State Employees Ass'n v. Department of Management & Budget

Brickley, J.

(concurring in part and dissenting in part). I concur in the result reached in the lead opinion, but disagree with the abandonment of the balancing test as a means of construing the "clearly unwarranted” language of MCL 15.243(1)(a); MSA 4.1801(13)(1)(a). As I indicated in my opinion in UPGWA v Dep’t of State Police, 422 Mich 432, 465; 373 NW2d 713 (1985), I prefer the version of the balancing test articulated by Justice Ryan in Kestenbaum v Michigan State Univ, 414 Mich 510; 327 NW2d 783 (1982). However, because I would find that the addresses requested in this case do not amount to "[information of a personal *127nature” under the privacy exemption statute, thereby making it inapplicable, I see no need to reach the balancing of public and private interests presented in this case.

The words of the privacy exemption necessitate the exercise of some judgment, and the balancing test provides a means of assessing whether an invasive disclosure is "clearly unwarranted.” As I indicated in my UPGWA opinion:

A balancing test is an appropriate means of implementing the words of the statutory exemption. Determining whether "public disclosure of the information would constitute a clearly unwarranted invasion of an individual’s privacy” necessarily involves an evaluation of the privacy interests and a weighing of those interests against the public interest to be served in the disclosure. [Id., pp 465-466. Emphasis in original.]

The fact that the Legislature has specified a different type of balancing test to be employed when applying other exemptions under the act should not deter this Court from construing the undefined terms in § 13(l)(a) by way of a balancing test that focuses on the "clearly unwarranted invasion of . . . privacy” language. The exemption in question seeks to protect the privacy interests of persons to whom the information sought to be disclosed relates. The terminology employed by the Legislature in § 13(1)(a) necessitates a balancing not of two public interests, but of the privacy interest in information that has been deemed to be of a personal nature against the public interest in disclosure, with a tilt in favor of disclosure. See Kestenbaum, supra, p 543 (opinion of Ryan, J.).

However, it must be remembered that the test outlined by Justice Ryan in Kestenbaum has two parts. The first question to be answered is whether *128the information is "of a personal nature,” thereby giving rise to a cognizable privacy interest. If the information is deemed to be personal, then a balancing of private and public interests is employed to determine whether disclosure would amount to a "clearly unwarranted” invasion of privacy.

In Kestenbaum, supra, p 546, Justice Ryan relied on the precise nature of the information request ("standard information”) and the circumstances of the persons to whom it related ("students at Michigan State University”) in reaching his conclusion that the requested information was not "of a personal nature.” He noted that, under different circumstances, the same type of information might take on a personal character. Id., p 547.

In UPGWA, I found the requested information, considered in its factual context, to be personal in nature, giving rise to a cognizable privacy interest. The factors upon which I based that conclusion were: the scope of the information sought to be disclosed (more than mere addresses), the circumstances of the persons to whom the information related (security guards), the existence of specific exemptions for police and sheriffs departments, and the specific promise of confidentiality that had been made to the addressees in that case. Id., pp 468-469. Thus, I disagree with Chief Justice Riley’s position that all address lists are information of a personal nature.

In the absence of the factors that were present in UPGWA, or analogous circumstances that would enhance the privacy interest in the requested information, I would hold that the addresses of state employees, like those of msu students, do not amount to "[information of a personal nature.” Therefore, in this case, it is unnecessary to make the "clearly unwarranted” determination through balancing.

*129For these reasons, I would affirm the decision of the Court of Appeals.