Lansing Ass'n of School Administrators v. Lansing School District Board of Education

549 N.W.2d 15 (1996) 216 Mich. App. 79

LANSING ASSOCIATION OF SCHOOL ADMINISTRATORS, Plaintiff-Appellant,
v.
LANSING SCHOOL DISTRICT BOARD OF EDUCATION, Lansing School District Superintendent, and Lansing School District Personnel Director/Associate Superintendent, Defendants-Appellees, and
Michigan Education Association, Parent Support Network, Newark Morning Ledger Company, and Michigan Press Association, Amici Curiae.
Christine E. BRADLEY, Plaintiff-Appellant,
v.
SARANAC COMMUNITY SCHOOLS, Board of Education, and Saranac Community School District, Defendants-Appellees.

Docket Nos. 163316, 168371.

Court of Appeals of Michigan.

Submitted October 11, 1995, at Lansing. Decided March 26, 1996, at 9:05 a.m. Released for Publication June 11, 1996.

Hankins & Associates, P.C. by Dan E. Hankins and Jayne M. Flanigan, Okemos, for Lansing Association of School Administrators.

White, Beekman, Przybylowicz, Schneider & Baird, P.C. by Thomas A. Baird, Okemos, for Christine E. Bradley.

Thrun, Maatsch and Nordberg, P.C. by James T. Maatsch and Philip A. Erickson, Lansing, for Lansing School District Board of Education, Lansing School District Superintendent, and Lansing School District Personnel Director/Associate Superintendent.

Thrun, Maatsch and Nordberg, P.C. by Kevin S. Harty and Roy H. Henley, Lansing, for Saranac Community Schools Board of Education and Saranac Community School District.

White, Beekman, Przybylowicz, Schneider & Baird, P.C. by Thomas A. Baird, Okemos, for Michigan Education Association, amicus curiae.

James Dunn & Associates, P.C. by Wendy S. Hardt, Lansing, for Parent Support Network, amicus curiae.

Hackett, Maxwell & Phillips by Dawn L. Phillips, Pontiac, for Michigan Press Association, amicus curiae.

Dykema Gossett by Jonathan D. Rowe, Ann Arbor, for Newark Morning Ledger Company, amicus curiae.

Before McDONALD, P.J., and MARKEY and COOPER,^[*] JJ.

PER CURIAM.

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), M.C.L. § 15.231 et seq.; M.S.A. § 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.

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 M.C.L. § 15.243(1)(a) and (n); M.S.A. § 4.1801(13)(1)(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 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 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 Karp 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(1)(a) or (n) of the FOIA, M.C.L. 15.243(1)(a), (n); MSA 4.1801(13)(1)(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, 210 Mich.App. 643, 648, 534 N.W.2d 242 (1995); Health Central v. Comm'r of Ins., 152 Mich.App. 336, 347, 393 N.W.2d 625 (1986). Also, we will not disturb on appeal a public body's decision to disclose exempted information absent an abuse of discretion. See Blue Cross & Blue Shield of Michigan v. Ins. Bureau, 104 Mich.App. 113, 125-126, 304 N.W.2d 499 (1981). Moreover, the decision whether to grant injunctive relief is within the sound discretion of the trial court and must be based on the facts of each particular case. Soergel v. Preston, 141 Mich.App. 585, 590, 367 N.W.2d 366 (1985). Because the personnel records at issue in this case are not protected from disclosure by the common law or the constitution, we find no abuse of discretion in the trial courts' decisions permitting disclosure of the requested personnel records.

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, 444 Mich. 211, 231, 507 N.W.2d 422 (1993). As opposed to cases where entities requesting documents pursuant to the FOIA sue after the public body refuses to disclose the public documents, this is a "reverse FOIA" case, i.e., plaintiffs seek to prevent disclosure of information contained in the files of government agencies. Tobin v. Michigan Civil Service Comm., 416 Mich. 661, 670-671, 331 N.W.2d 184 (1982); Health Central, supra at 340-341, 393 N.W.2d 625.

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, 331 N.W.2d 184]. "In effect, a reverse FOIA suit to prevent disclosure of information within an FOIA exemption must be evaluated as if the FOIA did not exist." 416 Mich. [at] 670 [331 N.W.2d 184]. [Health Central, supra at 341, 393 N.W.2d 625. 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, 331 N.W.2d 184, 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, 428 Mich. 104, 123, 404 N.W.2d 606 (1987) (Cavanagh, J.). "The contours and limits are thus to be determined by the court, as the trier of fact, on a case-by-case basis in the tradition of the common law." Id. Both plaintiffs asserted in their complaints that the disclosure of the requested evaluations and other personnel records would constitute an invasion of privacy. The common-law right of privacy protects against four types of invasion of privacy:

"`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 CalLRev 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, 331 N.W.2d 184.]

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, 331 N.W.2d 184, citing Beaumont v. Brown, 65 Mich.App. 455, 462, 237 N.W.2d 501 (1975), rev'd, 401 Mich. 80, 257 N.W.2d 522 (1977); see also 3 Restatement Torts, 2d, § 652B and comments, pp. 378-380. Plaintiffs' claims that disclosure of the personnel file information would intrude upon administrators' and teachers' privacy must fail because they "have suggested nothing objectionable about the method by which the information was obtained or is proposed to be released." Tobin, supra at 673, 331 N.W.2d 184. See also Detroit Free Press, Inc. v. Oakland Co. Sheriff, 164 Mich.App. 656, 663-664, 418 N.W.2d 124 (1987). As in Tobin, supra at 674, 331 N.W.2d 184,^[7] the method employed to obtain the information sought in this case, i.e., merely writing a letter of request, is neither intrusive nor objectionable to the reasonable person. It is the contemplated disclosure, not the method of the disclosure, that plaintiffs find intrusive and objectionable. Id.; see also Swickard v. Wayne Co. Medical Examiner, 438 Mich. 536,549, n. 10,475 N.W.2d 304 (1991).

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, 331 N.W.2d 184.

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, 101 Mich.App. 725, 728, 300 N.W.2d 687 (1980), citing 3 Restatement Torts, 2d, § 652D, p. 383. Moreover, the publicity must concern plaintiffs' private, as distinguished from public, lives. Fry, supra at 729, 300 N.W.2d 687. In this case, the information at issue concerns the administrators' and a teacher's performance in their respective public jobs; neither plaintiff has asserted that the information contained in their employer-compiled personnel files relates to the administrators' and teachers' private lives. Also, according to 3 Restatement Torts, 2d, § 652D, p. 384, the term "publicity" involves a communication to so many persons that the matter is substantially certain to become public knowledge. "Thus, it is not an invasion of the right of privacy, within the rule stated in this Section, to communicate a fact concerning the plaintiff's private life to a single person or even to a small group of persons." Id.; Beaumont, 401 Mich. at 104-105, 257 N.W.2d 522. Further, we are hard-pressed to conclude that information regarding the professional performance of school administrators and teachers, including complaints regarding their teaching methods, actions taken to address these complaints, and any disciplinary steps taken as a result, are not matters of legitimate concern to the public. Fry, supra at 728-729, 300 N.W.2d 687.^[8] We therefore find no common-law invasion of privacy based upon the public disclosure of embarrassing private facts.

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., 209 Mich.App.344, 351, 529 N.W.2d 665 (1995), citing MCR 7.216(A)(7); cf. Booth Newspapers, supra at 234, 507 N.W.2d 422. In Detroit Free Press, supra at 667-668, 418 N.W.2d 124, this Court relied upon the United States Supreme Court's observations in Paul v. Davis, 424 U.S. 693, 712-713, 96 S. Ct. 1155, 1166, 47 L.Ed.2d 405 (1976), regarding the concept of a constitutional right to privacy:

While there is no "right of privacy" found in any specific guarantee of the Constitution, the Court has recognized that "zones of privacy" may be created by more specific constitutional guarantees and thereby impose limits upon government power. See Roe v. Wade, 410 U.S. 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.... [O]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 U.S. 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, 205 Mich.App. 194, 206-207, 518 N.W.2d 487 (1994), modified on other grounds, 447 Mich. 436, 527 N.W.2d 714 (1994). The right to privacy found in Roe, supra, was founded in the Fourteenth Amendment concept of personal liberty and restriction upon state action, but that right is not unlimited. Hobbins, supra at 205, 518 N.W.2d 487. The "`rights not readily identifiable in the Constitution's text'" are characterized as those fundamental liberties deeply rooted in our nation's history and tradition, i.e., "neither liberty nor justice would exist if [they] were sacrificed." Id. at 206, 518 N.W.2d 487, citing Bowers v. Hardwick, 478 U.S. 186, 191-192, 106 S. Ct. 2841, 2844, 92 L. Ed. 2d 140 (1986).

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 employees' personnel records. Id. at 207, 106 S. Ct. at 2852. 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(1)(t)(ix) of the FOIA, M.C.L. § 15.243(1)(t)(ix); M.S.A. § 4.1801(13)(1)(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(1)(a) the more specific wording found in the federal FOIA exemption from disclosure for "personnel and medical files and similar files." 5 U.S.C. 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 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., 199 Mich.App. 345, 347, 500 N.W.2d 773 (1993); Shapiro v. Steinberg, 176 Mich.App. 683, 687, 440 N.W.2d 9 (1989).^[10]

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, 331 N.W.2d 184. 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.

R.I. COOPER, J., did not participate.

NOTES

[*] Richard I. Cooper, 51st Judicial Circuit Judge, sitting on Court of Appeals by assignment pursuant to Const. 1963, Art. 6, Sec. 23, as amended 1968.

[1] Sections 13(1)(a) and (n) of the FOIA state as follows:

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....

[2] See n. 1.

[3] See Swickard v. Wayne Co. Medical Examiner, 438 Mich. 536, 543-544, 475 N.W.2d 304 (1991).

[4] Swickard, supra at 543-544, 475 N.W.2d 304; State Employees Ass'n v. Dep't of Management & Budget, 428 Mich. 104, 113-121, 126, 129, 404 N.W.2d 606 (1987); Int'l Union, United Plant Guard Workers of America v. Dep't of State Police, 422 Mich. 432, 439-440, n. 7, 373 N.W.2d 713 (1985), modified on other grounds, 423 Mich. 1205 (1985).

[5] 5 U.S.C. 552(b) et seq.

[6] 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).

[7] 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, 331 N.W.2d 184.

[8] See also Ridenour v. City of Dearborn School Dist. Bd. of Ed., 111 Mich.App. 798, 805, 314 N.W.2d 760 (1981):

From defendant's viewpoint, disclosure of performance evaluations to the public is an intrusion of privacy which outweighs the 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.

[9] These personnel records are exempt from disclosure under § 13(1)(t)(ix) "[u]nless the public interest in disclosure outweighs the public interest in nondisclosure."

[10] "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.