BY PHIL CUSTODIO
Clarkston News Editor
The Michigan Press Association and Detroit Free Press weighed in on a Freedom of Information lawsuit against the City of the Village of Clarkston, filing an amicus curiae brief in support of Clarkston resident Susan Bisio’s lawsuit against the city.
Bisio is appealing a decision by Oakland County Circuit Court Judge Leo Bowman last October, which said certain records requested by Bisio were not public.
“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 brief submitted on May 31 by MPA attorneys Robin Luce Herrman and Joseph E. Richotte, and Herschel P. Fink, attorney for the Detroit Free Press. “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 amicus curiae, “friend of the court,” brief asks the Michigan Court of Appeals to reverse the trial court’s ruling that the contested records are not public because the city did not use the records in the performance of a public function; while holding that records prepared, owned, and used by the city attorney while performing legal work for the city are “public records” under state law, FOIA exemptions do not apply in this case, exemptions don’t apply anyway because the city failed to assert or prove them in its answer to the complaint; and order the city to produce the contested records, as well as hold a hearing for fees and costs.
It will be around nine months or so at the earliest before the court hears the case, and then a decision would usually come within about six weeks afterward, Luce Herrmann said.
Susan Bisio, represented by attorney Richard Bisio, her husband, sued the city in December 2015 for violating FOIA. The lawsuit stems from a FOIA request Susan sent to the city on June 7, 2015, requesting invoices billed to the city by city attorney Thomas Ryan.
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 hold-harmless agreement for its development, as well as vacant property at M-15 and Waldon.
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.
In the Oct. 19 ruling, the judge ruled records requested by Bisio were not public “because there is no evidence to support the claim the city used or retained them in the performance of official functions, or that Ryan shared the contested records to assist the city in making a decision.”
Richard filed a separate 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 in March 2015, but declined to file charges.