BY PHIL CUSTODIO
Clarkston News Editor
Sooner or later, the 18 documents at the heart of the Bisio vs. City of the Village of Clarkston lawsuit will be released, said Mayor Steven Percival.
But not immediately, as the City Council voted 6-0, Monday night, to defeat a motion to release them.
James Tamm, attorney provided by the Michigan Municipal League to represent the city in the Freedom of Information Act lawsuit, was concerned the city would even consider it.
“In the past year or so, this was a topic that has taken up an enormous amount of time of City Council. I’m not quite sure why. We have prevailed at every level,” said Tamm, who was asked to attend the July 23 City Council meeting.
Releasing the documents could put the city on the hook for hundreds of thousands in legal fees, Tamm said.
“If you now release the documents your insurance carriers paid a considerable sum to defend, that could compromise your coverage – they could determine you are not cooperating in the defense,” he said.
Council member Sue Wylie made the motion to release the documents sought by Susan Bisio in her lawsuit, which was filed in 2015.
“A lot of people don’t trust government – that’s why this whole Freedom of Information Act is so important,” Wylie said. “People want to make sure that the government is doing things on their behalf, not doing anything for their own private concerns, for their own well being.”
The lawsuit is the second most common topic brought up by residents, the first being parking, she said.
“It’s still a big question because I doubt if anybody in this room knows what those documents are, we don’t know what we were protected. We don’t know what we’re keeping secret,” she said. “So it bothers me, it bothers a lot of people.”
Bisio filed a FOIA request in June 2015 for correspondence referenced in monthly billing invoices submitted to the city by city attorney Thomas Ryan. 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-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.
She sued the city in December 2015 for violating FOIA. The city was represented by attorneys 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.
Bisio appealed, and the Michigan Court of Appeals ruled on July 3 to uphold Oakland Circuit Court’s ruling in favor of the city.
“Ryan was in very preliminary discussions with attorneys and determined those documents weren’t used by you to make a decision. So in his legal opinion, they weren’t subject to Freedom of Information,” Tamm said. “I don’t think there are any deep dark secrets.”
Council member Sharron Catallo said the matter was over.
“I’m sitting here and I’m saying, wait a minute, this is a council judging another council,” said Catallo, who was serving on City Council in 2015. “You did not sit in their shoes. They did what we elected them to do. They did their job.”
“Well, I can guarantee you, this council that sits up here today will be judged in two years, three years, for the actions we take,” Percival said. “It’s not that we’re judging. It’s that we’re trying to get some answers one way or the other.”
Eric Haven, who was also on City Council in 2015 and resigned his seat before the meeting to run for mayor this year, said he was sympathetic to the motion but recommended against disclosure.
“We would put in jeopardy our credibility with the agencies which defended us so profoundly,” Haven said. “
“This is why we have experts, and we need to quit playing as lay people, conjecturing and hypothesizing, and rely upon our experts.”
Bisio has until the middle of August to appeal the ruling to the Michigan Supreme Court.
“Hopefully it doesn’t take two years to run through that process,” Percival said. “But in those two years, I would hope that you had secured a copy those documents in some sort of lock box or something, because they’re going to be called for by this council in order for us to make a determination whether as council acted appropriately.”
Tamm thought he still had them.
“Mr. Ryan, I think sent them to me when the litigation was initiated – they were sent to my office at some point in time,” he said. “My issue was the legal defense. I imagine they are there still somewhere in my office in a filing cabinet with the other thousands of documents.”