We granted leave in this case to address the application of the Michigan Freedom of Information Act (FOIA) and the Michigan Open Meetings Act (OMA) in the context of the municipal hiring process. We conclude that Bay City violated the FOIA when it refused to disclose public records concerning final candidates for the position of Bay City Fire Chief, because the requested records were not within any exemption under the FOIA. We additionally conclude that the city manager in this case was neither part of, nor acting as, a "public body" within the contemplation of the OMA, and thus was not subject to its requirements. Accordingly, we affirm in part and reverse in part the decision of the Court of Appeals and remand this matter to the trial court for proceedings consistent with this opinion.
I. Facts and Procedural Background
Plaintiff challenges the process used by defendant Bay City to select a new fire chief. The relevant facts are not in dispute.
In February 1996, the Bay City Fire Chief retired. The Bay City Charter prescribes that a new fire chief must be appointed by the Bay City Commission on the recommendation of the city manager. The city manager at that time, defendant Bruce McCandless, formed a committee to assist him in making his recommendation. The purpose of the committee was to aid McCandless in establishing hiring criteria, soliciting and screening applicants, and interviewing applicants, and to advise him on the selection of the most qualified candidate.
The five-member committee received thirty-four applications and recommended that nine of those applicants be considered for the fire chief position. Two of the nine recommended candidates withdrew their applications. The remaining seven applicants were interviewed by the committee, and the committee concluded that three of these candidates deserved further consideration. McCandless agreed with the committee's recommendation and personally interviewed the final three candidates. All of the committee's meetings and the interviews were conducted in private.
On May 6, 1996, before McCandless made a recommendation to the city commission, the editor of The Bay City Times
On May 16, 1996, McCandless sent a letter to the city commission recommending one candidate, Gary Mueller, for the fire chief position. At an open meeting on June 3, 1996, the city commission deliberated and voted to appoint Gary Mueller as the Bay City Fire Chief.
After the appointment, plaintiff filed suit alleging violations of the FOIA and the OMA. Plaintiff argued that the FOIA required the city to comply with plaintiff's request for information about the candidates who were interviewed, and that the OMA required McCandless and his committee to conduct interviews in open meetings.
The trial court eventually granted summary disposition for defendants on both the FOIA and OMA claims. The court held that plaintiff's FOIA request was defective and, alternatively, that the requested information was exempt from disclosure. As to the OMA, the trial court concluded that McCandless and his committee were not subject to its provisions, and thus that there was no violation. Plaintiff appealed the grant of summary disposition, and the Court of Appeals reversed on both counts.
II. Standard of Review
The trial court granted summary disposition for defendants on the basis of its interpretation of the Freedom of Information Act, M.C.L. § 15.231 et seq.; MSA 4.1801(1) et seq., and the Open Meetings Act, M.C.L. § 15.261 et seq.; MSA 4.1800(11) et seq. This Court reviews the grant or denial of summary disposition de novo. Maiden v. Rozwood, 461 Mich. 109, 118, 597 N.W.2d 817 (1999). Similarly, we review questions of statutory construction de novo as a question of law. Donajkowski v. Alpena Power Co., 460 Mich. 243, 248, 596 N.W.2d 574 (1999); Mager v. Dep't of State Police, 460 Mich. 134, 143, n. 14, 595 N.W.2d 142 (1999). Because 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. People v. McIntire, 461 Mich. 147, 152-153, 599 N.W.2d 102 (1999). 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. Tryc v. Michigan Veterans' Facility, 451 Mich. 129, 135, 545 N.W.2d 642 (1996). We must give the words of a statute their plain and ordinary meaning. MCL 8.3a; MSA 2.212(1); Turner v. Auto Club Ins.
III. Freedom of Information Act Claim
Subsection 1(2) of the FOIA declares that
Consistent with this broadly declared legislative policy, the FOIA's specific provisions generally require the full disclosure of public records in the possession of a public body:
The FOIA provides, in § 13, several exemptions which, if applicable, permit a public body to deny a request for disclosure of public records.
At issue in the instant case is the following FOIA exemption:
The trial court concluded that plaintiff's FOIA request was defective because it requested information rather than documents, and, alternatively, that the information requested was exempt from disclosure as "[i]nformation of a personal nature where the public disclosure of the information would constitute a clearly unwarranted invasion of an individual's privacy."
B. Propriety of Plaintiff's Request
The FOIA does not establish detailed requirements for a valid request. Instead, it merely requires that a request "describe[ ] the public record sufficiently to enable the public body to find the public record." MCL 15.233(1); MSA 4.1801(3)(1). Defendants argue that plaintiff's request failed to meet this basic requirement. We disagree.
In this case, plaintiff requested "the names, current job titles, cities of residence and age of the seven final candidates for the job of Bay City fire chief." The city admits that this description was sufficient to allow it to find documents containing the information, but argues that the request was flawed because it requested the information itself, rather than documents containing the information.
We begin by reiterating that the Legislature entitled this statute the "Freedom of Information Act," and declared as the public policy of this state "that all persons... are entitled to full and complete information regarding the affairs of government...." MCL 15.231(2); MSA 4.1801(1)(2) (emphasis added).
Consistent with this stated purpose, the Legislature did not impose detailed or technical requirements as a precondition for granting the public access to information. Instead, the Legislature simply required that any request be sufficiently descriptive to allow the public body to find public records containing the information sought. In contrast, the city would have us read an additional requirement into the statute—that a request must describe the specific public records to be disclosed. We have no authority to impose requirements not found in the statute, and we note that it would be odd indeed to ask a party who has no access to public records to attempt specifically to describe them. Because the request in this case was sufficient to allow the city to find the requested information, the request was valid under M.C.L. § 15.233(1); MSA 4.1801(3)(1).
Defendants' related argument contends that plaintiff's request would have required the city to create a new public record—something the statute expressly states that the city is not required to do. MCL 15.233(4); MSA 4.1801(3)(4). Again, we disagree with defendants' construction of the FOIA.
Plaintiff's request did not specify or require the disclosure of any document, newly created or otherwise, from the city. It simply asked for information. Under the FOIA, the city could have satisfied the request in several different ways. It could have allowed plaintiff access to the public records containing the information (such as the applicants' resumes or applications), it could have allowed plaintiff to copy the public records containing the information, or it could have provided plaintiff with copies of the public records containing the information. MCL 15.233(1); MSA 4.1801(3)(1). It is true that the request also could have been satisfied by the city's creation of a new public record, but plaintiff did not request creation of such a record, and the fact that the city had no obligation to create a record says nothing about its obligation to satisfy plaintiff's request in some other manner as required by the FOIA.
C. Privacy Exemption
Defendants also argue that the information plaintiff requested is exempt from disclosure as "information of a personal nature" pursuant to M.C.L. § 15.243(1); MSA 4.1801(13)(1). The trial court agreed, finding that public disclosure of the information would constitute a clearly unwarranted invasion of the applicants' privacy. The Court of Appeals disagreed, reasoning that the information disclosed is not "of a personal nature," and, alternatively, that "[d]isclosure of the requested information would not constitute a clearly unwarranted invasion of privacy because nothing of a highly personal nature would be disclosed." 228 Mich.App. at 290, 577 N.W.2d 696.
This case requires us to decide whether the fact of application for a particular public job and information supplied therewith is "information of a personal nature" and, if so, whether the disclosure of such information would "constitute a clearly unwarranted invasion of an individual's privacy."
We begin by once again observing that this exception involves "`a highly subjective area of the law where the Legislature has provided little statutory guidance'...." Mager, supra at 143, 595 N.W.2d 142, quoting Swickard, supra at 556, 475 N.W.2d 304. Bearing this in mind, we conclude that the information sought is not personal, and, moreover, that its revelation would not constitute a clearly unwarranted invasion of privacy.
1. "Personal Nature" of the Information
The text of the statute at issue reveals little about the Legislature's intended scope when it provided an exemption for "information of a personal nature." From this Court's numerous attempts to fashion a workable formulation for determining on a case-by-case basis whether requested information is "personal" within the Legislature's contemplation, the following standard has emerged:
Applying this standard in Bradley, we determined that personnel records of public school teachers and administrators were not of a "personal nature":
More recently, in Mager, supra, we applied this same standard and reached the opposite conclusion because of the nature of the request at issue there. In Mager, the plaintiff requested that the State Police provide the names and addresses of persons who owned registered handguns. In determining that the fact of gun ownership was "information of a personal nature," we noted that "[t]he ownership and use of firearms is a controversial subject,"
In contrast to the fact of gun ownership, which—assessing the customs, mores or ordinary views of the community—certainly may be viewed as an intimate and potentially embarrassing aspect of one's private life, we conclude 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. Given the public nature of the position at issue, we think it difficult to conclude that the "customs," "mores," and "views" of the community contemplate that an application for such a position could be made without expectation of considerable public scrutiny. Certainly, defendants have failed to establish on this record why any of the information requested by plaintiff is the kind of intimate or embarrassing information that this FOIA exception protects.
Importantly, even if the requested information was contained in public documents that also referenced embarrassing or intimate personal information (for example, medical data), the FOIA imposes on the city a duty to "separate the exempt and nonexempt material and make the nonexempt material available for examination and copying." MCL 15.244(1); MSA 4.1801(14)(1); see also Evening News Ass'n v. City of Troy, 417 Mich. 481, 503, 339 N.W.2d 421 (1983).
2. "Clearly Unwarranted Invasion" of Privacy Element
Although we have already concluded that the information sought was not characteristically "of a personal nature" and, therefore, that the privacy exemption does not apply, we will now briefly address the second step of the inquiry: whether disclosure would "constitute a clearly unwarranted invasion" of privacy.
We first note that the trial court committed an error of law when it proceeded directly to this inquiry without first determining whether the request sought information that was of a "personal nature." The trial court additionally erred when it concluded that, on these particular facts, disclosure of the requested information would have constituted a "clearly unwarranted invasion" of privacy. By providing that the invasion of privacy must be clearly unwarranted, the Legislature has unmistakably indicated that the intrusion must be more than slight, but a very significant one indeed.
In Mager, we determined that disclosure of the names and addresses of registered gun owners would constitute a clearly unwarranted invasion of the gun owners' privacy. Taking guidance from federal decisions concerning the federal FOIA, we noted that "`a court must balance the public interest in disclosure against the interest [the Legislature] intended the exemption to protect.'" Id. at 145, 595 N.W.2d 142, quoting United States Dep't of Defense v. Federal Labor Relations Authority, 510 U.S. 487, 495, 114 S.Ct. 1006, 127 L.Ed.2d 325 (1994). We further held that the relevant "public interest" to be weighed in this balance "`is the extent to which disclosure would serve the core purpose of the FOIA, which is contributing significantly to public understanding of the operations or activities of the government.'" Mager, supra at 145, 595 N.W.2d 142, quoting United States Dep't of Defense, supra at 495, 114 S.Ct. 1006 (emphasis in original).
On the basis of the foregoing, we held that fulfilling a request for personal information concerning private citizens, where the request was "entirely unrelated to any inquiry regarding the inner working of government," would constitute a clearly unwarranted invasion of privacy. Mager,
In contrast to the highly personal information at issue in Mager, we conclude that disclosure of the information concerning the final candidates for fire chief in the instant case would serve the policy underlying the FOIA because disclosure would facilitate the public's access to information regarding the affairs of their city government. It can hardly be challenged that the citizens of Bay City had a valid interest in knowing the identities of the final candidates considered in contention for this high-level public position. Keeping in mind that defendants bear the burden of proof that an exemption applies, and balancing the public interest against the relatively circumscribed privacy interest protected by the FOIA exemption, we cannot conclude that the disclosure sought might result in a "clearly unwarranted invasion of an individual's privacy."
IV. Open Meetings Act Claim
The OMA provides, in part:
The statute strictly limits "closed session" meetings of public bodies and expressly states that, "except as otherwise provided..., all interviews by a public body for employment or appointment to a public office shall be held in an open meeting pursuant to this act." MCL 15.268(f); MSA 4.1800(18)(f).
Plaintiff argues that (1) the city manager in this case was a public body, (2) the city manager and city commission together formed a public body, and (3) in any event, the committee that established the hiring criteria, screened the initial applications, and conducted interviews before reducing the field to three applicants was a public body. The Court of Appeals agreed that the city manager may be a public body in his own right, and that he is certainly part of a public body when he acts in concert with the city commission. We disagree with the analysis suggested by plaintiff and the Court of Appeals.
The threshold issue under the OMA is whether an entity is a "public body." The OMA defines "public body" as
As used in the OMA, the term "public body" connotes a collective entity. The statutory terms used illustratively to define "public body"—"legislative body" and "governing body"-do not encompass individuals. A single individual is not commonly understood to be akin to a "board," "commission," "committee," "subcommittee," "authority," or "council"—the bodies specifically listed in the act by the Legislature.
The Court of Appeals observed that, under the Bay City Charter, the city commission shall appoint a fire chief "on the recommendation of the city manager."
We see no merit to plaintiff's contention that the city manager and city commission together constitute a public body. Certainly the city commission constitutes a public body when it appoints a fire chief, but the city manager remains an individual executive. We see no basis in the OMA to combine for the purposes of this statute two separate entities where each entity is performing its own independent function as designated in the city charter. The cases plaintiff relies on for this proposition are inapposite.
In Menominee Co. Taxpayers Alliance, Inc. v. Menominee Co. Clerk, 139 Mich.App. 814, 362 N.W.2d 871 (1984), the Court held that a group formed as required by
The group in Menominee was a collective body in the plainest sense, thus satisfying the first requirement for a public body under the OMA. The fact that the three members held other positions was essentially irrelevant because, while on the committee, they were voting members of a group that was empowered by statute to exercise governmental authority. In the present case, the city manager was acting as a city manager, not as a commissioner or committee member.
Plaintiff also relies on our holding in Booth Newspapers, Inc v. Univ. of Michigan Bd. of Regents, 444 Mich. 211, 507 N.W.2d 422 (1993), to support the proposition that the city manager, individually, constituted a public body. Like Menominee, Booth is not analogous to the present case. In Booth, the University of Michigan Board of Regents attempted to evade the requirements of the OMA during the process of selecting a new university president. The board took several evasive actions, including: (1) appointing itself as a presidential selection committee, (2) entrusting one regent with the authority to make "cuts" in the candidate list, (3) using a system of telephone calls and subquorum meetings to gather the opinions of all regents without convening a meeting of a quorum of the board, and (4) having small, subquorum groups of regents interview candidates. Id. at 216-219, 507 N.W.2d 422. This Court held that the board violated the OMA. The important distinguishing feature of Booth was that the board was clearly a "public body" that was subject to the OMA, and the various regents and subquorum groups had no independent authority to narrow the field, make a recommendation, or select a president. The board effectively sought to delegate its authority as a body subject to the OMA to various bodies of its own creation that it believed were not subject to the OMA, for the express purpose of avoiding the requirements of the OMA.
Thus, the decision in Booth precluded an attempt by a public body to evade the OMA (and thus circumvent legislative intent) by delegating its authority. In this case, the city manager was assigned the task of recommending a new fire chief directly by the city charter, and, therefore, he required no delegation of authority from the city commission in order to perform that function. Under these circumstances, the Legislature, by electing not to include individuals in the definition of public body in the OMA, has exempted the city manager from its requirements.
For the reasons stated, in regard to plaintiff's Freedom of Information Act claim, we affirm the decision of the Court of Appeals, and we remand for proceedings consistent with this opinion. Regarding plaintiff's Open Meetings Act claim, we reverse the judgment of the Court of Appeals and reinstate the trial court's grant of summary disposition for defendants.
WEAVER, C.J., and MICHAEL F. CAVANAGH, TAYLOR, CORRIGAN, and MARKMAN, JJ., concurred with YOUNG, J.
MARILYN J. KELLY, J. (concurring in part and dissenting in part).
I agree with the majority's analysis and conclusion regarding the Freedom of Information Act (FOIA)
I. THE CITY MANAGER IS A "PUBLIC BODY"
The majority holds that a person in his individual capacity cannot be a "public body" as defined under the OMA, distinguishing Booth Newspapers, Inc. v. Univ. of Michigan Bd. of Regents, 444 Mich. 211, 507 N.W.2d 422 (1993). Op., pp. 882-885.
In Booth, the eight-member University of Michigan Board of Regents designated itself as the Presidential Selection Committee and embarked on the task of choosing a new university president. The committee made Regent Paul W. Brown chairman and also formed three advisory subcommittees. In all, five candidate-reduction decisions were made. Id. at 215, 507 N.W.2d 422. In the first, second, and fourth "cuts," the candidate field was reduced from 250 to 70, 70 to 30, and 12 to 5, respectively. Regent Brown made the reduction decisions, although in doing so he consulted with the other regents, either
This Court found that the OMA applied to the Presidential Selection Committee's procedures. It rejected the defendant's argument that the chairman did not act as a committee, that he was not a "public body," and was, thus, outside the purview of the OMA. This Court found that the board's argument elevated form over substance:
The majority notes that in Booth, the Board of Regents, clearly a "public body" subject to the OMA, sought to evade the OMA by delegating its authority to the chairman of the Presidential Selection Committee. In the present case, however, the city commission did not delegate its authority to the city manager. The city manager was empowered by the city charter to recommend someone for the fire chief position. The city manager remained an individual executive throughout the selection process, and there is "no basis in the OMA to combine ... two separate entities where each entity is performing its own independent function as designated in the city charter." Op., p. 883. Thus, the majority holds Booth inapposite.
The majority's attempt to distinguish Booth from the present case is unpersuasive. Although the Booth decision involved a delegation of power, it did not limit itself to situations where a delegation had taken place. Rather, the Booth Court was concerned that form not prevail over substance and that the OMA's legislative purpose "to promote a new era in governmental accountability" not be defeated.
Regardless of the validity of the grounds on which the majority distinguishes Booth from the present case, I would hold that the city manager was a public body for purposes of the OMA.
The OMA defines "public body" as:
The OMA does not define the term "authority" and, as the word has no unique meaning at law, it is appropriate to consult a lay dictionary for its definition. People v. Morey, 461 Mich. 325, 330, 603 N.W.2d 250 (1999); Horace v. City of Pontiac, 456 Mich. 744, 756, 575 N.W.2d 762 (1998); MCL 8.3a; MSA 2.212(1). The relevant definition of "authority" from Random House Webster's College Dictionary, p. 92, is "a person or body of persons in whom authority is vested, as a governmental agency." Thus, the language of the OMA,
II. BY MEANS OF HIS DECISIONS, THE CITY MANAGER EXERCISED GOVERNMENTAL AUTHORITY AND PERFORMED A GOVERNMENTAL FUNCTION
I also find that reduction of the candidate pool by the city manager through interviews was a "decision" that must be made at an open meeting by mandate of the OMA.
Finally, the city charter provides:
This Court has consistently held that the word "shall" imposes a mandatory duty. See State Hwy. Comm. v. Vanderkloot, 392 Mich. 159, 181, 220 N.W.2d 416 (1974). This language compels the city commission to appoint a candidate that the manager recommends.
The majority states that the only reasonable interpretation of the charter's language permits the city commission to reject a candidate recommended by the city manager. However, the candidate who is ultimately appointed, if any, must have been recommended by the city manager. I agree. What is relevant, here, is that the city commission cannot appoint absent the separate prior action of the city manager. Both must act before a fire chief can be appointed. Therefore, the city manager is a public body in his own right and exercises governmental authority in conducting interviews and making reduction decisions.
I would affirm the Court of Appeals holding that the defendants acted in violation of the OMA. As with the chairman in Booth, the city manager here is subject to the OMA. A contrary finding places form over substance and undermines the act. The city manager is a "public body" because that individual is an "authority." The city manager, in interviewing candidates and reducing the field of candidates made decisions, performed governmental functions, and exercised governmental authority. Under the city charter, the manager is one of two public bodies that, working together, determine who will be the Bay City Fire Chief. Therefore, the city manager's actions were subject to the OMA and should have been undertaken at a public meeting.
"Public body" means any of the following:
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