Jane Doe v. Unnamed School District

If this opinion indicates that it is “FOR PUBLICATION,” it is subject to

revision until final publication in the Michigan Appeals Reports.

STATE OF MICHIGAN

COURT OF APPEALS

JANE DOE and JANE ROE, UNPUBLISHED

March 21, 2019

Plaintiffs-Appellants,

v No. 340234

Oakland Circuit Court

UNNAMED SCHOOL DISTRICT, LC No. 2017-160106-CZ

Defendant-Appellee.

Before: GLEICHER, P.J., and K. F. KELLY and LETICA, JJ.

PER CURIAM.

In this reverse Freedom of Information Act (FOIA), MCL 15.231 et seq., dispute,

plaintiffs appeal the trial court’s order conditionally dissolving its temporary restraining order

and permitting defendant to release two redacted documents in response to a FOIA request. We

affirm.

I. BACKGROUND

Plaintiffs allege that they are the “legal decision makers” for a minor student (the

Student) who attended an elementary school operated by defendant school district.1 On or about

February 28, 2017, nonparty Bethany Dannewitz submitted a FOIA request to defendant seeking

“any and all information pertaining to [Jane Roe] and/or [Jane Doe]’s access or lack thereof to

school district property, specifically ******** Elementary.” Defendant identified two

responsive documents—identical letters addressed to each plaintiff—but denied the FOIA

request, citing MCL 15.243(2), which exempts from disclosure “information that, if released,

would prevent the public body from complying with 20 USC 1232g, commonly referred to as the

1

The Student purportedly resides with plaintiff Jane Roe and Jane Doe acts as a secondary

advocate for the child when Roe is unavailable. Plaintiffs allege that the Student’s parents are

“in the picture,” but “cognitively impaired.” Plaintiffs refer to a power of attorney that was not

produced throughout these proceedings, but do not claim to be the Student’s legal guardians.

family educational rights and privacy act of 1974 [FERPA].” Dannewitz appealed the denial to

defendant’s board of education, and the board determined that redacted versions of the

responsive documents should be disclosed. The redactions removed instances in which the

Student’s name was mentioned.

Plaintiffs initiated this action by filing an emergency motion for a temporary restraining

order (TRO), order to show cause, and order for permanent injunctive relief. In pertinent part,

plaintiffs alleged that defendant’s planned disclosure of the responsive documents would violate

FERPA, the Persons with Disabilities Civil Rights Act, MCL 37.1101 et seq., the Americans

with Disabilities Act, 42 USC 12101 et seq., and § 504 of the Rehabilitation Act of 1973, 29

USC 794. Plaintiffs requested various relief, primarily a TRO enjoining release of the

responsive documents and an order to show cause why disclosure should not be permanently

enjoined. The trial court granted plaintiffs’ motion and issued a TRO and show cause order as

requested.

Following a hearing and in camera review of the responsive documents, the trial court

dissolved the TRO, finding no basis to continue it. The trial court further ordered that, in

addition to the Student’s name, defendant should redact plaintiffs’ names and addresses from the

documents before releasing them to Dannewitz. However, the trial court stayed its order “to

permit Plaintiffs, if they wish, to seek relief in the Court of Appeals.” The trial court denied

plaintiffs’ subsequent motion for reconsideration, and this appeal followed.

II. JURISDICTION

Plaintiffs filed their claim of appeal as an appeal of right pursuant to MCR 7.203(A)(1).

Defendant contends that the trial court’s order dissolving the TRO was not a final order and

correctly observes that the time in which plaintiffs could have filed a timely application for leave

to appeal under MCR 7.205 has long since expired. Nonetheless, defendant implies that it would

prefer to have this Court issue a definitive ruling on the substantive merits of plaintiffs’ claim of

error.

MCR 7.203(A)(1) provides that this Court has jurisdiction over a final judgment or order

entered by a circuit court. Chen v Wayne State Univ, 284 Mich App 172, 192; 771 NW2d 820

(2009). See also MCL 600.308(1) (“The court of appeals has jurisdiction on appeals from all

final judgments and final orders from the circuit court, court of claims, and probate court, as

those terms are defined by law and supreme court rule . . . .”). Relevant to this appeal, a final

judgment or final order is “the first judgment or order that disposes of all the claims and

adjudicates the rights and liabilities of all the parties, including such an order entered after

reversal of an earlier final judgment or order[.]” MCR 7.202(6)(a)(i).

As already noted, plaintiffs’ initiated this action by filing an emergency motion, which

the trial court opted to treat as a complaint. As a result of this procedural irregularity, the precise

nature of plaintiffs’ claim or claims is somewhat unclear. What can be discerned is that each of

plaintiffs’ arguments is presented for the purpose of preventing disclosure of the public records

at issue. Thus, plaintiffs’ various arguments can be characterized as alternative theories to

support their reverse FOIA cause of action. See Bradley v Saranac Community Sch Bd of Ed,

455 Mich 285, 290; 565 NW2d 650 (1997) (describing a reverse FOIA action as seeking to

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prevent disclosure of public records under FOIA), mod by Mich Federation of Teachers & Sch

Related Personnel v Univ of Mich, 481 Mich 657, 660; 753 NW2d 28 (2008) (Mich Federation).

Although the trial court did not explicitly rule on each of plaintiffs’ theories, we infer from the

court’s conclusion that there was no basis to continue the TRO that it rejected each theory. 2 As

such, despite the absence of final judgment or final order language mandated by MCR

2.602(A)(3), we construe the trial court’s order as final judgment that disposed of all the parties’

claims. Consequently, plaintiffs properly invoked this Court’s jurisdiction by filing a timely

claim of appeal pursuant to MCR 7.203(A)(1).3

III. STANDARD OF REVIEW

“A trial court’s decision to grant or deny injunctive relief is reviewed for an abuse of

discretion,” Janet Travis, Inc v Preka Holdings, LLC, 306 Mich App 266, 274; 856 NW2d 206

(2014), which “occurs when the trial court’s decision is outside the range of reasonable and

principled outcomes” or premised upon legal error, Ronnisch Constr Group, Inc v Lofts on the

Nine, LLC, 499 Mich 544, 552; 886 NW2d 113 (2016). “The application and interpretation of

statutes, as well as the application and interpretation of administrative rules and regulations,

present questions of law that are reviewed de novo.” In re Estate of Klein, 316 Mich App 329,

333; 891 NW2d 544 (2016). The rules of statutory construction are well settled:

The foremost rule, and our primary task in construing a statute, is to discern and

give effect to the intent of the Legislature. This task begins by examining the

language of the statute itself. The words of a statute provide the most reliable

evidence of its intent . . . . If the language of the statute is unambiguous, the

Legislature must have intended the meaning clearly expressed, and the statute

must be enforced as written. No further judicial construction is required or

permitted. Only where the statutory language is ambiguous may a court properly

go beyond the words of the statute to ascertain legislative intent.

In interpreting the statute at issue, we consider both the plain meaning of

the critical word or phrase as well as its placement and purpose in the statutory

scheme. As far as possible, effect should be given to every phrase, clause, and

word in the statute. [Sun Valley Foods Co v Ward, 460 Mich 230, 236-237; 596

NW2d 119 (1999) (quotation marks and citations omitted).]

2

On appeal, plaintiffs only challenge the trial court’s ruling with respect to the FOIA exemptions

set forth in MCL 15.243(1)(a) (privacy) and (2) (FERPA). To the extent that plaintiffs raised

alternative grounds for exemption flowing from other statutory rights, they have not presented

those issues for appellate review.

3

Even if we were to conclude that the trial court’s order did not constitute a final judgment or

order, in the interest of judicial efficiency we would exercise our discretion to treat plaintiffs’

claim of appeal as a granted application for leave to appeal. Detroit v Michigan, 262 Mich App

542, 545-546; 686 NW2d 514 (2004).

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“FOIA is intended primarily as a prodisclosure statute and the exemptions to disclosure are to be

narrowly construed.” Swickard v Wayne Co Med Examiner, 438 Mich 536, 544; 475 NW2d 304

(1991).

IV. ANALYSIS

A. FERPA EXEMPTION

Plaintiffs first argue that the trial court erred by dissolving the TRO and permitting

disclosure of the redacted documents because the documents were protected by FERPA and,

therefore, exempt from disclosure under FOIA. We disagree.

In response to a FOIA request, “a public body must disclose all public records that are

not specifically exempt under the act.” King v Mich State Police Dep’t, 303 Mich App 162, 176;

841 NW2d 914 (2013) (quotation marks and citation omitted). For purposes of the FOIA, the

statutory definition of the term “public body” includes school districts like the one involved here.

See MCL 15.232(h)(iii). The responsive documents at issue in this case were prepared by

defendant in the performance of an official function and, thus, were public records for purposes

of FOIA. MCL 15.232(i). The dispositive question is whether the responsive documents fell

within the scope of the FERPA exemption set forth in MCL 15.243(2).

“Congress enacted FERPA under its spending power to condition the receipt of federal

funds on certain requirements relating to the access and disclosure of student educational

records.” Gonzaga Univ v Doe, 536 US 273, 278; 122 S Ct 2268; 153 L Ed 2d 309 (2002).

Subject to exceptions that are inapplicable to the matter at hand, FERPA provides that

an educational institution may not disclose the education records or any

personally identifiable information contained in the record other than directory

information to any third parties without the written consent of the student’s

parents, 20 USC 1232g(b)(1), or the written consent of the student where the

student attends an institution of postsecondary education, 20 USC 1232g(d).

[Connoisseur Communication of Flint v Univ of Mich, 230 Mich App 732, 735;

584 NW2d 647 (1998).4]

4

Connoisseur Communication of Flint, 230 Mich App at 733-734, involved a former, permissive

FOIA exemption for records governed by FERPA. See MCL 15.243(1)(e), as amended by 1996

PA 553. Under the current version of MCL 15.243(2), “[a] public body shall exempt from

disclosure information that, if released, would prevent the public body from complying with 20

USC 1232g . . . .” (Emphasis added). Thus, apart from directory information (which may

disclosed under certain conditions), see id., the FERPA exemption now requires mandatory

nondisclosure. See Atchison v Atchison, 256 Mich App 531, 535; 664 NW2d 249 (2003)

(“Under the plain-meaning rule, courts must give the ordinary and accepted meaning to the

mandatory word ‘shall’ and the permissive word ‘may’ unless to do so would frustrate the

legislative intent as evidenced by other statutory language or by reading the statute as a whole.”).

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Consistent with the requirements of FERPA, FOIA includes the following mandatory exemption:

“A public body shall exempt from disclosure information that, if released, would prevent the

public body from complying with 20 USC 1232g, commonly referred to as the [FERPA].” MCL

15.243(2).

Plaintiffs argue at length that FERPA prohibits disclosure of the responsive documents

because they contain “personally identifiable information,” as that term is defined by 34 CFR

99.3 (2018).5 Plaintiffs’ position puts the cart before the horse by failing to recognize that

FERPA protects against the release of education records “or personally identifiable information

contained therein.” 20 USC 1232g(b)(1) (emphasis added). In other words, pursuant to the

plain and unambiguous meaning of the statutory language, the personally identifiable

information must be contained in an education record before it is protected under FERPA.

FERPA defines education records as “those records, files, documents, and other materials

which—(i) contain information directly related to a student; and (ii) are maintained by an

educational agency or institution or by a person acting for such agency or institution.” 20 USC

1232g(a)(4)(A). Having reviewed the responsive documents, both in their complete and redacted

forms, we cannot agree with plaintiffs’ assumption that the documents constitute education

records because they do not “contain information directly related to a student.” Id. (emphasis

added). Instead, the documents are letters directed to plaintiffs concerning their access to the

elementary school attended by the Student with defendant’s explanation regarding the same. The

letters refer to the Student by first name, but only in the context of establishing parameters for

plaintiffs’ presence on the elementary school property. Plaintiffs are clearly the subject of the

5

For purposes of the United States Department of Education’s enforcement of the FERPA,

federal regulations define “personally identifiable information” rather broadly:

The term includes, but is not limited to—

(a) The student’s name;

(b) The name of the student’s parent or other family members;

(c) The address of the student or student’s family;

(d) A personal identifier, such as the student’s social security number,

student number, or biometric record;

(e) Other indirect identifiers, such as the student’s date of birth, place of

birth, and mother’s maiden name;

(f) Other information that, alone or in combination, is linked or linkable to

a specific student that would allow a reasonable person in the school community,

who does not have personal knowledge of the relevant circumstances, to identify

the student with reasonable certainty; or

(g) Information requested by a person who the educational agency or

institution reasonably believes knows the identity of the student to whom the

education record relates. [34 CFR 99.3 (2018).]

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documents, which relate to the Student only in an indirect or incidental manner. Accordingly,

because the responsive documents do not consist of education records, the FERPA exemption

does not preclude their disclosure under FOIA. Therefore, to the extent that the trial court

determined that the FERPA exemption did not present a basis for continuing the TRO or

granting permanent injunctive relief, it did not err in doing so.

Furthermore, we are highly skeptical of plaintiffs’ standing to assert this exemption under

the circumstances at hand. “To have standing, a party must have a legally protected interest that

is in jeopardy of being adversely affected.” Barclae v Zarb, 300 Mich App 455, 483; 834 NW2d

100 (2013). That interest must belong to the plaintiff; the plaintiff’s claim to relief cannot rest on

the legal rights or interests of a third-party. Id. In their emergency motion for a TRO, plaintiffs

refer to their “stake in the action” as “the preservation of their privacy rights and the privacy

rights of the [S]tudent . . . .” Thus, plaintiffs’ entitlement to relief rests, at least in part, on an

assertion of a third-party’s rights. We recognize that defendant has accepted plaintiffs’ role as

one of an advocate for the Student and that plaintiffs have purportedly secured a power of

attorney from the Student’s parents, but it does not follow that plaintiffs are free to assert the

Student’s rights on her behalf in a court of law. In any event, because the parties’ did not raise or

brief the issue of standing, we need not resolve our concern as to plaintiffs’ standing. Detroit

City Council v Mayor of Detroit, 449 Mich 670, 678 n 10; 537 NW2d 177 (1995).

B. PRIVACY EXEMPTION

Plaintiffs also argue that the documents were exempt from disclosure under FOIA’s

privacy exemption, MCL 15.243(1)(a). We disagree.

In order to qualify for exemption under this provision, the record must involve

information “of a personal nature” which, if disclosed, would be a “clearly unwarranted invasion

of privacy.” Mich Federation, 481 Mich at 671 (quotation marks omitted). With respect to the

first prong, information is of a personal nature if it reveals “embarrassing, intimate, private, or

confidential details” about an individual. Id. at 676. To determine if a disclosure would result in

a clearly unwarranted invasion of privacy under the second prong of the privacy exemption,

Michigan courts employ the core purpose test. Id. at 672-673. Under the core purpose test, the

court balances the public interest in disclosure against the interest the Legislature intended to

protect by way of the exemption. Id. at 673. “[T]he only relevant public interest in disclosure to

be weighed in this balance is the extent to which disclosure would serve the core purpose of the

FOIA, which is contributing significantly to public understanding of the operations or activities

of the government.” Id. (quotation marks and citation omitted). “Requests for information on

private citizens accumulated in government files that reveal little to nothing about the inner

working of government will fail this balancing test.” ESPN, Inc v Mich State Univ, 311 Mich

App 662, 669; 876 NW2d 593 (2015).

According to plaintiffs, the subject documents contain information of a personal nature

because they include “false [and] egregious” accusations, as well as “unsubstantiated threats.”

Assuming, without deciding, that the documents do indeed reveal embarrassing, intimate,

private, or confidential details regarding plaintiffs’ lives, we conclude that the privacy exemption

is inapplicable because disclosure of the documents does not constitute a clearly unwarranted

invasion of privacy under the core purpose test. “In all but a limited number of circumstances,

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the public’s interest in governmental accountability prevails over an individual’s, or a group of

individuals’, expectation of privacy.” Bitterman v Village of Oakley, 309 Mich App 53, 64; 868

NW2d 642 (2015) (quotation marks and citation omitted). Here, disclosure of the responsive

documents serves the core purpose of FOIA by facilitating public understanding of defendant

school district’s operations and policies, particularly with respect to the security and public

accessibility of school property. Consequently, even if disclosure of the documents reveals

information of a personal nature, the disclosure is not clearly unwarranted. Compare ESPN, Inc,

311 Mich App at 669-670 (finding that identity of university athletes identified as suspects in

incident reports was not exemptible because information concerned university police operations

and allowed FOIA requester to assess whether university treated athletes differently than general

student population) with Mich Federation, 481 Mich at 682 (reasoning that disclosure of

university employees’ home addresses and telephone numbers would reveal little or nothing

about government operations) and Mager v Dep’t of State Police, 460 Mich 134, 135, 144-146;

595 NW2d 142 (1999) (finding that disclosure of individuals who owned registered handguns

was “entirely unrelated to any inquiry regarding the inner workings of government, or how well

the Department of State Police is fulfilling its statutory functions”).

C. REDACTIONS

Although the parties did not specifically challenge the trial court’s determination that

defendant should redact plaintiffs’ names and addresses and the Student’s name from the

documents, we agree with the trial court’s decision concerning the redactions. When a document

must be disclosed under FOIA but contains information that falls within a discretionary

exemption, redaction is appropriate. Bradley, 455 Mich at 304. Thus, in Bradley, the Michigan

Supreme Court determined that “the names of the individual students and other persons not

employed by the public body” should be redacted before the personnel records of various public

servants were released. Id. at 304-305. The same holds true in this case, as the identities of the

parties involved in the documents do little to further the public understanding of defendant’s

operations and activities.

Affirmed.

/s/ Elizabeth L. Gleicher

/s/ Kirsten Frank Kelly

/s/ Anica Letica

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