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. 6668

November 28, 1990

FREEDOM OF INFORMATION ACT:

Exemption of performance evaluations of public officers and employees

OPEN MEETINGS ACT:

Exemption of performance evaluations following discussion of such evaluations in closed session

A routine performance evaluation of a public officer or employee may not be exempted from disclosure under section 13(1)(d) of the Freedom of Information Act even though the evaluation may have been discussed in a closed meeting held pursuant to section 8(a) of the Open Meetings Act.

Individual school board members' written assessments of a superintendent's performance may not be exempted from disclosure to members of the general public under section 13(1)(n) of the Freedom of Information Act where the final evaluation document is merely a compilation or summary of such individual written assessments.

Routine performance evaluations of public officers and employees are ordinarily not exempt from disclosure under the provisions of the Freedom of Information Act.

Honorable Glenn Oxender

State Representative

The Capitol

Lansing, MI

You have requested my opinion on several questions, all of which involve the Freedom of Information Act (FOIA), 1976 PA 442, MCL 15.231 et seq; MSA 4.1801(1) et seq.

Your first question may be stated as follows:

When a board of education lawfully convenes in closed session in accordance with section 8(a) of the Open Meetings Act to review a superintendent's evaluation, is the evaluation document discussed in the closed session exempt from disclosure under section 13(1)(d) of the Freedom of Information Act?

A related question was addressed in OAG, 1979-1980, No 5608, p 496 (December 17, 1979). Section 8(h) of the Open Meetings Act, MCL 15.268(h); MSA 4.1800(18)(h), permits a public body to meet in a closed session "[t]o consider material exempt from discussion or disclosure by state or federal statute." OAG No 5608 addressed the question whether, in light of this provision, a school board could lawfully meet in a closed session to review routine written evaluations of its employees. The answer to this question turned upon whether the evaluation document in question was exempt from disclosure under FOIA. The opinion concluded that such evaluations were not exempt from disclosure under FOIA and, thus, could not serve as the basis for a closed session under section 8(h) of the Open Meetings Act.

In reaching this conclusion, OAG No 5608 considered and rejected a claim of exemption under two different provisions of FOIA.

First, the opinion concluded that routine personnel evaluations could not be exempted under section 13(1)(m) of FOIA, MCL 15.243(1)(m); MSA 4.1801(13)(1)(m). That exemption applies to "[m]edical, counseling, or psychological facts or evaluations concerning an individual." Quoting from an earlier opinion, OAG, 1979-1980, No 5500, p 255, 273 (July 23, 1979), the opinion stated that:

"the context within which the word 'counseling' appears indicates the Legislature's intent that [section 13(1)(m) of FOIA] apply only where there is a professional relationship between counselor and counselee, not where there is an employment relationship."

Thus, OAG No 5608 concluded, "section 13(1)(m) may not be used by a public body as a basis for not disclosing evaluations made by supervisory personnel." Id, at 497.

In addition, OAG No 5608 rejected the notion that routine personnel evaluations of public officers and employees could be exempted as a "clearly unwarranted invasion of an individual's privacy" under section 13(1)(a) of FOIA, MCL 15.243(1)(a); MSA 4.1801(13)(1)(a). The opinion unequivocally stated that "the public has a right to know how its public officials and employees are performing their public duties," and went on to explain:

"Although certain material in a public officer's or employee's personnel file relating to the performance of his or her duties may be of a private nature, the public has a legitimate interest in an evaluation of a public officer's or employee's performance. The public right to know how a public officer or employee is performing his or her duties is superior to the attendant invasion of privacy occurring through the release of this material to the public." Id, at 498. (Footnote deleted.)

Thus, the opinion concluded, a routine personnel evaluation of a public officer or employee is not exempt from disclosure under FOIA and, accordingly, a school board may not meet in closed session under section 8(h) of the Open Meetings Act to review and discuss such a document.

Two years later, in Ridenour v Dearborn Bd of Ed, 111 MichApp 798; 314 NW2d 760 (1981), the question of whether the Open Meetings Act permits a public body to meet in closed session to evaluate the performance of its officers and employees was addressed by the Michigan Court of Appeals.

The Court first considered whether such a closed session was authorized by section 8(a) of the Open Meetings Act which, at that time, permitted a public body to meet in closed session "[t]o consider the dismissal, suspension, or disciplining of, or to hear complaints or charges brought against, a public ... employee ... when the named person requests a closed hearing." MCL 15.268(a); MSA 4.1800(18)(a). Construing this provision, the Court of Appeals held that, while section 8(a) does permit a closed session to consider complaints and charges against an officer or employee, it does not authorize a closed session for a routine performance evaluation. Adopting an analysis essentially similar to that contained in OAG No 5608, supra, the Court likewise rejected a claim that such routine evaluations were exempt under FOIA and, accordingly, held that a public body could not meet in closed session under section 8(h) of the Open Meetings Act to review such documents.

In apparent response to Ridenour and OAG No 5608, supra, the Legislature enacted 1984 PA 202, amending section 8(a) of the Open Meetings Act. As amended, that section now provides:

"A public body may meet in closed session only for the following purposes:

"(a) To consider the dismissal, suspension, or disciplining of, or to hear complaints or charges brought against, or to consider a periodic personnel evaluation of, a public officer, employee, staff member, or individual agent, if the named person requests a closed hearing. A person requesting a closed hearing may rescind the request at any time, in which case the matter at issue shall be considered thereafter only in open sessions." (Emphasis added.)

Thus, the Legislature has now explicitly authorized public bodies to meet in closed session to discuss and deliberate upon a routine performance evaluation if the officer or employee in question requests a closed hearing.

In light of this amendment, you ask whether a public body may now claim that a routine performance evaluation of an employee is exempt from disclosure under the Freedom of Information Act in those cases where, pursuant to the request of the employee, the public body met in closed session under section 8(a) of the Open Meetings Act to discuss and deliberate upon that evaluation. Such a claim of exemption would presumably be predicated upon section 13(1)(d) of the Freedom of Information Act, MCL 15.243(1)(d); MSA 4.1801(13)(1)(d), which provides:

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

 

"(d) Records or information specifically described and exempted from disclosure by statute."

Your question, in effect, is whether section 8(a) of the Open Meetings Act, as amended, constitutes a "statute" exempting routine performance evaluation documents from disclosure within the meaning of section 13(1)(d) of FOIA.

Based upon a careful review of the relevant language of section 8(a) of the Open Meetings Act, and of the circumstances leading up to its adoption, it must be concluded that, in amending section 8(a), the Legislature did not intend to create a new exemption for performance evaluations under FOIA.

It is significant that, in spite of the language in both Ridenour and OAG No 5608, supra, finding that written performance evaluations are not exempt from disclosure under FOIA, the Legislature acted only to amend section 8(a) of the Open Meetings Act. No similar amendment was made to FOIA creating an explicit exemption for such evaluation documents.

Of equal importance, the closed session provisions of the Open Meetings Act explicitly permit closed session only for a public body's discussion and deliberation upon an issue. Under section 3(2) of the Open Meetings Act, any actual decisions made by a public body must be made at a meeting open to the public. MCL 15.263(2); MSA 4.1800(13)(2). Thus, even if a public body meets in closed session to discuss the performance evaluation of an officer or employee, the public body must, upon completing its closed session discussion and deliberations, reconvene in open session to make any final decision regarding the employee. See, e.g., OAG, 1977-1978, No 5262, p 338 (January 31, 1978). Thus, the amendment to section 8(a) merely permits a portion of the process of evaluation to take place behind closed doors. It does not permit the final decision regarding that evaluation to be made in secret. In light of this fact, it is difficult to argue that the Legislature, in amending section 8(a), intended to create an exemption under FOIA for a document which underlies or embodies that final decision.

This conclusion is, moreover, consistent with the decision of the Michigan Supreme Court in Hagen v. Department of Education, 431 Mich 118; 427 NW2d 879 (1988). In Hagen, the Plaintiff requested, pursuant to the Freedom of Information Act, copies of certain decisions of the Tenure Commission. The request was denied on the basis of the "other statute" exemption set forth in section 13(1)(d) of FOIA, supra. The statute relied upon by Defendant to support this claim of exemption was the Teacher Tenure Act, MCL 38.71 et seq; MSA 15.1971 et seq. Article IV, section 4, of that Act contains a provision somewhat similar to section 8(a) of the Open Meetings Act in that it permits a teacher facing discharge or demotion to request a private hearing before the local board of education of the Tenure Commission. Specifically, the Teacher Tenure Act, MCL 38.104; MSA 15.2004, provides:

"a. The hearing shall be public or private at the option of the teacher affected.

 

"f. Any hearing held for the dismissal or demotion of a teacher, as provided in this act, must be concluded by a decision in writing, within 15 days after the termination of the hearing. A copy of such decision shall be furnished the teacher affected within 5 days after the decision is rendered."

The Court recognized that the objective of the statute in providing teachers with the option of a private hearing could be accomplished only by keeping the decisions private, at least for a time. Accordingly, the Court concluded that "on the basis of art IV, Sec. 4, when a private hearing has been requested, the decisions of the local board and the tenure commission are exempt from disclosure under the statutory exemption in the FOIA." 431 Mich at 126. Significantly, however, the Court also concluded that such a claim of exemption under FOIA was of a limited duration:

"The statutory right to a private hearing in tenure proceedings exists only at the administrative level. Therefore, beyond this phase of the review process, there is no basis under the statutory exemption in the FOIA for withholding a tenure commission decision, and a request for disclosure of a decision must be honored." 431 Mich at 127. (Footnote omitted.)

Once the period for appealing the Tenure Commission decision to circuit court has expired, with or without an appeal, the decision of the Tenure Commission loses its exempt status under FOIA.

This result is consistent with the conclusion that section 8(a) of the Open Meetings Act does not create an exemption under FOIA for routine performance evaluations. Section 8(a), by its express terms, permits the public body, upon the request of the affected employee, to hold a closed meeting only to discuss and deliberate upon the employee's performance evaluation. Any final decision the public body makes regarding the evaluated employee must be made in public. Thus, once the closed session has been concluded, section 8(a) provides no further basis for a claim of exemption of a final evaluation document.

In response to your first question, therefore, it is my opinion that a routine performance evaluation of a public officer or employee may not be exempted from disclosure under section 13(1)(d) of the Freedom of Information Act even though the evaluation may have been discussed in a closed meeting held pursuant to section 8(a) of the Open Meetings Act.

Your second question may be stated as follows:

Does section 13(1)(n) of the Freedom of Information Act permit a board of education to exempt written evaluations of a superintendent's performance which are prepared by individual board members where those individual evaluations are later summarized and compiled into a final evaluation document by the board president?

The Freedom of Information Act, Sec. 13(1)(n), MCL 15.243(1)(n); MSA 4.1801(13)(1)(n), permits a public body to exempt 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. This exemption does not constitute an exemption under state law for purposes of section 8(h) of Act No. 267 of the Public Acts of 1976, being section 15.268 of the Michigan Compiled Laws."

In order to claim this exemption, a public body must establish that the record in question is (1) advisory in nature, (2) other than purely factual, and (3) preliminary to a final determination of policy or action. Finally, assuming that the record meets these first three tests, the public body must then establish that the public interest in encouraging frank communications within the public body or between public bodies clearly outweighs the public interest in disclosure. Milford v. Gilb and City of Detroit, 148 MichApp 778, 782-783; 384 NW2d 786 (1985).

The application of these criteria to a particular document is, of course, a question of fact that must be decided on a case-by-case basis. Based upon the information enclosed with your request, it appears that your question contemplates a situation in which the individual members of a board of education each prepare separate written evaluations of a superintendent's performance. The president then fulfills the merely ministerial function of tabulating and summarizing the results of these individual evaluations on a separate form which constitutes the final evaluation. Under these circumstances, it must be concluded that the board members' individual evaluations are neither "advisory in nature" nor "preliminary to a final determination of policy or action." This is so because, under the facts you have described, there is no intervening deliberative process between the individual evaluations and the adoption of the final evaluation. The evaluation document represents merely a compilation or summary of the separate evaluations made by the individual board members and is not truly a separate judgment or decision growing out of a discussion of the individual written assessments.

It is my opinion, therefore, that individual school board members' written assessments of a superintendent's performance may not be exempted from disclosure to members of the general public under section 13(1)(n) of the Freedom of Information Act where the final evaluation document is merely a compilation or summary of such individual written assessments.

Your third and final question may be stated as follows:

May a board of education protect routine employee performance evaluations from disclosure under FOIA even though the board does not regularly review such evaluations in either open or closed session?

The answer to this question is governed by the authorities cited and discussed in response to your first question. For the reasons described in response to that question, routine performance evaluations of public officers and employees are ordinarily not exempt from disclosure under the Freedom of Information Act.

Frank J. Kelley

Attorney General