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. 5500

July 23, 1979

FREEDOM OF INFORMATION ACT:

1976 PA 442, MCLA 15.231 et seq; MSA 4.1801(1) et seq

The Freedom of Information Act, 1976 PA 442; MCLA 15.231 et seq; MSA 4.1801(1) et seq, hereinafter referred to as 'the Act', took effect April 13, 1977. Basically, the Act provides that members of the public have a right to inspect and copy certain records of governmental agencies. The purpose of the Act, as stated in section 1(2), is:

'It is the public policy of this state that all persons 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 employees, consistent with the act. The people shall be informed so that they may fully participate in the democratic process.'

As the Act requires some explanation and clarification, I have prepared this document which is divided into two parts. The first part contains a summary of the provisions of the Act and the second part contains my response to questions from public officials asking for interpretation of the Act.

I. SUMMARY OF THE ACT

A. PUBLIC BODIES: DEFINITION

The Act applies only to public bodies and, as used in the Act, a public body means '[a] state officer, employee, agency, department, division, bureau, board, commission, council or other body in the executive branch of the state government', '[a]n agency, board, commission or council in the legislative branch of state government', '[a] county, city, township, village, intercounty, intercity, or regional governing body, council, school district, special district, or municipal corporation or a board, department, commission, council, or agency thereof', or '[a]ny other body which is created by state or local authority or which is primarily funded by or through state or local authority'. Section 2(b). Excluded from the definition of a 'public body' and the following: the governor and his staff of employees, the lieutenant governor and his staff of employees, the judiciary, and the office of county clerk and employees of that office when acting as clerk to the circuit court.

B. PUBLIC RECORDS: DEFINITION

As used in the Act, a public record is 'a writing prepared, owned, used, in the possession of, or retained by a public body in the performance of an official function, from the time it is created.' Section 2(c). A writing is any form of handwritten, printed, photographic, or electronic transcription. Unless exempt under section 13 of the Act, a public record is subject to disclosure. Section 2(c).

C. RIGHT TO ACCESS

Upon a written or oral request sufficient for a public body to locate a public record, a person has the right to inspect, copy, or receive copies of a public record of a public body unless there exists an exemption under section 13. Section 3(1).

A public body must furnish a requesting person a reasonable opportunity for inspection and examination of public records and must provide reasonable facilities for making memoranda or abstracts from public records during usual business hours. A public body may promulgate reasonable rules 'necessary to protect its public records and to prevent excessive and unreasonable interference with the discharge of its functions.' Section 3(2).

The Act does not require a public body to create a new record although a public body, to the extent practicable, should separate exempt information from nonexempt information. Section 14(2).

The custodian of a public record must furnish a certified copy of a nonexempt public record upon request. Section 3(5).

When a request is made, the public body has five business days after the day the request is received to grant the request, to deny the request, or to grant in part and deny in part. Section 5(2). However, in certain 'unusual circumstances' the public body may extend the period to respond to a request for an additional ten business days. Only one ten-day extension is permitted under the Act. The term 'unusual circumstances' is defined by the Act as follows:

'(i) The need to search for, collect, or appropriately examine or review a voluminous amount of separate and distinct public records pursuant to a single request.

'(ii) The need to collect the requested public records from numerous field offices, facilities, or other establishments which are located apart from the particular office receiving or processing the request.' Section 2(d)

If the public body wishes to extend the period for a response, it must set forth the reasons for the extension and the date by which the public body will grant or deny the request, either in whole or in part. Section 5(2)(d).

If a public body denies a request, whether in its entirety or in part, it must issue a written notice of denial to the requesting person. Section 5(2). The failure to respond to a request within statutory times unless otherwise agreed upon by the requester is considered a final determination to deny the request. The written notice must state the basis under the Act or other statute for the determination that the public record is exempt from disclosure if that is the reason for denial.

If the public record does not exist under the name given by the requester or by another name reasonably known to the public body, the written notice of denial must so certify. Section 5(4)(b). If a public record contains material which is not exempt as well as material which is exempt, the public body shall separate the exempt and nonexempt material. Section 14(1). If exempt material has been deleted and nonexempt material furnished, 'the public body shall generally describe the material exempted unless that description would reveal the contents of the exempt information and thus defeat the purpose of the exemption.' Sections 5(4)(c) and 14(2). For example, if the name of a person and identifying characteristics have been deleted because, if furnished, it would constitute a clearly unwarranted invasion of personal privacy, the agency need only indicate that a name and identifying characteristics have been deleted.

A statement of a requesting person's right to seek judicial review under section 10 as well as the right to receive attorney's fees and damages must also be included in the written notice of denial. Section 10(5). The person designated pursuant to section 6 as responsible for the denial of the request must sign the written notice of denial. Section 5(4)(5). Section 6 provides:

'(1) For a public body which is a city, village, township, county, or state department, or under the control thereof, the chief administrative officer of that city, village, township, county, or state department, or an individual designated in writing by that chief administrative officer, shall be responsible for approving a denial under section 5(4) and (5). In a county not having an executive form of government, the chairperson of the county board of commissioners shall be considered the chief administrative officer for purposes of this subsection.

'(2) For all other public bodies, the chief administrative officer of the respective public body, or an individual designated in writing by that chief administrative officer, shall be responsible for approving a denial under section 5(4) and (5).'

D. STATE AGENCY PUBLISHING REQUIREMENTS

Section 11 of the Act creates an affirmative duty on the part of a state agency to publish and make available the following:

'(a) Final orders or decisions in contested cases and the records on which they were made.

'(b) Promulgated rules.

'(c) Other written statements which implement or interpret laws, rules, or policy, including but not limited to guidelines, manuals, and forms with instructions adopted or used by the agency in the discharge of its functions.' Section 11(1).

(This provision is, in substance, the same as 1969 PA 306, Sec. 21; MCLA 24.221; MSA 3.560(121), which was repealed by Section 15 of the Act).

Publication may be in pamphlet, looseleaf, or other appropriate printed, mimeographed, or other written form.

Section 11(3) provides:

'Except to the extent that a person has actual and timely notice of the terms thereof, a person shall not in any manner by required to resort to, or be adversely affected by, a matter required to be published and made available, if the matter is not so published and made available.'

Where a state agency has an affirmative duty to publish certain information, an action to compel publication may commence in the circuit court for the county in which the state agency is located. If the court orders publication, the court shall award reasonable attorney's fees, costs, and disbursements to the persons bringing the action. Section 11(5).

E. FEE FOR PROVIDING COPY

The Act provides that a public body may charge a fee for providing a copy of a public record. Section 4. The fee is limited to mailing costs and the actual incremental costs of duplication or publication including the labor, cost of search, examination, review, and the deletion or separation of exempt from nonexempt material. These labor costs may not exceed the hourly wage of the lowest paid, full-time, permanent clerical employee of the public body. A public body must use the most economical means at its disposal for providing public copies.

The fee for copies of public records may be reduced or waived when the public body determines that the reduction or waiver is in the public interest. Section 4(1). If the requesting person submits an affidavit stating that he is receiving public assistance at the time of the request or factually demonstrates indigency, the first $20.00 of the fee for each request must be waived. Section 4(1). A fee is not to be charged for the cost of search, examination, review, and the delegation and separation of exempt from nonexempt information unless the failure to charge a fee would result in unreasonably high costs to the public body due to the nature of the request and the public body must identify the nature of the unreasonably high costs. Section 4(3).

If the fee exceeds $50.00 a public body may request a good faith deposit from the person requesting the public record or series of records. The deposit must not exceed one-half of the anticipated total fee. Section 4(2).

The provisions on assessment of fees do not apply to public records for sale to the public where the amount of the fee is specifically provided by statute. Section 4(4).

F. REMEDIES

If a public body makes a final determination to deny a request in whole or in part, the requesting person may proceed in circuit court to compel disclosure of the public records. Section 10(1). Should the court determine that the public records are not exempt from disclosure, the court may order the public body to produce the public record. An action to compel disclosure may be brought in the circuit court for the county where the complainant resides or has his principal place of business, or the circuit court for the county in which the public record or an office of the public body is located. The circuit court shall determine the matter de novo and the public body has the burden to sustain the denial. The court on its own motion may view the public record in private before reaching a decision. Failure to comply with an order may be punished as contempt.

Legal action may not commence on an oral request unless the requesting person confirms the request in writing not less than five days before commencement of the action.

If a requesting person is successful in an action to compel disclosure, the court shall award reasonable attorneys' fees, costs and disbursements. If the requesting person prevails in part, the reimbursement is discretionary.

Should the court find that a public body has arbitrarily and capriciously violated the Act by refusing to disclose or by delaying disclosure, the court is authorized to assess any actual or compensatory damages and, in addition, award punitive damages in the amount of $500.00. Section 10(5). Damages are to be assessed against the public body responsible for the denial or delay.

If the court finds that a public body failed to respond to a request for information and the court orders disclosure or copies of the public record, the court is empowered to assess reasonable attorneys' fees, costs, and disbursements against the public body. Section 5(3).

G. EXEMPTIONS

Section 13(1) provides that a public body may exempt the following information from disclosure:

(a) Information of a personal nature, the disclosure of which would constitute a clearly unwarranted invasion of individual privacy.

(b) Investigating records for law enforcement purposes, but only to the extent that disclosure would interfere with law enforcement proceedings, deprive a person of the right to a fair trial or impartial adjudication, constitute an unwarranted invasion of privacy, disclose the identity of a confidential source or disclose confidential information furnished only by a confidential source, disclose law enforcement investigative techniques, or endanger the life or physical safety of law enforcement personnel.

(c) A public record which would prejudice a public body's ability to maintain security of penal instutitions or mental institutions unless the public interest in disclosure outweighs the public interest in nondisclosure.

(d) Records or information specifically exempted by statute. Note Appendix which lists the various statutes referring to the confidentiality of certain records.

(e) Information, the release of which would prevent the public body from complying with the Family Educational and Privacy Rights Act. (20 USC 1232g).

(f) If exempt information is furnished by one public body to another, its exemption continues.

(g) Trade secrets or commercial or financial information voluntarily provided to a government agency for use in development of government policy if the information is submitted on a promise of confidentiality, and if the promise of confidentiality was authorized by the chief administrative officer of the public body or by an elected official at the time the promise was made. This exemption is not applicable if the information is required to be submitted by law or as a condition of receiving some government benefit.

(h) Information or records subject to the attorney-client privilege.

(i) A privileged communication recognized by statute or court rule. See Appendix which lists various statutes referring to certain privileged communications.

(j) A bid or proposal to enter into a contract or agreement. This exemption continues until the bids are opened or the time for the receipt of the bids proposals have expired.

(k) Appraisals of real property to be acquired by the public body until an agreement is entered into or 3 years have elapsed since the making of the appraisal unless litigation regarding the appraisal has not yet terminated.

(1) Test questions, answers, scoring keys or other examination instruments used to administer license, public employment, or academic examinations unless the public interest for disclosure outweighs that for nondisclosure.

(m) Medical, counseling or psychological facts or evaluations if the individual's identity would be revealed by disclosure.

(n) Communications and notes within a public body of an advisory nature and preliminary to a final agency determination if the public body can show in the particular circumstance that the exemption encourages frank communications between officials and employees and clearly outweighs the public interest in disclosure.

(o) Records of law enforcement communication codes or plans for personnel deployment, the disclosure of which would prejudice a public body's ability to protect the public safety.

(p) Information regarding the disclosure of the exact location of archeological sites.

(q) Testing data developed by a public body used to determine whether a bidder's products meet specifications of the public body if disclosure would show that only one bidder met specifications. This provision shall not apply after one year from the time the testing has been completed.

(r) Academic transcripts of institutions of higher education where the student is delinquent in his financial obligations.

(s) Records of a campaign committee that receives money from a state campaign fund.

(t) Records of a police agency where the release of information would divulge confidential or secret material regarding its operations or its personnel and their families unless the public interest in disclosure outweighs the public interest in nondisclosure in a particular instance.

H. DESIGNING PUBLIC RECORDS

When designing a public record, the public body should, to the extent practicable, facilitate separation of exempt from nonexempt material. Section 14(2).

II. RESPONSE TO SPECIFIC INQUIRIES

1.

Is a government agency a 'person' for purposes of obtaining information under the Freedom of Information Act?

Section 2(a) of the Act defines 'person' as '. . . an individual, corporation, partnership, firm, organization or association.' Sections 3 and 10 give a 'person' the specifically enforceable right to obtain from public bodies covered by the Act all information not exempt from disclosure under Section 13(1) of the Act.

It is a fundamental rule of statutory construction that neither the state, its agencies nor political subdivisions are within the purview of a statute unless an intention to include them is clear. The rule, as contained in 82 CJS, Statutes Sec. 317, p 554, states:

'The government, whether federal or state, and its agencies are not ordinarily to be considered as within the purview of a statute, however general and comprehensive the language of the act may be, unless intention to include them is clearly manifest, as where they are expressly named therein, or included by necessary implication.' 1 OAG, 1955-1956, No 2242, p 692 (December 1, 1955).

The definition of 'person' appearing in section 2(a) does not expressly include the state or its agencies, nor should the state be included by necessary implication. In contrast, it will be noted, the legislature included the various subdivisions of the state in its definition of 'public body'. Section 2(b). Thus, if the legislature had intended these state entities to be embraced by the term 'person', it could have added 'public body' to the descriptive terms comprising the definition of 'person' in section 2(a) of the Act.

It will also be noted that section 1(2) of the Act states:

'It is the public policy of this state that all persons 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 employees, consistent with this act. The people shall be informed so that they may fully participate in the democratic process.'

While the compulsion of interagency acquisition of written material might promote governmental efficiency, the efficient operation of government is not intended to be within the stated purpose of the Act.

It is my opinion, therefore, that a government agency does not fall within the meaning of 'person' for purposes of obtaining information under the Act.

2.

Is the Civil Service Commission exempt from the requirements of the Act?

Section 2(b)(i) provides:

'As used in this act:

'(b) 'Public body' means:

'(i) A state officer, employee, agency, department, division, bureau, board, commission, council, authority, or other body in the executive branch of the state government, but does not include the governor or lieutenant governor, the executive office of the governor or lieutenant governor, or employees thereof.'

The Supreme Court has held that the Civil Service Commission is vested with plenary power within its sphere of authority. Viculin v Dept of Civil Service, 386 Mich 375, 393; 192 NW2d 449 (1971); Plec v Liquor Control Commission, 322 Mich 691, 694; 34 NW2d 524 (1948); Reed v Civil Service Commission, 301 Mich 137, 163; 3 NW2d 41 (1942) [Chandler, CJ concurring].

The principal duties of the Commission are set forth in Const 1963, art 11, Sec. 5, as follows:

'The commission shall classify all positions in the classified service according to their respective duties and responsibilities, fix rates of compensation for all classes or positions, approve or disapprove disbursements for all personal services, determine by competitive examination and performance exclusively on the basis of merit, efficiency and fitness the qualifications of candidates for positions in the classified service, make rules and regulations covering all personnel transactions, and regulate all conditions of employment in the classified service.'

Thus, although the Civil Service Commission is not bound by a legislative enactment that conflicts with an enumerated constitutional power of the Commission, Viculin v Dept of Civil Service, supra, 386 Mich at 393; 192 NW2d at 449, it is clear that the Act does not conflict with the duties of the Commission; the Act requires only that the Commission disclose its nonexempt records to the public so that citizens may fully and knowledgeably participate in the democratic process.

It is therefore my opinion that the Civil Service Commission is subject to the provisions of the Act.

3.

Is the President's Council of State Colleges and Universities a public body subject to the requirements of the Act?

The President's Council of State Colleges and Universities is an informal organization comprised of the presidents of Michigan's state college and universities. Its purpose is to assist the presidents in various educational matters.

The budget of the Council is estimated for its fiscal year with assessments allocated to each educational institution according to the school's share of the state's college students. For example, Michigan State University, having approximately 20 percent of the state's college students, was assessed approximately $20,000 for the year by the Council. In this manner the entire operating budget of the Council is funded.

Section 2(b)(iv) of the Act defines 'public body' to include:

'Any other body which is created by state or local authority or which is primarily funded by or through state or local authority.' [Emphasis added]

Since the President's Council of State Colleges and Universities is wholly funded by state universities and colleges, it is my opinion that it is a public body as defined by the Freedom of Information Act, supra, and must consequently follow the requirements of the Act.

4.

May the Board of Trustees of a county hospital refuse to make available records of its proceedings, copies of all plans, specifications, reports, contracts, estimates, receipts, profiles, salaries or expenditures, or any other papers pertaining to its transactions?

Since the hospital to which you refer is owned and operated by a county, its board of trustees is a 'public body' as defined by section 2(b) of the Act.

The board of trustees of county public hospitals is granted general administrative power over their respective institutions. 1913 PA 350; MCLA 331.154; MSA 14.1134. Any writings which come into their possession or are used by the board of trustees pursuant to their administrative functions are 'public records' within section 2(c) of the Act.

There is no exemption in the Act which applies to purely administrative records of the board of trustees, such as salaries and other expenditures. However, when the disclosure of reports received and records compiled by the hospital board of trustees would constitute a clearly unwarranted invasion of an individual's privacy under section 13(1)(a), involve disclosure of medical, counseling or psychological facts or evaluations concerning a named individual under section 13(1)(m); or involve disclosure that would violate physician-patient or psychologist-patient privilege under section 13(1)(i), the board of trustees may separate these records and exempt them from disclosure. Section 14(1).

5.

Are transcripts of depositions taken in the course of an administrative hearing subject to disclosure to a person not a party to the proceeding?

Section 2(c) defines a 'public record' to mean a 'writing' and section 2(e) defines the term 'writing' broadly enough to include a transcript of a deposition within its compass.

As there is no specific exemption in section 13(1), or any other statute which exempts a deposition or a document referring to the deposition from disclosure, it is not exempt. These documents may, however, contain statements which are exempt from disclosure and therefore, pursuant to section 14, where a person who is not a party to the proceeding requests a copy, it will be necessary to separate the exempt material and make only the nonexempt records available. The rights of the parties will, of course, be determined by the tribunal handling the proceeding.

It may also be noted that if the deposition becomes part of the record in a contested case, section 11(1)(a) of the Act requires that it be made available.

6.

Is the employment contract signed by a school superintendent prior to the effective date of the Act exempt from disclosure?

Section 2(c) of the Act defines a 'public record' to mean:

'. . . a writing prepared, owned, used, in the possession of, or retained by a public body in the performance of an official function, from the time it is created. . . .' [Emphasis added]

The phrase 'from the time it is created' indicates that the legislature intended that all documents retained by a public body be open to public inspection, unless exempt from disclosure, irrespective of the date the document was prepared.

This question raises the issue of whether the signing of a contract before the effective date of the Act created in the superintendent an expectation of privacy which would not exist if the contract had been signed after the effective date of the Act. If such expectation of privacy occurred, it was unjustified. The School Code of 1955, 1955 PA 269, Sec. 562, MCLA 340.562; MSA 15.3562, which was in effect at the time the contract was signed, provides that all records of the board of education are public records and subject to inspection. The School Code of 1976, 1976 PA 451, Sec. 1202, MCLA 380.1202; MSA 15.41202, contains similar language that records of a board of education are public records.

It is, therefore, my opinion that a contract signed by a school superintendent prior to the effective date of the Act is a public record that is subject to disclosure.

7.

Are a stenographer's notes or the tape recordings or dictaphone records of a municipal meeting used only to prepare the typewritten draft of official minutes and the typewritten official minutes of that meeting, as required by the Open Meetings Act, to be classed as public records available for public inspection although they are not required by the Open Meetings Act?

As noted section 2(c) defines a 'public record' to mean:

'. . . a writing prepared, owned, used, in the possession of, or retained by a public body in the performance of an official function, from the time it is created. . . .' [Emphasis added]

Since the definition of 'writing' contained in section 2(e) includes symbols, magnetic tapes, or 'other means of recording or retaining meaningful content,' stenographer's notes, tape recordings or dictaphone records of municipal meetings are public records under the Act and must be made available to the public.

It may be further noted that section 9 of the Open Meetings Act, 1976 PA 267, Sec. 9; MCLA 15.269; MSA 4.1800(19), affirmatively states that a public body shall keep minutes of each meeting and that proposed minutes, as well as approved minutes, shall be available for public inspection. Thus, the fact that notes or recordings of a public meeting may be subject to revision may not serve as a basis for denying public access to them. This is not to suggest that such notes or recordings need be permanently preserved. See my response to Question 14, infra.

8.

Are computer software packages developed by a public body subject to disclosure?

As noted, section 2(c) states that a 'public record' is:

'A writing prepared, owned, used, in the possession of, or retained by a public body in the performance of an official function, from the time it is created.'

And section 2(e) defines a 'writing' to mean:

'. . . handwriting, typewriting, printing, photostating, photographing, photocopying, and every other means of recording, and includes letters, words, pictures, sounds, or symbols, or combinations thereof, and papers, maps, magnetic or paper tapes, photographic films or prints, microfilm, microfiche, magnetic or punched cards, discs, drums, or other means of recording or retaining meaningful content.'

While at first blush these two subsections appear to be dispositive, further analysis is required.

Two components, hardware and software, are necessary to the operation of a computer system. These have been described in 26 Drake L Rev 180 as follows:

'Computer hardware consists of all the machinery which is a part of the computer system. This includes the central processor, input-output control systems, input-output devices (such as tape drives, printers, and disc drives), and various types of memory systems.

'Computer software [commonly known as a computer program] is a set of instructions telling the machinery (hardware) how to perform the desired task.'

In Application of Ghiran, 442 F2d 983, 986 (Customs Court of Patent Appeals, 1971), the court also described software as a set of instructions for carrying out prearranged operations on data by use of hardware and the hardware cannot perform operations on the data without the aid of the instructions. Thus, computer software is an integral part of the computer machine.

The logic of a computer program is first written on a code sheet. These code sheets are then converted to computer language and are transcribed by machine onto printouts which are stored in notebooks. Computer programs may also be stored on paper cards in the form of decks and on reels of magnetic tape. Thus, the notebooks, the paper cards, and the magnetic tape which contain instructions to the computer are therefore different forms of the same item, namely software

With this description of computer operations in mind, it may be seen that, although the forms on which the software is recorded appear to meet the definition of a 'writing' as defined by section 2(e) of the Act, a distinction must be made between writing used to record information or ideas and an instructional form which is but an integral part of computer operation.

The purpose of the Act is to inform the people 'so that they may fully participate in the democratic process.' Section 1(2); therefore, the use of instructions developed as computer software is not to be equated with a public record any more than the ribbon of a typewriter.

It is my opinion, therefore, that computer software developed by and in the possession of a public body is not a public record.

9.

(a) May a state university refuse to disclose the report of an outside organization or the report of an internal committee of an investigation of that university's athletic department?

(b) If a public university may not withhold these documents from public disclosure, must it also release copies of the actual work papers or items of evidence that may have led to or be contained within those specific reports or findings?

(a) The definition of 'public record' in section 2(c) applies only to writings in the possession of or retained by a public body in the performance of an official function. Therefore, although a state university must release a report of the performance of its official functions in its files, regardless of who prepared it, if a report prepared by an outside private agency is retained only by the private agency, it is not public record and therefore is not subject to public disclosure. See Soucie v David, 448 F2d 1067 (CA DC, 1971), and CIBA-Geigy v Mathews, 428 F Supp 523 (SD NY, 1977).

Also, if a report made by a private agency in the possession of the university contains exempt information, such information may be separated from the nonexempt material and deleted. Section 14.

(b) In response to part (b) of this question, a state university may not withhold nonexempt material from disclosure, whether they are financial reports or items of evidence contained in specific reports. If, however, the investigative data have been retained by a private organization, this material is not subject to disclosure.

It must also be noted that portions of investigative reports may be exempt from disclosure pursuant to various subsections of section 13(1), such as subsections 13(1)(a), 13(1)(b), 13(1)(m) and 13(1)(n).

10.

Are copyrighted materials subject to copying under the Act?

Section 3(1) provides that a person has a right to receive copies of a public record of a public body. However, the Constitution of the United States provides:

'The Congress shall have Power . . . To promote the Progress of Science and useful Arts by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries.' US Const, art 1, Sec. 8

Pursuant to that constitutional mandate, Congress has enacted 90 Stat 2546 (1976); 17 USC 106 and 109, which state:

'Sec. 106 . . . the owner of a copyright . . . has the exclusive rights to do and to authorize any of the following:

'(3) to distribute copies . . . of the copyrighted work to the public by sale or other transfer of ownership, or by rental, lease, or lending; . . ..'

'Sec. 109. (a) Notwithstanding the provisions of section 106(3), the owner of a particular copy or phonorecord lawfully made under this title, of any person authorized by such owner, is entitled, without the authority of the copyright owner, to sell or otherwise dispose of the possession of that copy or phonorecord.'

Copyright laws may not be encroached upon by the state. As stated in Roebuck & Co v Stiffel Co, 376 US 225, 228-229; 84 S Ct 784; 11 L Ed 2d 661 (1964):

'Pursuant to this constitutional authority, Congress in 1790 enacted the first federal patent and copyright law, 1 Stat 109, and ever since that time has fixed the conditions upon which patents and copyrights shall be granted . . . These laws, like other laws of the United States enacted pursuant to constitutional authority, are the supreme law of the land.'

It is my opinion, therefore, that copyrighted materials may not be copied and distributed in violation of the Copyright Act.

11.

Does the Act exempt a non-copyrighted report in the possession of a body if it is available at a price from the author publisher?

Section 3(1) provides that a person has a right to receive copies of a public record of a public body. Thus, a research report written by a private person that is in the possession of a public body in the performance of an official function, is a public record as defined by section 2(c). Therefore, unless exempt under section 13(1), if it has not been copyrighted, it must be disclosed even if available at a price from the author or publisher.

12.

Does the Act exempt from copying copyrighted manuals of rules and rates received under section 2406 of the Insurance Code?

Under Section 2406 of the Insurance Code, 1956 PA 218, as amended by 1970 PA 180; MCLA 500.2406; MSA 24.12406, manuals of rules and rates are required to be filed. This section states:

'Every insurer shall file with the commissioner every manual of classification, every manual of rules and rates, every rating plan and every modification of any of the foregoing which it proposes to use.'

As noted in the response to Question 10, if material is copyrighted, a public body may not authorize the copying of material without the permission of the copyright holder.

Section 2406 of the Insurance Code, however, imposes upon every insurer the obligation of filing certain manuals. There is no provision in the Insurance Code for the filing of copyrighted manuals and, if the Insurance Commissioner were to accept copyrighted manuals, it would effectively prevent him from complying with the Act. It is, therefore, my opinion that the Commissioner should refuse to accept and treat as non-compliance with section 2406 an offer of a manual of classification of a copyrighted manual of rules and rates unless the copyright owner agrees to waive the copyright.

13.

Is a public official required to furnish all of the correspondence typed by his secretary during fifteen-month period preceding the request?

A public official's correspondence which relates to the performance of his or her official functions is subject to disclosure pursuant to the Act. Section 2(b) and (c). However, the Act requires the person requesting the material to describe the public record 'sufficiently to enable the public body to find the public record'. Section 3(1). The fact that the records being sought are voluminous does not excuse the public body from permitting inspection of the public record or from providing copies thereof upon payment of a reasonable charge as provided by section 4. It has been held, however, that the term 'all records' is too broad to constitute identification of the records being sought. Sears v Gottschalk, 502 F2d 122 (CA 4, 1974), cert den 422 US 1056; 95 S Ct 2680; 45 L Ed 2d 709, reh den 423 US 885; 96 S Ct 160; 46 L Ed 2d 116 (1975), cert den 425 US 904; 96 S Ct 1494; 47 L Ed 2d 753 (1976). More recently, the Fourth Circuit denied a similar request as too broad. Mason v Calloway, 554 F2d 129 (CA 4, 1977); accord, Irons v Schuyler, 151 US App DC 23; 465 F2d 608 (1972), cert den 409 US 1076; 93 S Ct 682; 34 L Ed 2d 664 (1972).

Since the language of the Federal and Michigan Acts are similar, constructions of the Federal Act are persuasive in interpreting the Michigan Act. Citizens for Better Care v Department of Public Health, 51 Mich App 454; 215 NW2d 576 (1974), lev den, 392 Mich 758 (1974).

It is therefore my opinion that a request for data which refers only to an extensive period of time and contains no other reference by which the public records may be found does not comply with the requirement of section 3 that the request describe the public record sufficiently to enable the public body to find it.

14.

What duty does the Act place upon a government and its officials to maintain public records and writings that come within the Act?

Except for section 11 of the Act relating to state agencies (see I--Summary of the Act, D, supra) the Act does not impose any duty upon a governmental official to prepare or maintain a public record or writing. Section 3(3). These requirements, however, may be imposed by other statutes, by the necessity of maintaining records concerning the efficient operation of the agency or by the need to protect the legal interest of the agency and the people.

15.

Must a public body release the names of employees which it has fired or suspended over a certain designated period of time where it does not maintain a specific file containing this information but would have to search through its personnel files ot find it?

The Act does not require a public body to create a new record. Section 3(3). Therefore, if the public body maintains a file containing such a list, it is required to disclose the list and, if a request is made, provide copies of that record. If no such record exists, the public body need not make a compilation.

16.

When a person wishes to inspect a public record and does not request a copy, may the public body charge for costs of search, review and deletion of exempt information?

The Act provides that a public body may charge a fee for providing a copy of a public record. Section 4(1). As the assessment of fees is limited to providing copies of public records, the labor cost involved in search, review and deletion of exempt information may only be imposed if the requester asks for a copy.

17.

If a request for a public record does not contain sufficient information, does the period of time in which to respond begin five business days after the request is received or five business days after sufficient information is received?

Section 5(2) of the Act states:

'When a public body receives a request for a public record it shall immediately, but not more than 5 business days after the day the request is received . . . respond to the request. . . .'

It is clear, therefore, that the five day response provision begins the day after the public body has received the request sufficiently describing the public record. If the request does not contain sufficient information describing the public record, it may be denied on that ground. If, subsequently, additional information is provided that sufficiently describes the public record, the period within which the response must be made dates from the time that the additional information is received.

18.

Does the five day response time begin when the request is received at a field office or at the central office in possession of the record?

The response to this question turns on the definition of the term 'public body' and the various provisions of the Act which refers to this term.

'Public body' is defined in section 2(b) to mean:

'(i) A state officer, employee, agency, department, division, bureau, board, commission, council, authority, or other body in the executive branch of the state government, but does not include the governor or lieutenant governor, the executive office of the governor or lieutenant governor, or employees thereof.

'(ii) An agency, board, commission, or council in the legislative branch of the state government.

'(iii) A county, city, township, village, intercounty, intercity, or regional governing body, council, school district, special district or municipal corporation, or a board, department, commission, council, or agency thereof.

'(iv) Any other body which is created by state or local authority or which is primarily funded by or through state or local authority.'

Section 5(2) states that the request shall be complied with by the 'public body' and section 10(1), which deals with remedies for the failure of a public body to comply, states that the final determination of whether to deny a request or a portion thereof must be made by a 'public body'.

Section 6(1) states, however, that the chief administrative officer of a 'public body' shall be responsible for approving a denial.

Thus, as public bodies are served by numerous public officers and employees and inasmuch as the period of time during which a response must be made is limited to not more than five business days after the day the request is received, the public body should not be responsible for compliance until the request has been received by the public officer or employee who has custody of the records being sought.

It is my opinion, therefore, that if the request is served at a field office where the records are located, the five business day period within which the response must be made begins the first business day after the request is received.

However, if the request is served upon a public body at a place other than the office where the record is kept, the five business day period does not begin until the request is delivered to the office where the records are kept. The person upon whom the request is served has a duty to expeditiously forward the request to the place where the records are kept and a loss of time attributed to unnecessary delay by agents of the public body in forwarding the request to the proper person may not be used to extend the period of time during which the response must be made.

As noted, the chief administrative officer of the public body is responsible for approving a denial under section 6. This does not mean, however, that every request for a public record must be submitted to the chief administrative officer; it means only that the person with custody of the record may not deny a request but, if he or she believes that the request should be denied, the chief administrative officer must be contacted so that the decision may be made by the chief administrative officer or a person designated in writing by that chief administrative officer as one responsible for approving a denial.

In view of the brief period of time during which a response is to be made, I suggest that the chief administrative officer of a public body which has numerous field offices issue an intra-office communication stating which types of documents may automatically be released upon request and which are to be referred to the chief administrative officer or designee for review.

19.

Must a law enforcement agency respond to a request for an investigatory file if the effect of responding will be to inform the person making the request that an investigation is underway?

Upon receiving a request for a public record, a public body must respond by either (a) granting the request, (b) denying it, or (c) granting it in part only. Section 5(2). If the agency wishes to deny access to the record, it must issue a written notice to the requesting person denying the request. Section 5(2)(b). The denial must include the reasons therefor. Section 5(4). A failure to respond is equivalent to a denial of the request. Section 5(3).

If, by virtue of a statutory exemption, a public agency is authorized to deny a request for an investigatory file, it is not obligated to communicate to the requesting party the fact that such a file exists. Under such circumstances, therefore, the agency may refuse to disclose the file and may state in its response that the refusal should not be interpreted as meaning that such a file does exist.

20.

May a school board meet in closed session pursuant to the Open Meetings Act to consider a matter as exempt from the Freedom of Information Act?

Section 13(1) of the Act provides that a public body 'may exempt from disclosure' certain enumerated public records.

Section 8(h) of the Open Meetings Act, 1976 PA 267, Sec. 8(h); MCLA 15.275(h); MSA 4.1800(18)(h), provides that a public body may meet in closed session to consider material exempt from discussion or disclosure by state or federal statute.

It is my opinion, therefore, that a school board may meet in closed session pursuant to the Open Meetings Act to consider matters which are exempt from disclosure under the Freedom of Information Act.

21.

Civil Service Rules 1.5 and 1.6 cover conflict of interest and disclosure of interest for state classified employees. The Civil Service Department and others have adopted procedures for disclosure of interest which promise that the information will be considered confidential. Does the Act jeopardize this promise of confidentiality?

The records received by the Commission pursuant to Rules 1.5 and 1.6 are writings, as defined in section 2(e), prepared, owned, and used 'in the performance of an official function', and are therefore public records subject to the disclosure provisions of the Act unless exempt under Section 13(1) of the Act.

There are, however, only three subsections of section 13(1) which conceivably may serve as a basis for exemption of such records. They are 13(1)(a), (d) and (g), each of which will be addressed separately.

Section 13(1)(a) provides for the exemption of

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

The exemption provided for by this subsection requires the agency to balance the right of privacy of the individual against the right of the public to have access to the information.

In Campbell v United States Civil Service Commission, 539 F2d 58, 62 (CA 10, 1976), the Court stated:

'Where there is an important public interest in obtaining information, the private interest in protecting disclosure must give way to the superior public interest, especially where the invasion is not substantial. If, of course it is serious and there is little or no public interest, disclosure is not allowed.'

In Campbell, the Court discussed an exemption under the Federal Freedom of Information Act, 81 Stat 64 (1967), as amended by 88 Stat 1561, 1563, 1564 (1974); 5 USC 552(1) et seq. It will be noted, however, that the Federal act denotes as Exemption 6 the following:

'(6) personnel and medical files and similar files the disclosure of which would constitute a clearly unwarranted invasion of personal privacy.' 5 USC 552(b)(6)

As the United States Supreme Court also stated when it had occasion to discuss Exemption 6 of the Federal Freedom of Information Act:

'Moreover, we repeat Exemption 6 does not protect against disclosure every incidental invasion of privacy--only such disclosure as constitute 'clearly unwarranted' invasion of privacy.' Dept of Air Force v Rose, 425 US 352, 382; 96 S Ct 1592; 48 L Ed 2d 11 (1976).

Civil Service Rules 1.5 and 1.6 involve records of a private nature; therefore, it is necessary to weigh the competing interests involved.

The public has an interest in knowing whether a state employee has a personal or financial interest in any business or entity with which he or she has direct contact while performing their official duties. Thus, the disclosure of conflicts of interests serves the public interest in that it will deter public employees from participating in making decisions which may have an effect on their pecuniary interests. Thus, the balance, as defined in Campbell v United States Civil Service Commission, supra, tips towards the disclosure of such information and section 13(1)(a) does not warrant exemption of the records required to be submitted pursuant to Civil Service Rule 1.6.

Section 13(1)(d) exempts:

'Records or information specifically described and exempted by statute.'

The promise of confidentiality referred to in the request comes from a Michigan Department of Civil Service Directive and is not exempt from disclosure by any statute.

It is my opinion, therefore, that section 13(1)(d) does not exempt from disclosure as a public record the material submitted pursuant to Civil Service Rule 1.6.

Section 13(1)(g) provides for the exemption of:

'Trade secrets or commercial or financial information voluntarily provided to an agency for use in developing governmental policy if:

'(i) The information is submitted upon a promise of confidentiality by the public body.

'(ii) The promise of confidentiality is authorized by the chief administrative officer of the public body or by an elected official at the time the promise is made.

'(iii) A description of the information is recorded by the public body within a reasonable time after it has been submitted, maintained in a central place within the public body, and made available to a person upon request. This subdivision shall not apply to information submitted as required by law or as a condition of receiving a governmental contract, license, or other benefit.'

Although the material may contain financial information, it is required to be submitted by a Civil Service rule and is not voluntarily provided. Therefore, exemption 13(1)(g) is not applicable.

It is my opinion, therefore, that records of conflicts of interest of state classified employees disclosed pursuant to Civil Service Rules 1.5 and 1.6 are not exempt from disclosure even where a promise of confidentiality has been made.

22.

Would public disclosure of an employee's personnel file which might include counseling memos and written memos related thereto constitute a clearly unwarranted invasion of the employee's privacy?

I am advised that a 'counseling memorandum' is a memorandum that an employee's supervisor gives to an employee expressing the supervisor's dissatisfaction with the employee's work performance and advising that, if the situation does not improve, disciplinary action will be taken against the employee.

In my opinion, such material may be exempted from disclosure only if the information is 'of a personal nature where the public disclosure of the information would constitute a clearly unwarranted invasion of an individual's privacy.' Section 13(1)(a). As I stated in response to Question 21, in determining whether this subsection may serve as a ground for exempting a public record, it is necessary to balance the public interest in disclosure against the right of an individual to personal privacy.

Clearly, the material in a personnel file is of a personal nature which, if disclosed, may invade personal privacy. Thus, the Tenth Circuit Court of Appeals, in discussing Exemption 6 of the Federal Freedom of Information Act, concluded that the disclosure of an individual's personnel records would be a serious invasion of privacy and capable of causing embarrassment to the individual employee. See Campbell United States Civil Service Commission, supra. While the result in Campbell is not dispositive of the interpretation of the Michigan Act, it is persuasive due to the similarity in the language of the two statutes. Citizens for Better Care v Dept of Public Health, supra, and International Business Machine Corp v Department of Treasury, 71 Mich App 526; 248 NW2d 605 (1976).

I am aware that section 13(1)(m) of the Act provides:

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

'Medical, counseling, or psychological facts or evaluations concerning an individual if the individual's identity would be revealed by a disclosure of these facts or evaluation.' [Emphasis added]

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.

It may also be noted that the Bullard-Plawecki Employee Right to Know Act, 1978 PA 397, MCLA 423.501 et seq; MSA 17.62(1) et seq, is not applicable inasmuch as this statute does not provide for confidentiality of personnel files. Section 7 of the Employee Right to Know Act does, however, provide:

'An employer shall review a personnel record before releasing information to a third party and, except when the release is ordered in a legal action or arbitration to a party in that legal action or arbitration, delete disciplinary reports, letters of reprimand, or other records of disciplinary action which are more than 4 years old.'

It is my opinion, therefore, that a public body may refuse to reveal to a third party that portion of an employee's personnel file which contains counseling and related memoranda where such disclosure would constitute an invasion of individual privacy in the absence of a public interest in disclosure of portions or all of the record.

23.

Are medical reports, the dollar amount of payable pensions, and actuarial reports of retired employees kept by a municipal retirement board exempt from the Act?

Section 13(1)(a) of the Act exempts from disclosure:

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

In determining whether the release of information would constitute a clearly unwarranted invasion of privacy, a balancing of the public right to know how the public body conducts its affairs versus the individual's right of privacy must be made. Getman v NLRB, 146 US App DC 209; 450 F2d 670 (1971).

Since the factors to be considered in performing this balancing test may vary depending upon the circumstances involved, it is difficult to set forth an absolute rule as to whether or not particular documents must be disclosed. However, with respect to the subject matter of your inquiry, it is my understanding that all the documents relate to the retiree's personal medical history and selection of a particular retirement plan. On their face, these documents do not have a significant public interest which would outweigh the countervailing right of privacy of the individual retiree.

It should be noted that circumstances might arise which would warrant the disclosure of these types of documents. In Columbia Packing Company v United States Department of Agriculture, 463 F2d 495 (CA 1, 1971), the United States Court of Appeals upheld a lower court ruling that portions of a personnel file of two former federal meat inspectors, who were convicted of receiving bribes from meat packing companies, should be released. In so ruling, the Court stated at pp 499-500 of its decision:

'We agree, however, with the district court that 'the public has an interest in whether public servants carry out their duties in an efficient and law-abiding manner' and therefore, in these circumstances, has a legitimate curiosity as to the two meat inspectors' careers. Ordinarily the individual careers of public servants would be of small general interest, but the scandal in which Columbia and the inspectors participated was farreaching and of great notoriety. To forestall similar occurrences, the public has an interest in discerning how the officials conducted themselves prior to their discharge for bribery, how well they were supervised, and whether USDA or any of its other personnel were chargeable with any degree of culpability for their crimes. In particular, the public has an interest in knowing whether companies like Columbia were the victims of official extortion or whether the corrupt inspectors were enticed into their misconduct by the companies. While it cannot be known to what extent disclosure of documents to Columbia for use in this administrative proceeding will actually so inform the public at large, Columbia's rights are not lessened, any more than they are enhanced, by the private purposes for which the documents are sought. . . .'

It is, therefore, my opinion that, without a showing by the requester of the documents that the public interest in these documents outweighs the individual's right to have his personal medical and retirement plans kept private, these documents need not be disclosed.

24.

(a) Must the Department of Civil Service Comply with a candidate's request for a copy of his Assessment Center Report?

(b) Must the Department of Civil Service make it available to any other requester?

(a) The Assessment Center Report is an analysis of the performance of a candidate for promotion. This report is prepared by examiners who have carefully studied the reaction and performance of the applicant under controlled conditions to determine whether the applicant has a potential for managerial responsibilities.

As to the first part of your request, section 13(1)(a) of the Act provides for exemption from disclosure of information that is of a personal nature, the disclosure of which would constitute a clearly unwarranted invasion of individual privacy. Therefore, the release of information to the candidate that only concerns him or her is not an invasion of that individual's privacy and therefore is not exempt from disclosure on this ground.

It will be further noted that the Bullard-Plawecki Employee Right to Know Act, 1978 PA 397, MCLA 423.501 et seq; MSA 17.62(1) et seq, which applies to public as well as private employers, requires that an employee have access to his or her personnel records. A 'personnel record' is defined by 1978 PA 397, supra, Sec. 1(c) to include:

'. . . a record kept by the employer that indentifies the employee, to the extent that the record is used . . . relative to that employee's qualifications for . . . promotion. . . .'

It is therefore my opinion that a classified employee is entitled to receive a copy of his Assessment Center Report.

(b) In response to the second part of your request, Campbell v United States Civil Service Commission, supra, is persuasive authority for the conclusion that the report should not be disclosed to third persons. Absent public interest weighing in favor of disclosure, the disclosure of the materials in the report might be capable of causing embarrassment to an employee and therefore would be a clearly unwarranted invasion of individual privacy. As an example of an instance in which the public interest in disclosure may outweigh the individual interest in non-disclosure would be a case in which the information is being sought to determine whether the examination is being fairly administered. On the other hand, a request by a person to see an Assessment Center Report of another person because of curiosity or to advance the personal interest of the requester may be denied.

In summary, it is my opinion that the Department of Civil Service must comply with a candidate's request for a copy of his own Assessment Center Report, but, absent a showing of an involvement of the public interest, the Department of Civil Service need not make the report available to any other requester.

25.

Does the Act require the Department of State Police to release observation sheets used in testing candidates for promotion?

In developing a lieutenant promotional roster, an oral board interview is conducted in which the candidate must respond to three or four hypothetical problems. Each member of the review board notes his impressions of the candidate's responses on observation sheets which may be used as an aid in scoring the candidate; these observation sheets are not shared with other members of the review board or the department.

Section 13(1)(n) of the Act 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. . . .'

From a review of a sample observation sheet, it is apparent that this document falls squarely within the context of this exemption. The observation sheets are within a public body, advisory in nature, and preliminary to a final agency determination. They contain the frank appraisals of the department's three-person review board. This procedure is designed as an aid to each board member in noting his candid impressions of the candidate's qualifications for promotion. To release such documents to the public would discourage frank appraisals by the board and inhibit the advancement of the most qualified candidates.

The Bullard-Plawecki Employee Right to Know Act, 1978 PA 397, MCLA 423.501 et seq; MSA 17.62(1) et seq, requires an employer to provide his employee, or former employee, access to his or her personnel record, if the employer maintains such a record on the employee, Sec. 3. 'Personnel record' is defined in 1978 PA 397, supra, Sec. 1(c) to mean:

'. . . a record kept by the employer that identifies the employee, to the extent that the record is used or has been used, or may affect or be used relative to that employee's qualifications for employment, promotion, transfer, additional compensation, or disciplinary action. A personnel record shall include a record in the possession of a person, corporation, partnership, or other association who has a contractual agreement with the employer to keep or supply a personnel record as provided in this subdivision. . . .'

However, section 1(2)(c)(viii) of 1978 PA 397, supra, provides that a personnel record shall not include:

'Records kept by an executive, administrative, or professional employee that are kept in the sole possession of the maker of the record, and are not accessible or shared with other persons. However, a record concerning an occurrence or fact about an employee kept pursuant to this subparagraph may be entered into a personnel record if entered not more than 6 months after the date of the occurrence or the date the fact becomes known.'

Since the observation sheets of each member of the review board are for his use exclusively, acting in an administrative capacity, section 1(2)(c)(viii) of 1978 PA 397, supra., would apply.

In summary, it is my opinion that section 13(1)(n) of the Act allows the Department of State Police to exempt these observation sheets from disclosure to members of the general public and section 1(2)(C(viii) of the Bullard-Plawecki Employee Right to Know Act, supra, permits the exlusion of these observation sheets from the employee's personnel file.

26.

Are records of applicants and licensees in the files of the Liquor Control Commission subject to disclosure under the Act?

By Commission rule, an applicant for a liquor license must supply the Commission with detailed financial information that is personal, but relevant to the need to consider the application for a license. In addition, the Commission requires the submission of the fingerprints of prospective licensees to check any criminal history with state and local police agencies. The investigative reports and recommendations of local police investigations of an appllicant are also included in the applicant's file.

Files pertaining to licensees maintained by the Commission are 'public records' as defined by section 2(c) since they constitute a 'writing' retained by the Commission in the performance of its public functions.

In addition, as the financial information provided by applicants and licensees is not furnished voluntarily, the exemption of financial information voluntarily provided contained in section 13(1)(g) does not apply.

Section 13(1)(a), however, permits a public body to exempt from disclosure public records containing.

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

The Federal Freedom of Information Act contains a similar provision in Exemption 6. 80 Stat 383 (1966); 5 USC 552(b)(6), and, as noted in my response to Question 13, interpretations by a Federal Court of the Federal Freedom of Information Act are persuasive in interpreting the Michigan Act.

In Getman v NLRB, 146 App DC 209; 450 F2d 670 (CA DC, 1971), although the Court held that the names and addresses of employees eligible to vote in certain union elections were not within the individual privacy exemption, the Court stated:

'. . . Exemption 6 requires a court reviewing the matter de novo to balance the right of privacy of affected individuals against the right of the public to be informed; and the statutory language 'clearly unwarranted' instructs the court to tilt the balance in favor of disclosure.' 450 F2d 674

In Getman, supra, on page 674, the Court quoted the United States Senate Reports as an aid in determining the purpose of the comparable language in the Federal statutes as follows:

'The phrase 'clearly unwarranted invasion of personal privacy' enunciates a policy that will involve a balancing of interests between the protection of an individual's private affairs from unnecessary public scrutiny, and the preservation of the public's right to governmental information. The application of this policy should lend itself particularly to those Government agencies where persons are required to submit vast amounts of personal data normally for limited purposes.'

This balancing principle is applicable to the Liquor Control Commission since the Commission requires the submission of detailed financial and personal information for the purpose of determining whether an individual qualifies for a liquor license.

In Wine Hobby USA, Inc v United States Internal Revenue Service, Bureau of Alcohol, Tobacco and Firearms, 502 F2d 133 (CA 3, 1976) the plaintiff requested the names and addresses of all those registered with the Bureau for the making of wine at home. On pages 136-137 the Court stated the following:

'To apply the balancing test to the facts of this case we must determine whether release of the names and addresses would constitute an invasion of personal privacy and, if so, balance the seriousness of that invasion with the purpose asserted for release. Getman v N.L.R.B., supra. Turning to the first consideration, we conclude that disclosure would involve an invasion of privacy. As the Government points out in its brief, there are few things which pertain to an individual in which his privacy has traditionally been more respected than his own home.

'We must now balance the seriousness of this invasion of privacy against the public interest purpose asserted by the plaintiff. As noted, the sole purpose for which Wine Hobby has stipulated that it seeks the information is for private commercial exploitation.

'In light of this failure by Wine Hobby to assert a public interest purpose for disclosure, we concude that the invasion of privacy caused by disclosure would be 'clearly unwarranted', even though the invasion of privacy in this case is not as serious as that considered by the court in other cases, . . ..' (Citations omitted)

Thus, the Federal Courts have recognized that each request for disclosure must be balanced to determine whether the interest of individual privacy outweighs the public interest of disclosure. Since the Commission's files contain such data as home addresses, home telephone numbers, and other personal information, such portions of its file may be exempt from disclosure as a clearly unwarranted invasion of privacy.

27.

(a) Are applications for the position of city manager, forwarded to a consulting firm for screening, public records?

(b) If so, are these applications open ot review by all members of the city council and by the general public?

Section 2(c) of the Act defines a 'public record' to include:

'A writing prepared, owned, used, in the possession of, or retained by a public body in the performance of an official function, from the time it is created. . . .'

Although employment applications referred to in the question had been referred to a private consulting firm, the city council will rely upon the documents for the purpose of hiring a new city manager. These documents become the property of the city and retain their character as public records even though they are available to private consultants for the evaluation. Therefore, they must be considered public records as defined by the Freedom of Information Act, supra, See CIBA-GEIGY Corp v Mathews, 428 F Supp 523 (SD NY, 1977).

With regard to whether these records must be disclosed to the public, section 13(1)(a) of the Act permits a public body to exempt from disclosure:

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

In determining whether employment applications fall within the category of material which if disclosed would represent a clearly unwarranted invasion of an individual's privacy, a public body must weigh the interest of the public to know how its government is operating against the individual's right of privacy. Getman v NLRB, supra.

In this instance, the public interest would involve knowing whether the city council had chosen the best candidate for city manager. The competing individual right of privacy would exist for each of the unsuccessful candidates for city manager who may not wish to have their present employers or others aware of their attempts to seek new employment.

The Michigan Legislature has recognized the right of privacy of a candidate for public employment in the Open Meetings Act. 1976 PA 267, Sec. 8(f), MCLA 15.268(f); MSA 4.1800(18)(f). This subsection provides that a public body may go into closed session to review the specific contents of an application for employment or appointment to a public office when the candidate requests that the application remain confidential.

Therefore, it is my opinion that in this instance, the balance between public and private interests shifts toward non-disclosure to members of the public of employment applications as a clearly unwarranted invasion of an individual's privacy. However, an applicant for the position of city manager must assume that all members of the city council will review his or her application. Therefore, there is no expectation of privacy with respect to members of the city council.

In summary, it is my opinion that a city council may refuse to disclose to the public the applications of candidates for public employment, but a majority of the council may not refuse to disclose these applications to other members of the council.

28.

Must lists of agents', solicitors' or adjusters' names and addresses which the Insurance Bureau compiles be made available for commercial use under the Act?

At issue is whether the information is of a personal nature, the disclosure of which would constitute a clearly unwarranted invasion of an individual's privacy for if the invasion of the individual's privacy is clearly unwarranted, the information may be exempted from disclosure as a public record. Section 13(1)(a).

As noted in response to Question 26, Getman v NLRB, supra, and Wine Hobby USA, Inc v United States Internal Revenue Service, Bureau of Alcohol, Tobacco and Firearms, supra, conclude that the exemption from public disclosure of information that clearly invades individual privacy, involves a balancing of the individual right of privacy against the right of the public to know the manner in which its government is being conducted.

In view of the close parallel between the federal and state provisions, the balancing test adopted by the federal courts is the guiding principle and should be followed. See Citizen for Better Care v Dept of Public Health, supra.

It is my opinion, therefore, that lists of agents' solicitors' or adjusters' names and addresses which the bureau compiles need not be made available for commercial use.

29.

May the Department of Military Affairs, incident to administering the Vietnam veteran bonus disclose the following data to third parties:

a. Claimant's name?

b. Address to which warrant was sent?

c. Amount of service bonus paid?

d. Statistical data to include such items as warrant number, claim number, fund and accounting codes which would be incidental to a routine electronic data processing print-out?

Furthermore, in relation to the above, are there any limitations on who is authorized to receive such information?

The Vietnam veteran's bonus was approved by the voters in November, 1974 pursuant to 1974 PA 106; MCLA 35.1001 et seq; MSA 4.1097(21) et seq. Thereafter the program was implemented by the Vietnam Veteran Era Bonus Act 1974 PA 370, as amended; MCLA 35.1021 et seq; MSA 4.1097(41) et seq. Neither of these statutes contains any provision regarding public access to the bonus program's records.

The information outlined in (a), (b) and (c) must be disclosed unless it is exempt by section 13(1)(a) which provides:

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

In Sonderegger v United States Department of the Interior, 424 F Supp 847 (D Idaho, 1976), which construed Exemption 6 of the Federal Freedom of Information Act, involved flood victims who received disaster assistance funds and who brought suit to enjoin the Department of Interior from making public (1) the claimant's name, (2) the amount claimed, (3) the amount paid to each claimant, and (4) the category for which payment occurred. The court held that the claimant's name and amount claimed were protected from disclosure by Exemption 6 since the release of the information would be tantamount to publishing a directory of names and amounts for commercial exploitation. To disclose all four categories of information, the court stated, would result in a clearly unwarranted invasion of privacy which the court could not condone. Thus, the court favored the protection of the individual's private affairs from unnecessary public scrutiny over the preservation of the public's right to government information.

This case is persuasive and therefore, for the reasons stated therein, it is my opinion that the individual recipient's right of privacy is paramount to the interest of the public in obtaining this information. The release of the claimant's name and address and the amount of service bonus paid could expose veterans to commercial exploitation. It is my opinion, therefore, that the claimant's name and address and the amount paid to the claimant may, in the discretion of the Department of Military Affairs, be protected from disclosure under section 13(1)(a) of the Act.

The response to this question is in conformity with my answer to Question 24 which concludes that the Insurance Bureau need not disclose lists of agents' names and addresses. Getman v NLRB, supra, and Dept of Air Force v Rose, 425 US 352; 96 S Ct 1592; 48 L Ed 2d 11 (1976). The 'clearly unwarranted language' of the Federal (b)(6) Exemption and the Michigan 13(1)(g) exemption does not protect against every incidental invasion of privacy. Rose, supra, 425 US at 352. The test of balancing the individual's right of privacy with access to government information must be applied on a case-by-case basis. Wine Hobby, USA Inc v IRS, supra.

As to statistical data which does not contain personal identifiers, it is clear that this information is not subject to any exemption.

30.

Are schools required to give out names and addresses of students under the Act?

RJA 2165; MCLA 600.2165; MSA 27A.2165, prohibits school personnel from disclosing information regarding student behavior; however, the release of a student's name and address cannot be construed as relating to a student's behavior. Nevertheless, as the release may constitute a clearly unwarranted invasion of personal privacy, it will be necessary for a school board to balance the public interest against the right of privacy.

It will be noted that section 13(1)(e) of the Act provides that a public body need not release information which would prevent it from complying with the Federal Family Educational and Privacy Rights Act, 20 USC 1232g. Subsection (b)(1) of the Federal Act states that the penalties of the act will not be invoked if a 'directory of information' of students is provided. 'Directory information' is defined to include the following: 'The student's name, address, telephone listing, date and place of birth, major field of study, participation in officially-recognized activities and sports, weight and height of members of athletic teams, dates of attendance, degrees and awards received, and the most recent previous educational agency or institution attended by the student'. Subsection 5(B) of the Federal Act further provides, however, that 'any educational agency or institution releasing directory information shall give public notice of the categories of information which it has designated as such information with respect to each student attending the institution.

45 CFR Part 99 contains the regulations under the Family Educational and Privacy Rights Act. 45 CFR 99.3 defines what constitutes directory information. 45 CFR 99.30(1)(a) states that directory information may not be disclosed without written consent of the parents of a student. However, 45 CFR 99.37 sets forth the conditions for disclosure of directory information. Section 99.37(c) provides:

'. . . an educational agency or institution which wishes to designate directory information shall give public notice of the following:

(2) the right of the parent of the student or the eligible student to refuse to permit the designation of any or all of the categories of personally identifiable information with respect to that student as directory information; and

(3) the period of time within which the parent of the student or the eligible student must inform the agency or institution in writing that such personally identifiable information is not to be designated as directory information with respect to that student.'

Thus, it is my opinion that the names and addresses of students may be released unless the parent of the student or the student has informed the institution in writing that such information is not to be released.

31.

Must a police department release records containing identity of an arrested person prior to the receipt of a warrant by a peace officer or complaint from the prosecutor's office?

The fact that a person has been arrested is neither a determination of guilt nor a decision that a prosecuting attorney will decide to charge him with committing a crime. Therefore, unless the person requesting the information can demonstrate a public benefit in the disclosure of the fact that a person has been arrested without a warrant, the damage to the individual's privacy overcomes the need for the public to have this information. I am, therefore, of the opinion that a law enforcement agency may refuse to release the name of a person who has been arrested, but not charged, in a complaint or information, with the commission of a crime.

Legislative recognition of the private nature of such records appears in 1925 PA 289, Sec. 3, MCLA 28.243; MSA 4.433, which, in pertinent part, states:

'. . . Should any person accused [of a felony or misdemeanor] be released without a charge made against him, it shall be the mandatory duty of the official taking or holding any accused's fingerprints, arrest card and description to return same forthwith without the necessity of a request therefor. . . .'

32.

Where a public body had sought to prosecute an employee and no warrant was issued, are references to this fact in a public record exempt from disclosure?

The response to this question is controlled by the same principles as my response to Question 31. The fact that a person, whether an employee in the public or private sector, has been accused of a crime may result in serious harm to that person's reputation and well-being even though he or she may be entirely innocent. Therefore, as the refusal to issue a warrant indicates the prosecuting attorney's conclusion that there is insufficient evidence to establish the guilt of the potential defendant, it is my opinion that the public body may refuse to release the name of such person.

33.

Upon the final disposition of a matter involving the arrest of a person, does the release of records of this matter to anyone requesting the material constitute an unwarranted invasion of an arrested person's right to privacy?

Section 13(1)(a) states that a public body may exempt from disclosure information of personal nature where the public disclosure of the information would constitute a clearly unwarranted invasion of an individual's privacy and section 13(1)(b)(iii) provides for the exemption of investigating records compiled for law enforcement purposes to the extent that disclosure would constitute an unwarranted invasion of personal privacy.

It may first be noted that, since the judiciary is not included in the definition of a public body, section 2(b)(v) of the Act, court records in its possession are not subject to the Act. It may also be noted, however, that in certain instances court records may be disclosed. See GCR 1963, 907(2); 1927 PA 175, c VII, Sec. 25; MCLA 767.25; MSA 28.965; 1927 PA 175, c XIV, Sec. 3, as amended by 1957 PA 274; MCLA 774.3; MSA 28.1194; Schmedding v May, 85 Mich 1; 48 NW 201 (1891). In Schmedding, the court recognized the public's right of access to court records:

'After a public trial or hearing, and a final determination, of a cause entered upon the journal of the court, no one would probably question the right of any person to inspect that record and publish the result. Such record has undoubtedly become a public one.' 85 Mich at 4

As to whether final disposition of an arrest is exempt from disclosure, such disposition may be divided into two categories: (1) where the final disposition is a verdict of guilty or a plea of no contest and (2) where the final disposition is a decision not to prosecute or a finding of not guilty.

Except for records of sexually motivated crimes, criminal records of convicted individuals are not confidential. OAG, 1969-1970, No 4083, p 191 (December 9, 1969). The opinion, however, did not hold that the public is entitled to access to those records, but rather that the public official having custody of the record may release the record to the public. In such cases, a balancing test should be applied by weighing the individual right to privacy with the public's right of access to the information. That balancing test is implicit in the language of section 13(1)(a) of the Act, which provides that a public body may exempt as a public record:

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

It is my opinion, therefore, that the release of arrest records where the disposition results in a verdict of guilty is not a clearly unwarranted invasion of the convicted person's right to privacy.

It is a different matter, however, when the final disposition results in a finding of not guilty or a decision not to prosecute.

In Houston Chronicle Publishing Co v City of Houston, 531 SW2d 177, 188 (Tex Civ App, 1975), writ ref'd n.r.e. per curriam, 536 SW2d 559 (Tex Sup, 1976), the Texas Court of Civil Appeals weighed the public's need for access to such arrest records stating:

'A holding that the personal history and Arrest Record must be open to inspection by the press and public would contain the potential for massive and unjustified damage to the individual. The same recognition of reality that compels us to acknowledge the value of these records despite the presumption of innocence, also compels us to note that many persons who are arrested by the police are wholly innocent.

'Weighing the need of the media for background information on individuals (which may be obtained through interviews and other sources) against the legitimate competing interests of individual privacy which would seem to compel the conclusion that the constitutional right of the press and public to information should not include access to the Personal History and Arrest Record.'

The reasoning of the Texas court is persuasive. Absent a public interest in the disclosure of a final disposition of the arrest record of a person not found guilty, the damage to the individual caused by the invasion of his privacy tips the balance toward exemption of the material from disclosure.

It may also be noted that 1925 PA 289, Sec. 3, supra, which provides for the return of arrest record to an accused who has been released without charge, also requires return of such records to an accused upon a finding of not guilty.

It will be further noted that the exemption 13(1)(a) of the Act is narrower than section 13(1)(b)(iii). The former provides an exemption for a 'clearly unwarranted' invasion of privacy, while the latter exempts investigating records which would constitute an 'unwarranted' invasion of privacy. The difference between the two is the burden of proof required to overcome the incursion on the individual's right to privacy. The 'clearly unwarranted' standard requires a more stringent burden of proof of a public need for the information before the material may be released whereas the 'unwarranted' standard requires a lesser showing of a public need for the information. In this case, in the absence of the public interest in obtaining this information, the release of an arrest record to a third person constitutes a clearly unwarranted invasion of the right to privacy of the individual subject to the arrest.

This analysis should, however, apply only to the release of arrest records to third parties and an individual should be granted access to his or her own arrest records.

It is my opinion, therefore, that a public body would be warranted in withholding records showing the final disposition of an arrest record of a person found not guilty (or where there was a decision not to prosecute) which constitutes a clearly unwarranted invasion of an arrested person's right to privacy in the absence of a public interest in the record.

34.

Must a public body release the details of the charges which led to the suspension, discharge, or criminal prosecuting of a public employee?

Pending the investigation of charges of a public employee's alleged misconduct, the investigatory file is exempt under section 13(1)(b) if, under the particular circumstances of the investigation, the disclosure would do any of the following:

'(i) Interfere with law enforcement proceedings.

'(ii) Deprive a person of the right to a fair trial or impartial administrative adjudication.

'(iii) Constitute an unwarranted invasion of personal privacy.

'(iv) Disclose the identity of a confidential source, or if the record is compiled by a criminal law enforcement agency in the course of a criminal investigation, disclose confidential information furnished only by a confidential source.

'(v) Disclose law enforcement investigative techniques or procedures.

'(vi) Endanger the life or physical safety of law enforcement personnel.'

After the agency has completed its investigation and taken appropriate action or there is no longer any concrete likelihood that action will be taken, these six criteria are not applicable. Thus, the record would thereupon be disclosable and it will be necessary for the public body to determine which items in the investigatory files are exempt so that it may separate the exempt from the nonexempt material before making the disclosure in accordance with section 14.

35.

To what extent are the records of the Financial Institutions Bureau exempt from disclosure?

Section 13(1)(d) provides that records or information specifically described and exempted from disclosure by statute are exempt as a public record.

The following provisions dealing with financial institutions provide for exemptions from disclosure:

Section 29 of the Banking Code, 1969 PA 319, Sec. 29; MCLA 487.329; MSA 23.710(29).

Sections 231 and 424 of the Saving and Loan Act, 1964 PA 156, Secs. 231 and 424; MCLA 489.631 and 489.824; MSA 23.450(231) and 23.540(424).

As to the exemption contained in the Banking Code of 1969, 1969 PA 319, Sec. 29, supra, provides:

'The commissioner and all deputies, agents and employees of the bureau shall be bound by oath to keep secret all facts and information obtained in the course of their duties, except insofar as such person is required, pursuant to law, to report upon or take official action or testify in any proceedings regarding the affairs of any institution. Notwithstanding the foregoing with respect to matters as to which official action is required, the commissioner may make such disclosure and to such persons and at such times as is in the public interest within the purposes of this act. The provisions of this section shall not be applicable to or prohibit the furnishing of information or documents to the federal bank regulatory agencies, nor to disclosures, made to interested parties by the commissioner, at his discretion, with respect to applications for the chartering of new banks, applications for new branch offices or applications for the moving of banking offices.' [Emphasis added]

As to the Savings and Loan Act, 1964 PA 156, Secs. 231 and 424, provide:

'Sec. 231. Every member shall have the right to inspect such books and records of an association as pertain to his loan or savings account. Otherwise, the right of inspection and examination of the books and records is limited to the supervisory authority or his duly authorized representatives as provided in this act; to persons duly authorized to act for the association; to any federal or state instrumentality or agency authorized to inspect or examine the books and records of an association; and to persons duly authorized to enter and inspect and examine specified books and records by a valid order of a court of competent jurisdiction. The accounts and loans of member shall be kept confidential by the association, its directors, officers and employees and by the supervisory authority, his examiners and representatives and the employees of any federal or state instrumentality or agency. No member or any other person shall have access to the books and records or possess a partial or complete list of the members, except upon express action and authority of the board of directors.'

'Sec. 424. The supervisory authority, his assistants and employees shall not divulge any information acquired by them in the discharge of their duties as prescribed by this act, except insofar as the same may be rendered necessary by law or under order of court. The supervisory authority may furnish information as to the condition of any association to the federal home loan bank board, the federal savings and loan insurance corporation, any federal home loan bank, or to the savings association departments of other states. Any person appointed or acting under the provisions of this act who fails to keep secret any adverse facts or information concerning the association obtained in the course of an examination or by reason of his official business, except when the legal duty of the officer requires him to report upon or take official action regarding the affairs of the association so examined, or who wilfully makes a false official report as to the condition of such association, is guilty of a misdemeanor and shall be fined not less than $100.00 nor more than $500.00 or imprisoned for not less than 1 month nor more than 6 months, and his conviction shall automatically remove him from his position or office.'

Thus, by virtue of the interaction of (1) section 29 of the Banking Code and (2) sections 231 and 424 of the Savings and Loan Act with section 13(1)(d) of the Freedom of Information Act, the commissioner may refuse to release information obtained pursuant to these statutes but may, in his discretion, disclose the information when he believes it to be in the public interest to do so.

36.

The Financial Institutions Bureau regularly conducts examinations of state chartered banks, savings and loan associations, credit unions, and regulatory loan licensees. Are the reports of examination (including the work papers associated with the examination) in whole or in part, subject to the disclosure requirements of the Act?

The definition of public record under the Act is sufficiently broad so as to include examination reports. Section 2(c). However, these records are only subject to disclosure to the extent discussed in my response to Question 35.

37.

Is a list prepared by the Financial Institutions Bureau of problem institutions exempt from disclosure?

As noted in response to Question 35, the Commissioner of the Financial Institutions Bureau has discretion to determine which information pertaining to banking and to savings and loan associations may be released. The maintenance of a list of problem financial institutions is included within this exemption since the disclosure to the public of the fact that a particular institution is having difficulty is contemplated by statute.

38.

Are lists of shareholders and members of a savings and loan association exempt from disclosure?

The fact that lists of shareholders and members of savings and loan associations must be filed with a public body such as the Financial Institutions Bureau should not serve as a basis for denying the right of privacy of individuals whose names appear on the list.

As noted, the purpose of the Act will not be served if the purpose for which this information is being sought is that of serving the personal interests of the individual seeking the information. Here again, pursuant to section 13(1)(a), it is necessary to balance the right of privacy of the individual against the interest of the person seeking the information. See the responses to Questions 28, 29 and 30.

39.

Are the financial reports which the Bureau requires institutions to file subject to disclosure under the Act?

The materials contained in financial reports which financial institutions are required to file with the bureau may be exempted from disclosure for the reasons stated in response to Question 35 above.

40.

Is correspondence between the Financial Institutions Bureau and the regulated institution subject to disclosure?

This correspondence may be exempted from disclosure for the reasons stated in response to Question 35.

41.

Are report of examinations and other documents delivered to the Financial Institutions Bureau by federal regulatory agencies, such as the Federal Deposit Insurance Corporation, subject to disclosure?

These reports may be exempted from disclosure for the same reasons stated in response to Question 35 above.

42.

Are staff investigations and staff recommendations on applications for a license subject to disclosure?

A 'license' may be defined as 'the whole or any part of an agency permit, certificate, approval, registration, charter or similar form of permission required by law'. See 1969 PA 306, Sec. 5(1); MCLA 24.205(1); MSA 3.560(105).

Section 13(1)(n) of the Act exempts from disclosure:

'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.'

In Renegotiation Board v Grumman Aircraft Engineering Corp, 421 US 168, 186; 95 S Ct 1491; 441 L Ed 2d 57 (1975), the court interpreted a similar provision of the Federal Freedom of Information Act as exempting pre-decisional, deliberative advice and recommendations. The court pointed out that the public disclosure of staff investigations and recommendations could inhibit the full, frank expression of opinions by staff members.

It should be noted, however, that the exemption under section 13(1)(n) of staff investigations and recommendations is limited in that purely factual materials contained in staff investigations are not exempt under this subsection.

Also to be considered is section 13(1)(b) which provides for the exemption of:

'Investigating records compiled for law enforcement purposes, but only to the extent that disclosure as a public record would do any of the following:

'(i) Interfere with law enfocement proceedings.

'(ii) Deprive a person of the right to a fair trial or impartial administrative adjudication.

'(iii) Constitute an unwarranted invasion of personal privacy.

'(iv) Disclose the identity of a confidential source, or if the record is compiled by a criminal law enforcement agency in the course of a criminal investigation, disclose confidential information furnished only by a confidential source.

'(v) Disclose law enforcement investigative techniques or procedures.

'(vi) Endanger the life or physical safety of law enforcement personnel.'

Thus, when a request is made for a record of a staff report referring to an investigation of an applicant for a license which contains recommendations, the agency receiving the request must base its decision on whether to release that information on the criteria set forth in subsections 13(1)(b) and 13(1)(n), supra.

43.

Are bank examiner's manuals and minutes of the Financial Institutions Bureau supervisory examiners meeting subject to disclosure?

Section 11(1)(c) of the Act mandates that state agencies publish and make available to the public 'written statements which implement or interpret laws, rules or policy, including but not limited to guidelines, manuals, and forms with instructions adopted or used by the agency in the discharge of its functions'.

Thus, it is clear that the examiner's manuals must be published and made available to the public by the department.

A similar situation arose in International Business Machines v Treasury Department, 71 Mich App 526; 248 NW2d 605 (1976), which involved the provisions of sections 21-23 of the Administrative Procedures Act, 1969 PA 306, Secs. 21-23; MCLA 24.221-24.223; MSA 3.560(121)-3.560(123), which parallel the provisions of section 11 of the Act. (These sections of the Administrative Procedures Act, 1969 PA 306, Secs. 21-23; MCLA 24.221-24.223; MSA 3.560(121)-3.560(123), constituted Chapter II of the Act. This chapter was repealed by Section 15 of the Freedom of Information Act. Section 11 of the Act is therefore a continuation of former Chapter II of the Administrative Procedures Act).

In International Business Machines, the plaintiff petitioned the court for an order requiring the defendant to disclose the following information:

'. . . reports of hearing officers under Sec. 421(1) of the Income Tax Act of 1967, the Revenue Commissioner's Orders of Determination of Tax made after the Sec. 421(1) hearings, and the Revenue Commissioner's written apportionment or allocation determinations made under authority of Sec. 195 of the Income Tax Act. . . .'

After quoting the complete text of 1969 PA 306, Secs. 21-23, supra, the court stated, 71 Mich App at pp 535-536:

'The Michigan disclosure provisions are essentially an abbreviated version of the Federal Freedom of Information Act (FOIA), 81 Stat 54 (1967), 5 USCA 552. The close similarity between the Federal and state acts' language makes constructions of the FOIA by the Federal courts persuasive in construction of our own disclosure requirements. Citizens for Better Care v Department of Public Health, 51 Mich App 454, 463; 215 NW2d 576 (1974), lv den, 392 Mich 758 (1974).

'In order to implement the legislative policy of comprehensive disclosure of administrative law as evidenced in these provisions of the APA, we must broadly construe the categories of disclosable information contained in Sec. 21. Michigan lacks any device to provide truly systematic public notice of administrative rulings that would serve the function of the Federal Register. Although Sec. 23(1) of the APA; MCLA 24.223(1); MSA 3.560(123)(1), protects a person from adverse effects of matters otherwise required to be published, the scope of that provision itself depends upon the scope attributed to Sec. 21. As a corollary to the requirement that the disclosure categories be expansively construed, the exemptions from disclosure contained in Sec. 22 of the APA must be read restrictively. In general the process is one of deciding whether the information sought fits within a disclosure category; such information is prima facie disclosable. The court must then decide whether an exemption contained in Sec. 22 removes the agency's duty to disclose, always keeping in mind the Legislature's decision that disclosure is the preferred outcome.'

The Court of Appeals thereupon held that the statute required disclosure of the information being sought. In so deciding the court stated, 71 Mich App at 536-537:

'. . . The scheme of Sec. 21 reveals that Sec. 21(1)(c) was intended to sweep within the disclosure requirements any written statements upon which the agency relies as indicative of law or policy, whether or not those statements might also fall within parts (a) or (b) as decisions in contested cases or promulgated rules. We agree with the Federal courts that the 'fundamental principle is that secret law is an abomination'. Davis, Administrative Law Treatise, Sec. 3A.12 (1970 Supp).

'Under this standard, the reports of hearing officer under Sec. 421(1) of the Income Tax Act, including the 'delineation of authority, reasoned opinion, and decisional recommendation' are within Sec. 21(1)(c) of the APA. As discussed below, to the extent that certain facts or identifying details are unnecessary to understand the hearing officer's position or constitute an unwarranted invasion of privacy, the circuit court may delete them after in camera inspection

'Similarly, the Orders of Determination of Tax issued by the Revenue Commissioner come within the ambit of Sec. 21(1)(c). Although these orders appear to contain few statements of value, they provide the final result of the agency proceeding, indication the Revenue Commissioner's approval or disapproval of the hearing officer's report. One is of little value without the other; together they comprise the agency's reasoned legal decision.'

However, the court remanded the matter to the circuit court with the following instructions:

'As we noted before, exemptions to disclosure are to be restrictively construed. Moreover, Sec. 21(2) of the APA; MCLA 24.221(2); MSA 3.560(121)(2) indicates that whenever possible, confidential portions should be deleted in order to allow release of otherwise disclosable information. In order to preserve the taxpayers' privacy contemplated in Sec. 465, above, the circuit court on remand must examine all of the requested information and delete identifying facts and names. The task is to separate the kernel of agency statements of law and policy from what would otherwise be confidential or identifying details. Only that information which cannot be rendered sufficiently anonymous by deletion of the party's name and other identifying information must be excluded from disclosure. See Tax Analysts and Advocates v Internal Revenue Service, 362 F Supp 1298 (D DC, 1973), aff'd in part 164 US App DC 243; 505 F2d 350 (1974), requiring disclosure of IRS letter rulings and technical advice memoranda.'

It is, therefore, my opinion that the Financial Institutions Bureau is required to disclose its manuals and the minutes of supervisory examiners' meetings but may delete exempt material when making this disclosure.

44.

The Commissioner of the Financial Institutions Bureau has established a corporate and capital committee which meets periodically to establish policy and to review applications. The committee is composed of eight employees of the bureau including the commissioner. Are minutes of this committee subject to disclosure?

Section 2 of the Act defines 'public body' and 'public record' in pertinent part as follows:

'(b) 'Public body' means:

'(i) A state officer, employee, agency, department, division, bureau, board, commission, council, authority, or other body in the executive branch of the state government, but does not include the governor or lieutenant governor, the executive office of the governor or lieutenant governor, or employees thereof.

'(c) 'Public record' means a writing prepared, owned, used, in the possession of, or retained by a public body in the performance of an official function, from the time it is created. This act separates public records into 2 classes: (i) those which are exempt from disclosure under section 13, and (ii) all others, which shall be subject to disclosure under this act.' [Emphasis added]

Since the official records of each state officer and each state employee are a public record, it is my opinion that the minutes of this committee are public records and are subject to disclosure although, in releasing these minutes, materials which are exempt may be deleted in accordance with the provisions of section 14(1).

45.

May the Escheats Division of the Department of Treasury refuse access to the files and attorney work-product of the Attorney General, (and his operating agent, the Assistant Attorney General in Charge of the Public Administration Division of the Department of Attorney General) delivered to the department for preservation and safekeeping pending future use in any litigation that may arise concerning estates wherein the residue had escheated to the state of Michigan?

The Michigan Code of Eschates, 1947 PA 329, Sec. 3; MCLA 567.13; MSA 26.1053(3), provides:

'Whenever the attorney general has knowledge of any property which has escheated, is subject to escheat or escheatable to the state, it shall be his duty to protect the interests of the state therein and he shall immediately cause to be instituted appropriate proceedings, in accordance with the general laws of this state and as in this act provided, for the purpose of marshalling, protecting and conserving such property, and he shall represent the state and protect its interests, in and to such property, as well as that of the owners and/or their unknown heirs-at-law.'

The quoted language states that the Attorney General shall represent the State and protect the interests of the State in the escheated property. When the Attorney General works in this capacity, his files and work-product are subject to the attorney-client privilege and may be exempted pursuant to section 13(1)(h).

Further, as provided by law, the State Public Administrator is an Assistant Attorney General, appointed by the Governor on the recommendation of the Attorney General. 1947 PA 194, MCLA 720.201 et seq; MSA 27.2754(1) et seq, Sec. 1. While serving in this capacity, the State Public Administrator also performs the functions of Assistant-in-Charge of the legal staff of Assistant Attorneys General assigned to the Public Administration Division of the Department of Attorney General. In this capacity, the Assistant-in-Charge, or those Assistant Attorneys General acting under his direction and supervision, appear on behalf of the Attorney General and other state agencies in estate proceedings being administered in county probate and circuit courts. Thus, exemption of the Attorney General pursuant to section 13(1)(h) applies also to the State Public Administrator acting in his capacity as Assistant Attorney General.

It may also be noted that section 13(1)(f) provides for the exemption of:

'A public record or information described in this section which is furnished by the public body originally compiling, preparing, or receiving the record or information to a public officer or public body in connection with the performance of the duties of that public officer or public body, if the considerations originally giving rise to the exempt nature of the public record remain applicable.'

Thus, the exemption of files and work-product of the Attorney General and the Public Administration Division of the Department of Attorney General continues regardless of whether they are retained by the Attorney General or delivered to the agency for preservation and safekeeping.

Except for material described in section 40(8) of the Michigan Code of Escheats, there is no exemption of the records of the Escheats Division and, therefore, pursuant to section 14, the agency should separate these exempt materials from nonexistent material.

46.

May the Escheats Division of the Department of Treasury refuse access to a person not having a direct interest in a specific escheated property or estate, but who is seeking information for the purpose of soliciting possible interested persons for determination of heirs and/or redemption of the escheated funds?

Section 40(8) of the Michigan Code of Escheats, supra, as added by 1978 PA 67, provides:

'Except those documents, files, records, and data delivered to the state board of escheats in its trustee capacity by persons in whose possession or custody the documents, files, records, and data had been privileged and confidential, for preservation and future use and litigation, all other writings prepared, owned, used, in the possession of, or retained by the state board of escheats in the performance of an official function, except as exempted by law, shall be made available to the public subject to the provisions of Act No. 442 of the Public Acts of 1976, being sections 15.231 to 15.246 of the Michigan Compiled Laws.'

As there is no applicable exemption provision in the Act for such records, the Escheats Division of the Department of Treasury may not refuse access to its records unless the record has been delivered to the Escheats Division by a person who could have refused to release the record while in that person's possession. The sole fact that records are requested by a person who wishes to solicit possible interested persons for determination of heirs may not serve as a basis for denial of access.

47.

Under section 13(1)(g) of the Act, must the Commissioner of Insurance authorize the promise of confidentiality for materials submitted to the Insurance Bureau?

Section 13(1)(g) permits a public body to exempt from disclosure trade secrets, commercial or financial information voluntarily provided upon a promise of confidentiality.

Section 13(1)(g)(ii) requires, however, that the promise of confidentiality be authorized by the chief administrative officer of the public body at the time the promise is made.

The Commissioner of Insurance is the chief administrative officer of the Insurance Bureau. 1956 PA 218; MCLA 500.202(1); MSA 24.1202(1). However, pursuant to 1965 PA 380, Secs. 3(a) and 229; MCLA 16.103 and 16.329; MSA 3.29(3) and 3.29(229), the commissioner exercises his authority to promise confidentiality under the supervision of the Director of the Department of Commerce.

It is my opinion, therefore, that it is the Commissioner of Insurance acting under the supervision of the Director of the Department of Commerce who may authorize the promise of confidentiality for materials submitted to the Insurance Bureau.

48.

In Section 13(1)(g) does the phrase 'voluntarily provided' apply to information received pursuant to subpoena under Section 1242(5) of the Insurance Code?

Section 1242(5) of the Insurance Code provides:

'The commissioner, or his designated deputy, may issue subpoenas, with the approval of a circuit court judge of the circuit court of Ingham county to require the attendance and testimony of witnesses and the production of documents . . . The subpoenas issued by the commissioner, or his designated deputy, may be enforced upon application by them to the circuit court of Ingham county by proceedings in contempt thereof, as provided by law.' 1956 PA 218, added by 1972 PA 133; MCLA 500.1242(5); MSA 24.11242(5)

A subpoena has been defined as:

'The medium for compelling the attendance of a witness It is a process in the name of the court, or judge, carrying with it a command dignified by the sanctions of the law.' Applications of Remy Sportswear, Inc, 16 Misc2d 407; 183 NYS2d 125, 129 (1959)

It is my opinion, therefore, that the phrase 'voluntarily provided' does not apply to information received pursuant to subpoena under section 1242(5) of the Insurance Code.

49.

Does the phrase 'for use in developing governmental policy' in section 13(1)(g) restrict a public body to an offer of confidentiality only in situations involving legislative programs or rule making?

The relevant portion of section 13(1)(g) provides for the exemption of:

'Trade secrets or commercial or financial information voluntarily provided to an agency for use in developing governmental policy if:

'(ii) The promise of confidentiality is authorized by the chief administrative officer of the public body or by an elected official at the time the promise is made.'

The quoted section does not limit the granting of confidentiality to material involving legislative programs or rule making. The only limits on the granting of confidentiality expressed in the statute are with respect to material involved in developing governmental policy. Governmental policy may be developed in situations other than those involving legislative programs or rule making.

It is my opinion, therefore, that the phrase 'for use in developing governmental policy' does not restrict a public body to an offer of confidentiality as to the material involving legislative programs or rulemaking.

50.

How does the Act affect the confidentiality provisions of the Public Health Code, 1978 PA 368; MCLA 333.1101 et seq; MSA 14.15(1101) et seq?

In my opinion the two statutes are in pari materia and should be construed in harmony with each other. People v Mire, 173 Mich 357; 138 NW 1066 (1912).

Section 13(1)(d) of the Act provides that a public body may exempt from disclosure records or information specifically described and exempted from disclosure by statute.

Sections 2611(2), 2613, 2614, 2631, 2632, 2637, 2638, 2639 and 2641 of the Public Health Code comprehensively deal with the issue of confidentiality and disclosure as follows:

'Sec. 2611. . . .

'(2) The department shall establish policy consistent with this part to administer health services research, evaluation, and demonstration and health statistical activities undertaken or supported by the department. In establishing the policy the department shall consider the following interests:

'(a) The individual's right and reasonable expectation of privacy concerning its use, including the protection of privileged communications and the expectations of the individual when giving the information.

'(b) The freedom of persons to do business.

'(c) The public's interest in the protection of private rights.

'(d) The public's interest in the free access to governmental information.

'(e) The protections necessary to encourage persons to provide information.

'(f) The individual's interest in being informed of dangers of which he or she would not otherwise be aware.

'(g) The public's interest in the effective use of available data to protect and promote the health of individuals and the public as a whole.

'(h) The public's interest in the effective and efficient management of governmental activities.

'(i) The individual's interest in data about himself or herself.

'(j) The interests of other governmental entities in preparing reports.'

'Sec. 2613. The department shall define by rule the nature of data collected, compiled, processed, used, or shared by the department pursuant to and consistent with section 2611(2).'

'Sec. 2614. The department shall:

'(a) Establish procedures to identify the circumstances under which, the places at which, the persons from whom, and the methods by which a person may secure that data, including the procedures governing requests, and the review established pursuant to section 2639.

'(b) Prescribe standards for the publication of health-related data reported pursuant to this code which will encourage characteristics including accuracy, validity, reliability, completeness, and comparability; and advise users as to the status of the quality of the data.

'(c) Prescribe the contents of forms or authorize the use of standardized forms for the collection of health-related data. The content and form shall be consistent with related local and federal requirements.

'(d) Prescribe standards for the maintenance and preservation of health-related data.

'(e) Establish procedures to govern the withholding and release of data as required by section 2637.'

'Sec. 2631. The information, records of interviews, written reports, statements, notes, memoranda, or other data or records furnished to, procured by, or voluntarily shared with the department in the conduct of a medical research project, or a person, agency, or organization which has been designated in advance by the department as a medical research project which regularly furnishes statistical or summary data with respect to that project to the department for the purpose of reducing the morbidity or mortality from any cause or condition of health are confidential and shall be used solely for statistical, scientific, and medical research purposes relating to the cause or condition of health.'

'Sec. 2632. The information, records, reports, statements, notes, memoranda, or other data described in section 2631 are not admissible as evidence in an action in a court or before any other tribunal, board, agency, or person. Furnishing the data to the department in the conduct of a medical research project or to a designated medical research project does not result in the loss of any privilege which the data may otherwise have making them inadmissible as evidence. The information, records, reports, notes, memoranda, or other data shall not be exhibited nor their contents disclosed in any way, in whole or in part, by the department or its representative, or by any other person, agency, or organization, except as is necessary for the purpose of furthering the medical research project to which they relate consistent with section 2637 and the rules promulgated under section 2678. A person participating in a designated medical research project shall not disclose the information obtained except in strict conformity with the research project.'

'Sec. 2637. (1) The department shall establish procedures pursuant to section 2678 to protect the confidentiality of, and regulate the disclosure of, data and records contained in a departmental data system or system of records.

'(2) The procedures shall be consistent with the policy established under sections 2611 and 2613.

'(3) The procedures shall specify the data contained in a departmental data system or system of records which shall not be disclosed unless items identifying a person by name, address, number, symbol, or any other identifying particular are deleted.

'(4) The procedures shall regulate the use and disclosure of data contained in a departmental data system or system or records released to researchers, other persons, including designated medical research projects as defined in section 2631, or governmental entities. A person who receives data pursuant to this section shall not disclose an item of information contained in the data except in conformance with the authority granted by the department and with the purpose for which the data was originally requested by the researcher. The director may contract with researchers or other persons to implement and enforce this subsection. A contract made pursuant to this subsection shall:

'(3) Require the department to provide monitoring to assure compliance with this section.

'(b) Provide for termination if this section or the contract is violated.

'(5) An officer or employee of the department shall not disclose data contained in a departmental data system or system of records except as authorized in the procedures adopted pursuant to this section.

'(6) The department periodically shall review the procedures adopted under this section.

'(7) A person whose contract is terminated pursuant to subsection (4)(b) is not eligible to make subsequent contract with the department.'

'Sec. 2638. A person who discloses confidential information in violation of sections 2631 to 2633 or who violates section 2637 or a rule implementing section 2637 is guilty of a misdemeanor, punishable by imprisonment for not more than 1 year, or a fine of not more than $1,000.00, or both, and if the person is an employee of the department shall be subject to immediate dismissal.'

'Sec. 2639. (1) Upon written request, an individual shall be permitted to review his or her personal records maintained or made under the authority of this part, in accordance with this section.

'(2) The department shall establish procedures for reviewing a request from a person concerning access to or the amendment of a record or data pertaining to the person, or from a researcher, other person, or governmental entity requesting information or access to information possessed by the department, including a method of making a determination on the request for access or amendment. A person or researcher aggrieved by a decision under this section may request an administrative hearing.

'(3) The department shall maintain records of requests for access to or amendmants of data with the accuracy, relevance, timeliness, and completeness necessary to assure fairness to the person making the request.'

'Sec. 2641. (1) The department may charge fees for the reasonable cost of:

'(a) Reproduction, duplication, amendment, certification, or authentication of data.

'(b) Data searches, other than those for which a fee is prohibited under section 3 of Public Law 93-579, 5 U.S.C. 552a.

'(2) Collections under this section shall be transmitted to the department of treasury and credited to the general fund of this state.'

It is therefore necessary to apply the confidentiality provisions of the Public Health Code as quoted above.

51.

Does the exemption provided by section 13(1)(i) permit the Department of Corrections to refuse a patient-prisoner access to his own records? Further, since medical records have traditionally been considered confidential in nature, would the definition of 'public record' contained in the Act allow us to refuse access in certain situations?

This question was answered by OAG, 1977-1978, No 5125, p ___ (May 30, 1978), which held that with the exception of a mental patient whose right of access is controlled by 1974 PA 258, Sec. 748, a patient has a right to receive copies of information concerning his or her diagnosis or treatment made by a physician or hospital. Pursuant to 1974 PA 258, Sec. 748, information contained in the records of a mental patient may be disclosed when, in the judgment of the person holding the record, the disclosure would not be detrimental to the recipient or others.

52.

Is there a distinction between working papers used in the preparation of official documents and the official documents themselves?

Section 13(1)(n) provides that notes within a public body may be exempt where they are preliminary to a final agency determination although this exemption does not cover purely factual materials.

Therefore, there is a statutory exemption for portions of preliminary drafts of documents which does not exist for final drafts.

53.

Does section 13(1)(n) mandate disclosure of (a) preliminary drafts of reports to state officers or (b) preliminary drafts of decisions in contested cases? If so, is that true before the final document is issued? Further, does the Act require the public body to keep copies of such preliminary drafts?

Section 13(1)(n) states 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.'

Thus, with respect to part (a) of your question, preliminary and advisory communications between and within public bodies, at the discretion of the public body, are exempt to the extent of the limitations expressed in section 13(1)(n). Bristol-Myers Co v Federal Trade Commission, 424 F2d 935 (CA DC, 1970); Schwartz v Internal Revenue Service, 511 F2d 1303 (CA DC, 1975).

As to part (b) of your question, section 11(1)(a) requires that a state agency publish all final orders or decisions in contested cases and the records on which they are made. This section does not require that preliminary drafts of opinions in contested cases be published or made available to the public unless the qualifying language of section 13(1)(n) in applicable.

Subject to the qualifications contained in section 13(1)(n), therefore, the Act does not mandate disclosure of preliminary drafts or reports to state officers or preliminary drafts of decisions in contested cases.

As to whether the Act requires a public body to keep copies of such preliminary drafts, it is clear that there is no such requirement in the Act. It is the sole purpose of the Act to provide members of the public access to and/or copies of existent records. The Act does not deal with retention of records.

It must be noted, however, that there are two statutory provisions dealing with the destruction or mutilation of public records.

The first of these is section 491 of the Penal Code, 1931 PA 328, Sec. 491; MCLA 750.491; MSA 28.759. This section provides that all official books, papers or records created by or received in any office or agency of the State are public property and shall be disposed of only in accordance with 1948 1st ex sess PA 51, Sec. 13c; MCLA 18.13c; MSA 3.516(13c). This provision further states that the head of each agency shall maintain files only of records: (a) needed for the continued effective operation of the agency; (b) to constitute adequate and proper recording of its activities; and (c) to protect the legal rights of the state and the people. It is, therefore, my opinion that a preliminary draft need not be retained since the final draft serves as the document that meets the statutory criteria of a record that must be preserved. It is not the purpose of the statutes requiring the retention of records to overburden the storage resources of the State by requiring that preliminary drafts be retained and filed. Their purpose is to preserve official documents needed for effective operation of the agency and to properly record its activities. Preservation of preliminary drafts would not serve these purposes nor benefit the people of the State. Therefore, a reasonable construction of the statutes indicates that the legislature did not intend to prevent the destruction of preliminary drafts.

The other statute requiring preservation of public records is 1913 PA 271, Sec. 5; MCLA 399.5: MSA 15.1805. This provision, in pertinent part, states:

'Any record that is required to be kept by a public officer in the discharge of the duties imposed on him by law, or that is a writing required to be filed in a public office, or is a written memorial of a transaction of a public officer made in the discharge of his duty, shall be the property of the people of the state, and may not be disposed of, mutilated or destroyed except as provided by law. . . .'

It will be noted that only records required to be kept by a public officer and records that constitute a written memorial of a public officer in the discharge of his duties may not be mutilated or destroyed. Again, the purpose of the Act will be achieved if public officers destroy preliminary drafts of documents since such drafts do not memorialize actual transactions.

54.

Assuming that there has been a proper request, may a state university withhold the findings of an internal audit of a department of that university from public disclosure?

State universities and colleges referred to in Const 1963, art 8, are a part of the government of the State of Michigan. OAG, 1973-1974, No 4794, p 70 (August 7, 1973); OAG, 1975-1976, No 5042, p 549 (July 28, 1976). They are also included within the definition of 'public body' in the Act. Section 2(b).

Const 1963, art 8, Secs. 5 and 6, expressly grant to the controlling boards of institutions of higher education with authority to grant baccalaureate degrees the authority to exercise general supervision of their respective institutions and to maintain control and direction of expenditures from their funds. Since a controlling board's review of audits conducted by the institution of higher education or its departments is necessary for the performance of its duties, records of internal audits satisfy the definition of 'public record' included in section 2(c) of the Act:

"Public record' means a writing prepared, owned, used, in the possession of, or retained by a public body in the performance of an official function, from the time it is created. This act separates public records into 2 classes: (i) those which are exempt from disclosure under section 13, and (ii) all others, which shall be subject to disclosure under this act.'

While a specific exemption is provided for academic transcripts of financially delinquent students of institutions of higher education in section 13(1)(r) of the Act, information contained in internal audits is not exempted from the Act's coverage.

It is consistent with Const 1963, art 9, Sec. 23, that such audits should be open to public inspection. This provision states:

'All financial records, accountings, audit reports and other reports of public money shall be public records and open to inspection. . . .'

Thus, it is my opinion that a university may not withhold from public release the findings of an internal audit concerning a department thereof.

Since Const 1963, art 8, Secs. 5 and 6, vest in the controlling board of each institution of higher education 'general supervision' of such institution, it is within each board's authority to appoint special investigative committees to study the activities of various departments. The results of such investigations, if conveyed to an authorized agent of the institution is a writing, as defined, and are 'public records' under section 2 of the Act because the results are intended to be used by the controlling board of the public body in the performance of its official function. There is no exemption available for the results of these investigations.

55.

Will a public body incur liability for releasing exempt information?

The Act contains no provision imposing liability upon any public official who releases information which may be exempt pursuant to section 13 of the Act. It will be noted that section 13(1) introduces the list of 20 exemptions with the phrase 'A public body may exempt from disclosure as a public record under this act: . . .' (emphasis added). It is the purpose of the Act to require public bodies to allow inspection or provide copies of existent public records. The only liability imposed by the statute is that provided where a request is denied. Section 10. And, in such cases, the Act provides that the damages shall not be assessed against an individual but shall be assessed against the public body rather than the individual. Section 4(5).

This is not to say, however, that liability may not be grounded upon the statute or common law protection of records which are also exempt from disclosure under the Act. For example, section 13(1)(i) exempts from disclosure records subject to the physician-patient privilege, as well as other privileges recognized by statute or court rule. If a state officer, employee or agency were to violate this privilege and legal action were instituted for damages resulting from the violation of the privilege, the fact that the Act requires release of certain records would offer little comfort as a defense.

It may also be noted that in certain instances the Legislature has provided for criminal penalties where a person releases confidential information. See, for example, section 465 of the Income Tax Act of 1967, 1967 PA 281; MCLA 206.465; MSA 7.557(1465), and section 102 of the Single Business Tax Act, 1975 PA 228; MCLA 208.102; MSA 7.558(102).

56.

Is a school district required to disclose information about an employee's name, address, telephone number, employment location, and salary level?

This issue is the subject of a case now before the Court of Appeals. In Michigan Higher Education Student Association, Inc, et al v Michigan Technological University, et al, Court of Appeals No. 78532; Houghton Circuit Court No. 76-3176-PZ. In this case the plaintiffs, invoking the Freedom of Information Act, requested a list of names and individual salaries of all employees of the university. The circuit judge held in favor of the plaintiffs and ordered the university to produce these records. The university has appealed the case and, inasmuch as it is now pending before the Court of Appeals, it is not appropriate for me to respond to this question.

57.

Is the Department of State required to release lists of names compiled from its motor vehicle registration records?

In response to Question 28, I concluded that lists of agents', solicitors' and adjusters' names and addresses which the Insurance Bureau compiles need not be made available for commercial use. With respect to non-commercial use, my response to Question 26 indicates that each request for disclosure must be balanced to determine whether the interest of individual privacy outweighs the public interest in disclosure. My responses to these two questions, however, is not dispositive of your question because of certain provisions contained in the Michigan Vehicle Code, 1949 PA 300, MCLA 257.1 et seq; MSA 9.1801 et seq. Section 208(a) of the Michigan Vehicle Code states:

'All records of the department, other than those declared by law to be confidential for the use of the department, shall be open to public inspection under such rules and regulations as the secretary of state may prescribe.'

In addition, section 232 of the Michigan Vehicle Code provides in part:

'The secretary of state is hereby authorized to sell, or contract for the sale of, any motor vehicle registration lists in addition to those distributed at no cost under this section and to sell or furnish any other information from the records of the department pertaining to the sale, ownership, and operation of motor vehicles. The secretary of state shall fix a reasonable price or charge for the sale of such lists or other information and the proceeds therefrom shall be added to the state highway fund provided for herein.'

Inasmuch as the Legislature has specifically authorized the Secretary of State to sell or contract for the sale of motor vehicle registration lists, it may not be justifiably contended that the release of this information would constitute a clearly unwarranted invasion of individual privacy. Thus, by enactment of specific legislation dealing with the motor vehicle registration lists, the Legislature has prevented the Secretary of State from exercising discretion as to whether or not to release this information. This legislative intent is further emphasized by section 208 of the Michigan Vehicle Code, supra, which requires the Secretary of State to open for public inspection all records of the department other than those declared by law to be confidential for the use of the department. Since motor vehicles registration lists have not been declared to be confidential, they are required to be open to public inspection.

58.

Is the Department of State required to permit a company specializing in the manufacture of marine accessories to inspect the microfiche files of registrations of watercraft maintained by the Department of State?

It may first be noted that neither section 208 nor section 232 of the Michigan Vehicle Code referred to in my response to Question 57 is applicable.

The title to the Michigan Vehicle Code states that it is an act to provide for the 'registration, titling, sale, transfer and regulation of vehicles operated upon the public highways of this state. . . .'

Thus, the title of the Michigan Vehicle Code limits the scope of the body of the statute to 'vehicles operated upon the public highways of this state.' Any reference in this act to the regulation of watercraft would be beyond the scope of the title and therefore in violation of Const 1963, art 4, Sec. 24 which provides that

'No law shall embrace more than one object, which shall be expressed in its title. . . .'

See Maki v East Tawas, 385 Mich 151; 188 NW2d 593 (1971).

The response to your questions is therefore governed by 1976 PA 160, Sec. 14, MCLA 281.1214; MSA 18.1288(14), which states:

'(1) The secretary of state may provide a commercial look up service of watercraft title records on a fee basis per transaction and use fee revenues received from the service for necessary expenses.

'(2) The secretary of state shall furnish information on a title without charge to authorized law enforcement and conservation officers when engaged in official duties.'

It is clear, therefore, that the Secretary of State is required to furnish a list of watercraft registrations to a company specializing in the manufacture of marine accessories. However, in providing this service, the Secretary of State may impose a service charge on a per-transaction basis to cover necessary expenses.

Frank J. Kelley

Attorney General