Labor & Employment Law Section: Spring 2019 Lawnotes
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LABOR AND EMPLOYMENT LAw SECTION – STATE BAR OF MICHIGAN LAbOr And EMpLOyMEnT LAWnOTES ! LAWNOTES Volume 29, No. 1 Spring 2019 concerned that a publicity attendant job search could have a MICHIGAN’S FREEDOM OF chilling effect on the best candidates applying for the position. INFORMATION ACT AND THE Additional concerns may arise from the release of applicant information to fellow job seekers trying to gain a “one up” on DISCLOSURE OF APPLICANT their competitors or FOIA requests from unsuccessful candidates who use the pro disclosure statute as a means to INFORMATION SUBMITTED gather information in support of a potential lawsuit against the TO A PUBLIC BODY public body. In sum, the disclosure of applicant information could potentially jeopardize the hiring process. Elizabeth Rae, City Attorney Fortunately, both the FOIA statute and Michigan cases offer City of Southfield some guidance in how to manage these prickly issues. For example, MCLA 15.243(x) provides that an application for the In 1976 the Michigan Legislature originally passed the position of president of an institution of higher education State’s Freedom of lnformation Act (FOIA) to help guarantee established under section 4, 5, or 6 of Article VIII of the State that all citizens have access to government records.1 With the Constitution of 1963, including letters of recommendation, simple click of a mouse, a FOIA submission can be emailed to references and supporting documentation, identifying the a public body’s FOIA coordinator sending government workers applicant, can be exempted from disclosure. However, once one on a scurried chase to find appropriate records responsive to the or more individuals have been identified as a finalist for the request.2 Upon the payment of the appropriate fees, the ability to position of president, the application(s) must be disclosed with obtain these records is broad as most government records in an exemption for letters of recommendation or references Michigan are considered public.3 Although the FOIA statute has identifying the candidate. numerous exemptions permitting applicable redactions along The case of Herald County v. City of bay City, 463 Mich with some outright denials, MCLA 15.231 et seq., the courts are 111 (2000) also offers insight. In that case, the city began the mandated to interpret these exemptions narrowly so that the process of selecting a new fire chief. per the City’s Charter, statute’s pro disclosure provisions are followed. For example, the Chief could be appointed by the City Commission upon there is no privacy exemption for the annual salary earnings of recommendation by the City Manager. In the screening public employees contained on their W-2 forms, although social process, the City Manager created a five-person team to assist security numbers, home addresses and telephone numbers of in creating hiring criteria, interviewing applicants and public employees may be properly redacted.4 Likewise, advising the Manager as to the most qualified applicants. information one would intuitively think is private, for instance After the committee interviewed seven candidates, the list was a public employee’s annual contributions to a tax-advantaged narrowed to three candidates all of whom were interviewed retirement savings plan, has been found by the Michigan Court by the City Manager. The City Manager then recommended of Appeals to be subject to disclosure under FOIA.5 one individual for appointment to the City commission. The In the high visibility arena of public employment hiring bay City Times submitted a FOIA request for records opportunities, where the actions of public officials are often pertaining to the candidates interviewed, which was denied meticulously scrutinized, the stakes can be critical. Most by the City claiming an unwarranted invasion of an governmental officers, when they undertake the responsibility individual’s privacy. The Michigan Supreme Court, of serving the public, readily know that many of their actions disagreeing with the City’s claimed exemption, concluded that are viewed through the lens of a magnifying glass. In “disclosure of the information concerning the final candidates Michigan, however, that does not necessarily translate to the for fire chief would serve the policy underlying the FOIA full disclosure, by these same officials, of job applications and because disclosure could facilitate the public’s access to supporting documents pursuant to a FOIA request. The timing information regarding the affairs of the city government.” Id. and the scope of the FOIA request for these records is key as at 127. The Court further emphasized that it “could hardly be is who is conducting the interviews and whether the open challenged” that the citizens of bay City had a valid interest position is a high-level public or influential position. Against in knowing the identities of the final candidates considered in these considerations weigh the important concerns of a job the running for the high-level position. The takeaway from applicant’s rights to privacy during the application process. both the FOIA statute and the Herald case is that the identities Full public disclosure of an applicant’s information could and applications of final high-level public position candidates, embarrass or harm an applicant who failed to obtain the job. exempting such information as addresses, social security Further, the public body, interested in securing the most highly qualified applicants for the position, may also be justifiably (Continued on page 2) Page 2 LAbOr And EMpLOyMEnT LAWnOTES (SprIng 2019) CONTENTS MICHIGAN’S FREEDOM OF INFORMATION ACT AND THE Michigan’s Freedom Of Information Act And The disclosure Of Applicant Information Submitted To DISCLOSURE OF APPLICANT A public body . .1 INFORMATION SUBMITTED TO A recent FMLA And AdA decisions Of note . .3 PUBLIC BODY Supreme Court Addresses More Arbitration Issues . .4 (Continued from page 1) MErC news . .5 For What It’s Worth . .5 numbers and telephone numbers, must be disclosed pursuant bridget Mary McCormack—distinguished On to a FOIA request. both Sides Of The bench . .6 Questions may arise as to FOIA requests for applicant information for important but perhaps not high-level positions remarks Of Michigan Supreme Court Justice that are not at the “finalist” stage or for information regarding Megan K. Cavanagh To The LEL Section . .7 applicants who were not selected for public employment “I Know What your Job Is!”—reframing The role positions. A public body could properly claim that these types Of Mediator . .8 of records are subject to the privacy exemption MCLA Adding A Mediator Adds Value . .13 15.243(1)(a). The privacy exemption is proper when regulating recreational Marijuana In The Workplace . .16 information is of a personal nature and the disclosure would constitute a clearly unwarranted invasion of an individual’s MErC Update . .18 privacy.6 Information is one of a personal nature if it is United States Supreme Court Update . .19 intimate, embarrassing, private or confidential7 and relates to Art Imitates Life . .20 the individual’s private life according to community standards, 8 MErC e-File System Launches To The public . .21 customs and views. The release of the private information regarding applicants simply housed with the public body could Megan p. norris, 2019 LELS distinguished Service cause individuals to experience embarrassment and could Award recipient . .21 possibly result in an individual being treated negatively by Award presentation To Megan p. norris . .22 their current employer. disclosure could also have a negative remarks Of Megan p. norris . .23 effect on the public employer’s ability to recruit the most qualified individuals. In Landry v. City of Dearborn, 259 Mich STATEMENT OF EDITORIAL POLICY App 416 (2004), the Court recognized that the employment Labor and Employment Lawnotes is a quarterly journal published under applications of individuals applying for the position of city the auspices of the Council of the Labor and Employment Law Section of the State bar of Michigan. Views expressed in articles and case commen- police officer were exempt from disclosure under the statute’s taries are those of the authors, and not necessarily those of the Council, the privacy exemption provisions. Section, or the State bar. We encourage Section members and others inter- In sum, if a public body is contemplating the use of the ested in labor and employment law to submit articles, letters, and other ma- terial for possible publication. privacy exemption to deny a FOIA request for employment Stuart M. Israel, Editor applications, it would be advisable to prepare an affidavit John G. Adam, Associate Editor accompanying the denial from a Human resourse Administrator COUNCIL DIRECTORY attesting to the confidential nature of the application process at Chair least in the beginning stages. Further, public employers should Jennifer b. Salvatore . northville advise potential applicants, especially those applying for high- Vice Chair level positions, that their identities and credentials may not be Michelle p. Crockett . detroit protected from disclosure at the final stages of the application Secretary John r. runyan, Jr.. detroit process. Treasurer Keith J. brodie . grand rapids Council Members —END NOTES— Term Ending 2019 1 prisoners are not allowed to make FOIA requests. MCLA 15.231(2). Mark H. Cousens. Southfield Sarah Suzanne prescott . northville 2 The FOIA definition of “public body” is contained in MCLA 15.232(i)-(iv). Heidi T. Sharp . Clinton Township 3 Freedom of Information Act (FOIA) is a pro disclosure statute that court is to Andrey T. Tomkiw . Troy interpret broadly to allow public access, MCLA 15.231 et seq. practical political Anne-Marie Vercruysse Welch . birmingham Consulting v. Secretary of State, 287 Mich App 434 (2010). Term Ending 2021 Adam S. Forman . Southfield 4 penokie v. Michigan Technology University, 93 Mich App 650 (1979); Michigan Jennifer Lossia McManus. royal Oak Federation of Teachers and School related personnel v. University of Michigan, 481 James Mcgregor reid, IV.