BY PHIL CUSTODIO
Clarkston News Editor
The Hon. Leo Bowman, Oakland County Circuit Court, ruled in favor of the City of the
Village of Clarkston in a Freedom of Information lawsuit filed by city resident
Susan Bisio.
In the Oct. 19 ruling, the judge said records
requested by Bisio were not public.
“The contested records are not public
records because there is no evidence to
support the claim the city used or retained
them in the performance of official functions,
or that (city attorney Thomas) Ryan shared
the contested records to assist the city in
making a decision,” according to the ruling.
Susan Bisio, represented by attorney
Richard Bisio, her husband, sued the city in
December 2015 for violating FOIA.
The city was represented by James E.
Tamm and Paul T. O’Neill, provided through
the Michigan Municipal League.
The lawsuit stems from a FOIA request
Susan sent to the city on June 7, 2015,
requesting invoices to the city by Ryan.
The city responded on June 30, 2015,
producing over 700 pages of documents, but
declining to provide 18 records, saying they
were not public records according to state
law.
The contested records included emails
from Jan. 30, 2015, to May 20, 2015, between
Ryan and other attorneys and agencies
related to 148 N. Main Street and a holdharmless
agreement for its development, as
well as vacant property at M-15 and Waldon.
The issue in this case was whether the
contested records are “public records”
subject to FOIA. The city argued its attorney
is not a “public body” and his records are
not public records, as defined by FOIA.
The City Charter says the city attorney is
a city administrative officer but not its
employee, receives no benefits, and doesn’t
send or receive emails from the city email
address or have an email address associated
with the city.
Ryan said the records were never in the
possession of city officials or personnel.
The defendants also said state law and
case law intentionally omits “city attorney”
from its definition of “public body.”
Susan said the records of a public official
who conducts public business are subject
to FOIA even if they are in its attorney’s
private files.
“It is irrelevant the defendant’s attorney
is not a ‘public body,’” according to the
complaint.
She argued she filed the FOIA request
for city records, not its attorney, and the
records are public even if in possession of a
public body’s agent because “to conclude
otherwise would mean no records would be
in the possession of a public body.”
Indisputed facts in the case included the
contested records were not in the
possession or owned by the city; private
parties, not the city, prepared the contested
records; there was no evidence the contested
records were ever used or retained in the
performance of an official function of the
city; and Ryan had the contested records in
his private files and he never shared them
with the city council.
Richard Bisio, who said they will appeal
the ruling, said FOIA should be construed
in favor of disclosure, the records meet the
definition of public record because Ryan was
acting in his official function, and their
physical location should not matter.
Richard filed a lawsuit against the city on
June 2, 2015, for violation of the Open
Meetings Act at a closed City Council
session on March 9, 2015, and with email
discussions in November 2015.
In a consent judgement agreement filed
on March 14, 2016, the city admitted the
closed session was improper
A review by the Oakland County
Prosecutor’s Office found Clarkston City
Council probably violated the Open Meetings
Act last year, but declined to file charges.