BY PHIL CUSTODIO
Clarkston News Editor
Government prevailed in an appeal ruling on the Susan Bisio vs. the City of the Village of Clarkston case.
On July 3, Michigan Court of Appeals judges Jane M. Beckering, Michael J. Kelly, and Colleen A. O’Brien upheld Oakland Circuit Court’s ruling in favor of the city in Bisio’s Freedom of Information Act lawsuit.
The lawsuit stems from a Freedom of Information Act request by city resident Susan Bisio, sent to the city, June 2015, requesting documents prepared for the city by city attorney Thomas Ryan.
Bisio and her attorney, her husband Richard Bisio, 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 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 Bisios were not convinced, saying the court focused on the definition of “public body” rather than “public record.”
“The question of who is the public body in this case has never been an issue plaintiff raised, since the FOIA request was to the city—not to the city attorney—and the city is unquestionably a public body,” said Richard Bisio. “The issue is whether records in the possession of the city attorney are public records of the city.”
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 fallacy of this reasoning is the city attorney is a formally appointed officer to a position defined by the city charter and was acting on behalf of the city when he sent and received the contested records, he billed the city for that work, and the city paid him,” Bisio said. “The city attorney is not some independent, separate entity from the city. His actions were the city’s actions. He acted in the name of the city. He was conducting city business. The city paid for and owns those records and, as the records of a public body, the city, they should be subject to FOIA.”
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.”
“Had the legislature so intended, it could have included officers or employees, or agents, in the definition of public body that pertains to cities, townships, and villages. That it did not indicates the legislature’s intent to limit ‘public body’ … to the governing bodies of the entities listed,” the court said.
The ruling is a win for government secrecy, Richard said.
“Under this decision, not only the city attorney but any other municipal official or employee can conduct municipal business and keep a file that is not subject to FOIA as long as they don’t share the records with someone else in the municipality and the records don’t become the subject of formal action by the municipality,” he said. “This will apply to virtually any records of municipal business.”
Susan is considering an appeal, he added.
“She is also considering, among other things, whether to seek legislative changes to FOIA that would address multiple problems identified in the course of this litigation,” he said.
Susan Bisio 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 Bisio 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. 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, but declined to file charges.