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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. 6087

July 28, 1982

FREEDOM OF INFORMATION:

Attendance records of public employee subject to disclosure

The records of a public body showing the number of days a public employee is absent from work are not exempt from disclosure under the Freedom of Information Act.

Honorable Mary Keith Ballantine

State Representative

State Capitol

Lansing, Michigan 48909

You have requested my opinion on the following question:

Are employment records showing the number of days a public employee is absent from work exempt from disclosure under section 13(1)(a) of the Freedom of Information Act?

The purpose of the Freedom of Information Act, 1976 PA 442, MCLA 15.231 et seq; MSA 4.1801(1) et seq, hereafter the Freedom of Information Act, is stated in section 1(2):

'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.'

The intent of the Legislature in the enactment of the Freedom of Information Act, supra, is to establish a policy of full disclosure, Schinzel v Wilkerson, 110 Mich App 600; 313 NW2d 167 (1981), unless the Act makes express provision for exemption from disclosure. Penokie v Michigan Technological University, 93 Mich App 650; 287 NW2d 304 (1979).

The Freedom of Information Act, 1976 PA 442, supra, Sec. 13, in pertinent part, provides:

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

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

In Penokie v Michigan Technological University, supra, the Michigan Court of Appeals considered whether a request for public records showing the names and wages of certain employees of the University was subject to exemption from disclosure by 1976 PA 442, Sec. 13(1), supra, as an unwarranted invasion of privacy of the public employees and stated:

'The names and salaries of the employees of defendant university are not 'intimate details' of a 'highly personal' nature. Disclosure of this information would not thwart the apparent purpose of the exemption to protect against the highly offensive public scrutiny of totally private personal details. The precise manner of expenditure of public funds is simply not a private fact. The heavy burden of justifying nondisclosure has not been met by the conclusory allegations of 'ill will, hard feelings, prejudice among employees' and 'chill[ing of] the applications of further persons for positions similar to' those of intervening defendants. Nor is there any support for the allegations of amicus curiae Oakland University that disclosure of the compensation of individual employees 'would cause significant indignity, embarrassment, and humiliation and would disrupt existing relationships.

'While we are not persuaded that salary information about individual public employees is 'private' information for FOIA purposes, even assuming that disclosure would constitute an invasion of personal privacy, that invasion would not be 'clearly unwarranted'. The minor invasion occasioned by disclosure of information which a university employee might hitherto have considered private is outweighed by the public's right to know precisely how its tax dollars are spent. (Footnote omitted.)

'This important public purpose can best be accomplished only by disclosure of information such as that sought by plaintiffs. There has been no suggestion that disclosure would unduly burden defendant university.

'The express purpose of the FOIA is to provide for public access to full and complete information regarding the affairs of the government so that citizens may participate fully in the democratic process.' Penokie v Michigan Technological University, supra, 93 Mich App 650, 663-664; 287 NW2d 304, 309-310 (1979).

The reasoning of Penokie v Michigan Technological University, supra, quoted above, is persuasive and supports the conclusion that the attendance record of a public employee is a public matter since it is a prerequisite to the receipt of wages and a vital incident to the expenditure of public funds. The performance or nonperformance of public duties is not a 'highly personal' or 'private' matter, the disclosure of which would constitute an unwarranted invasion of privacy. On the contrary, it goes to the heart of the expenditure of tax moneys paid by the public and the public's right to know how its taxes are spent.

It is my opinion, therefore, that records of a public body showing the number of days a public employee is absent from work are not exempt from disclosure under the Freedom of Information Act, supra.

Frank J. Kelley

Attorney General

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