BY MATT MACKINDER
Clarkston News Editor
For almost six years, Susan Bisio’s Freedom of Information Act lawsuit over city records being stored on an off-site computer containing information on city land develpments raged on, in and out of court.
The lawsuit was settled earlier this month for $160,000.
“The Michigan Supreme Court decision in my FOIA case has given Clarkston residents something that they didn’t have before – the ability to pry records out of (City Attorney Tom) Ryan’s hands that he would prefer we not see. You’re welcome,” Bisio wrote on ClarkstonSecrets.com. ” I’ve noticed that Ryan doesn’t describe the correspondence that he sends or receives in his legal services bills anymore. Perhaps he thinks that’s a way of avoiding FOIA requests for specific documents, but don’t let that deter you. If you want to know what he’s been up to, send the city a FOIA request for records relating to your area of interest. Address it to the FOIA Coordinator at city hall and be sure to note that you want records concerning a specific subject for a specific time period, including those communications that are kept within the office of the city attorney.
“And, should you ever feel the need to file a lawsuit against the city, contact me before you file that complaint – I have some suggestions that just might limit the amount of BS the city’s lawyers will be able to throw at you.”
In response to the settlement, the City of the Village of Clarkston released a statement.
The statement in its entirety:
On March 31, 2021 the City of the Village of Clarkston signed a settlement agreement for a Freedom of Information Act (FOIA) lawsuit, ending a five-year litigation. With the case now closed, the city would like to take this opportunity to summarize the case and address some often-asked questions.
In June 2015, resident Susan Bisio filed a FOIA request with the City of the Village of Clarkston, seeking public records pertaining to city business, including correspondence between Clarkston’s City Attorney and others regarding proposed real estate developments in the city. The City provided a large volume of documents, but 18 emails in the possession of the City Attorney were not, on the basis that the emails were not considered public records because they were never in the possession of the City or used in the performance of an official function. In December 2015, resident Susan Bisio, represented by husband/attorney Richard Bisio, filed suit against the City, asking that the 18 emails be released as public records.
In October 2016, Oakland County Trial Court Judge Leo Bowman ruled that the documents at issue were not public records because there was no evidence showing that the City had used or retained them in the performance of an official function. In 2018 the Bisio’s appealed the decision to the Michigan Court of Appeals where judges P.J. Beckering, M.J. Kelly and J.J. Obrien affirmed the Trial Court’s ruling, stating that the City Attorney was an agent of the City and not a Public Body, therefore documents only in his possession were not subject to the FOIA request. In 2019, the Bisio’s appealed the matter to the Michigan Supreme Court.
The Michigan Freedom of Information Act defines Public Records as “a writing prepared, owned, used, in the possession of, or retained by a public body in the performance of an official function, from the time it is created.” The Act includes various references to “public body,” but none suggest that a contract City Attorney is one, a point agreed to by both the City and the Bisio’s. However, in January 2020, the Michigan Press Association (MPA) submitted a Press Amici to the Supreme Court, arguing that the Office of the City Attorney, even though one does not physically exist, is part of the Public Body and that documents utilized in the performance of his official functions must be considered subject to FOIA requests.
In July 2020, the Michigan Supreme Court, largely echoing the MPA’s Press Amici, ruled in favor of Ms. Bisio, stating that Clarkston’s contract City Attorney is, in fact, an agent of the public body and, as such, any written communications while representing the City are subject to disclosure under FOIA. In October 2020, the requested 18 emails were released to the Bisio’s and discussions were initiated regarding fees or costs they may have incurred. In December 2020 the City hired attorney Mark Peyser of the firm Howard and Howard to assist the City in reaching a settlement pertaining to the Bisio’s request for $319,000 in attorney fees. Mark is credited with facilitating discussions between the Bisio’s, the City, the City’s insurer, the Michigan Municipal League and the City Attorney’s insurer. On March 31st a Settlement Agreement was signed and total payment of $160,000 was issued to Richard Bisio’s Law Firm, Kemp Klein. The City’s portion of the $160,000 was negotiated to be just $35,000.
Frequently Asked Questions
1. Why did the City withhold the 18 emails? The City followed the FOIA guidelines that state that only documents that are in the possession of the City Office or used in the performance of an official function must be disclosed. The 18 emails were never in the City Office and never used in the performance of an official function. The Trial Court and Court of Appeals agreed with our interpretation of the guidelines. The Supreme Court’s 6-to-1 ruling that the possession clause should include the contract City Attorney represents a new interpretation of the guidelines.
2. What information was included in the 18 emails? The emails contained communication between the City Attorney, the City Engineer and private attorneys pertaining to potential real estate development in the City. The documents are now public record to anyone wishing to see them.
3. Will the City have to pay the full $160,000 settlement amount? No, of the total $160,000 payment, the City will pay $35,000 from the City’s Fund Balance reserve. The remaining $125,000 will be paid by the City’s insurer, the Michigan Municipal League, and the City Attorney’s insurer.
4. Why did the City hire a separate attorney, Mark Peyser, to complete the settlement? The risk of having to pay the full $319,000 in attorney fees being requested by the Bisio’s was simply too high. The City Council felt that an attorney experienced in settlement facilitation and unconnected to the 5-year case was a must. Of particular concern was the fact that the City’s insurer, the Michigan Municipal League, had issued a Reservation of Rights letter to the City stating that attorney fees from the prevailing party will not be covered under the policy unless damages or costs are also awarded. In the end, Mark was instrumental in reducing the City’s potential obligation from $319,000 to just $35,000. Even after accounting for Mark’s fees, hiring him was absolutely the right decision for the City and its taxpayers.
5. In retrospect, what should have the City done differently? What will be done differently going forward? The City always has and always will fully support the Freedom of Information Act. The fact that 18 emails were withheld from the hundreds of documents provided was not because the City had something to hide, but because the FOIA guidelines as we understood them – and many other communities in Michigan understood them – indicated the documents not in the City’s possession or not used in the performance of an official function were not subject to disclosure. The Supreme Court’s decision, closely mirroring the recommendation of the Michigan Press Association, is a new interpretation that Clarkston and all of Michigan will need to recalibrate to.
The City of the Village of Clarkston understands and fully respects the importance of the Freedom of Information Act. We also fully respect the ruling of the Michigan Supreme Court and their decision that Susan Bisio is the prevailing party. The lawsuit has been a significant focus for the city for the last five years and we are anxious to return our focus to the operations and protection of our beautiful and historic Village, especially in these difficult times. Of equal importance will be our mission to ensure government transparency. Residents or members of the public that have questions about city operations are strongly encouraged to visit or contact the city office, where the staff will openly share all available information on any topic. City Council meetings on the second and fourth Mondays of every month are another opportunity for anybody wishing to speak on a topic or ask a question.
Bisio went on to comment on the completion of the saga on her website.
“And now I circle back to where I started,” Bision said. “The FOIA lawsuit chapter is now closed. Unfortunately, without continued vigilance and pressure, the people who make up our local government have shown us that they won’t necessarily do the right thing unless they’re forced to do it. The operative word is “our” local government, because it belongs to us, not any errant employee, official, mayor, or council member who thinks that s/he is entitled to keep things from us because it’s “city business” and not “our business.” It is all our business. The book has yet to be written, but hopefully, it will only be a novella – because I truly hope that city officials will make their best efforts to always choose transparency over secrecy going forward.
“I can dream, can’t I? But until we get there, I’ll be watching Clarkston government like a hawk. And you should, too.”
During the January 6 Clarkston City Council meeting, due to an undisclosed conflict with Ryan, the council approved the retention of attorney Mark Peyser of Howard and Howard of Royal Oak to represent the city in the current facilitation of settling the ongoing lawsuit.
Bisio commented on that development as well.
“Ryan couldn’t represent the city at facilitation in the FOIA case due to his conflict (a conflict that should have been obvious to him five years ago),” Bisio said. “This meant that the city had to hire outside representation (Peyser), but Peyser’s higher hourly rate for legal fees wasn’t covered by insurance. Now that the city has had an opportunity to work with a professional, I hope that the city council considers replacing Ryan with someone who isn’t going to drag them into lawsuits that begin with more bad advice and continue on because of Ryan’s inflated ego.
“If (James) Tamm (the attorney assigned by the Michigan Municipal League Liability and Property Pool), Ryan, the city council, or Clarkston government thought that everything that has happened over the last five years would crush me and make me go away, I can assure all of them that it had the exact opposite effect. I will be watching more closely and will continue to speak out – loudly.”