Tobin v. Michigan Civil Service Com'n

• Decision Date: 23 December 1982
• Docket Number: J,Docket No. 65596,No. 3,3
• Citation: 416 Mich. 661,331 N.W.2d 184
• Parties: John L. TOBIN, Audrey Miller, Pearl Venable, Laurence W. Giller and Daniel Bebe, on behalf of themselves and all similarly situated classified Civil Service employees of the State of Michigan, Plaintiffs-Appellants, v. MICHIGAN CIVIL SERVICE COMMISSION, a constitutionally created agency of the State of Michigan, and the Michigan Department of Civil Service, a legislatively created agency of the State of Michigan, Defendants-Appellees. anuary Term. Calendar416 Mich. 661, 331 N.W.2d 184
• Court: Michigan Supreme Court

Page 184

331 N.W.2d 184

John L. TOBIN, Audrey Miller, Pearl Venable, Laurence W.

Giller and Daniel Bebe, on behalf of themselves and all

similarly situated classified Civil Service employees of the

State of Michigan, Plaintiffs-Appellants, v. MICHIGAN CIVIL SERVICE COMMISSION, a constitutionally

created agency of the State of Michigan, and the Michigan

Department of Civil Service, a legislatively created agency

of the State of Michigan, Defendants-Appellees.

Docket No. 65596, January Term.

Calendar No. 3.

416 Mich. 661, 331 N.W.2d 184

Supreme Court of Michigan.

Argued Jan. 6, 1982.

Dec. 23, 1982.

Fraser, Trebilcock Davis & Foster, P.C. by Michael E. Cavanaugh, Lansing, for plaintiffs-appellants.

Frank J. Kelley, Atty. Gen., Robert A. Derengoski, Sol. Gen., Thomas L. Casey, John Wernet, Asst. Attys. Gen., Lansing, for defendants-appellees.

RYAN, Justice.

This case is a so-called "reverse" Freedom of Information Act case in which the plaintiffs seek to enjoin rather than compel disclosure of public records. The plaintiffs are five classified civil service employees of the State of Michigan who have filed a class action seeking to enjoin the defendants, the Michigan Civil Service Commission and the Department of Civil Service, from releasing to several labor organizations a list of names and addresses of all classified civil service employees.

The plaintiffs assert that 1) the Freedom of Information Act (FOIA) ¹ affirmatively prohibits the contemplated disclosure, 2) the FOIA does not require disclosure of the names and addresses, 3) disclosure would constitute an enjoinable violation of plaintiffs' right of privacy, and, finally, 4) disclosure would violate the Civil Service Commission's authority to regulate all conditions of employment under Const.1963, art. 11, Sec. 5. While we find it unnecessary to decide whether the FOIA requires disclosure or whether FOIA-mandated disclosure would infringe upon the authority of the Civil Service Commission, we reject the remainder of the plaintiffs' arguments. We hold that the FOIA never prohibits disclosure, and that these plaintiffs are not entitled to injunctive relief under their common-law or constitutional right of privacy. Accordingly, the decision of the Court of Appeals is affirmed, 98 Mich.App. 604, 296 N.W.2d 320.

I

In the fall of 1977, the defendant state agencies received several requests for a list of names and addresses of all classified civil service employees. ² The requests were submitted by various labor organizations which sought to use the information for the purpose of soliciting members in furtherance of their organizational campaigns among those state employees. A determination had already been made as to the appropriate division of state employees into bargaining units for representation elections which would culminate in certification, for the first time, of labor organizations to represent the various units of employees. The defendants complied with the first of the requests in October of 1977, and indicated their intention to comply with the later requests for the list on November 15, 1977. On November 14, 1977, the executive secretary of the MSEA, one of the requesting unions, informed the defendants that pleadings to obtain judicial relief would be filed before the information was released. On November 15, 1977, the five named plaintiffs filed this action in the Ingham Circuit Court and obtained a temporary restraining order blocking the release of the names and addresses. Four of the five named plaintiffs were members of the MSEA, having authorized the payment of their dues through payroll deductions. The MSEA orally withdrew its request on November 15, 1977, and provided written confirmation that it wanted its request held in abeyance on November 17, 1977.

Two labor organizations, the Organization of Classified State Employees and the Welfare Employees Union, sought to intervene as defendants in order to argue that the FOIA compelled disclosure of the requested names and addresses. The plaintiffs opposed the intervention. A hearing was conducted on December 9, 1977, and the circuit judge denied the motion to intervene in an opinion filed December 21, 1977. No appeal was taken from this denial.

On May 25, 1978, the circuit judge entered an order clarifying the temporary restraining order which indicated that the restraining order of November 15, 1977, did not prohibit the Civil Service Commission from releasing the names and addresses of state employees pursuant to commission rule 5(1), the so-called "ten percent" rule. That rule authorizes the release, within 15 days of a representation election, of a list of names and addresses of state employees working within a particular bargaining unit to the bona fide unions that will appear on the ballot. ³ This clarifying modification was made at the suggestion of the plaintiffs. ⁴

The defendants then filed a motion for summary judgment. On September 28, 1978, the circuit court issued an opinion denying the defendant's motion for summary judgment and instead granted summary judgment in favor of the plaintiffs. The defendants appealed to the Court of Appeals, which reversed. Tobin v. Civil Service Comm, 98 Mich.App. 604, 296 N.W.2d 320 (1980). The plaintiffs' application for leave to appeal to this Court was granted upon reconsideration. 410 Mich. 908 (1981).

II

The plaintiffs argue that if a public record is one of those named in the FOIA as "exempt from disclosure" the statute affirmatively prohibits disclosure.

We conclude that the language of the act, the intent of the Legislature, public policy, and federal case law support the opposite conclusion, and we hold, therefore, that the Michigan FOIA authorizes, but does not require, nondisclosure of public records falling within a FOIA exemption.

The language of the FOIA is clear and unambiguous:

"A public body may exempt from disclosure as a public record under this act: [the lengthy list of FOIA exemptions follows]." M.C.L. Sec. 15.243; M.S.A. Sec. 4.1801(13). (Emphasis added.)

The Court of Appeals interpreted the term "may" in a permissive rather than mandatory sense. ⁵ The plaintiffs argue that the Court of Appeals clearly erred in interpreting "may" to mean "may" rather than "shall". We disagree. The words "may" and "shall" are to be given their ordinary and primarily accepted meaning. Smith v. Amber Twp. School Dist. No. 6, 241 Mich. 366, 369, 217 N.W. 15 (1928); Breen v. Kehoe, 142 Mich. 58, 62, 105 N.W. 28 (1905). ⁶

We find nothing to indicate that the Legislature intended the Freedom of Information Act to require nondisclosure. The Michigan Constitution of 1963, art. 4, Sec. 24, requires that the object of a law shall be expressed in its title. Nothing in the title of the FOIA ⁷ or its statement of "public policy" ⁸ suggests that the problem being addressed was the excessive disclosure of governmental information. While the federal government and some state legislatures have responded to the problems of government overdisclosure by passing so-called "privacy acts", ⁹ the Michigan Legislature has not done so.

Further evidence that the Legislature intended the FOIA to be purely a disclosure statute is found in the enforcement provisions of the act. Under M.C.L. Sec. 15.240(1); M.S.A. Sec. 4.1801(10)(1), an action may be commenced in circuit court to compel disclosure of public records; no provision is made for an action to forbid disclosure. Only persons asserting the right to inspect a public record are eligible for an award of attorney fees or punitive damages, M.C.L. Sec. 15.240(4) and (5); M.S.A. Sec. 4.1801(10)(4) and (5), and only a person requesting public documents is authorized to commence an action in circuit court under FOIA. M.C.L. Sec. 15.235(7); M.S.A. Sec. 4.1801(5)(7). The absence of any provisions in the statute allowing third parties such as these plaintiffs to bring an action to compel nondisclosure is persuasive evidence that the FOIA did not create such rights. Any asserted right by third parties to prohibit disclosure must have a basis independent of the FOIA.

The plaintiffs argue that it would be against public policy to permit a public body to disclose information exempted from disclosure under the FOIA. ¹⁰ We can accept plaintiffs' argument that most information exempted from disclosure under FOIA should not be routinely disclosed without accepting the argument that the FOIA absolutely prohibits such disclosures. In the usual case, law enforcement agencies will not reveal confidential information furnished only by a confidential source. Nondisclosure is authorized by M.C.L. Sec. 15.243(1)(b)(iv); M.S.A. Sec. 4.1801(13)(1)(b)(iv). But suppose a confidential source informs the police that a dangerous criminal drives a certain vehicle and fits a certain description. Does the FOIA foreclose the police from broadcasting the information to the general public in the hope that the public will provide further information leading to the arrest of the suspect? We think not. In the usual case, law enforcement agencies refuse to disclose law enforcement investigative techniques or procedures. M.C.L. Sec. 15.243(1)(b)(v); M.S.A. Sec. 4.1801(13)(1)(b)(v). But if that prohibition were absolute, it would be extremely difficult to adequately train new police officers without revealing investigative techniques or procedures.

The ability to make a discretionary disclosure not required by the FOIA does not allow a public body to disregard other substantive limitations on disclosure. For example, the right of privacy discussed in part IV of this opinion, the Administrative Procedures Act, ¹¹ or other laws may affirmatively prohibit disclosure of information under certain circumstances. However, a party suing to prevent disclosure must rely on that substantive law to prevent disclosure. The FOIA provides no assistance for the plaintiff in a reverse FOIA lawsuit. In effect, a reverse FOIA suit to prevent...