Kestenbaum v. Michigan State University

Decision Date07 December 1982
Docket NumberNo. 14,Docket No. 65473,14
PartiesLawrence KESTENBAUM, Plaintiff-Appellant, v. MICHIGAN STATE UNIVERSITY and Dale Arnold, Defendants-Appellees. Calendar414 Mich. 510, 327 N.W.2d 783, 8 Ed. Law Rep. 444
CourtMichigan Supreme Court

Richard W. Kinkade (P27550), Vande Bunte & Kinkade, Lansing, for plaintiff and appellant.

Byron H. Higgins (P-14944), Office of Legal Affairs, East Lansing, for defendants and appellees.

FITZGERALD, Chief Justice.

We are asked to determine whether defendants violated the Freedom of Information Act, M.C.L. Sec. 15.231 et seq.; M.S.A. Sec. 4.1801(1) et seq., by denying plaintiff's request for a copy of the magnetic tape used to produce the Michigan State University student directory. We hold that such denial was proper, and therefore affirm the decision of the Court of Appeals, 97 Mich.App. 5, 294 N.W.2d 228.


In September, 1978, plaintiff Lawrence Kestenbaum sought from defendants Michigan State University and Dale Arnold, the university's designated freedom of information officer, a duplicate of the computer tape used to produce the directory of students attending the school. Plaintiff contended that he was entitled to the tape under the Freedom of Information Act (hereinafter FOIA). Plaintiff stated that he wanted the tape to facilitate political mailings in connection with the November, 1978, election.

Defendants refused the request, offering instead to give plaintiff either a copy of the directory as soon as it was available, or an immediate printout of the information on the tape. The university asserted that its position was supported by the FOIA, specifically the provision exempting from disclosure information within the scope of the

Family Educational Rights and Privacy Act of 1974, 20 U.S.C. Sec. 1232g. 1

Plaintiff subsequently filed suit in Ingham Circuit Court. On October 18, 1978, the trial court ordered defendants to create a duplicate magnetic tape for plaintiff's use, deleting all information on the original except names and addresses of students. The trial court further directed that plaintiff make no use of the tape other than for political mailings, and that plaintiff return the tape after the election. Plaintiff was denied attorney fees, costs, disbursements or damages because the trial court concluded that defendants' refusal had not been arbitrary or capricious, and that the case presented a valid question of first impression with substantial effects on the rights of third persons. 2

Plaintiff appealed the denial of attorney fees and costs. Defendants filed a cross appeal on the issues of whether the students' names and addresses were exempt from disclosure under the Family Educational Rights and Privacy Act, and whether a public body is required under the FOIA to release for a nominal cost items of proprietary interest owned by the public.

The Court of Appeals affirmed the denial of attorney fees and costs, but reversed the trial court's finding that plaintiff was entitled to a tape of the students' names and addresses. Kestenbaum v. Michigan State University, 97 Mich.App. 5, 294 N.W.2d 228 (1980). The Court did not rely upon the Family Educational Rights and Privacy Act, however, but rather upon Sec. 13(1)(a) of FOIA, M.C.L. Sec. 15.243(1)(a); M.S.A. Sec. 4.1801(13)(1)(a), which protects against a "clearly unwarranted invasion of an individual's privacy". The Court further stated that release of the computer tape would contravene the constitutional prohibition against public funds being used to support a private purpose. Const.1963, art. 9, Sec. 18. Plaintiff's application for rehearing was denied.

This Court granted leave to appeal. 411 Mich. 869 (1981).


Freedom of information acts were passed by Congress and the various state legislatures in response to public concern over bureaucratic abuses and secrecy. The federal act 3 preceded its Michigan counterpart by some ten years and served as a model for the state legislation. The thrust of both versions is a policy of disclosure.

Under the state act, a public body is required to disclose a public record upon request unless the record falls within the scope of certain enumerated exceptions. The terms "public body" and "public record" are defined in the preliminary sections of the FOIA.

There is no question that Michigan State University is a public body, having been "created by state or local authority or which is primarily funded by or through state or local authority". FOIA Sec. 2(b)(iv), M.C.L. Sec. 15.232(b)(iv); M.S.A. Sec. 4.1801(2)(b)(iv). A list of students appears to be a public record, i.e., "a writing prepared, owned, used, in the possession of, or retained by a public body in the performance of an official function, from the time it is created". FOIA Sec. 2(c). Further, the term "writing" specifically includes a magnetic tape. FOIA Sec. 2(e).

It is important to note at this point that a significant difference between Michigan's FOIA and the federal precursor is that the state act begins with a preamble which sets forth legislative intent:

"It is the public policy of this state that all persons 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. M.C.L. Sec. 15.231(2); M.S.A. Sec. 4.1801(1)(2)." (Emphasis added.)

Thus, each provision of the FOIA must be read so as to be consistent with the purpose announced in the preamble.

Whether a list of students is the kind of information envisioned by the Legislature as appropriate for disclosure is debatable, but such a determination is not necessary to our holding in this case.

By accepting without deciding that the list of students qualifies as a public record, we necessarily turn our focus to the enumerated exemptions. The posture of plaintiff's inquiry then becomes whether Michigan State University, a public body in possession of a public record, to wit, a magnetic tape, was authorized under the FOIA to deny disclosure.

We hold that the university was justified in denying plaintiff's request because the release of the magnetic tape containing the names and addresses of students would run afoul of the exemption set forth in Sec. 13(1)(a)--information of a personal nature where the public disclosure of the information would constitute a clearly unwarranted invasion of an individual's privacy.

In fact, despite the wording of Sec. 13, which seems to make withholding of exempt information discretionary with the public body, the university arguably would not have been justified if it had granted plaintiff's request. It is logically persuasive that the public policy implicit in the exemptions only can be served if nondisclosure prevails in those situations described in Sec. 13. 4


The concept of privacy is elusive. Social scientists and legal scholars alike have struggled for a definition expansive enough to include important concerns and yet narrow enough to be workable.

Privacy as an existential condition must be distinguished from a legally cognizable right to privacy. The "right to privacy" has been described at various times as stemming from either property or trust theories or as flowing from certain constitutional guarantees or a penumbra thereof. This right, whatever its source, was labeled by Justice Cooley as "the right to be let alone". 5

As society has expanded and distance contracted because of advances in communication and travel, the right to privacy for many has become the ability to choose with whom and under what circumstances they will communicate.

Obviously, not every interest of every person rises to a level which the law can or should protect. However, despite changing attitudes and changing laws, 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. The United States Supreme Court on many occasions has reemphasized the reverence with which the law views the private domicile. 6

These prefatory remarks serve to illustrate that 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.

The United States Supreme Court has refused to endorse the idea that such an intrusion is so minimal as to be inconsequential.

"We therefore categorically reject the argument that a vendor has a right under the Constitution or otherwise to send unwanted material into the home of another. If this prohibition operates to impede the flow of even valid ideas, the answer is that no one has a right to press even 'good' ideas on an unwilling recipient. That we are often 'captives' outside the sanctuary of the home and subject to objectionable speech and other sound does not mean we must be captives everywhere. * * * The asserted right of a mailer, we repeat, stops at the outer boundary of every person's domain." Rowan v. United States Post Office Dep't., 397 U.S. 728, 738, 90 S.Ct. 1484, 1491, 25 L.Ed.2d 736 (1970).

It does not suffice, however, to merely label the release of names and addresses in this case an invasion of privacy. In order to come under exemption (1)(a) of Sec. 13, the information must be of such a nature that "the public disclosure of the information would constitute a clearly unwarranted invasion of an individual's privacy".

The similarity between the FOIA and the federal act invites analogy when deciphering the various sections and attendant judicial interpretations. The exemption in the federal FOIA most similar to...

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