Michigan Advisory Opinions December 29, 1981: AGO 6019 (December 29, 1981)

AGO 6019.

You have requested my opinion on several questions regarding the Freedom of Information Act, 1979 PA 442; MCLA 15.231 et seq; MSA 4.1801(1) et seq; and the Open Meetings Act, 1976 PA 267; MCLA 15.261 et seq: MSA 4.1800(11) et seq.

Your first question is:

1. May the public have access to specified information in a personnel file such as salary history and employment dates?

The Freedom of Information Act, supra, requires that the records of public bodies be available for public inspection and copying unless they come within one of the twenty specific exemptions contained in section 13 of the Freedom of Information Act, supra. Information such as salary history and employment dates contained in a personnel file maintained by a public body would therefore be subject to disclosure unless it fits within one of those exemptions. In the Freedom of Information Act, Sec. 13(1)(a), supra, the Legislature has provided:

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

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

In construing a similar provision in the Federal Freedom of Information Act, 80 Stat 383 (1966); 5 USC 552, the federal courts have adopted a test which balances the preservation of the public's right to government information against the protection of an individual's private affairs from unnecessary public scrutiny. See, e.g., Department of Air Force v Rose, 425 US 352; 96 S Ct 1592; 48 L Ed 2d 11 (1976); Campbell v United States Civil Service Commission, 539 F 2d 58 (CA 10, 1976).

In Penokie v Michigan Technological University, 93 Mich App 650, 659; 287 NW2d 304 (1979), the Michigan Court of Appeals adopted the federal balancing test as follows:

'The Federal balancing test requires an initial determination of whether disclosure would constitute an invasion of privacy and, if so, how serious an invasion. Determination as to whether an invasion of privacy is 'clearly unwarranted' requires consideration of the public purpose of the party requesting the information, the possibility that the purpose could be accomplished without disclosure, the scope of the request and the availability of alternative sources for obtaining the information.' (93 Mich App, at 659.)

See also, Kestenbaum v Michigan State University, 97 Mich App 5; 294 NW2d 228 (1980), lv granted, 411 Mich 869. Applying this test, the Penokie court held that the names and salaries of university employees were not exempt under section 13(1)(a) because the minor invasion of the employees' privacy was outweighed by the public's right to know how its tax dollars are spent. Penokie thus supports the conclusion that the public is entitled to know the names of current public employees and the current salary rates of those employees. (fn1) Thus, there is no basis for reaching a different conclusion as to salary histories or dates of employment which are merely records containing the same basic information for past periods of time.

It is my opinion, therefore, that information contained in a personnel file pertaining to an individual's official position such as salary history and employment dates is subject to disclosure under the Freedom of Information Act. It should be emphasized, however, that not all personnel information is required to be disclosed under the Act. Certain types of information, such as counseling or medical records, may be exempt from disclosure under Sec. 13(1)(a). See OAG, 1979-1980, No 5500, p 255, 272-274 (July 23, 1979). In each case the public interest in the release of the information must be weighed against the individual's right to privacy.

Your second question is:

May the members of the public be present when applicants for positions are interviewed by a public body and may they ask questions of the applicant?

The Open Meetings Act, supra, Sec. 8(f), states in pertinent part:

'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.'

This section was discussed in OAG, 1977-1978, No 5183, p 21, 38 (March 8, 1977) and it was concluded that the Open Meetings Act, Sec. 8(f) requires that interviews for employment be conducted in an open meeting:

'. . . where employment interviews must be held by the body itself, either because of the enabling statute or as a matter of policy adopted by that body. In all other cases, where the public body is not required to interview the applicant, interviews for employment may be conducted in private by staff of the public body.'

Accordingly, members of the public have a right to be present during interviews of candidates for employment whenever the public body is either required or chooses to interview those candidates itself.

It does not follow, however, that members of the public have a right to ask questions of employment candidates during such public interviews. The Open Meetings Act, Sec. 8(f) makes no reference to any such right on the part of the public; it merely requires that, if the public body itself conducts such an interview, it must do so in public. The Open Meetings Act, supra, Sec. 3(5) does provide that:

'A person shall be permitted to address a meeting of a public body under rules established and recorded by the public body. . . .'

However, this latter provision merely establishes the right of members of the public to address the public body and, like section 8(f), supra, makes no reference to a right to address questions to an applicant being interviewed for employment. Moreover, as was noted in OAG, 1979-1980, No 5716, p 812, 814 (June 4, 1980)

'it is clear that under the Open Meetings Act, Sec. 3(5), supra, in the absence of a statutory directive to the contrary, a public body in its discretion may determine through reasonable rules whether the public shall address the public body at the beginning, middle, or end of its meeting.'

Similarly, it was noted in OAG, 1977-1978, No 5310, p 465, 468 (June 7, 1978) that:

'There is, therefore, no right on the part of the members of the public to address [a public body] during its deliberations of the same matter. . . . The current practice . . . of allowing members of the public to address that body after a decision has been rendered in a particular matter is in accord with the letter and the spirit of this opinion.'

Accordingly, it is my opinion that, although members of the public are entitled to be present when a public body conducts interviews of applicants for employment, and must be afforded an opportunity to address the public body at some point during such meetings, they do not have the right to ask questions of the applicants for employment.

Your final question is:

When must minutes taken at a closed session held to discuss collective bargaining negotiations be released to the public?

The Open Meetings Act, supra, Sec. 8(c) specifically authorizes a public body to meet in closed session for strategy and negotiation sessions connected with the negotiation of a collective bargaining agreement. Minutes of such a meeting must be taken as required by the Open Meetings Act, supra, Sec. 7(2) which provides:

'A separate set of minutes shall be taken by the clerk or the designated secretary of the public body at the closed session. These minutes shall be retained by the clerk of the public body, shall not be available to the public, and shall only be disclosed if required by a civil action filed under section 10, 11, or 13. These minutes may be destroyed 1 year and 1 day after approval of the minutes of the regular meeting at which the closed session was approved.' [Emphasis supplied.]

This section is clear and unambiguous and a plain reading suffices. Lake Carriers Association v Director of the Department of Natural Resources, 407 Mich 424, 429; 286 NW2d 416 (1979).

It is my opinion, therefore, in answer to your final question, that the minutes of a closed session held to discuss collective bargaining negotiations in compliance with the Open Meetings Act Secs. 7 and 8, supra, may be released to the public only pursuant to an order of a court in a civil action brought under the Open Meetings Act, supra, Secs. 10, 11, or 13.

Frank J. Kelley

Attorney General

1. It should be noted, however, that under some circumstances a public body may refuse to disclose the names of certain law enforcement officers. See the Freedom of Information Act, supra, Sec. 13(1)(t).