[nfbmi-talk] Fw: Freedomof Information Act Request/RSA Monitoring Report

[joe harcz Comcast]

----- Original Message ----- 
From: "joe harcz Comcast" <joeharcz at comcast.net>
To: "Farmer, Mel (DELEG)" <farmerm at michigan.gov>
Sent: Monday, May 10, 2010 2:25 PM
Subject: Re: Freedomof Information Act Request/RSA Monitoring Report


> You still haven't shown me the statutory reference to which you refer to 
> here. You can't "cherry pick" legally. Moreover, fact based materials must 
> be remitted.
>
> Sincerely,Paul Joseph Harcz, Jr.
> ----- Original Message ----- 
> From: "Farmer, Mel (DELEG)" <farmerm at michigan.gov>
> To: "joe harcz Comcast" <joeharcz at comcast.net>
> Cc: "Shamsiddeen, Jaye (DELEG)" <ShamsiddeenJ at michigan.gov>; "Cannon, 
> Patrick (DELEG)" <cannonp at michigan.gov>; "Haynes, Carla (DELEG)" 
> <haynesc at michigan.gov>; "Wiese, Deb (DELEG)" <wiesed at michigan.gov>; 
> "Moore, Gerry (DELEG)" <MooreG4 at michigan.gov>
> Sent: Monday, May 10, 2010 2:00 PM
> Subject: FW: Freedomof Information Act Request/RSA Monitoring Report
>
>
> Mr. Harcz, attached is an the email copy of the mailed response notice to 
> your May 10, 2010 appeal to the Department's April 29, 2010 disclosure 
> denial of your April 26, 2010 Freedom of information Act request for 
> records you describe as the RSA monitoring report.
>
>
> May 10, 2010
>
> Mr. Paul Joseph Harcz, Jr.
> 1365 E. Mt. Morris Road
> Mt. Morris, MI 48458
>
> Dear Mr. Harcz:
>
> This notice is in response to your May 10, 2010 email appeal (attached) 
> regarding the Department's April 29, 2010 disclosure denial of your April 
> 26, 2010 emailed Freedom of Information Act (FOIA), MCL 15.231 et 
> seq.)request for "...the RSA "monitoring report referenced in the 
> September 18, 2009 Michigan Rehabilitation Council meeting minutes..." and 
> ..."for MRS' rebuttal or its response to RSA."
>
> Please be informed that after a thorough review of the case law you 
> provided, Bradley v Saranac Community Schools, 565 NW2d, 650-Mich. Supreme 
> Court 1997, pursuant to MCL 15.240, Section 10(2)(b) of the FOIA, I am 
> upholding the disclosure denial. This determination is based on the 
> following:
> --The Department provided applicable reasons for the disclosure denial
>  under MCL 15.243, Sections 13(1)(d) and 13(1)(m) of the FOIA
>  which provide that the information requested is exempt from disclosure
>  by statute; and that communications between public bodies of an
>  advisory nature, preliminary to a final determination or action, is also
>  exempt from disclosure.
>
> --The FOIA case law you provided is related to public employees attempting
>  To keep their performance evaluations in their personnel records from not
>  being released by a public body. The Department's disclosure denial is
>  based on public records between public bodies exempted by statute; and of
>  an advisory nature preliminary to a final determination or action.
>
>  Further, section II, 3B. SUBSECTION 13(1)(n) of the case law decision you
>  Provided, in part, reads:
>   "This exemption does not apply to plaintiff's personnel records for at
>    least two reasons. First, the complaints from parents are not
>    "communications and notes within a public body or between public
>    bodies" because the documents were created by parents, not the school
>    district.
>
>    Second, the appellants lack standing to assert this exemption.
>    Subsection 13(1)(n) requires the public body that possess the records
>    to show that the public interest in disclosure is outweighed by the
>    public interest in encouraging frank communications between officials
>    and the employees of public bodies. Consequently, the proper body to
>    raise this exemption is the school district, not the appellants. This
>    conclusion is consistent with our Court of Appeals interpretation of
>    this exemption."
>
>  Thusly, as your request is for records between public bodies and the
>  Department, as a public body, raised applicable exemptions, the above
>  court statements support the Department's disclosure denial
>  determinations under MCL 15.240, Sections 13(1)(d)and 13(1)(m) of the
>  FOIA.
>
> Pursuant to MCL 15.240, Section 10(1)(b) of the FOIA, this constitutes the 
> Department's determination regarding this request. You may seek judicial 
> review in circuit court within 180 days after this final determination. If 
> you prevail in such action, the court may award reasonable attorney fees, 
> costs, and disbursements. If the court finds the Department's actions to 
> be arbitrary and capricious, the court shall, in addition to any actual or 
> compensatory damages, award punitive damages in the amount of $500.00.
>
> Sincerely,
>
>
> Mario Morrow
> DELEG Appeals Officer
>
> Attachment
>
> CC: Jaye Shamsiddeen, Patrick Cannon, Melvin Farmer
>
>
> -----Original Message-----
> From: joe harcz Comcast [mailto:joeharcz at comcast.net]
> Sent: Monday, May 10, 2010 8:12 AM
> To: Farmer, Mel (DELEG)
> Cc: Shamsiddeen, Jaye (DELEG); Wiese, Deb (DELEG); Moore, Gerry (DELEG); 
> Cannon, Patrick (DELEG); Haynes, Carla (DELEG)
> Subject: Re: Freedomof Information Act Request/RSA Monitoring Report
>
> Dear Sir,
> Please be informed in the attached case law and many others your blanket
> denial is out of order and I do appeal this.
>
> Sincerely Paul Joseph Harcz, Jr.
> http://scholar.google.com/scholar_case?case=10730474106309145432
>
> Bradley v. Saranac Community Schools, 565 NW 2d 650 - Mich: Supreme Court
> 1997 - Google Scholar
>
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> Bradley v. Saranac Community Schools, 565 NW 2d 650 - Mich: Supreme Court
> 1997
>
>
>
> 565 N.W.2d 650 (1997)
>
> 455 Mich. 285
>
>
>
> Christine E. BRADLEY, Plaintiff-Appellant,
>
> v.
>
> BOARD OF EDUCATION OF THE SARANAC COMMUNITY SCHOOLS and The Saranac
> Community School District, Defendants-Appellees.
>
> 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.
>
> Docket Nos. 106020, 106070, Calendar Nos. 11, 12.
>
>
>
> Supreme Court of Michigan.
>
> Argued March 5, 1997.
>
> Decided July 22, 1997.
>
>
>
> 652 White, Przybylowicz, Schneider & Baird, P.C. by Thomas A. Baird and
> Kathleen Corkin Boyle, Okemos, for plaintiff-appellant Bradley.
>
>
>
> Hankins & Flanigan, P.C. by Jayne M. Flanigan and Timothy G. Holland 
> Okemos,
> for plaintiff-appellant Lansing Association of School Administrators.
>
>
>
> Thrun, Maatsch & Nordberg, P.C. by Kevin S. Harty, Roy H. Henley, James T.
> Maatsch, and Philip A. Erickson, Lansing, for defendants-appellees.
>
>
>
> Hackett, Maxwell & Phillips by Dawn L. Phillips-Hertz and Lisa Rycus
> Mikalonis, Troy, amicus curiae, for Michigan Press Association.
>
>
>
> Michael R. Shpiece, Bloomfield Hills, amicus curiae, for Michigan Freedom 
> of
> Information Committee.
>
>
>
> Peggy J. Rostorfer, Lansing, amicus curiae, for Parent Support Network.
>
>
>
> 651 BRICKLEY, Justice.
>
>
>
> This consolidated case presents the issue whether the personnel records of
> public school teachers and administrators are exempt from disclosure under
> the
>
> Freedom of Information Act. M.C.L. § 15.231; M.S.A. § 4.1801(1). We hold
> that the requested records must be disclosed because they are public 
> records
> and
>
> are not within any exemption under the FOIA. The decision of the Court of
> Appeals is affirmed in part and reversed in part.
>
>
>
> I
>
>
>
> In 1993, the father of one of Ms. Bradley's students made an FOIA request 
> to
> the Saranac Community School District, seeking copies of Ms. Bradley's
> personnel
>
> file. Ms. Bradley objected to the release of her performance evaluations,
> disciplinary records, and complaints filed against her. The school 
> district
> informed
>
> Ms. Bradley that it planned to release all the requested information,
> subject to the redaction of certain passages. The school district 
> indicated
> that
>
> it was releasing the documents because it believed that it was compelled 
> to
> do so.
>
>
>
> Ms. Bradley sought a declaratory judgment and an injunction in the Ionia
> Circuit Court, contending that the requested material was exempt from
> disclosure
>
> under subsections 13(1)(a) and (n) of the FOIA. The circuit court entered 
> a
> temporary restraining order. Following an in-camera inspection, during 
> which
>
> it compared the original documents with a set of redacted documents, the
> circuit court ruled that the documents should be released in the edited
> form.
>
>
>
> 653 Separately, in the same year, the Parents Support Network submitted an
> FOIA request to the Lansing School District Board of Education, seeking
> copies
>
> of the written performance evaluations for nine principals employed by the
> school district. Representing the administrators, the Lansing Association 
> of
>
> School Administrators (LASA) filed an action for a preliminary injunction
> and a permanent injunction in the Ingham Circuit Court to bar the school
> board
>
> from disclosing the requested material. LASA alleged that the documents 
> were
> exempt from disclosure under subsections 13(1)(a) and (n) of the Freedom 
> of
>
> Information Act, and because of certain administrative protections. The
> circuit court ruled in favor of the school district.
>
>
>
> The plaintiffs in both cases appealed, and the Court of Appeals 
> consolidated
> the cases. In a per curiam opinion, the Court of Appeals affirmed the
> decisions
>
> of the circuit courts.
>
> [1]
>
> Relying on Tobin v. Civil Service Comm,
>
> [2]
>
> the Court of Appeals concluded that the appellants were raising a "reverse
> FOIA" claim, i.e., seeking to prevent disclosure of public records under 
> the
>
> FOIA. Reasoning that the FOIA, as a pro-disclosure statute, could not
> provide the plaintiffs with their desired relief, the Court of Appeals
> evaluated
>
> the plaintiffs' claims "`as if the FOIA did not exist'...."
>
> [3]
>
> Bypassing the FOIA, the Court of Appeals examined the common law and the
> constitutional right to privacy for a reason to prevent disclosure, and,
> finding
>
> none, ordered that the documents be disclosed, subject to "appropriate
> redactions."
>
> [4]
>
>
>
> II
>
>
>
> A. THE FREEDOM OF INFORMATION ACT
>
>
>
> The issue presented by this consolidated case is whether the Michigan FOIA
> compels disclosure of the personnel records of public school teachers and
> administrators.
>
>
>
> The FOIA "protects a citizen's right to examine and to participate in the
> political process."
>
> [5]
>
> By requiring the public disclosure of information regarding the affairs of
> government and the official acts of public officials and employees, the 
> act
> enhances
>
> the public's understanding of the operations or activities of the
> government.
>
> [6]
>
>
>
> 1. REVERSE FOIA
>
>
>
> While we agree with the conclusion
>
> [7]
>
> of the Court of Appeals, we arrive at that destination by a different 
> route.
> The Court of Appeals did not evaluate this case under the FOIA because it
> concluded
>
> that this action was a "reverse FOIA" action.
>
> [8]
>
> While that description may be apt, it does not automatically lead to the
> conclusion that the FOIA is irrelevant. As the plaintiffs' cases
> demonstrate, an
>
> action challenging an FOIA request may turn on an interpretation of 
> whether
> the FOIA requires disclosure, notwithstanding that the FOIA does not 
> prevent
>
> disclosure.
>
> [9]
>
>
>
> For example, in Bradley, the plaintiff sought a declaratory judgment that
> her personnel records were exempt from disclosure under the FOIA because 
> the
> school
>
> district had informed her that it was releasing the information under the
> belief that it was compelled to do so. If the plaintiff had prevailed in
> showing
>
> that her personnel file was exempt, she may have been able to persuade the
> school district not to release the information.
>
>
>
> Similarly, LASA's complaint asserted that the requested documents were
> exempt from
>
> 654 disclosure under the FOIA and that certain administrative review
> procedures prevented the circulation of evaluation documents. If LASA had
> prevailed
>
> in its argument that its records were exempt, it could have enforced the
> confidentiality provision of the collective bargaining agreement to 
> prevent
> disclosure
>
> of the evaluatory documents.
>
>
>
> Because a favorable ruling on the applicability of the FOIA exemptions to
> their personnel records could have permitted the plaintiffs their 
> requested
> relief
>
> under the FOIA,
>
> [10]
>
> the Court of Appeals erred in not analyzing this case under the FOIA.
>
>
>
> 2. APPLICATION OF THE FOIA TO THE PLAINTIFFS' PERSONNEL RECORDS
>
>
>
> The Michigan FOIA provides for the disclosure of "public records" in the
> possession of a "public body."
>
> [11]
>
> Plaintiffs do not dispute that their school districts are "public
> [bod[ies],"
>
> [12]
>
> or that the contents of their personnel records are "[p]ublic records."
>
> [13]
>
>
>
> The FOIA requires the full disclosure of public records, unless those
> records are exempted under § 13.
>
> [14]
>
> The exemptions in § 13 are narrowly construed, and the burden of proof 
> rests
> on the party asserting the exemption.
>
> [15]
>
> If a request for information held by a public body falls within an
> exemption, the decision becomes discretionary.
>
> [16]
>
>
>
> 3. EXEMPTIONS UNDER THE FOIA
>
>
>
> The appellants contend that their personnel records are exempt from the
> mandatory disclosure requirements of the FOIA because their records fall
> within
>
> two exemptions___subsections 13(1)(a) and (n). Additionally, appellants 
> LASA
> submit that subsection 13(1)(m) exempts their records. Because this issue
>
> raises a question of law, we review the Court of Appeals ruling de novo.
>
> [17]
>
>
>
> A. SUBSECTION 13(1)(a).
>
>
>
> The FOIA's privacy exemption, subsection 13(1)(a), provides:
>
> Block quote start
>
> A public body may exempt from disclosure as a public record under this 
> act:
>
> Block quote end
>
> Block quote start
>
> (a) 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, subd. 13(1)(a); M.S.A. § 4.1801(13)(1)(a).]
>
> Block quote end
>
>
>
> The privacy exemption consists of two elements, both of which must be
> present for the exemption to apply. First, the information must be of a
> "personal
>
> nature." Second, the disclosure of such information must be a "clearly
> unwarranted invasion of privacy."
>
> [18]
>
>
>
> In the past, we have used two slightly different formulations to describe
> "personal nature." The first defines "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...."
>
> [19]
>
> We have also defined this threshold inquiry in terms of whether the
> requested information was "personal, intimate, or embarrassing."
>
> [20]
>
> Combining
>
> 655 the salient elements of each description into a more succinct test, we
> conclude that information is of a personal nature if it reveals intimate 
> or
> embarrassing
>
> details of an individual's private life. We evaluate this standard in 
> terms
> of "the `customs, mores, or ordinary views of the community'...."
>
> [21]
>
>
>
> In these cases, the requested records were provided, under seal, to this
> Court for our evaluation. With regard to Ms. Bradley, her file contained
> documents
>
> pertaining to corrective or disciplinary actions, complaints filed, and
> performance evaluations. As for the administrators, their requested 
> records
> contained
>
> administrative performance reviews.
>
>
>
> Significantly, none of the documents contain information of an 
> embarrassing,
> intimate, private, or confidential nature, such as medical records or
> information
>
> relating to the plaintiffs' private lives. Moreover, the appellants have 
> not
> alleged specific private matters that would be revealed by the disclosure
>
> of their personnel records. Instead, the requested information consists
> solely of performance appraisals, disciplinary actions, and complaints
> relating
>
> to the plaintiffs' accomplishments in their public jobs. Because the
> requested information does not disclose intimate or embarrassing details 
> of
> the plaintiffs'
>
> private lives, we hold that the requested records do not satisfy the
> personal-nature element of the privacy exemption.
>
>
>
> Because we conclude that the records are not of a "personal nature," it is
> unnecessary for us to consider whether disclosure of the personnel files 
> is
> a
>
> "clearly unwarranted invasion of privacy."
>
> [22]
>
> We hold that the FOIA's privacy exemption does not apply under these 
> facts.
>
>
>
> B. SUBSECTION 13(1)(n)
>
>
>
> The plaintiffs also contend that the requested information is exempt from
> disclosure under the FOIA because of subsection 13(1)(n), which exempts
>
> Block quote start
>
> [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.
> 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.
>
> Block quote end
>
>
>
> This exemption does not apply to the plaintiff's personnel records for at
> least two reasons. First, the complaints from parents are not
> "communications
>
> and notes within a public body or between public bodies"
>
> [23]
>
> because the documents were created by parents, not by the school district.
>
>
>
> Second, the appellants lack standing to assert this exemption. Subsection
> 13(1)(n) requires the public body that possesses the records to show that
> the
>
> public interest in disclosure is outweighed by the public interest in
> encouraging frank communications between officials and the employees of
> public bodies.
>
> Consequently, the proper party to raise this exemption is the school
> district, not the appellants. This conclusion is consistent with our Court
> of Appeals
>
> interpretation of this exemption.
>
> [24]
>
>
>
> For the reasons stated above, we hold that the plaintiffs' personnel 
> records
> are not exempt from the FOIA under subsection 13(1)(n).
>
>
>
> C. SUBSECTION 13(1)(m)
>
>
>
> LASA argues that subsection 13(1)(m) exempts their personnel records. The
> following information is exempt under subsection 13(1)(m):
>
> Block quote start
>
> Medical, counseling, or psychological facts or evaluations concerning an
> individual if the individual's identity would be revealed
>
> 656 by a disclosure of those facts or evaluation.[
>
> [25]]
>
> Block quote end
>
>
>
> The plaintiffs assert that their performance evaluations are "counseling
> evaluations" for purposes of this exemption. Neither this Court nor the
> Court of
>
> Appeals has addressed whether employment-related personnel evaluations are
> counseling evaluations. However, the Attorney General has addressed this
> issue,
>
> concluding that
>
> Block quote start
>
> the context within which the word "counseling" appears indicates the
> Legislature's intent that this apply only where there is a professional
> relationship
>
> between counselor and counselee, not where there is an employment
> relationship.[
>
> [26]]
>
> Block quote end
>
>
>
> We agree with the Attorney General's analysis that the Legislature's use 
> of
> the term "counseling" does not appear to include an employment 
> relationship.
>
> Further, we acknowledge that the apparent purpose of this exemption is to
> prevent the disclosure of a person's identity through the release of
> medical,
>
> counseling, or psychological records. The exemption's concern is not with
> the release of the underlying information, only with the release of the
> patient's
>
> identity. In particular, we note that the exemption prevents the 
> disclosure
> of certain records only if disclosure would reveal the patient's identity.
>
> If the patient's identity were already public information, the exemption
> would appear inapplicable. In the present case, the parties seeking the
> plaintiffs'
>
> records requested them by name, and not by job title. Thus, this exemption
> would not apply even if the plaintiffs' records were "counseling
> evaluations"
>
> because the plaintiffs' identities were already known. We conclude that
> subsection 13(1)(m) does not exempt the plaintiffs' employment records.
>
>
>
> D. LEGISLATIVE INTENT
>
>
>
> Our conclusion that the plaintiffs' personnel records are not exempt under
> the FOIA is bolstered by the absence of any indications that the 
> Legislature
>
> intended a different result. As the Court of Appeals noted below, the
> Legislature specifically exempted the personnel records of law enforcement
> agencies
>
> from disclosure.
>
> [27]
>
> This Court recognizes the maxim expressio unius est exclusio alterius; 
> that
> the express mention in a statute of one thing implies the exclusion of 
> other
>
> similar things.
>
> [28]
>
> Because the Legislature realized that the FOIA could require the 
> disclosure
> of the personnel records of law enforcement personnel, the conclusion that
> the
>
> Legislature rejected the opportunity to extend this exemption to other
> public employees is inescapable. Additionally, accepting the appellants'
> interpretation
>
> of the FOIA would render the law enforcement exemption redundant, thus
> violating another rule of statutory construction: namely, that no part of 
> a
> statute
>
> should be treated as mere surplusage or rendered nugatory.
>
> [29]
>
>
>
> This Court has recognized that the Michigan FOIA is patterned after the
> federal FOIA.
>
> [30]
>
> Unlike the Michigan FOIA, the federal FOIA has a specific exemption for
> personnel records.
>
> [31]
>
> Because the Legislature modeled its FOIA on the federal version, we must
> conclude that by not adopting the specific
>
> 657 language of the federal privacy exemption the Legislature intended 
> that
> the personnel records of non-law enforcement public employees be available
> to
>
> the public.
>
>
>
> The plaintiffs assert that the integrity of the evaluation process will be
> compromised by the disclosure of their personnel records. They suggest 
> that
> the
>
> evaluators will be less inclined to candidly evaluate their employees if 
> the
> evaluations are to be made public. We draw the opposite conclusion. Making
>
> such documents publicly available seems more likely to foster candid,
> accurate, and conscientious evaluations than suppressing them because the
> person
>
> performing the evaluations will be aware that the documents being prepared
> may be disclosed to the public, thus subjecting the evaluator, as well as
> the
>
> employee being evaluated, to public scrutiny. The knowledge that their
> efforts may be brought before the public at some distant date may 
> encourage
> those
>
> who evaluate their peers to accurately reflect the achievements, or lack
> thereof, of those being evaluated.
>
>
>
> An argument similar to the plaintiffs' argument was rejected by the United
> States Supreme Court in Univ of Pennsylvania v. EEOC.
>
> [32]
>
> In that case, the Court concluded that the release of written evaluations 
> of
> college professors, which had been prepared to assist in tenure decisions,
>
> would not create a "chilling effect" on candid evaluations.
>
> Block quote start
>
> Although it is possible that some evaluators may become less candid as the
> possibility of disclosure increases, others may simply ground their
> evaluations
>
> in specific examples and illustrations in order to deflect potential 
> claims
> of bias or unfairness. Not all academics will hesitate to stand up and be
> counted
>
> when they evaluate their peers.[
>
> [33]]
>
> Block quote end
>
>
>
> Like the United States Supreme Court, we are not ready to assume the worst
> about those in the public schools who are in a position to evaluate 
> others.
>
> [34]
>
>
>
> We conclude that the requested information does not fit within any of the
> exemptions of § 13 of the FOIA. Because none of the exemptions apply, the
> requested
>
> information must be disclosed.
>
> [35]
>
>
>
> 4. COMMON-LAW PRIVACY
>
>
>
> Relying on our statement in
>
> Tobin, supra,
>
> that any right to prohibit disclosure must have a basis independent of the
> FOIA,
>
> [36]
>
> the Court of Appeals presumed that a common-law invasion of privacy would
> prevent the disclosure of documents requested under the FOIA. This
> presumption
>
> was erroneous because an applicable statute always surmounts a conflicting
> common-law rule.
>
> [37]
>
>
>
> Although the Legislature has provided scant guidance on the concept of
> privacy,
>
> [38]
>
> it has specified that only clearly unwarranted invasions of privacy would 
> be
> exempted.
>
> [39]
>
> By using a higher standard, the Legislature permits disclosures of public
> records that are invasions of privacy, as long as that invasion of privacy
> is
>
> not clearly unwarranted. Therefore, an invasion of privacy that is less 
> than
> clearly unwarranted cannot stand as an obstacle to disclosure. This fact
> underscores
>
> the logic of analyzing a reverse FOIA claim under the FOIA. If a court
> determines that the privacy exemption does not apply, no further analysis
> under
>
> invasion of privacy is necessary. After all, if an invasion of privacy 
> does
> not satisfy the heightened clearly unwarranted standard under the privacy
> exemption,
>
> a lesser finding of invasion of privacy cannot serve as a basis to 
> preclude
> disclosure because the FOIA, as a statute, governs regardless of whether
> there
>
> may have been a claim under common law.
>
>
>
> Thus, in a reverse FOIA action, a determination whether the FOIA requires
> disclosure of the requested documents should
>
> 658 be the first step in an action challenging an FOIA request. A finding
> that the documents are public records under the FOIA, and no exemptions
> apply,
>
> requires that the documents be disclosed.
>
> [40]
>
> Additionally, a finding that the privacy exemption does not apply obviates
> the need for an analysis under the common law, because, irrespective of
> whether
>
> there was a common-law claim, the FOIA governs the resolution of the case.
> Therefore, Beaumont v. Brown,
>
> [41]
>
> which plaintiffs argue prevents the release of the requested documents 
> under
> the common-law right of privacy, is overruled to the extent that it
> conflicts
>
> with the FOIA.
>
>
>
> Principles of common-law privacy do come into play when the court is
> determining whether information of a personal nature constitutes a 
> "clearly
> unwarranted
>
> invasion of an individual's privacy."
>
> [42]
>
> Because we have already concluded that the requested information does not
> satisfy the "personal nature" element of the FOIA, we do not need to 
> address
> whether
>
> the request of that information is a "clearly unwarranted invasion of an
> individual's privacy."
>
> [43]
>
>
>
> 5. CONSTITUTIONAL LAW
>
>
>
> The Court of Appeals, sua sponte, ruled that the federal right of privacy
> did not prevent the disclosure of the requested records. This argument was
> not
>
> raised by any party at any stage of the litigation. While we believe that
> the Court of Appeals determination was correct,
>
> [44]
>
> we decline to fully address this argument without the benefit of briefing
> and oral argument from the parties.
>
>
>
> 6. THE COLLECTIVE BARGAINING AGREEMENT
>
>
>
> Separately, LASA contends that the FOIA permits public bodies to exempt 
> the
> deliberative process of their subordinates from public scrutiny. Both
> parties
>
> agreed in their collective bargaining agreement that the evaluation of
> school administrators would be conducted according to the appellee school
> district's
>
> Administrative Performance Review Handbook. The handbook's evaluation form
> declares that "[t]his evaluation document will be reviewed only by
> appropriate
>
> administrative personnel of the Lansing School District."
>
>
>
> We agree with the Court of Appeals that the defendant school district 
> cannot
> "eliminate its statutory obligations to the public merely by contracting 
> to
>
> do so with plaintiff LASA."
>
> [45]
>
> The FOIA requires disclosure of all public records not within an 
> exemption.
>
> [46]
>
> No exemption provides for a public body to bargain away the requirements 
> of
> the FOIA.
>
>
>
> 7. REDACTIONS
>
>
>
> Finally, we turn to whether redaction is appropriate, and, if so, what may
> be redacted. The parties have asked for guidance in the matter of
> redactions,
>
> and we are sympathetic to their concerns.
>
>
>
> Redaction is appropriate whenever disclosure is discretionary.
>
> [47]
>
> This means that a public body is permitted to redact any information that
> falls within an exemption of the FOIA. For example, if details in the
> plaintiffs'
>
> files had revealed "intimate or embarrassing details of the plaintiff's
> private lives," such as information relating to a medical condition,
> redaction
>
> would be appropriate.
>
>
>
> In the present case, defendant Saranac Schools provided the circuit court
> with original and redacted versions of the Ms. Bradley's records. As
> mentioned
>
> above, copies
>
> 659 were provided to this Court. The proposed redactions were extensive, 
> to
> say the least. Here is an excerpt from a memo from the principal to the
> plaintiff
>
> requesting that she take corrective action.
>
>
>
> You must [blank]. There are [blank] and [blank] all [blank] on [blank] and
> [blank]. You were given several [blank] by other teachers plus the [blank]
> you
>
> already have. You have plenty of [blank] to [blank] these [blank] in. Take
> care of this situation. [Memo of February 23, 1993, to Christine Bradley
> from
>
> David Benjamin.]
>
>
>
> Redactions such as those made in this case are entirely at cross purposes
> with the FOIA, which entitles all persons 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,"
>
> [48]
>
> consistent with the act. Once a document has been redacted to the extent
> that the example above was, its informative value is nil. One purpose of 
> the
> FOIA
>
> is to allow citizens to obtain information about their government so that
> they may more fully participate in the democratic process.
>
> [49]
>
> This objective is hindered when a citizen requests information, only to be
> provided with an edited version that gives no indication of the true 
> content
>
> of the document. While we have no doubt that the school district edited
> these documents with the best of intentions, this result is unacceptable.
> With
>
> regard to these documents, the only information that should have been
> blocked out was the names of the individual students and other persons not
> employed
>
> by the public body.
>
> [50]
>
>
>
> 8. CONCLUSION
>
>
>
> We conclude that the Freedom of Information Act compels the disclosure of
> the appellants' personnel records. Because the requested information
> consisted
>
> of information related to the appellants' public employment, we hold that
> the appellants' personnel records are not within the privacy exemption of
> subsection
>
> 13(1)(a). The records are not exempt under subsection 13(1)(n) because the
> appellants' do not have standing to raise the exemption.
>
>
>
> We affirm the decision of the Court of Appeals that the plaintiffs' 
> records
> must be disclosed, but reject its analysis. We remand this case to the 
> trial
>
> court with orders to release the records in an unedited format, subject to
> the redactions discussed above.
>
>
>
> MALLETT, C.J., and RILEY and WEAVER, JJ., concurred with BRICKLEY, J.
>
>
>
> BOYLE, Justice (concurring in part and dissenting in part).
>
>
>
> The question presented is whether the performance evaluations, 
> disciplinary
> records, and complaints filed against public school teachers and
> administrators
>
> are exempt from disclosure under the Freedom of Information Act. I concur 
> in
> the majority's conclusion that the performance evaluations, disciplinary
> actions,
>
> and complaints in issue are subject to mandatory disclosure under the 
> FOIA.
> I disagree, however, with the majority's conclusion that the requested
> documents
>
> are not personal in nature. In my judgment, performance evaluations,
> disciplinary actions, and complaints are "[i]nformation of a personal
> nature." M.C.L.
>
> § 15.243(1)(a); M.S.A. § 4.1801(13)(1)(a). Inasmuch as I believe 
> disclosure
> of the records in this case would not constitute a clearly unwarranted
> invasion
>
> of privacy, I agree that the requested records are not exempt from
> disclosure under the personal privacy exemption of subsection 13(1)(a). I
> also agree
>
> that the documents are not exempt under subsections 13(1)(m) or (n) of the
> FOIA. I write separately only to express my disagreement with the 
> majority's
>
> analysis under subsection 13(1)(a).
>
>
>
> I
>
>
>
> The first step in analyzing the applicability of the subsection 13(1)(a)
> privacy exemption is to determine if the requested documents
>
> 660 are "[i]nformation of a personal nature." Information is of a 
> "personal
> nature" if it is "personal, intimate, or embarrassing."
>
> [1]
>
> Similarly, "personal" has been defined 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...."
>
> [2]
>
>
>
> Rather than rely on these definitions, the majority adopts its own
> definition, concluding that information is personal only if it reveals
> "intimate or embarrassing
>
> details of an individual's private life."
>
> [3]
>
> Labeled as a more "succinct test," the majority's characterization of the
> term "personal nature" significantly narrows the definition of the term 
> and,
> hence,
>
> the scope of the exception. The statute provides that certain privacy
> interests are weighty enough to warrant an exemption from disclosure under
> the FOIA.
>
> Because even personal information will be disclosed when disclosure is not 
> a
> clearly unwarranted invasion of privacy, it is not necessary to restrict 
> the
>
> scope of the exemption by narrowly defining the term "personal." Clearly,
> information in public records may be "personal, intimate, or embarrassing"
> even
>
> if not related to an individual's private life. Indeed, because problems
> typically surface in the work environment in changes in performance, the
> line
>
> between personal and professional cannot be neatly bifurcated. The
> definitions adopted in
>
> Kestenbaum v. Michigan State Univ., 414 Mich. 510, 327 N.W.2d 783 (1982),
>
> and
>
> Swickard v. Wayne Co. Medical Examiner, 438 Mich. 536, 475 N.W.2d 304
> (1991),
>
> are an accurate characterization of the term "personal nature," and I 
> prefer
> those definitions over the one advocated by the majority.
>
> [4]
>
>
>
> II
>
>
>
> Without question, performance evaluations, disciplinary actions, and
> complaints about public employees are personal in nature. To say they are
> not would
>
> be to ignore the "customs, mores, or ordinary views of the community...."
>
> Swickard, supra at 547,
>
> 475 N.W.2d 304
>
> ;
>
> Booth Newspapers, Inc. v. Univ. of Michigan Bd. of Regents, 444 Mich. 211,
> 232-233, 507 N.W.2d 422 (1993).
>
> By definition, performance evaluations call for evaluation of both 
> positive
> and negative attributes of individual employees. To serve their purpose of
> improving
>
> performance, personal shortcomings, flaws, and overall inabilities must be
> documented and detailed alongside character strengths. Meaningful
> evaluations
>
> contemplate candid and detailed exploration of such sensitive issues as
> promotional opportunities, pay or merit increases, personality defects,
> superior
>
> or inferior work performance, and counseling needs. Estimation of an
> individual's professional aptitude can so clearly cause humiliation or
> embarrassment
>
> to an individual, and damage an individual's reputation or career, that
> compelling public disclosure without considering the personal nature of 
> the
> documents
>
> will inevitably result in sanitizing the evaluation. More importantly to 
> the
> statutory interpretation before us, we doubt that the Legislature would 
> have
>
> adopted a definition of the term personal that would discourage the 
> creation
> of important information.
>
>
>
> The personal nature of performance evaluations has been well described. In
>
> Brown v. Seattle Public Schools, 71 Wash.App. 613, 860 P.2d 1059 (1993),
>
> the court stated:
>
>
>
> The sensitivity of any human being to disclosure of information that may 
> be
> taken to bear on his or her basic competence is sufficiently well known to
> be
>
> an appropriate subject of judicial notice.... This sensitivity goes beyond
> mere embarrassment, which alone is insufficient grounds for
> nondisclosure....
>
> Employee evaluations qualify as personal information that
>
> 661 bears on the competence of the subject employees.[
>
> [5]]
>
>
>
> In
>
> Federal Labor Relations Authority v. United States Dep't of Commerce, 295
> U.S. App DC 263, 268, 962 F.2d 1055 (1992),
>
> mandatory personnel evaluations were described as "intensely personal"
> documents. Likewise, in
>
> Connolly v. Bromery, 15 Mass.App. 661, 664, 447 N.E.2d 1265 (1983),
>
> the court noted that "[r]aw data appraising the job performance of
> individuals ... is particularly personal and volatile." Similarly, the 
> court
> in
>
> Trahan v. Larivee, 365 So.2d 294, 300 (La.App., 1978),
>
> maintained:
>
> Block quote start
>
> [T]he evaluation report is very personal and directly affects the 
> employee.
> To publish or disclose such personal opinions may embarrass or humiliate 
> the
>
> employee among his fellow employees, friends or family. It may affect his
> future employment. Humiliation or embarrassment could flow even though the
> rating
>
> would be "outstanding" as this rating may create envy or jealousy in other
> employees.[
>
> [6]]
>
> Block quote end
>
>
>
> Despite ample justification for concluding that the requested documents 
> are
> information of a personal nature, the majority holds today that the
> requested
>
> documents do not disclose intimate or embarrassing details and thus are 
> not
> personal in nature.
>
> [7]
>
> Because I believe that these documents clearly contain information of a
> personal nature to these plaintiffs, I disagree.
>
>
>
> III
>
>
>
> Having concluded that the requested information is personal, the next step
> is to determine whether disclosure of the material would constitute a
> clearly
>
> unwarranted invasion of the plaintiffs' privacy. Some invasion of privacy
> will inevitably occur upon disclosure of personal information. Only when
> that
>
> invasion rises to the level of being clearly unwarranted does the privacy
> exemption apply.
>
>
>
> After reviewing redacted and unredacted versions of the requested records, 
> I
> am persuaded that disclosure would not constitute a clearly unwarranted
> invasion
>
> of privacy. The Legislature was undoubtedly aware of the obvious invasion 
> of
> privacy that would occur with disclosure of personnel records, yet chose 
> to
>
> favor disclosure. To qualify for exemption under the personal privacy
> exception, disclosure must not only be unwarranted, but clearly 
> unwarranted.
> The
>
> plaintiffs were unable to meet such a high burden in the instant case.
> Because I am unpersuaded that disclosure of the records in issue would
> constitute
>
> a clearly unwarranted invasion of plaintiffs' privacy, I agree with the
> majority that the FOIA's privacy exemption does not apply.
>
>
>
> IV
>
>
>
> Although I concur in the majority's result, I believe the majority's
> reliance on Pennsylvania v. EEOC, 493 U.S. 182, 110 S.Ct. 577,
>
> 662 107 L.Ed.2d 571 (1990), to support the position that disclosure of
> performance evaluations to the public at large would not chill candid
> evaluations
>
> is misplaced. Op., p. 657. In Pennsylvania v. EEOC, the petitioner sought
> recognition by the Supreme Court of a common law privilege precluding
> disclosure
>
> absent a judicial finding of particularized necessity of access, despite 
> the
> fact that title VII authorized the EEOC to subpoena any evidence 
> "relevant"
>
> to a charge under investigation. Unlike the present cases, Pennsylvania v.
> EEOC did not involve disclosure of information to the general public, but
> instead
>
> was limited to the issue of disclosure of information to the EEOC for
> purposes of title VII enforcement. I disagree that the rationale of
> Pennsylvania
>
> v. EEOC can be extended so far as to say that disclosure of intensely
> personal information to the public at large would not chill candid
> evaluations.
>
>
>
> In Pennsylvania v. EEOC, the commission exercised its subpoena powers 
> under
> title VII of the Civil Rights Act of 1964 to gain access to information
> including
>
> confidential letters, written letters of evaluation, and documents
> reflecting internal deliberations relating to teacher tenure proceedings 
> at
> the University
>
> of Pennsylvania. Access was necessary to enable the commission to
> investigate allegations of racial or sexual discrimination in the
> university's tenure
>
> process. Without access to these documents the EEOC would be unable to
> determine whether the allegations had merit. Id. at 186, 110 S.Ct. at 580.
> By failing
>
> to comply with the commission's request, the University essentially 
> thwarted
> the EEOC's investigation.
>
>
>
> As part of its argument, the University of Pennsylvania claimed that "[a]s
> more and more peer evaluations are disclosed to the EEOC and become 
> public,
> a
>
> `chilling effect' on candid evaluations and discussions of candidates will
> result." Id. at 197, 110 S.Ct. at 586. Before concluding that disclosure
> would
>
> not have a chilling effect on candid evaluations, the Supreme Court noted
> that it is unlawful under title VII for "any officer or employee of the
> Commission
>
> to make public in any manner whatever any information obtained by the
> Commission pursuant to its authority under [§ 2000e-8]" of the act. Id. at
> 192, 110
>
> S.Ct. at 584. Violations of § 2000e-8 carry with it criminal penalties. 
> Id.
> In other words, pursuant to title VII, disclosure to the EEOC does not 
> equal
>
> disclosure to the general public, and serious sanctions await any EEOC
> officer or employee who publicly discloses accessed information. In this
> context
>
> the Supreme Court declined to recognize a special privilege that would
> conflict with the value that the public has a right to each man's 
> evidence.
> True,
>
> the Supreme Court was not prepared to "assume the worst about those in the
> [academic community]," Op., p. 657, however this assumption simply 
> expressed
>
> the view of the Court that disclosure to the EEOC of materials relevant to
> charges of racial or sexual discrimination would not be so harmful to
> academic
>
> interests as to warrant recognition of an evidentiary privilege.
>
>
>
> V
>
>
>
> For the reasons stated above, I hold that plaintiffs' performance
> evaluations, disciplinary actions, and complaints are not exempt from
> disclosure under
>
> subsection 13(1)(a) of the FOIA. Accordingly, I concur with the majority 
> to
> remand this case to the trial court with orders to release the records,
> subject
>
> to the redactions discussed by the majority.
>
>
>
> MICHAEL F. CAVANAGH and MARILYN J. KELLY, JJ., concurred with BOYLE, J.
>
>
>
> [1]
>
> 216 Mich.App. 79, 549 N.W.2d 15 (1996).
>
>
>
> [2]
>
> 416 Mich. 661,
>
> 331 N.W.2d 184
>
> (1983).
>
>
>
> [3]
>
> Id. at 86, 549 N.W.2d 15.
>
>
>
> [4]
>
> Id. at 93, 549 N.W.2d 15.
>
>
>
> [5]
>
> Booth Newspapers, Inc. v. Univ. of Mich. Bd. of Regents, 444 Mich. 211, 
> 231,
> 507 N.W.2d 422 (1993).
>
> [6]
>
> M.C.L. § 15.231(2); M.S.A. § 4.1801(1)(2).
>
>
>
> [7]
>
> With the exception of its ruling regarding the redactions, discussed 
> below.
>
>
>
> [8]
>
> In a reverse FOIA action, the plaintiffs seek to enjoin rather than compel
> disclosure of public records. Tobin, n. 2 supra at 670-671,
>
> 331 N.W.2d 184.
>
> [9]
>
> Tobin, n. 2 supra at 669,
>
> 331 N.W.2d 184
>
> (holding that "[a]ny asserted right by third parties to prohibit 
> disclosure
> must have a basis independent of the FOIA").
>
>
>
> [10]
>
> Id.
>
>
>
> [11]
>
> M.C.L. § 15.233; M.S.A. § 4.1801(3).
>
>
>
> [12] "
>
> Public body" means: "A ... school district...." MCL 15.232(b)(iii); MSA
> 4.1801(b)(iii).
>
>
>
> [13] "
>
> Public record" means 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. This act separates public records into 2 classes:
> (i) those which are exempt from disclosure under section 13, and (ii) all
> others,
>
> which are subject to disclosure under this act. [M.C.L. § 15.232(c); 
> M.S.A.
> § 4.1801(2)(c).]
>
>
>
> [14]
>
> Swickard v. Wayne Co. Medical Examiner, 438 Mich. 536, 544, 475 N.W.2d 304
> (1991).
>
> [15]
>
> Booth, n. 5 supra at 232,
>
> 507 N.W.2d 422.
>
> [16]
>
> Tobin, n. 2 supra at 667,
>
> 331 N.W.2d 184.
>
> [17]
>
> Cardinal Mooney High School v. Michigan High School Athletic Ass'n, 437
> Mich. 75, 80, 467 N.W.2d 21 (1991).
>
> [18]
>
> Booth, n. 5 supra at 232,
>
> 507 N.W.2d 422.
>
> [19]
>
> Swickard, n. 14 supra at 547,
>
> 475 N.W.2d 304,
>
> quoting The American Heritage Dictionary of the English Language: Second
> College Ed.
>
>
>
> [20]
>
> Kestenbaum v. Michigan State Univ., 414 Mich. 510, 549, 327 N.W.2d 783
> (1982).
>
> [21]
>
> Swickard, n. 14 supra at 547,
>
> 475 N.W.2d 304.
>
> [22]
>
> See Booth, n. 5 supra at 232,
>
> 507 N.W.2d 422.
>
> [23]
>
> Emphasis added.
>
>
>
> [24]
>
> In re Subpoena Duces Tecum to the Wayne Co. Prosecutor (On Remand), 205
> Mich.App. 700, 706, 518 N.W.2d 522 (1994)
>
> ;
>
> Michigan Professional Employees Society v. Dep't of Natural Resources, 192
> Mich.App. 483, 494, 482 N.W.2d 460 (1992).
>
> [25]
>
> M.C.L. § 15.243(1)(m); M.S.A. § 4.1801(13)(1)(m).
>
>
>
> [26]
>
> OAG, 1979-1980, No 5,500, pp 255, 273 (July 23, 1979).
>
>
>
> [27]
>
> M.C.L. § 15.243(1)(t)(ix); M.S.A. § 4.1801(13)(1)(t)(ix):
>
>
>
> A public body may exempt from disclosure as a public record under this 
> act:
>
>
>
> (t) Unless the public interest in disclosure outweighs the public interest
> in nondisclosure in the particular instance, public records of a police or
> sheriff's
>
> agency or department, the release of which would do any of the following:
>
>
>
> * * *
>
>
>
> (ix) Disclose personnel records of law enforcement agencies. [Emphasis
> added.]
>
>
>
> [28]
>
> Stowers v. Wolodzko, 386 Mich. 119, 191 N.W.2d 355 (1971).
>
> [29]
>
> Smith v. Employment Security Comm., 410 Mich. 231, 301 N.W.2d 285 (1981).
>
> [30]
>
> Tobin, n. 2 supra at 671,
>
> 331 N.W.2d 184.
>
> [31]
>
> 5 U.S.C. § 552(b)(6) exempts "personnel and medical files and similar 
> files
> the disclosure of which would constitute a clearly unwarranted invasion of
> personal
>
> privacy...."
>
>
>
> [32]
>
> 493 U.S. 182, 110 S.Ct. 577, 107 L.Ed.2d 571 (1990).
>
>
>
> [33]
>
> Id. at 200-201, 110 S.Ct. at 588.
>
>
>
> [34]
>
> Id.
>
>
>
> [35]
>
> M.C.L. § 15.232(c); M.S.A. § 14.1801(2)(c); Swickard, n. 14 supra at 544,
>
> 475 N.W.2d 304.
>
> [36]
>
> Tobin, n. 2 supra at 668-669,
>
> 331 N.W.2d 184.
>
> [37]
>
> Albro v. Allen, 434 Mich. 271, 286, 454 N.W.2d 85 (1990).
>
> [38]
>
> Swickard, n. 14 supra at 556,
>
> 475 N.W.2d 304.
>
> [39]
>
> M.C.L. § 15.243(13)(1)(a); M.S.A. § 4.1801(13)(1)(a).
>
>
>
> [40]
>
> M.C.L. § 15.232(c); M.S.A. § 4.1801(2)(c).
>
>
>
> [41]
>
> 401 Mich. 80, 95, 257 N.W.2d 522 (1977).
>
>
>
> [42]
>
> M.C.L. § 15.243(1)(a); M.S.A. § 4.1801(13)(1)(a); Swickard, n. 14 supra at
> 546-547,
>
> 475 N.W.2d 304
>
> ; State Employees Ass'n v. Dep't of Management & Budget, 428 Mich. 104, 
> 123,
> 404 N.W.2d 606 (1987); Kestenbaum, n. 20 supra at 528, n. 7,
>
> 327 N.W.2d 783.
>
> [43]
>
> See Booth, n. 5 supra at 234,
>
> 507 N.W.2d 422
>
> (holding that subsection 13(1)(a) does not apply if the information is not
> of a personal nature).
>
>
>
> [44]
>
> See Tobin, n. 2 supra at 677-678,
>
> 331 N.W.2d 184.
>
> [45]
>
> Lansing Bd. of Ed., n. 1 supra at 93, 549 N.W.2d 15, citing
>
> Citizens Ins. Co. of America v. Federated Mut. 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).
>
> [46]
>
> M.C.L. § 15.232(c); M.S.A. § 14.1801(2)(c).
>
>
>
> [47]
>
> See Tobin, n. 2 supra.
>
>
>
> [48]
>
> M.C.L. § 15.231(2); M.S.A. § 4.1801(1)(2) (emphasis added).
>
>
>
> [49]
>
> Id.
>
>
>
> [50]
>
> Booth Newspapers, Inc. v. Kalamazoo School Dist., 181 Mich.App. 752, 450
> N.W.2d 286 (1989)
>
> (approving redactions of student's names in public records relating to
> allegations of sexual misconduct).
>
>
>
> [1]
>
> Kestenbaum v. Michigan State Univ., 414 Mich. 510, 549, 327 N.W.2d 783
> (1982).
>
> [2]
>
> Swickard v. Wayne Co. Medical Examiner, 438 Mich. 536, 547, 475 N.W.2d 304
> (1991).
>
> [3]
>
> Op., p. 654.
>
>
>
> [4]
>
> In Swickard, the word "private" was used to help define the meaning of
> "personal." In that definition, "private" was used in the same manner as 
> the
> word
>
> "intimate." It does not follow that the word "private" in the Swickard
> definition requires that information relate to an individual's private 
> life,
> as
>
> opposed to an individual's professional life, in order to be considered
> personal.
>
>
>
> [5]
>
> Id. at 617-618,
>
> 860 P.2d 1059,
>
> citing
>
> Detroit Edison Co. v. NLRB, 440 U.S. 301, 318, 99 S.Ct. 1123, 1132, 59
> L.Ed.2d 333 (1979).
>
> [6]
>
> For additional cases that recognize the personal nature of performance
> evaluations, see
>
> Dawson v. Daly, 120 Wash.2d 782, 797, 845 P.2d 995 (1993)
>
> (employee evaluations qualify as personal information that bear on the
> competence of employees);
>
> Chairman, Criminal Justice Comm. v. Freedom of Information Comm., 217 
> Conn.
> 193, 199-200, 585 A.2d 96 (1991)
>
> (disclosure of performance evaluations would carry significant potential 
> for
> embarrassment);
>
> Pawtucket Teachers Alliance v. Brady, 556 A.2d 556, 559 (R.I., 1989)
>
> (performance evaluations are highly personal in nature);
>
> Ripskis v. Dep't of Housing & Urban Development, 241 U.S. App DC 8, 746 
> F.2d
> 1 (1984)
>
> (even outstanding performance evaluations may contain derogatory 
> information
> and embarrass an employee if disclosed);
>
> Missoulian v. Bd. of Regents of Higher Ed., 207 Mont. 513, 675 P.2d 962
> (1984)
>
> (evaluations contain information of a sensitive nature);
>
> Metropolitan Life Ins. Co. v. Usery, 426 F.Supp. 150, 168 (D.D.C., 1976),
>
> aff'd. sub nom Nat'l Organization of Women v. Social Security
> Administration, 237 U.S. App DC 118, 736 F.2d 727 (1984) (job evaluations
> reflect highly personal
>
> details about company employees and if disclosed could be embarrassing and
> painful to the employee); Trenton Times Corp. v. Trenton Bd. of Ed., 138
> N.J.Super.
>
> 357, 351 A.2d 30 (1976) (performance evaluations are only subjective
> opinions of the performance of the employee, vary with the person giving 
> the
> rating,
>
> and should remain confidential);
>
> Vaughn v. Rosen, 383 F.Supp. 1049, 1055 (D.D.C.,1974),
>
> aff'd.
>
> 173 U.S. App DC 187, 523 F.2d 1136 (1975)
>
> (disclosure of evaluations could expose employees to loss of future
> employment or friends and acute embarrassment).
>
>
>
> [7]
>
> Op., p. 655.
>
>
>
> Go to Google Home
>
> -
>
> About Google
>
> -
>
> About Google Scholar
>
>
>
> ©2010 Google
>
> ----- Original Message ----- 
> From: "Farmer, Mel (DELEG)" <farmerm at michigan.gov>
> To: <joeharcz at comcast.net>
> Cc: "Shamsiddeen, Jaye (DELEG)" <ShamsiddeenJ at michigan.gov>; "Wiese, Deb
> (DELEG)" <wiesed at michigan.gov>; "Moore, Gerry (DELEG)"
> <MooreG4 at michigan.gov>; "Cannon, Patrick (DELEG)" <cannonp at michigan.gov>;
> "Haynes, Carla (DELEG)" <haynesc at michigan.gov>
> Sent: Thursday, April 29, 2010 4:52 PM
> Subject: FW: Freedomof Information Act Request/RSA Monitoring Report
>
>
>
>
>
>
> Mr. Harcz, this notice is in response to your April 26, 2010 email
> requesting copies of public records under the Freedom of Information Act
> (FOIA, MCL 15.231, et seq., you describe as:
>
> "...the RSA "monitoring report referenced in the September 18, 2009
> Michigan Rehabilitation Council meeting minutes..." and "...for MRS
> 'rebuttal or its
> response to RSA"
>
> Please be informed that pursuant to the following FOIA provisions, your
> requests have been denied:
> 1. MCL 15.243, Section 13(1)(d)--The Rehabilitation Services
> Administration
>  (RSA) draft monitoring report is considered a work-in-process and to
> be
>  used for discussion purposes between the public bodies. As such, it is
>  subject to modifications, additions, or deletions prior to the
> issuance of
>  the final, official federal report. Further, the RSA has instructed
>  affected Department agencies to not to disclose their draft report or
>  related information to any parties not involved in their monitoring
>  activities. Thusly, the requested report is a record or information
>  specifically described and exempted from disclosure by statute.
>
> 2. MCL 15.243, Section 13(1)(m)--The documents and or information
> currently
>   received from the federal monitoring agency are communications and
> notes
>   within or between public bodies of an advisory nature to the extent
> that
>   they cover other than purely factual materials and are preliminary to
>
>   final agency determinations of policy or actions. The disclosure of
> such
>   information/records prior to final determinations would not be in the
>   public interest in encouraging frank communications between officials
> and
>   employees of public bodies; and, thusly, exempted from disclosure.
>
> Under the FOIA (MCL 15.240), you may submit a written appeal regarding
> the denial of any portion of your FOIA request to Mr. Stanley Pruss,
> Director, Michigan Department of Energy, Labor & Economic Growth,
> Attention: Mario Morrow, Ottawa Building-4th Floor, P.O. Box 30004,
> Lansing, Michigan 48909. Your appeal must include the word "appeal" and
> identify the reason(s) for reversal of the denial(s). You may also seek
> judicial review in circuit court within 180 days after the final
> determination. If you prevail, the court may award reasonable attorney
> fees, costs, and disbursements. If the court finds the Department's
> actions to be arbitrary and capricious, the court shall award, in
> addition to any actual or compensatory damages, punitive damages in the
> amount of $500.00.
>
>