BY PHIL CUSTODIO
Clarkston News Editor
The state Freedom of Information Act is clear to the Michigan Townships Association and Michigan Municipal League – it doesn’t apply to “agents” of local government, they say.
“Any proper interpretation of the FOIA statute must be based on its plain language, under which (Clarkston city attorney Thomas) Ryan is not a public body, and the records at issue are not public records,” according to MML and MTA attorneys in their amici curiae brief on behalf of the City of the Village of Clarkston in the lawsuit against city resident Susan Bisio. “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.”
Bisio, represented by attorney Richard Bisio, her husband, sued the city in December 2015 for violating FOIA.
The lawsuit stems from Susan Bisio’s FOIA request sent to the city on June 7, 2015. The city provided 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, 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.
In the Oct. 19, 2016, ruling, Oakland County Circuit Court Judge Leo Bowman agreed with the city, ruling records requested by Bisio were not public “because there (was) 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.”
Bisio’s appeal of Judge Bowman’s ruling is not expected to be heard by the state Court of Appeals until next year.
The Michigan Press Association and Detroit Free Press previously filed an amicus curiae brief in support of Susan Bisio’s lawsuit. Their “friend of the court” brief argues that the city attorney’s activities were indisputably official in nature and because the attorney was performing an official function of the city when he prepared, used and retained the contested records, they qualify as public records of the city.
“The FOIA law is a necessary tool for both citizens and the press to understand the workings of government,” said Robin Luce Herrmann, attorney for the Michigan Press Association. “A contrary holding would encourage public bodies to hide public records from the public, which is inconsistent with FOIA.”
MMA and MTA’s amicus brief for the city says Bisio wants the court to expand FOIA to apply to “records not prepared by, owned by, used by, in the possession of, or retained by, a public body in the performance of an official function.
“If the Court of Appeals reverses the lower court’s decision, it will expand the application of FOIA to many different types of agents of municipal and local governmental entities – engineers, accountants, auditors, construction managers, billing/collection companies, real estate brokers and agents, health insurance companies, builders, tree trimmers, road repair contractors, or even trash collectors, all of whom act for the city,” according to the brief. “Not only would this cause an extreme expansion of FOIA, it will exponentially increase costs and will discourage entities from doing business on behalf of a municipality. The extent to which non-public documents in the hands of municipal and local governments’ agents are subject to FOIA is of extreme importance to amici curiae applicants.”
The legislature was aware of common law principles of agency when the FOIA statute was enacted in 1976, the attorneys said.
“It could have extended the FOIA statute to officers, employees and agents of municipal and local units of government. But it did not,” they said. “A court may not speculate regarding the intent of the legislature beyond the words expressed in the statute.”
They also point out FOIA refers to “public records,” not “public documents.”
“The nouns ‘record’ and ‘document’ are similar, but not identical. The former includes an official document that records the acts of a public body or officer, but the latter does not,” according to the brief.
Richard Bisio 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.