BY PHIL CUSTODIO
Clarkston News Editor
The Susan Bisio vs. City of the Village of Clarkston lawsuit is back in play after the Michigan Supreme Court granted an appeal of last year’s judgment on it.
In its ruling this past Sept. 25, the state supremes called on Bisio’s and the city’s legal teams to address whether the Michigan Court of Appeals made a mistake in its ruling in July 2018 that the documents sought by Bisio were not “public records” according to the Freedom of Information Act, and whether the city attorney was an agent of the city, “such that his correspondence with third parties, which were never shared with the city or in the city’s possession, were public records subject to the FOIA.” Each side will get 20 minutes for oral argument.
The Court of Appeals decided last year to uphold an Oakland Circuit Court ruling in favor of the city. The opinion held the city properly denied a FOIA request by Bisio, a city resident, and she appealed to the state Supreme Court.
Bisio sued the city in 2015 for violating the state information law regarding a FOIA request. She had asked for correspondence referenced in some of the monthly billing invoices submitted to the City of the Village of Clarkston by its city attorney Thomas 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, related to proposed redevelopment of 148 N. Main Street, and cleanup of vacant property at M-15 and Waldon.
Bisio filed suit, arguing the records produced by Ryan were subject to FOIA. 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, 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 Michigan State Supreme Court invited the Michigan Press Association, Detroit Free Press, Michigan Municipal League, and Michigan Townships Association to file briefs amicus curiae, and others interested in the case can file a motion for permission to file briefs amicus curiae. Previously, The Michigan Press Association and Detroit Free Press filed a joint amicus brief for Bisio.