Herald Co., Inc. v. Ann Arbor Public Schools

• Decision Date: 20 June 1997
• Docket Number: Docket No. 186193
• Citation: 568 N.W.2d 411,224 Mich.App. 266
• Parties: , 120 Ed. Law Rep. 1153 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.
• Court: Court of Appeal of Michigan — District of US

Page 411

568 N.W.2d 411

224 Mich.App. 266, 120 Ed. Law Rep. 1153

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 Dec. 3, 1996, at Detroit.

Decided June 20, 1997, at 9:10 a.m.

Released for Publication Sept. 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, plaintiff's 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 plaintiff's 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 plaintiff's 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 "[i]nformation 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(1)(n); M.S.A. § 4.1801(13)(1)(n). This subsection exempts from disclosure "[c]ommunications 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...