The following opinion is presented on-line for informational use only and does not replace the official version. (Mich Dept of Attorney General Web Site - www.ag.state.mi.us) STATE OF MICHIGAN FRANK J. KELLEY, ATTORNEY GENERAL Opinion No. 5608 December 17, 1979 OPEN MEETINGS ACT: Discussion of evaluation of officers and employees of the public body FREEDOM OF INFORMATION ACT: Evaluation of public officers and employees A public body may not meet in closed session to consider an evaluation of its officers and employees. The exemption contained in section 13(1)(n) of the Freedom of Information Act for communications and notes within a public body or between public bodies of an advisory nature does not constitute an exemption for the purposes of the Open Meetings Act in view of a specific statutory provision which states that this exemption does not constitute an exemption for the purposes of section 8(h) of the Open Meetings Act. Honorable Phil Arthurhultz State Senator The Capitol Lansing, Michigan 48909 Honorable Donald H. Gilmer State Representative The Capitol Lansing, Michigan 48909 You have requested my opinion with respect to the following question: May a school board meet in closed session under the Open Meetings Act, 1976 PA 267, Sec. 8(h), MCLA 15.268(h); MSA 4.1800(18)(h), to review a routine written evaluation of its employees? Your request was precipitated by a local school board resolution which stated: 'Be it resolved that the ________ district school's board of education exempt from disclosure as a public record any and all evaluation made of employees of the ________ district schools except where otherwise required by the employee in accordance with Section 13(1)(a) and Section 13(1)(m) of Act 442 of the Public Acts of 1976?' OAG, 1979-1980, No 5500, Question 20 (July 23, 1979), addressed the interrelationship between the Open Meetings Act, 1976 PA 267, MCLA 15.261 et seq; MSA 4.1800(11) et seq, and the Freedom of Information Act, 1976 PA 442, MCLA 15.231 et seq; MSA 4.1801(1) et seq, and concluded that a school board may meet in closed session pursuant to the Open Meetings Act, supra, to consider matters which are exempt from disclosure under the Freedom of Information Act, supra. A public body may only exempt public documents from disclosure pursuant to the exemptions set forth in section 13(1) of the Freedom of Information Act, supra. Section 13(1)(n) provides that a public body may exempt from disclosure as a public record: 'Communications and notes within a public body or between public bodies of an advisory nature to the extent that they cover other than purely factual materials and are preliminary to a final agency determination of policy or action. This exemption shall not apply unless the public body shows that in the particular instance the public interest in encouraging frank communications between officials and employees of public bodies clearly outweighs the public interest in disclosure. This exemption does not constitute an exemption under state law for purposes of section 8(h) of Act No. 267 of the Public Acts of 1976, being section 15.268 of the Michigan Compiled Laws. . . .' [Emphasis added] It is evident from the language above emphasized in section 13(1)(n) that the Legislature intended that this exemption not serve as the basis for a public body meeting in closed session under the Open Meetings Act, supra. However, as this restriction is found only in section 13(1)(n) of the Freedom of Information Act, supra, it may be concluded that the Legislature intended that the remaining exemptions in section 13(1) could be used as the basis for a public body meeting in closed session under section 8(h) of the Open Meetings Act, supra. See Sebewaing Industries, Inc v Village of Sebewaing, 337 Mich 530; 60 NW2d 444 (1953). Section 13(1)(m) of the Freedom of Information Act, supra, sets forth another exemption pertinent to your inquiry, and provides that a public body may exempt from disclosure as a public record: 'Medical, counseling, or psychological facts or evaluations concerning an individual if the individual's identity would be revealed by a disclosure of those facts or evaluation.' [Emphasis added] With respect to this exemption, OAG, No 5500, supra, stated at slip opinion p 38: 'However, the context within which the word 'counseling' appears indicates the Legislature's intent that this apply only where there is a professional relationship between counselor and counselee, not where there is an employment relationship.' Thus, section 13(1)(m) may not be used by a public body as a basis for not disclosing evaluations made by supervisory personnel. Section 13(1)(a) of the Freedom of Information Act, supra, provides that a public body may exempt from disclosure as a public record: 'In formation of a personal nature where the public disclosure of the information would constitute a clearly unwarranted invasion of an individual's privacy.' OAG, No 5500, supra, Question 22, addressed the subject of whether counseling memoranda in an employee's personnel file could be exempted from disclosure as a clearly unwarranted invasion of privacy. By reference to Federal case law interpreting a similar provision in the Federal Freedom of Information Act, Sec. 552(b)(6), 81 Stat 54 (1967); 5 USC 552(b)(6), the term 'clearly unwarranted invasion of privacy' was viewed as requiring a public body to weigh the individual's right of privacy against the public's right to know. The conclusion recognized that in specific instances the public's right to know could outweigh the individual's right of privacy, but in the absence of a public interest, the public body could refuse to reveal counseling memoranda of an employee to the public as a clearly unwarranted invasion of the employee's privacy. In further consideration of this proposition, it must be conceded that the public has a right to know how its public officials and employees are performing their public duties. This right has long been recognized at common law. In Nowack v Auditor General, 243 Mich 200, 203-204; 219 NW 749 (1928), the court stated: '. . . If there be any rule of the English common law that denies the public the right of access to public records, it is repugnant to the spirit of our democratic institutions. Ours is a government of the people. Every citizen rules. In Michigan the people elect by popular vote an auditor general. They prescribe his duties and pay his salary. He is required to keep a true account of the expenditure of all public moneys and is answerable to the people for the faithful discharge of his duties. He is their servant. His official books and records are theirs. Undoubtedly, it would be a great surprise to the citizens and taxpayers of Michigan to learn that the law denied them access to their own books for the purpose of seeing how their money was being expended and how their business was being conducted. There is no such law and never was either in this country or in England. Mr. Justice MORSE was right in saying: "I do not think that any common law ever obtained in this free government that would deny to the people thereof the right of free access to, and public inspection of, public records.' Burton v Tuite, 78 Mich. 363, 374 (7 L. R. A. 73). 'There is no question as to the common-law right of the people at large to inspect public documents and records. The right is based on the interest which citizens necessarily have in the matter to which the records relate.' Although certain material in a public officer's or employee's personnel file relating to the performance of his or her duties may be of a private nature, the public has a legitimate interest in an evaluation of a public officers' or employees' performance. (1) The public right to know how a public officer or employee is performing his or her duties is superior to the attendant invasion of privacy occurring through the release of this material to the public. It is, therefore, my opinion that a public body may not meet in closed session to consider an evaluation of its officers and employees. Frank J. Kelley Attorney General (1)