Michigan Federation of Teachers & School Related Personnel v. University of Michigan

Michigan Supreme Court
Lansing, Michigan
Chief Justice: Justices:

Opinion Clifford W. Taylor Michael F. Cavanagh
Elizabeth A. Weaver
Marilyn Kelly
Maura D. Corrigan
Robert P. Young, Jr.
Stephen J. Markman

FILED JULY 16, 2008

MICHIGAN FEDERATION OF TEACHERS
and SCHOOL RELATED PERSONNEL,
AFT, AFL-CIO,

Plaintiff-Appellee,

v No. 133819

UNIVERSITY OF MICHIGAN,

Defendant-Appellant.

_______________________________

BEFORE THE ENTIRE BENCH

YOUNG, J.

In this case, we must decide if the home addresses and telephone numbers

of University of Michigan employees sought through a Freedom of Information

Act (FOIA) request are exempt from disclosure under FOIA’s privacy exemption.1

We hold that employees’ home addresses and telephone numbers meet both

prongs of FOIA’s privacy exemption because that information is “of a personal

nature” and its disclosure would constitute a “clearly unwarranted invasion of an

1
MCL 15.243(1)(a).
individual’s privacy.” In reaching this conclusion, we reexamine the definition of

“information of a personal nature” set forth by this Court in Bradley v Saranac

Community Schools Bd of Ed,2 and conclude that it unnecessarily limited the

intended scope of that phrase. We cure this deficiency and revise that definition to

encompass information of an embarrassing, intimate, private, or confidential

nature. We conclude that employees’ home addresses and telephone numbers are

information of an embarrassing, intimate, private, or confidential nature.

Disclosure of this information would constitute a “clearly unwarranted invasion of

an individual’s privacy” in this case primarily because the core purposes of FOIA

would not be advanced by its disclosure to plaintiff. With both prongs of the

privacy exemption satisfied, we hold that the University of Michigan employees’

home addresses and telephone numbers are exempt from disclosure.

Accordingly, the decision of the Court of Appeals is reversed and the

circuit court’s grant of summary disposition in favor of defendants is reinstated.

FACTS AND PROCEDURAL HISTORY

Plaintiff Michigan Federation of Teachers submitted a FOIA request to

defendant University of Michigan’s chief FOIA officer seeking numerous items of

information that defendant possessed regarding every University of Michigan

employee. The information sought included first and last names, job title,

compensation rate, and work address and telephone number. Two additional items

2
455 Mich 285; 565 NW2d 650 (1997).

2

of information sought by plaintiff, which are the subject of this appeal, are the

employees’ home addresses and telephone numbers.

Defendant timely responded to the FOIA request and provided nearly all

the information plaintiff sought. With respect to the home addresses and

telephone numbers, defendant released the information of 20,812 employees who

had given defendant their permission to publish their home addresses and

telephone numbers in the University of Michigan’s faculty and staff directory.

Defendant did not turn over the home addresses and telephone numbers of the

remaining 16,406 employees who had withheld permission to publish that

information in the directory. Thus, defendant denied the FOIA request in part,

relying on the privacy exemption and stating that the information’s release would

constitute an unwarranted invasion of these employees’ privacy.

Plaintiff filed suit in the Washtenaw Circuit Court seeking to compel the

release of the remaining home addresses and telephone numbers. The parties filed

cross-motions for summary disposition. Defendant attached to its motion six

affidavits from employees who did not want their home addresses and telephone

numbers released to the public. Some of the affiants attested that the release of

this information would threaten their own or their family’s safety.

The circuit court granted defendant’s motion for summary disposition. It

ruled that the employees’ home addresses and telephone numbers were

information of a personal nature and that “one would be hard pressed to argue that

3

disclosure ‘contributes significantly to public understanding of the operations or

activities of the government.’”

The Court of Appeals reversed the circuit court in an unpublished opinion

per curiam.3 Relying on Bradley, the panel held that home addresses and

telephone numbers were not “information of a personal nature” because they did

not reveal intimate or embarrassing details of an individual’s private life, even

when considered against the “customs, mores, or ordinary views of the

community.” It also held that no caselaw supported the proposition that public

employees’ home addresses and telephone numbers were items of personal

information,4 and that in those reported cases where home addresses were held to

be exempt from disclosure under the privacy exemption the plaintiffs had sought

disclosure of addresses to access other information that was personal.5

The panel, however, recognized that certain employees might have

legitimate reasons to avoid disclosure of their personal information. Relying on

Tobin, it ruled that on remand defendant “may determine whether any of its

3
Michigan Federation of Teachers and School Related Personnel, AFT,
AFL-CIO v Univ of Michigan, unpublished opinion per curiam of the Court of
Appeals, issued March 22, 2007 (Docket No. 258666).
4
Id. at 3, citing Tobin v Civil Service Comm, 416 Mich 661, 671; 331
NW2d 184 (1982), and State Employees Ass’n v Dep’t of Mgt & Budget, 428 Mich
104, 124; 404 NW2d 606 (1987).
5
Id., citing Mager v Dep’t of State Police, 460 Mich 134; 595 NW2d 142
(1999); Detroit Free Press, Inc v Dep’t of State Police, 243 Mich App 218; 622
NW2d 313 (2000); Clerical-Technical Union of Michigan State Univ v Michigan
State Univ Bd of Trustees, 190 Mich App 300; 475 NW2d 373 (1991).

4

employees not included in the directory have demonstrated ‘truly exceptional

circumstances’ to prevent disclosure of names, addresses, and telephone

numbers.”

Judge Wilder concurred with the majority’s decision under Bradley, but

raised two points. First, he suggested that Bradley’s reading of the statutory

language was inconsistent with its plain meaning and was worthy of

reexamination. Second, he questioned whether the advent of the national do-not-

call registry6 and the rising nationwide problem of identity theft had significantly

altered the “customs, mores, or ordinary views of the community” concerning the

disclosure of personal identifying information since the Bradley Court decided the

issue in 1997.

Defendant filed an application seeking leave to appeal, which this Court

granted.7

6
Pub L 108-82, § 1, 117 Stat 1006.
7
480 Mich 902 (2007). The order granting leave asked the parties to
address

(1) whether this Court should reconsider its construction of MCL
15.243(1)(a)’s statutory phrase “information of a personal nature” as
meaning information that “reveals intimate or embarrassing details
of an individual’s private life,” as set forth in Bradley v Saranac Bd
of Ed, 455 Mich 285, 294 (1997); (2) whether, on the facts presented
in this case, information that might otherwise be considered
“ordinarily impersonal . . . might take on an intensely personal
character,” (quoting Kestenbaum v Michigan State Univ, 414 Mich
510, 547 [1982]), such that the privacy exemption might properly be
asserted as argued by the defendant; and (3) if the Bradley test is not
(continued…)

5

 STANDARD OF REVIEW

This Court reviews de novo the trial court’s decision to grant a motion for

summary disposition.8 This Court reviews de novo as a question of law issues of

statutory interpretation.9 And as we stated in an earlier FOIA case,

[b]ecause our judicial role precludes imposing different policy
choices than those selected by the Legislature, our obligation is, by
examining the statutory language, to discern the legislative intent
that may reasonably be inferred from the words expressed in the
statute. If the language of a statute is clear and unambiguous, the
plain meaning of the statute reflects the legislative intent and judicial
construction is not permitted. We must give the words of a statute
their plain and ordinary meaning.[10]

(…continued)
modified, whether the advent of the National Do-Not-Call Registry,
PL 108-82, § 1, 117 Stat 1006, as well as the creation of the host of
methods, unknown to the Court in 1997, which are designed for
illicit purposes such as identity theft, have any impact on whether
the disclosure of the home addresses and telephone numbers
requested is inconsistent with “the customs, mores, or ordinary
views of the community” (quoting Bradley, at 294) by which the
applicability of the privacy exemption is evaluated.
8
Herald Co v Bay City, 463 Mich 111, 117; 614 NW2d 873 (2000).
9
Wood v Auto-Owners Ins Co, 469 Mich 401, 403; 668 NW2d 353 (2003);
Herald Co, Inc v Eastern Michigan Univ Bd of Regents, 475 Mich 463, 471-472;
719 NW2d 19 (2006).
10
Herald Co, 463 Mich at 117-118 (citations omitted).

6

 ANALYSIS

1. Background to FOIA and the Privacy Exemption

Consistent with the legislatively stated public policy supporting the act,11

the Michigan FOIA requires disclosure of the “public record[s]”12 of a “public

body”13 to persons who request to inspect, copy, or receive copies of those

requested public records.14 However, § 13 of FOIA15 sets forth a series of

exemptions granting the public body the discretion to withhold a public record

from disclosure if it falls within one of the exemptions.16 In the event a FOIA

request is denied and the requesting party commences a circuit court action to

compel disclosure of a public record, the public body bears the burden of

sustaining its decision to withhold the requested record from disclosure.17

11
MCL 15.231(2).

12
MCL 15.232(e).

13
MCL 15.232(d).

14
MCL 15.233.

15
MCL 15.243.

16
See Herald Co, 463 Mich at 119 n 6 (“It is worth observing that the

FOIA does not prevent disclosure of public records that are covered by § 13
exemptions. Rather, it requires the public body to disclose records unless they are
exempt, in which case the FOIA authorizes nondisclosure at the agency’s
discretion.”) (emphasis in original; citations omitted).
17
MCL 15.240(4).

7

 The FOIA exemption at issue in this case is the privacy exemption, MCL

15.243(1)(a), which states:

(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.

This Court has attempted to construe this provision on many occasions

since the enactment of the Michigan FOIA in 1976 and struggled for nearly as

many years to reach a consensus regarding its proper interpretation. Kestenbaum v

Michigan State Univ,18 marked the first occasion that this Court interpreted the

privacy exemption. The plaintiff, for purposes of political mailings, requested a

computer tape containing the names and addresses of the university’s students. He

sued when Michigan State denied the request. An equally divided Court affirmed

the Court of Appeals decision that the tape was exempt.19

Chief Justice Fitzgerald’s opinion held that the release of the computer tape

would violate the privacy exemption. Focusing on the statutory requirement that

“the public disclosure of the information would constitute a clearly unwarranted

invasion of an individual’s privacy,” Chief Justice Fitzgerald opined that

18
414 Mich 510; 327 NW2d 783 (1982).
19
Chief Justice Fitzgerald, joined by Justices Williams and Coleman, wrote
the opinion affirming the Court of Appeals. Justice Ryan wrote an opinion
advocating reversal of the Court of Appeals, joined by Justices Kavanagh and
Levin. The late Justice Blair Moody did not participate.

8

 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.[20]

He reasoned that disclosure of the magnetic tape would constitute an invasion of

privacy because

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.[21]

Further, where the student information would be distributed in electronic rather

than print form Chief Justice Fitzgerald argued presciently that this invasion was

“clearly unwarranted” because “the pervasiveness of computer technology has

resulted in an ever-increasing erosion of personal privacy.”22

Justice Ryan’s dissenting opinion would have ordered the release of the

computer tape. Examining the privacy exemption, Justice Ryan argued for a two-

part inquiry to analyze MCL 15.243(1)(a). First, the requested information must

be “of a personal nature.” Second, if the information is of a personal nature, its

disclosure must constitute a “clearly unwarranted invasion of an individual’s

privacy.” Justice Ryan argued that the information sought was not “of a personal

20
Id. at 524.
21
Id. at 524-525.
22
Id. at 531. Even in 1982, which some might consider part of the
technological “stone age,” Chief Justice Fitzgerald warned that “[w]hile it is true
that the computer era has brought untold benefits for society, it also is fraught with
potential dangers to our notions of individual autonomy.” Id. at 531-532.

9

nature” because he was “satisfied that names, addresses, telephone numbers, and

other standard identifying information simply are not embarrassing information

‘of a personal nature’ for the overwhelming majority of students at Michigan State

University.”23 He took the view that

[m]ost citizens voluntarily divulge their names and addresses on
such a widespread basis that any alleged privacy interest in the
information is either absent or waived. People applying for
employment reveal their names and addresses on their resumes;
cashing a check or using a credit card requires the release of one’s
address; and ordering magazines or otherwise communicating
through the mail reveals one’s address. Being a licensed driver, a
car owner, a property owner or taxpayer, an officer of a corporation,
an applicant for a marriage license, or a registered voter requires
revelation, at a minimum, of one’s name and address, information
which is often routinely made available to the public. While some
people might prefer that their names and addresses not be known to
certain individuals such as advertisers, bill collectors, or freeloading
relatives, that preference is simply not based on the fact that one’s
address is a “personal”, intimate, or embarrassing piece of
information. We leave for another day the question whether, in
certain unusual circumstances, ordinarily impersonal information
might take on an intensely personal character.[24]

Justice Ryan concluded by arguing that even if the information was “of a personal

nature” its disclosure was not a “clearly unwarranted invasion of privacy” because

the students had ways to avoid unwanted mailings and because “the public

23
Id. at 546.
24
Id. at 546-547.

10

benefits of voter registration and political campaigning contemplated in this case

clearly outweigh any minimal invasion of privacy.”25

After Kestenbaum, this Court decided several cases without being able to

provide a majority rule for the proper construction of the privacy exemption. In

Tobin v Civil Service Comm,26 a “reverse” FOIA case,27 this Court unanimously

held that FOIA “authorizes, but does not require, nondisclosure of public records

falling within a FOIA exemption.”28 The plaintiffs challenged the defendants’

decision to release the names and addresses of all classified civil service

employees. Even though the parties agreed that the privacy exemption was

applicable, this Court declined to consider whether the names and addresses were

exempt under FOIA because it rejected the plaintiff’s threshold argument that the

Michigan FOIA affirmatively prohibited their disclosure. In Int’l Union, United

Plant Guard Workers of America v Dep’t of State Police,29 another evenly divided

Court affirmed the Court of Appeals decision ordering the release of reports

containing the names and addresses of guards employed by certain security guard

25
Id. at 554.

26
416 Mich 661; 331 NW2d 184 (1982).

27
In a reverse FOIA case, the plaintiff seeks to prohibit the release of

public records sought by a third party, rather than compel their disclosure. Id. at
663.
28
Id. at 667. Justice Riley did not participate in the decision.
29
422 Mich 432; 373 NW2d 713 (1985).

11

agencies.30 Two years later, this Court issued another fractured decision in State

Employees Ass’n v Dep’t of Mgt & Budget.31 Five members of this Court affirmed

the Court of Appeals, which had ordered disclosure of the home addresses of

certain state civil service bargaining units; one member dissented, and another did

not participate.32

In Swickard v Wayne Co Med Examiner,33 this Court finally reached a

majority result and rationale applying the privacy exemption.34 In Swickard, the

plaintiff sought the autopsy report and toxicology test results of a judge who was

found shot to death in his mother’s home. Rejecting the defendant’s argument that

the privacy exemption protected their disclosure, Justice Riley’s majority opinion

concluded, first, that the records were not “information of a personal nature.” To

define “personal,” the majority consulted a dictionary and discovered that it meant

30
Justices Levin and Ryan wrote opinions affirming the Court of Appeals
with Justice Boyle concurring in both. Justices Riley and Brickley wrote
dissenting opinions that would have reversed the Court of Appeals. Justice
Williams joined Justice Riley’s opinion. Justice Cavanagh did not participate.
Thus, this Court divided two-two-two-one on the proper analysis.
31
428 Mich 104; 404 NW2d 606 (1987).
32
Although Justice Cavanagh’s lead opinion was joined by Justices Levin
and Archer, it did not garner a majority on every point. Justices Brickley and
Boyle concurred in the result, but disagreed with the lead opinion’s rationale.
Justice Riley dissented, arguing that the privacy exemption precluded disclosure of
the addresses. Justice Griffin did not participate.
33
438 Mich 536; 475 NW2d 304 (1991).
34
Justice Griffin concurred in the result only. Justices Levin and Mallett
dissented.

12

“[o]f or pertaining to a particular person; private; one’s own . . . . Concerning a

particular individual and his intimate affairs, interests, or activities;

intimate . . . .”35 The majority also approvingly noted that Justice Ryan, in his

Kestenbaum dissent, had defined that statutory phrase as something “personal,

intimate, or embarrassing.” The majority further reasoned that it would look to the

common law and constitutional law to determine if disclosure would violate a

privacy right protected under FOIA.36 It held that the scope of the privacy

exemption would be gauged by reference to “the customs, mores, or ordinary

views of the community . . . .”37 After concluding that the deceased judge and his

family had no common-law or constitutional right to privacy with respect to the

records after his death, the majority concluded that the records were not

“information of a personal nature” and thus their disclosure was not an invasion of

privacy.

In Booth Newspapers, Inc v Univ of Mich Bd of Regents,38 the plaintiff

newspapers sought travel records created in conjunction with the university’s

35
Id. at 547, quoting The American Heritage Dictionary of the English
Language: Second College Edition (1976).
36
Id. at 556 (“Our review of the common law and constitutional law is
helpful insofar as we are given points of reference through a highly subjective area
of the law where the Legislature has provided little statutory guidance on the
notion of privacy contained in the FOIA.”).
37
Id. at 547.
38
444 Mich 211; 507 NW2d 422 (1993).

13

search for a new president. The university argued that the records were exempt

under the privacy exemption. This Court held that this information was not “of a

personal nature” because there were no customs, mores, or ordinary views of the

community that warranted a finding that the travel expense records of a public

body constituted information of a personal nature.39

In Bradley, the central case under consideration in the present appeal, this

Court decided whether the personnel records of public school teachers and

administrators were exempt from disclosure under the privacy exemption. The

Bradley Court affirmed that this exemption contains two elements: first, that the

information sought is “of a personal nature,” and, second, that the disclosure of the

information would be a “clearly unwarranted invasion of privacy.” With respect

to the first element, the majority observed:

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. . . . ” We have also defined this threshold
inquiry in terms of whether the requested information was “personal,
intimate, or embarrassing.” Combining 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’ . . . .”[40]

39
Id. at 233. Justices Boyle and Riley dissented separately from the
majority on the FOIA issue. Justice Griffin joined Justice Riley’s dissent.
40
Bradley, 455 Mich at 294.

14

Using this new definition, the majority concluded that the personnel records

sought in Bradley were not “of a personal nature” because they did not contain any

“embarrassing, intimate, private, or confidential” matters.41

Bradley has since served as the template for the first prong of the privacy

exemption. This Court decided two cases involving this exemption after Bradley:

Mager v Dep’t of State Police42 and Herald Co v Bay City.43 In Mager, the

plaintiff made a FOIA request for the names and addresses of persons who owned

registered handguns. The State Police denied the FOIA request pursuant to the

privacy exemption. Relying on the Bradley definition that “‘information is of a

personal nature if it reveals intimate or embarrassing details of an individual’s

private life,’”44 this Court held in a unanimous per curiam decision that the records

41
Id. at 295. Justice Boyle, joined by Justices Cavanagh and Kelly,
dissented in part from the majority and criticized the majority for significantly
narrowing the definition of the term “personal nature” and adopting its more
“succinct” definition. The dissenters would have retained the two definitions of
“personal nature” from Swickard and Kestenbaum “of or pertaining to a particular
person; private; one’s own . . . . Concerning a particular individual and his
intimate affairs, interests, or activities; intimate” and “personal, intimate, or
embarrassing” rather than narrowing the definition. They concurred in the result,
however, because they did not believe that disclosure of the records would
constitute a clearly unwarranted invasion of privacy.
42
460 Mich 134; 595 NW2d 142 (1999).
43
463 Mich 111; 614 NW2d 873 (2000).
44
Mager, 460 Mich at 143, quoting Bradley, 455 Mich at 294.

15

fell within this first prong because gun ownership was information of a personal

nature as an intimate or perhaps embarrassing detail of one’s personal life.45

The Mager Court then moved to the second prong of the test—whether

“disclosure of the information would constitute a clearly unwarranted invasion of

an individual’s privacy”—and devised what has since been labeled the “core

purpose test.” Mager took guidance from the United States Supreme Court’s

decision in United States Dep’t of Defense v Fedl Labor Relations Auth,46 in

which the Court employed a balancing test under the federal FOIA’s privacy

exemption.47 Under that test, “‘a court must balance the public interest in

disclosure against the interest Congress intended the exemption to protect,’” and

the “‘only relevant public interest in disclosure to be weighed in this balance is the

extent to which disclosure would serve the core purposes of the FOIA, which is

contributing significantly to public understanding of the operations or activities of

the government.’”48 This Court, like the Court in Dep’t of Defense, also

approvingly quoted the statement that “‘disclosure of information about private

citizens that is accumulated in various governmental files but that reveals little or

45
Id. at 144. Justice Cavanagh concurred in the result only.

46
510 US 487; 114 S Ct 1006; 127 L Ed 2d 325 (1994).

47
5 USC 552(b)(6) (“This section does not apply to matters that are . . . (6)

personnel and medical files and similar files the disclosure of which would
constitute a clearly unwarranted invasion of personal privacy.”).
48
Mager, 460 Mich at 145, quoting Dep’t of Defense, 510 US at 495.

16

nothing about an agency’s own conduct’” would not advance the core purpose of

FOIA.49 In addition, this Court noted that, like the United States Supreme Court,

it was “‘reluctant to disparage the privacy of the home, which is accorded special

consideration in our Constitution, laws, and traditions.’”50 Applying these

principles, the Mager Court concluded that, under any reasonable balancing,

disclosure of the gun-ownership information would constitute a clearly

unwarranted invasion of an individual’s privacy because it was entirely unrelated

to any inquiry regarding the inner working of government or how well the

Department of State Police was fulfilling its statutory functions.

In Herald Co, this Court unanimously held that the defendant Bay City

violated FOIA when it refused to disclose public records concerning the final

candidates for the position of Bay City fire chief, in particular the candidates’

names, current job titles, cities of residence, and ages. Citing the Bradley

definition, this Court stated the test for “information of a personal nature” 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’. . . . ”’”51 This Court

49
Id., quoting Dep’t of Justice v Reporters Committee for Freedom of the
Press, 489 US 749, 773; 109 S Ct 1468; 103 L Ed 2d 774 (1989).
50
Mager, 460 Mich at 146 n 23, quoting Dep’t of Defense, 510 US at 501.
51
Herald Co, 463 Mich at 123-124, quoting Mager, 460 Mich at 142,
quoting Bradley, 455 Mich at 294.

17

concluded that “the fact of application for a public job, or the typical background

information one may disclose with such an application, is simply not ‘personal’

within the contemplation of this exemption.”52 Moreover, this Court held that the

community’s mores, customs, and views would not support that this information

was of a personal nature.

Although the records failed to satisfy the first prong of the privacy

exemption, this Court went on to discuss why the records would also fail the

second prong. Citing the Mager core-purpose test, this Court noted that disclosure

of the information concerning the final candidates for fire chief would serve the

policy underlying FOIA because it would facilitate the public’s access to

information regarding the affairs of their city government. Thus, the invasion of

privacy, assuming there was one, was not “clearly unwarranted.”53

52
Id. at 125.
53
Id. at 127. Since we decided Bradley and Mager, the Court of Appeals
on several occasions has upheld a public body’s decision to withhold identifying
information under the privacy exemption. See, e.g., Kocher v Dep’t of Treasury,
241 Mich App 378; 615 NW2d 767 (2000) (addresses of property owners in
unclaimed property holder reports); Detroit Free Press, Inc v Dep’t of State
Police, 243 Mich App 218; 622 NW2d 313 (2000) (whether certain Michigan state
legislators held concealed weapons permits); Larry S Baker, PC v Westland, 245
Mich App 90; 627 NW2d 27 (2001) (names, addresses, injury codes, and accident
dates of all injured, potentially injured, or deceased accident victims during a six-
month period who were not at fault for the accident); Detroit Free Press, Inc v
Dep’t of Consumer & Industry Services, 246 Mich App 311; 631 NW2d 769
(2001) (all consumer complaints filed with defendant against property insurers in
1999); Stone Street Capital, Inc v Bureau of State Lottery, 263 Mich App 683; 689
NW2d 541 (2004) (personal information about prize winners and their assignees).

18

 Thus, the privacy exemption, as currently interpreted, has two prongs that

the information sought to be withheld from disclosure must satisfy. First, the

information must be “of a personal nature.” Second, it must be the case that the

public disclosure of that information “would constitute a clearly unwarranted

invasion of an individual’s privacy.” We analyze whether the home addresses and

telephone numbers in this case satisfy both prongs, particularly the tests for both

that we articulated in Bradley and Mager.

2. “Information of a personal nature”

In answering the first question whether the home addresses and telephone

numbers of university employees are “information of a personal nature,” we also

reconsider whether Bradley’s exposition of that phrase fully captures its intended

meaning. The concurring judge on the Court of Appeals suggested, and defendant

argues, that the Bradley articulation is too narrow.54

We hold that the Bradley formulation, as far as it goes, is a correct

description of what information is “of a personal nature.” Thus, we continue to

hold that “intimate” or “embarrassing” details of an individual are “of a personal

nature.” However, a case such as this leads us to conclude that “intimate” and

“embarrassing” do not exhaust the intended scope of that statutory phrase. Indeed,

the Bradley Court itself noted, whether inadvertently or not, that “information of a

54
Indeed, this was also the position of Justices Boyle, Cavanagh, and Kelly,
who dissented in Bradley. See Bradley, 455 Mich at 307-308.

19

personal nature” includes more than “intimate” or “embarrassing” details of a

person’s life. After articulating its “succinct test,” the Bradley Court expanded it

by concluding that “none of the documents [sought in that case] contain

information of an embarrassing, intimate, private, or confidential nature.”55 After

careful consideration, we conclude that the observation from Bradley that intimate,

embarrassing, private, or confidential information is “of a personal nature” more

accurately and fully describes the intended scope of the statutory text as assessed

in the first prong of the privacy exemption. Indeed, the words “personal” and

“private” are largely synonymous.56 Thus, private or confidential information

relating to a person, in addition to embarrassing or intimate details, is “information

of a personal nature.”57

With the test thus clarified, the next question is whether employees’ home

addresses and telephone numbers reveal embarrassing, intimate, private, or

confidential details about those individuals. We hold that they do. Where a

person lives and how that person may be contacted fits squarely within the plain

55
Bradley, 455 Mich at 295 (emphasis added).
56
The American Heritage Dictionary of the English Language, New
College Edition, p 978 (1976).
57
While Bradley might not have created the most satisfying rubric for
interpreting the privacy exemption and while we might have approached the
privacy exemption differently were we writing on a blank slate, we also consider
that “the mere fact that an earlier case was wrongly decided does not mean
overruling it is invariably appropriate.” Robinson v Detroit, 462 Mich 439, 465;
613 NW2d 307 (2000). Bradley is not so unworkable or badly reasoned, in our
view, that we must overrule rather than modify it.

20

meaning of this definition because that information offers private and even

confidential details about that person’s life. As Chief Justice Fitzgerald noted in

Kestenbaum, “the release of names and addresses constitutes an invasion of

privacy, since it serves as a conduit into the sanctuary of the home.”58

The potential abuses of an individual’s identifying information, including

his home address and telephone number, are legion. For example, some of the

affiants in this case attested that they do not want their information added to mass

mailings, perhaps seeking to avoid the inevitable harassing telephone calls of

telemarketers or deluge of junk mail. On a more serious level, other affiants stated

that their physical safety or the safety of their families would be jeopardized if

their identifying information fell into the wrong hands, such as those of an ex-

spouse or a disgruntled patient. These realistic concerns illustrate in practical

ways why an individual’s home address and telephone number are “information of

a personal nature.”59

58
Kestenbaum, 414 Mich at 524-525. This case is not the first occasion
where this Court has considered whether home addresses and telephone numbers
are “information of a personal nature.” This Court has a checkered history of
splintered and equally divided decisions attempting to determine whether this type
of information is “of a personal nature.” Compare Kestenbaum with United Plant
Guard Workers and State Employees Ass’n. Under the more accurate definition of
“information of a personal nature” we adopt today, however, we settle the question
and hold that home addresses and telephone numbers constitute private
information about individuals.
59
This Court held in Bradley, and elsewhere, that the customs, mores, and
ordinary views of the community inform our understanding of the privacy
(continued…)

21

(…continued)
exemption, particularly where the Legislature has provided little statutory
guidance about the FOIA’s conception of privacy. See Mager, 460 Mich at 140
quoting Swickard, 438 Mich at 556 (“Our review of the common law and
constitutional law is helpful insofar as we are given points of reference through a
highly subjective area of the law where the Legislature has provided little statutory
guidance on the notion of privacy contained in the FOIA.”).

Although we need not reach the analysis that considers the customs, mores,
and ordinary views of the community, we are mindful of changes in our society
that the widespread introduction of electronic communications has occasioned.
One increasingly pernicious problem is identity theft, the misuse of another
individual’s personal information to commit fraud, which costs businesses and
consumers billions of dollars every year, ruins lives, and undermines the reliability
of our financial transactions and institutions. See The President’s Identity Theft
Task Force, Combating Identity Theft: A Strategic Plan, April 2007.
(accessed April 17,
2008), at 10-11.

In 2004, the Michigan Legislature enacted 2004 PA 452, the Identity Theft
Protection Act, MCL 445.61 et seq., whose title states, among other things, that it
is an act “to prohibit certain acts and practices concerning identity theft.” It seeks
to protect “personal identifying information,” which includes “a person’s name,
address, [and] telephone number,” the very type of information sought by plaintiff
in this case. MCL 445.63(o). See also, e.g., Identity Theft and Assumption
Deterrence Act, as amended by PL 105-318, 112 Stat 3007; Identity Theft Penalty
Enhancement Act, as amended by PL 108-275, 118 Stat 831; Fair and Accurate
Credit Transactions Act of 2003, PL 108-159, 117 Stat 1952; see also recent state
legislation regarding identity theft, e.g., Ala Code 13a-8-190 et seq.; Alas Stat
11.46.565 et seq.; Ariz Rev Stat Ann 13-2008 et seq.; Ark Code Ann 5-37-227 et
seq.; Cal Penal Code 530.5 et seq.; Colo Rev Stat 18-5-901 et seq.; Conn Gen Stat
53a-129a et seq.; Del Code Ann tit 11, § 854 et seq.; DC Code 22-3227.01 et seq.;
Fla Stat 817.568; Ga Code Ann 16-9-120 et seq.; Hawaii Rev Stat 708-839.6 et
seq.; Idaho Code Ann 18-3124 et seq.; 720 Ill Comp Stat 5/16g-1 et seq.; Ind Code
35-43-5-3.5; Iowa Code 715a.8 et seq.; Kan Stat Ann 21-4018; Ky Rev Stat Ann
514.160 and 514.170; La Rev Stat Ann 14:67.16; Md Code Ann, Crim Law 8-301
et seq.; Mass Gen Laws ch, 266, § 37e; Minn Stat 609.527; Miss Code Ann 97-45-
1 et seq.; Mont Code Ann 45-6-332; Neb Rev Stat 28-608; Nev Rev Stat Ann
205.461 et seq.; NH Rev Stat Ann 638.25 et seq.; NJ Stat Ann 2c:21-17 et seq.;
NM Stat 30-16-24.1; NY Penal Law 190.77 et seq.; NC Gen Stat 14-113.20 et
seq.; ND Cent Code 12.1-23-11; Ohio Rev Code Ann 2913.49; Okla Stat tit 21, §
(continued…)

22

 And, although the federal FOIA privacy exemption contains language

different from Michigan’s FOIA privacy exemption, the United State Supreme

Court’s treatment of that provision is useful to our analysis.60 In Dep’t of Defense,

the Court unanimously rejected a union’s federal FOIA request seeking the home

addresses of federal civil service employees. Addressing the employees’ interest

in the nondisclosure of their home addresses, it opined:

It is true that home addresses often are publicly available
through sources such as telephone directories and voter registration

(…continued)
1533.1 et seq.; Or Rev Stat 165.800; 18 Pa Cons Stat 4120; RI Gen Laws 11-49.1-
1 et seq.; SC Code Ann 16-13-500 et seq.; SD Codified Laws 22-40-8 et seq.;
Tenn Code Ann 39-14-150; Tex Penal Code Ann 32.51; Utah Code Ann 76-6-
1101 et seq.; Vt Stat Ann tit 13, § 2030; Va Code Ann 18.2-186.3; Wash Rev
Code 9.35.001 et seq.; W Va Code 61-3-54; Wis Stat 943.201; Wyo Stat Ann 6-3-
901.

Were it necessary to rely on the customs, mores, and ordinary views of the
community, we think this recent, positive law enacted by our Legislature (and
other jurisdictions) signals that the customs, norms, and ordinary views of the
community regard personal identifying information such as home addresses and
telephone numbers as being “of a personal nature.” At the very least, this is some
evidence buttressing the conclusion we reach independently.
60
Mager, 460 Mich at 144 (“[T]he privacy exemption in the federal FOIA
is worded differently than the corresponding state provision. For that reason,
federal decisions concerning the privacy exemption are of limited applicability in
Michigan. Nonetheless, federal law is generally instructive in FOIA cases.”),
citing The Evening News Ass’n v City of Troy, 417 Mich 481, 494-495; 339 NW2d
421 (1983). The federal privacy exemption, 5 USC 552(b)(6), exempts “personnel
and medical files and similar files the disclosure of which would constitute a
clearly unwarranted invasion of personal privacy.” Both the Michigan and federal
exemptions refer to disclosure that would constitute a clearly unwarranted
invasion of an individual’s, or personal, privacy, the federal exemption covers
“personnel and medical files and similar files” while the Michigan exemption
covers, more generally, “information of a personal nature.”

23

 lists, but “[i]n an organized society, there are few facts that are not at
one time or another divulged to another.” The privacy interest
protected by [the federal exemption] “encompass[es] the individual’s
control of information concerning his or her person.” An
individual’s interest in controlling the dissemination of information
regarding personal matters does not dissolve simply because that
information may be available to the public in some form.[61]

The Court astutely recognized that an individual’s control over his identifying

information is essential where the information regards such personal matters.

An individual’s home address and telephone number might be listed in the

telephone book or available on an Internet website, but he might nevertheless

understandably refuse to disclose this information, when asked, to a stranger, a co-

worker, or even an acquaintance. The disclosure of information of a personal

nature into the public sphere in certain instances does not automatically remove

the protection of the privacy exemption and subject it to disclosure in every other

circumstance.

Finally, while it is not critical to our holding that home addresses and

telephone numbers are “information of a personal nature,” the fact that in this case

certain university employees actively asserted control over their identifying

61
Dep’t of Defense, 510 US at 500 (citations omitted). Dep’t of Defense
relied heavily on Dep’t of Justice v Reporters Committee for Freedom of the
Press, 489 US 749, 773; 109 S Ct 1468; 103 L Ed 2d 774 (1989), in which the
Court held that the disclosure of the contents of an FBI rap sheet to a third party
could reasonably be expected to constitute an unwarranted invasion of personal
privacy. It observed that “both the common law and the literal understandings of
privacy encompass the individual’s control of information concerning his or her
person.” Id. at 763.

24

information by withholding their home addresses and telephone numbers from

publication in the university faculty and staff directory undoubtedly lends

credence to that conclusion.62 Particularly in this case, then, the argument that this

information is not “of a personal nature” reaches its nadir.63

62
See Dep’t of Defense, 510 US at 501 (“Whatever the reason that these
employees have chosen not to . . . provide . . . their addresses, however, it is clear
that they have some nontrivial privacy interest in nondisclosure.”).
63
Plaintiff relies on the doctrine of expressio unius est exclusio alterius to
argue that identifying information can never be exempt under the privacy
exemption because a subset of identifying information is exempted specifically in
the law-enforcement exemption, MCL 15.243(1)(s). Under this doctrine, “the
expression of one thing suggests the exclusion of all others.” Pittsfield Charter
Twp v Washtenaw Co, 468 Mich 702, 712; 664 NW2d 193 (2003). It is a “long
time legal maxim and a safe guide in the construction of statutes marking powers
not in accordance with the common law.” Feld v Robert & Charles Beauty Salon,
435 Mich 352, 362; 459 NW2d 279 (1990) (opinion by Riley, C.J.) quoting Taylor
v Public Utilities Comm, 217 Mich 400, 402-403; 186 NW 485 (1922).

Plaintiff notes that the law-enforcement exemption (not to be confused with
the law-enforcement-purposes exemption, MCL 15.243[1][b]) exempts from
disclosure, among other things, the addresses and telephone numbers of active or
retired law-enforcement officers or agents as well as the names, addresses or
telephone numbers of their family members, relatives, children, or parents unless
the public interest in disclosure outweighs the public interest in nondisclosure in
the particular instance. Plaintiff contends that the express exemption of this
identifying information in the law-enforcement exemption suggests that the
Legislature intended the disclosure of identifying information of other public
employees.

Plaintiff’s reliance on expressio unius est exclusio alterius is misplaced. It
overlooks the fact that each FOIA exemption, by its plain language, advances a
separate legislative policy choice. We do not necessarily infer from the express
exemption of law-enforcement-related identifying information in one FOIA
exemption that the Legislature intended to make the remaining FOIA exemptions
unavailable to exempt identifying information of non-law-enforcement public
employees. The different policies underlying these exemptions manifest
(continued…)

25

 3. “Public disclosure of the information would constitute a clearly unwarranted
invasion of an individual’s privacy”

Having reached this conclusion, we must move to the second prong of the

privacy exemption and determine whether disclosure of the information at issue

would constitute a clearly unwarranted invasion of an individual’s privacy. We

conclude, under Mager’s core-purpose test, that it would result in a clearly

unwarranted invasion of privacy. Simply put, disclosure of employees’ home

addresses and telephone numbers to plaintiff would reveal “‘little or nothing’”

about a governmental agency’s conduct,64 nor would it further the stated public

policy undergirding the Michigan FOIA.65 Disclosure of employees’ home

(…continued)
themselves in differently-worded standards for disclosure. The Legislature
defined the scope of the privacy exemption generally and did not articulate each
and every instance where information would be “of a personal nature” and when
its disclosure “would constitute a clearly unwarranted invasion of an individual’s
privacy.” By contrast, the Legislature specifically targeted the law-enforcement
exemption to exempt from disclosure specific public records originating from law-
enforcement agencies “[u]nless the public interest in disclosure outweighs the
public interest in nondisclosure in the particular instance.” Simply because the
Legislature saw fit to enact a specific provision to protect law-enforcement-related
information from disclosure, it does not follow that non-law-enforcement-related
identifying information can never be exempt. In short, plaintiff would have us
compare apples to oranges.
64
See Mager, 460 Mich at 145, quoting Dep’t of Justice v Reporters
Committee for Freedom of the Press, 489 US 749, 773; 109 S Ct 1468; 103 L Ed
2d 774 (1989).
65
MCL 15.231(2) (“It is the public policy of this state that all persons,
except those persons incarcerated in state or local correctional facilities, 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
(continued…)

26

addresses and telephone numbers would not shed light on whether the University

of Michigan and its officials are satisfactorily fulfilling their statutory and

constitutional obligations and their duties to the public. When this tenuous interest

in disclosure is weighed against the invasion of privacy that would result from the

disclosure of employees’ home addresses and telephone numbers, the invasion of

privacy would be “clearly unwarranted.”

CONCLUSION

We hold that information is “of a personal nature” if it constitutes intimate,

embarrassing, private, or confidential details about an individual. In this case,

employees’ home addresses and telephone numbers are information “of a personal

nature.” Moving to the second prong of the privacy exemption, we conclude that

the disclosure of employees’ home addresses and telephone numbers does not

further a core purpose of FOIA by shedding light on whether the University of

Michigan is functioning properly and consistently with its statutory and

constitutional mandates.

(…continued)

employees, consistent with this act. The people shall be informed so that they may

fully participate in the democratic process.”).

27

 Accordingly, we reverse the Court of Appeals and reinstate the trial court’s

order granting defendant summary disposition.

Robert P. Young, Jr.
Clifford W. Taylor
Michael F. Cavanagh
Maura D. Corrigan
Stephen J. Markman

28

 STATE OF MICHIGAN

SUPREME COURT

MICHIGAN FEDERATION OF
TEACHERS and SCHOOL RELATED
PERSONNEL, AFT, AFL-CIO,

Plaintiff-Appellee,

v No. 133819

UNIVERSITY OF MICHIGAN,

Defendant-Appellant.

KELLY, J. (concurring in part and dissenting in part).

The issue is whether the privacy exemption1 of the Freedom of Information

Act2 (FOIA) exempts from disclosure the home addresses and telephone numbers

of University of Michigan employees. The majority decides that it does. I agree

that the unlisted3 home addresses and telephone numbers of employees who

refused to give the university permission to publish that information are exempt

from disclosure. But I believe that information that individuals allowed to be

published is not exempt. Thus, I dissent from the majority opinion insofar as it

1
MCL 15.243(1)(a).
2
MCL 15.231 et seq.
3
When I use the term “unlisted” in this opinion, I am referring to
information that is not published in the public telephone directory.
holds that the home addresses and telephone numbers of all the defendant’s

employees are exempt from disclosure.

FACTS

Plaintiff Michigan Federation of Teachers and School Related Personnel,

AFT, AFL-CIO made a FOIA request to defendant University of Michigan.

Plaintiff sought numerous items including the home address and telephone number

of each of defendant’s employees. Defendant provided all requested information

except for the addresses and telephone numbers of those employees who had

withheld permission to have this information published in the faculty and staff

directory. Defendant claimed that the information was exempt from disclosure

under the privacy exemption to FOIA.

Plaintiff brought suit in Washtenaw Circuit Court seeking disclosure of this

information. Both parties moved for summary disposition. In support of its

motion, defendant included affidavits from six employees detailing their reasons

for withholding consent. The reasons were wide-ranging. One employee was

concerned that an ex-spouse could use the information to locate and hurt her.

Another simply believed it would be unfair to disclose unlisted addresses and

telephone numbers.

The circuit court granted summary disposition to defendant. It reasoned

that the home addresses and telephone numbers of employees who had refused to

give permission to publish that information was information of a personal nature.

2

The court added that disclosure of this information would not contribute

significantly to public understanding of the operations or activities of government.

In an unpublished opinion per curiam, the Court of Appeals reversed the

circuit court decision.4 The privacy exemption does not generally include home

addresses and telephone numbers, it reasoned, because they do not reveal intimate

or embarrassing details of an individual’s private life. However, the majority also

held that defendant had persuasively argued that some employees could be

exposed to harm if this information were disclosed. Accordingly, it remanded the

case to the trial court to consider which of defendant’s employees had

demonstrated exceptional circumstances sufficient to exempt their addresses and

telephone numbers from disclosure.

This Court granted defendant’s application for leave to appeal to

“reconsider its construction of [the privacy exemption].”5

THE PRIVACY EXEMPTION

The privacy exemption to FOIA provides:

(1) A public body may exempt from disclosure as a public
record under this act . . .

(a) Information of a personal nature if public disclosure of the

4
Michigan Federation of Teachers & School Related Personnel, AFT,
AFL-CIO v Univ of Michigan, unpublished opinion per curiam of the Court of
Appeals, issued March 22, 2007 (Docket No. 258666).
5
480 Mich 902 (2007).

3

 information would constitute a clearly unwarranted invasion of an
individual’s privacy.[6]

For years this Court has struggled to give meaning to this statutory

provision. The Court arrived at its most recent interpretation in Bradley v Saranac

Community Schools Bd of Ed.7 It observed:

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.” In the past, we have used two slightly different
formulations to describe “personal nature.” The first defines
“personal” as “of or pertaining to a particular person; private; one’s
own . . . . Concerning a particular individual and his intimate affairs,
interests, or activities; intimate . . . .” We have also defined this
threshold inquiry in terms of whether the requested information was
“personal, intimate, or embarrassing.” Combining 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.’”[8]
Defendant asks us to overrule Bradley’s interpretation of the phrase “of a

personal nature,” arguing that Bradley incorrectly interpreted the statutory

language. The majority partly accepts the invitation, holding that the Bradley

formulation of the phrase is overly narrow.

6
MCL 15.243(1)(a).
7
Bradley v Saranac Community Schools Bd of Ed, 455 Mich 285; 565
NW2d 650 (1997).
8
Id. at 294.

4

 INFORMATION “OF A PERSONAL NATURE”

I did not join the majority opinion in Bradley. Instead, I joined Justice

Boyle’s partial dissent. Justice Boyle took issue with the majority’s constricted

interpretation of the phrase “of a personal nature,”9 preferring the definitions

arrived at in Kestenbaum v Michigan State Univ10 and Swickard v Wayne Co

Medical Examiner.11 In Kestenbaum, Justice Ryan concluded that information is

of a personal nature if it is “‘personal,’ intimate, or embarrassing.”12 Swickard

defined the phrase “of a personal nature” 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 . . . .’”13

Although the majority does not explicitly recognize it, its interpretation of

the phrase “of a personal nature” is consistent with the definitions arrived at in

Kestenbaum and Swickard. In fact, the majority’s interpretation represents a

synthesizing of the two. When one combines the definitions in Kestenbaum and

Swickard, information is “of a personal nature” if it reveals private, intimate, or

9
Id. at 306-307 (Boyle, J., dissenting in part).
10
Kestenbaum v Michigan State Univ; 414 Mich 510; 327 NW2d 783
(1982).
11
Swickard v Wayne Co Medical Examiner; 438 Mich 536; 475 NW2d 304
(1991).
12
Kestenbaum, 414 Mich at 547 (opinion of Ryan, J.).
13
Swickard, 438 Mich at 547, quoting The American Heritage Dictionary
of the English Language, Second College Edition (1976).

5

embarrassing information about a particular person. The majority holds that

“intimate, embarrassing, private, or confidential information is ‘of a personal

nature.’”14 The majority’s interpretation of the privacy exemption is consistent

with my position in Bradley, and I agree with it.15

But Bradley, being precedent of this Court, should be followed unless

weighty reasons exist for abandoning it. As the United States Supreme Court

recently recognized, “considerations [of stare decisis] impose a considerable

burden upon those who would seek a different interpretation that would

necessarily unsettle . . . Court precedents.”16 I am confident that substantial

reasons exist for expanding Bradley’s interpretation of the privacy exemption.

Bradley was decided 10 years ago. Since that time, society has come to

recognize that identity fraud poses a major problem.17 Because of it, individuals

are encouraged not to make public their personal information for fear it be used to

14
Ante at 20 (emphasis deleted).
15
The majority’s interpretation differs from Kestenbaum and Swickard in
that neither case defined the phrase “of a personal nature” to include confidential
information. They did provide that private information is “of a personal nature.”
If information is confidential, it is necessarily private. Thus, as I see it, private
information includes confidential information. Therefore, any discrepancy
between the Kestenbaum and Swickard definitions and the majority’s
interpretation is a distinction without a difference.
16
CBOCS West, Inc v Humphries, ___ US ___, ___; 128 S Ct 1951, 1958;
170 L Ed 2d 864 (2008).
17
See The President’s Identity Theft Task Force, Combating Identity Theft:
A Strategic Plan, April 2007. at 1 (accessed May 29, 2008).

6

victimize them.18 And individuals have taken notice of this trend and are now

more vigilant in protecting their personal information.19

Accordingly, it appears that, since Bradley was decided, increasing

incidents of identity fraud have caused a change in behavior. When the facts

underlying a court decision drastically change and render the decision outdated, a

reexamination of the decision is required.20 The changes that have occurred since

Bradley was decided illustrate that individuals have an interest in preventing the

disclosure of more than intimate or embarrassing information. They reasonably

wish to prevent the disclosure of other information they keep private. These

changes in fact make it appropriate for us to overrule Bradley to the extent it holds

that private information is not “of a personal nature.”

As a consequence, I concur with the majority’s decision to expand

Bradley’s interpretation of the privacy exemption. But I part company from the

majority in its application of the new interpretation.

APPLICATION OF THE NEW INTERPRETATION OF THE PRIVACY EXEMPTION

I differ in two respects with the majority’s application of the law to the

facts of this case. First, defendant has already given plaintiff the home addresses

and telephone numbers of those employees who consented to the publication of

18
Id. at 39.

19
Id. at 11-12.

20
Parker v Port Huron Hosp, 361 Mich 1, 24-25; 105 NW2d 1 (1960);

Brown v Bd of Ed, 347 US 483, 492-495; 74 S Ct 686; 98 L Ed 873 (1954).

7

that information in the faculty and staff directory. Thus, to resolve this case, the

majority need not decide whether the home addresses and telephone numbers of

all of defendant’s employees constitute information “of a personal nature.” It

need only decide whether the home addresses and telephone numbers of

employees who refused to allow publication of this information in the school

directory are exempt from disclosure. The majority overreaches by unnecessarily

deciding the case on a broader basis.

Second, I disagree with the majority’s decision insofar as it holds that the

home addresses and telephone numbers of all defendant’s employees are exempt.

Merely because some of defendant’s employees keep their addresses and

telephone numbers private does not mean that the addresses and telephone

numbers of all the employees is information “of a personal nature.”

Employees whose addresses and home telephone numbers are unlisted and

who refused to allow defendant to publish them in the school directory have done

everything possible keep that information private. And, by taking action to protect

their addresses and telephone numbers from mass dissemination, these individuals

have indicated that they consider the information private. Thus, it is reasonable to

conclude that the home addresses and telephone numbers of those employees is

information “of a personal nature.”

Under the privacy exemption, information that is “of a personal nature” is

exempt if disclosure of it would constitute a “clearly unwarranted invasion of an

8

individual’s privacy.”21 The disclosure of the addresses and telephone numbers of

employees who have made efforts to keep this information private would

constitute an unwarranted invasion of their privacy. Therefore, I would hold that

this information is exempt from disclosure.

But it does not follow that the home addresses and telephone numbers of all

defendant’s employees is information “of a personal nature.”22 Employees who

either have a listed telephone number or who have given defendant permission to

publish their information have released their information for mass viewing. By so

doing, they have allowed the information to become public.

Individuals who have allowed their information to be made public cannot

be heard to argue that the information is private. It is illogical to decide that

information pertaining to an individual is private information if the individual

himself or herself does not treat it that way. Therefore, the home addresses and

telephone numbers of those employees who either have a listed telephone number

or who have allowed defendant to publish their information is generally not “of a

personal nature.” If information is not “of a personal nature,” the privacy

exemption does not apply to it.

21
MCL 15.243(1)(a).
22
The burden is on the public body to justify its refusal to disclose the
requested information. MCL 15.240(4). The public body does not justify its
refusal by showing that some of the requested information is exempt. It must
show that all the requested information is exempt.

9

 Of course, public information could be “of a personal nature” if disclosure

of it reveals something intimate or embarrassing about an individual. For instance,

in Mager v Dep’t of State Police,23 plaintiff requested the addresses of persons

who owned registered handguns. The information sought in Mager is an example

of information that is “of a personal nature” regardless of whether the individual

allows it to be made publicly available. Disclosing that information would reveal

something intimate about the individual: that he or she owns a handgun. The

information requested in the case on appeal would reveal that the employee works

for defendant, not an intimate or embarrassing fact. Thus, I would hold that

defendant must turn over the home addresses and telephone numbers of employees

who have not taken steps to keep that information private.

CONCLUSION

I agree with the decision to expand Bradley’s interpretation of the privacy

exemption to provide that private information is “of a personal nature.” But unlike

the majority, I do not believe that the home addresses and telephone numbers of

all defendant’s employees come within the terms of the privacy exemption. I

would hold that the home addresses and telephone numbers of employees whose

telephone numbers are unlisted and who have not allowed defendant to publish

23
Mager v Dep’t of State Police, 460 Mich 134; 595 NW2d 142 (1999).

10

this information are exempt from disclosure. But defendant must disclose the

home addresses and telephone numbers of its other employees.

Marilyn Kelly
Elizabeth A. Weaver

11