BY PHIL CUSTODIO
Clarkston News Editor
Susan Bisio of Clarkston is appealing her Freedom of Information lawsuit to the Michigan Supreme Court.
“We appealed because we believe the Court of Appeals opinion is wrong,” said Richard Bisio, Susan’s attorney and husband. “That is set out in detail in the application for leave to appeal to the Supreme Court.”
The Michigan Court of Appeals ruled on July 3 to uphold Oakland Circuit Court’s ruling in favor of the city in Bisio’s Freedom of Information Act lawsuit against the City of the Village of Clarkston. The opinion held the city properly denied Susan Bisio’s request for records under the Freedom of Information Act (FOIA).
The state Supreme Court is not likely to take the case, city attorney Thomas Ryan previously said to City Council.
“Four percent of all cases are heard by the supreme court,” Ryan said at the July 9 City Council meeting.
Richard Bisio said it is not possible to predict when the court will act on the application.
“Some cases are decided quickly, others are not,” he said.
The case “involves the essence of FOIA,” Bisio said in the application. “One can be sure that this opinion, won after two-and-a-half years of costly litigation, will be cited to support denying FOIA requests for purportedly ‘private’ communications about municipal business.”
The city attorney is a formally appointed official holding a charter-defined office, acting on behalf of the city to conduct the city’s official functions, he said.
“His records of business conducted on behalf of the city are the city’s records, regardless of the fact that they are in his own little off-premises file,” he said.
The lawsuit stems from a Freedom of Information Act request by Susan Bisio in June 2015, requesting documents prepared for the city by city attorney Ryan.
The Bisios argued records produced by Ryan were subject to FOIA.
Oakland County Circuit Court ruled in October 2016 in favor of the city, and Bisio appealed.
According to the Court of Appeals ruling, the Circuit Court was correct – “public body” as defined by the state and regulated by FOIA, does not include village, city, nor township employees.
The Court of Appeals considered the city attorney an independent entity separate from the city, and concluded if the city attorney didn’t share the records in his file with someone else at the city, then they are not the city’s records.
The appeals judges wrote Bisio’s argument was “seductive,” but was unsupported by the plain language of state law, Michigan caselaw, and other caselaw cited by plaintiff.
“Public body” as defined by state law does not include officers or employees acting on behalf of cities, townships, and villages, they said.
Officers and employees acting on behalf of the executive branch of state government, however, are defined by state law as “public bodies.”
Susan filed the FOIA request in June 2015 for correspondence referenced in some of the monthly billing invoices submitted to the city by Ryan. In response to the FOIA request, the city produced over 700 pages of documents, but declined 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 proposed redevelopment of 148 N. Main Street, and cleanup of vacant property at M-15 and Waldon.
Susan sued the city in December 2015 for violating FOIA. The city was represented by attorneys James E. Tamm and Paul T. O’Neill, provided through the Michigan Municipal League.
Oakland County Circuit Court ruled in October 2016 in favor of the city, saying records requested by Bisio were not public because the city did not use or retain them in the performance of official functions.
The Michigan Press Association and Detroit Free Press filed a joint amicus brief on Bisio’s behalf in June 2017.
“The court should hold that a record prepared, owned, created, possessed, or retained by a public body’s attorney is a public record if the attorney prepared, owned, created, possessed, or retained it when providing legal services on behalf of the public body,” according to the MPA brief. “Mrs. Bisio is correct that a contrary holding would invite public bodies to hide records from the public by giving them to their attorneys.”
The Michigan Municipal League and Michigan Townships Association responded with a joint amicus brief for the city.
“Any proper interpretation of the FOIA statute must be based on its plain language, under which Ryan is not a public body, and the records at issue are not public records,” according to the MML and MTA amicus brief. “If the legislature wished to include such ‘agents,’ it could have. If an expansion of FOIA is to be undertaken to add such ‘agents,’ it should be undertaken by the legislature, not this court.”
Richard Bisio filed a separate lawsuit against the city in June 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, also in regards to the 148 N. Main Street issue. 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 appeared to violate the Open Meetings Act, but declined to file charges.
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The Michigan Secretary of State’s office declined to weigh in on questions regarding Clarkston’s nominating process for City Council.
“After review, it’s been determined that the questions involve interpretations of provisions of the city’s charter,” said Fred Woodhams, Department of State Bureau of Elections. “Because of that, you and those raising questions will need to work with the city’s attorney. The department doesn’t weigh in on city charter interpretations.”
City attorney Thomas Ryan said City Council violated the Charter under his advice with it passed a resolution in April to change candidates’ filing deadline from Aug. 7 to July 24. Then, on Aug. 1, Ryan directed the city clerk to file notice to move the deadline back to Aug. 7, in violation of the Charter’s seven-day notice requirement.