interest in encouraging frank communications within a public body. To the extent that the circuit court relied on the intra-agency exemption in not requiring disclosure of the Johnson memorandum, it abused its discretion.

III

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 to 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, 204 Mich.App. 215, 225-226, 514 N.W.2d 213 (1994). In addition, the FOIA imposes a duty to segregate, to the extent practicable, exempt material from disclosable nonexempt material. Hubka v. Pennfield Twp., 197 Mich.App. 117, 120, 494 N.W.2d 800 (1992), rev'd on other grounds 443 Mich. 864, 504 N.W.2d 183 (1993). Because the attendance records that defendant created itself are of a different nature than the attendance records that Gillum submitted to defendant, we treat the two categories of records separately.

A

The FOIA exempts "[fjnformation or records subject to the physician-patient privilege...." M.C.L. § 15.243(l)(i); M.S.A. § 4.1801(13)(l)(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 acquired in attending a patient in a professional character, if the information was necessary to enable the person to prescribe for the patient as a physician, or to do any act for the patient as a surgeon. [M.C.L. § 600.2157; M.S.A. § 27A.2157.]

The purpose of the privilege is to protect the doctor-patient relationship and ensure that communications between the two are confidential. Swickard, supra, pp. 560-561, 475 N.W.2d 304. 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., 199 Mich.App. 241, 243, 501 N.W.2d 259 (1993). The privilege belongs to the patient and can be waived only by the patient. Id.

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, M.C.L. § 600.2157; M.S.A. § 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., 181 Mich.App. 662, 449 N.W.2d 678 (1989). The purpose of providing for waiver of this privilege, which is to prevent the suppression of evidence, see Domako v. Rowe, 438 Mich. 347, 354-355, 475 N.W.2d 30 (1991), is not implicated under the facts of this case. In addition, the fact that Gillum may have waived his privilege regarding these records with regard to defendant does not mean that he waived the privilege with regard to other parties. See Polish Roman Catholic Union of America v. Palen, 302 Mich. 557, 5 N.W.2d 463 (1942) (repudiating the theory that once confidential information has been published, the privilege of objecting to its repetition has been waived); B^easley v. Grand Trunk W.R. Co., 90 Mich.App. 576, 596-597, 282 N.W.2d 401 (1979); see also McDonnell v. United States, 4 F.3d 1227, 1253-1254 (CA3, 1993); compare Dobronski v. Federal Communications Comm., 17 F.3d 275, 279 (CA9, 1994). Accordingly, the trial court did not abuse its discretion in applying the physician-patient privilege exception to those records that Gillum submitted to defendant that constitute medical records. Because the trial court did not make particularized findings regarding which of Gillum's attendance records constituted medical records, we remand for that purpose. Newark Morning Ledger, supra, pp. 225-226, 514 N.W.2d 213; Hubka, supra, 197 Mich.App. at 120, 494 N.W.2d 800.

B

The FOIA also exempts "[m]edical, 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." M.C.L. § 15.243(l)(m); M.S.A. § 4.1801(13)(l)(m). With regard to the records that defendant itself created, the only aspect of these records that would possibly fall within this exemption are 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, p. 120, 494 N.W.2d 800.

On the other hand, some of the attendance 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, 514 N.W.2d 213; Hubka, supra, 197 Mich.App. at 120, 494 N.W.2d 800.

C

Gillum argues that his attendance records 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, 209 Mich.App. 419, 422, 531 N.W.2d 734 (1995).

IV

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 that it admitted was not on point. The court did not identify the exemption or exemptions on which it relied. Accordingly, we remand for more particularized findings of fact. See Post-Newsweek Stations v. Detroit, 179 Mich.App. 331, 335-336, 445 N.W.2d 529 (1989). We note that the complaint letters derive from various sources. We urge the circuit court on remand, in making its determination, to draw categories with sufficient precision so that all documents within a particular category are similar in nature. See Newark Morning Ledger, supra, pp. 225-226, 514 N.W.2d 213.

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." M.C.L. § 15.243(l)(h); M.S.A. § 4.1801(13)(l)(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, 205 Mich.App. 644, 654, 517 N.W.2d 864 (1994). The purpose of the privilege is to enable a client to confide in an attorney, secure in the knowledge that the communication will not be disclosed. Fruehauf Trailer Corp. v. Hagelthorn, 208 Mich.App. 447, 449, 528 N.W.2d 778 (1995). The scope of the privilege is narrow: it attaches only to confidential communications by the client to its advisor that are made for the purpose of obtaining legal advice. Id., p. 450, 528 N.W.2d 778.

Here, the interview was adversarial. Its stated purpose was to get Gillum's version of 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.