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This month’s e-letter focuses on the interplay between the Freedom of Information Act (“FOIA”), the Open Meetings Act (“OMA”) and employment law, with special focus on common misconceptions that continue to challenge public employers across Michigan. Although many municipal officials understand and appreciate their FOIA and OMA obligations, generally, these concepts can be tricky (and counterintuitive) to apply in the employment context.   

When these concepts are misapplied, it can result in improper meeting practices under the OMA, FOIA disputes, strained employment relationships, and diminished public trust. A clear understanding of what Michigan’s transparency laws actually require and where their limits truly lie is essential for complying with the FOIA and OMA while also making sound and lawful personnel decisions.  

As a refresher, the FOIA requires public disclosure of information regarding the affairs of government and the official acts of public officials and employees that enhances the public’s understanding of the operations and activities of government. See Bradley v Saranac Bd of Ed, 455 Mich 285 (1997). The FOIA requires the full disclosure of “public records” unless exempt under MCL 15.268, which are narrowly interpreted and must be proven by the municipality. See Herald Co v Bay City, 463 Mich 111 (2000).  

Likewise, the purpose of the OMA is to promote openness in government, as a means of promoting responsible decision-making. To further this legislative purpose, courts interpret the statute broadly, “while strictly construing its exemptions and imposing on public bodies the burden of proving that an exemption exists.” See Booth Newspapers v University of Mich Bd of Regents, 444 Mich 211 (1993).  

Employment or personnel decisions are not immune to the requirements of these transparency statutes. 

I. EVALUATING FOIA REQUESTS FOR EMPLOYMENT RECORDS OR PERSONNEL FILES AND THE PRIVACY EXEMPTION 

It is well settled that outside the context of law enforcement, employment-related records, including the contents of employees’ personnel files, constitute “public records” for the purposes of the FOIA. That means, absent an exemption to disclosure, those documents would be provided upon a proper FOIA request. We often see employer policies that promise or allude to broad and sweeping confidentiality in public employment. Although understandable and commonplace in the private sector, this emphasis on the confidentiality of employment records should be avoided in the public sector. We recommend including language that signals to your employees that their personnel file will be kept confidential to the extent permitted under the FOIA and applicable law.  

Although a vast majority of materials such as an employee’s salary or wage, employment agreement and application must be disclosed, personnel files are riddled with pieces of information that may be redacted in certain circumstances. The FOIA provides a laundry list of permissive exemptions which can be found at MCL 15.243(1). The most relevant of which is provided below: 

“A public body may exempt from disclosure as a public record under this act…[i]nformation of a personal nature if the public disclosure of the information would constitute a clearly unwarranted invasion of privacy.” MCL 15.243(1)(a).  

In determining whether certain information about an employee is exempt, you must evaluate whether the information “reveals intimate or embarrassing details in an individual’s private life.” Herald Co v City of Bay City, 463 Mich 111 (2000).  

If the information is personal in nature, then the next step is to determine if disclosure would create a clearly unwarranted invasion of privacy. This analysis requires a balancing of the public’s right to know how the public body conducts its affairs versus the individual’s right to privacy.  

Common and intuitive exemptions include information such as the employee’s social security number, personal phone number, address, date of birth, and protected medical information. In most cases, there will be very little public interest in knowing an employee’s personal information and a clear impingement on privacy. Note that the analysis is done on a case-by-case basis, so while certain information may be ripe for redactions in one case, it could be subject to disclosure in others.  

What about the trickier examples like an employee’s disciplinary or performance records?  

Although performance evaluations and disciplinary records may seem sensitive or private, generally, these must be disclosed. See Bradley v Saranac Bd of Ed, 455 Mich 285 (1997). The public’s interest in ensuring accountability and transparency is not something that can be overcome easily. Therefore, you should operate under the assumption that any information about an employee or placed in a personnel file will ultimately be subject to public disclosure.  

However, this rule is not absolute. There may be certain information contained in the disciplinary record that may be redacted, such as sensitive information related to a third party, including addresses of former employers or personal phone numbers.  

If you take away one thing from this portion of the e-letter, it should be that personnel information is subject to disclosure under the FOIA unless you can articulate a good reason why redacting or withholding to protect privacy outweighs a public interest in disclosure. 

A. REQUESTS FOR LAW ENFORCEMENT PERSONNEL RECORDS 

Unlike other employee personnel files, the FOIA expressly exempts from disclosure personnel records of law enforcement agencies, unless the public interest in disclosure outweighs the public interest in nondisclosure in a particular instance. MCL 15.243(1)(s)(ix). But again, this exemption requires a similar public-interest balancing test.  

Generally, municipalities have an easier time justifying the redaction of portions of law enforcement personnel records, due to the heightened sensitivity of those files, including officer safety considerations, the need to protect investigative methods, and the privacy interests of officers, witnesses, and informants.  

In Kent Co Deputy Sheriffs Ass’n v Kent Co Sheriff, 463 Mich 353 (2000), the Michigan Supreme Court recognized that internal investigations materials can qualify as exempt “personnel records” under MCL 15.243. This exemption applies to not only active officers, but also inactive or retired officers. See Landry v City of Dearborn, 259 Mich App 416, 424 (2003). 

B. DISCLOSURE AND THE BULLARD-PLAWECKI EMPLOYEE RIGHT TO KNOW ACT (“ERKA”) 

The ERKA is Michigan’s law dictating the composition and disclosure of employee personnel files. Prior to disclosing any employee’s personnel file or employment records that contain disciplinary information, you must consider your obligations under the ERKA.  

Under MCL 15.243(1)(d), the FOIA exempts from disclosure any public records exempt by another statute. The ERKA requires that you notify an employee in writing any time you disclose disciplinary records to a third party. See McManamon v Redford Twp, 273 Mich App 131, 135 (2006). Beyond that, the ERKA also requires that before personnel records can be disclosed to a third party, the employer must review the records and “delete disciplinary records, letters of reprimand, or other records of disciplinary action more than 4 years old.” MCL 423.507.  

Therefore, prior to disclosing a personnel file, you must (1) notify the subject employee, and (2) you must withhold disciplinary records that are more than 4 years old.  

2. NAVIGATING PERSONNEL DECISIONS AND THE OMA 

Often, high-level employment decisions, such as hiring, termination, suspension, or adoption of personnel policies, rest with your municipality’s legislative body (e.g., the township board, city council/commission, county board of commissioners, village council, etc.). In some municipalities, some of these duties may be delegated to a manager, administrator, superintendent, or other high-ranking appointed official. 

However, we will be focusing on how certain employment decisions taken by your legislative body must comply with the OMA.  

A. THE OMA PERMITS CLOSED SESSIONS ONLY FOR NARROWLY TAILORED PURPOSES 

The OMA establishes the general rule that meetings of your legislative body be open to the public, permitting it to meet in closed session only for specifically listed purposes. Much like the exceptions to the FOIA, courts construe these purposes narrowly and your legislative body is not permitted to enter closed session unless they can specifically justify it under one of the 12 enumerated purposes. See Detroit News, Inc v Detroit, 185 Mich App 296 (1990).  

The 12 enumerated purposes are set forth in MCL 15.268(1), and because they are exceptions to the general rule of transparency, they are permissive and never required. MCL 15.268(1), specifically provides that “a public body may meet in a closed session for the following purposes…”.  

Notably, none of the permissible purposes in MCL 15.268(1) permits a legislative body to enter closed session for general “personnel reasons” or “employment issues.” Instead, a legislative body may do so: 

[t]o 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 individual requests a closed hearing. An individual requesting a closed hearing may rescind the request at any time, in which case the matter at issue must be considered after the rescission only in open sessions.” MCL 15.268(1)(a).  

B. ENTERING CLOSED SESSION FOR DISCIPLINARY REASONS OR PERFORMANCE EVALUATIONS 

By its plain language, MCL 15.268(1)(a) requires that if your legislative body desires to consider or discuss dismissal, suspension or discipline of an employee, or conduct a periodic evaluation in closed session, they may do so only at the behest of the employee. In the event the employee does not request a closed session, this discussion must occur in an open meeting.  

There is no prohibition in the OMA or case law that forbids a municipality from offering an employee the opportunity to request a closed session and your legislative body is free to do so. But the likelihood of success would be dependent on the circumstances and practically, it is better to avoid relying on a potentially adverse party to do so. It is also difficult to rely on and plan around a closed session under MCL 15.268(1)(a) because an employee can rescind their request for a closed session at any time. Additionally, if the employee does not know the specifics of the employment action, asking them if they would like to request a closed session will likely signal the severity of the situation or give the mistaken impression that the legislative body is trying to conceal something from the public.  

Note that even if you do use this purpose for a closed session, you do not have to invite the employee into the closed session.  

So, what can be discussed in closed session?   

MCL 15.258(1)(a) provides that the public body may only consider dismissal, suspension, or discipline, but that limitation does not mean that your board or council can deliberate or take formal action there.  Closed sessions should be reserved for discussion, review of the employee’s performance or alleged job performance issues, and, sometimes, to allow the employee the opportunity to be heard. All deliberations that lead towards a final decision must occur in public.  

Once the closed session has concluded, your board or council may vote to suspend, terminate, or discipline an employee but such a decision must be made in an open session, and the motion to vote must be reflected in the meeting minutes. 

It should be noted that entering closed session certainly shields the closed session minutes from disclosure, but the underlying documents, such as performance evaluations or written complaints, are not exempt from disclosure under the FOIA, absent some other exemption such as privacy. See Traverse City Record-Eagle v Traverse City Area Pub Schs Bd of Ed, 337 Mich App 281 (2021). 

C. ENTERING CLOSED SESSION DURING THE HIRING PROCESS 

Similarly, for interviews and hiring purposes, the OMA provides the following:  

“[A] public body may meet in closed session…[t]o review and consider the contents of an application for employment…if the candidate requests that the application remain confidential. However, except as provided in this subdivision, all interviews by a public body for employment…must be held in an open meeting.” MCL 15.268(1)(a)  

Again, it may seem counterintuitive that review of applications may only be conducted in closed session if requested by the applicant. But this requirement is in lockstep with the OMA’s legislative purpose, to promote transparency, including during the hiring process.  

This is not to say that an individual member of the legislative body cannot review applications on their own. And, if you employ professional staff such as a manager, superintendent, administrator or human resources director, those individuals can also review and screen applicants for employment. See Herald Co v City of Bay City, 463 Mich 111 (2000).   

But if your legislative body desires to review the contents of an application in closed session it may only do so at the request of the applicant. Be aware that the OMA specifically states that the actual interview process, and the formal action of hiring someone must be conducted in open session.  

D. ENTERING CLOSED SESSION FOR LABOR NEGOTIATIONS 

If your municipality has a unionized workforce, you are also permitted to enter closed session to negotiate and discuss strategy for the purposes of collective bargaining:  

“[A] public body may meet in closed session…[f]or strategy and negotiation sessions connected with the negotiation of a collective bargaining agreement if either negotiating party requests a closed hearing.” MCL 15.268(1)(f) 

Courts have held that the only time this can occur is when negotiations are in progress or, for purposes of strategy, when they are about to commence. See Wexford County Prosecutor v Pranger, 83 Mich App 197 (Mich Ct App 1978).  

3. CONCLUSION 

Navigating personnel and employment decisions requires a careful balance between transparency and confidentiality, under both the FOIA and the OMA. While these laws promote openness and transparency, they also recognize the need to protect employee privacy.  

By understanding the limits of disclosure and the proper use of closed sessions, your municipality can uphold public trust while responsibly managing sensitive personnel matters. Adhering to these principles strengthens accountability, reduces risk, and helps ensure consistent and lawful decision-making.  

By: Thomas Forgione

This publication is intended for educational purposes only. This communication highlights specific areas of law and is not legal advice. The reader should consult an attorney to determine how the information applies to any specific situation.