MASSP News Center

School Law Matters

By Marshall Grate, Clark Hill PLC

In a decision issued in March of 2007, the Michigan Court of Appeals ruled that the home addresses and telephone numbers of public employees were subject to disclosure under the Freedom of Information Act (“FOIA”), even when public employees requested that this information be kept confidential. Michigan Federation of Teachers v University of Michigan, 2007 Mich App Lexis. 828 (March 22, 2007). The plaintiff, Michigan Federation of Teachers, requested the names, home addresses and home telephone numbers, as well as other information, for all employees of the University of Michigan (“University”). The University provided the names for all of its employees, but it only provided the home addresses and telephone numbers of those employees listed in its faculty and staff directory. The University refused to provide the home addresses and telephone numbers of employees who chose not to be listed in the directory. The University argued that the addresses and telephone numbers were protected from disclosure under FOIA’s privacy exemption.
The Michigan Court of Appeals disagreed. FOIA requires disclosure of any public document upon request. There are a number of exemptions to disclosure enumerated in Section 13 of FOIA, MCL 15.243. These exemptions are narrowly construed, and the party asserting the exemption bears the burden of proof that the exemption applies. The privacy exemption at issue in this case provides:
(1) A public body may exempt from disclosure as a public record under this act any of the following:

(a) Information of a personal nature if public disclosure of the information would constitute a clearly unwarranted invasion of an individual’s privacy.

The privacy exemption involves an inquiry as to whether the information is of a personal nature. Previously, appellate decisions have described “personal” in terms of whether the request for information is of a personal nature that would reveal intimate or embarrassing details of an individual’s private life. This standard is evaluated in terms of the customs, mores, or ordinary views of the community.

A public employee’s home address and telephone numbers did not satisfy this test. This information ordinarily does not reveal intimate or embarrassing details about an individual’s private life. The Court of Appeals distinguished those cases which treated disclosure of addresses as private information because the disclosure of addresses would result in access to the other personal information. See e.g., Mager v State, Dept of State Police, 460 Mich 134 (1999); (registered gun owners); Detroit Free Press, Inc v Department of State Police, 243 Mich App 218 (2000) (concealed weapons permits).

The University argued that disclosure of names, home addresses and telephone numbers of public employees might expose those employees to threats and harm. The University submitted two affidavits of employees who expressed a fear of personal harm that could result from the disclosure. The Court of Appeals found the evidence insufficient to apply a sweeping generalization for all subject employees. Basically, the Court of Appeals placed the burden on the public employees to demonstrate truly exceptional circumstances in order to protect the disclosure of their names, addresses, and telephone numbers.

This is an unpublished decision which does not have binding authority. However, unless a public employer can demonstrate exceptional circumstances upon an individualized basis, the names, home addresses, and telephone numbers of public employees are subject to disclosure under FOIA. Interestingly, the concurring opinion suggested that the National Do Not Call Registry might reflect a change in customs, mores, or ordinary views of the community toward the privacy of telephone numbers. The more difficult case is one that would involve the personal email addresses of public employees.