BY PHIL CUSTODIO
Clarkston News Editor
For Scott Reynolds, a FOIA lawsuit against the city casts a shadow over Clarkston.
“It seems like a black cloud we don’t need to bear in the city anymore. It doesn’t feel very transparent to me,” said Reynolds, who was elected to City Council this past November, at the Dec. 11 meeting. “The white elephant in the room is the disconnect between new and old representatives.”
The lawsuit, filed by resident Susan Bisio in 2015 against the City of the Village of Clarkston over 18 documents the city withheld from her Freedom of Information (FOIA) request, is still an emotional topic, said Mayor Steven Percival.
“It’s not cut and dried,” Percival said to city attorney Thomas Ryan, whose decision it was to withhold the documents. “You can see the dilemma here, when you are the one who solely made the decision to withhold these documents.”
Council members and residents continued to raise concerns stemming from their discussion with attorney James Tamm, the city’s attorney in the lawsuit provided by its insurance through the Michigan Municipal League, at the Sept. 11 council meeting.
Ryan had a correction to a statement made by Tamm.
“To correct the record, Mrs. (Carol) Eberhardt did not see those documents – nobody from the city saw those documents except me and the other lawyers,” Ryan said.
Percival asked if he discussed the documents with Eberhardt, the former city manager.
“No, I probably told her I withheld documents but she never saw the documents,” Ryan said. “She doesn’t know what those documents are or were. There was no need to.”
Reynolds said he was in the audience as a resident when Tamm spoke to the city council, and remembers him clearly saying the city manager met with Ryan and reviewed the documents.
“How did he come up with such an error,” he asked. “That’s a massive disconnect, don’t you think?”
“Yeah, he was mistaken,” Ryan said.
“I wish I had said something,” Catallo said. “I was aware Carol hadn’t seen them.”
Tamm made his statements in September to support Ryan’s previous claims he did not “lone wolf” the decision to withhold the documents.
“I’m hearing two different stories here – none of it makes sense to me,” said resident Lorry Mahler.
Ryan has a conflict of interest in the case, she added.
“He is personally invested in the decision to hide the records,” she said. “He’s the one who brought it about. He’s not the client, the city is.”
Ryan said the decision not to provide the 18 documents was his, as the city attorney.
Asked if he was an agent of the city – those with city “agency” are subject to the FOIA law – Ryan said he’s a city officer, like the city engineer.
Ryan based his denial on his opinion the city attorney is not a “public body,” and the information was not created nor obtained by a public body, in this case the City of the Village of Clarkston. Therefore, they were not public records subject to FOIA, he said.
Judge Leo Bowman ruled in favor of the city in October 2016, and Bisio appealed. The Court of Appeals is not expected to hear the case until late next year.
“You never saw those documents so you never made decision based on those documents,” Ryan said. “Truth and transparency is important. We’re not hiding things – they were withheld under the parameters of the law. We’ll see if I’m right or not.”
Catallo said she didn’t understand why they voted not to go into closed session when meeting with Tamm.
“It seems strange for me. He was here to talk to you and answer questions and you won’t close the meeting,” she said. “It didn’t make much sense.”
Council member Sue Wylie said it was important to have an open meeting to release as much information as possible.
“I very strongly feel information tax payers pay for should be open, she said.
“It was just us being extra careful,” said Council member Rick Detkowski.
Wylie asked who owns the documents, the city or Ryan.
“They’re not FOIAable documents – not public records, which means they’re not city records,” Ryan said.
“The city paid for them. Whose property are they,” Percival asked. “Yours?”
“I guess – that’s why we’re in this lawsuit,” Ryan said.
The city attorney said the actual documents have been turned over to Tamm for use in the lawsuit.
Resident Cory Johnston asked if Ryan agrees with statements made in amicus briefs filed on behalf of the city by the Michigan Municipal League and Michigan Townships Association, that FOIA does not apply to local government agents.
“That’s not what they’re saying,” said Council member Sharron Catallo.
“That’s a quote,” Johnston said.
The MML and MTA amicus brief includes a section, “Michigan Case Law does not Support a Claim that a Municipal or Local Governmental ‘agent’ or his Documents, are Subject to FOIA.”
“It (FOIA) does apply,” Ryan said. “We (the city) follow state law relative to FOIA.”
“So throw the MML brief out now,” Johnston said.
Reynolds asked if the case was about the words in the documents, which were about proposed development of 148 N. Main Street, and the vacant land at Waldon and Main streets, or the principle behind it.
“Both,” Ryan said.
Council member Jason Kneisc said the content of the 18 documents is irrelevant.
“We got sued, and we won,” Kneisc said.
“We’re still in court – we haven’t won anything,” Reynolds said. “Once a decision has been reached, will they be released to the public?”
That depends on the ruling, Ryan said.
Resident Chet Pardee could not attend the meeting but sent a list of questions for Ryan regarding FOIA and the document request.
The city attorney said most of the questions were answered in September, and others, such as “whose reputation is damaged if the 18 emails are made available” were political in nature.
Percival asked the city manager to review the city FOIA policy for improvements for consideration by the council.