BY PHIL CUSTODIO
Clarkston News Editor
The Michigan Municipal League and Michigan Townships Association want to throw their two cents into a Freedom of Information lawsuit in Clarkston.
The non-profit corporations filed a motion for leave to file an amicus curiae brief in support of the City of the Village of Clarkston in its case against city resident Susan Bisio.
Bisio, represented by attorney Richard Bisio, her husband, sued the city in December 2015 for violating FOIA.
MML, MTA, and the city argue that “while FOIA requires disclosure of public records in the possession of a public body, it has been generally accepted that FOIA does not apply to an agent of a public body.”
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.
Bisio is appealing an October 2016 decision by Oakland County Circuit Court Judge Leo Bowman, which said certain records requested by Bisio were not public.
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 in June 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 agreed, ruling 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.”
The city argues reversing the lower court’s decision would expand FOIA “to many different types of agents of municipalities, including consultants, contractors, and any other person or entity who might be alleged to be an ‘agent’ of the municipality. Not only would this cause an extreme expansion of FOIA, it will exponentially increase costs and will have a chilling effect on entities that might otherwise do business on behalf of a municipality.”
MML’s motion was authorized by its Legal Defense Fund’s Board of Directors. They requested filing the brief by Aug. 7.
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 asks to reverse the trial court’s ruling, saying 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.
The appeals court is not expected to hear the case until next year.
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.