BY PHIL CUSTODIO
Clarkston News Editor
The Hon. Leo Bowman, Oakland County Circuit Court, ruled in favor of the City of the Village of Clarkston in a Freedom of Information lawsuit filed by city resident Susan Bisio.
In the Oct. 19 ruling, the judge said records requested by Bisio were not public.
“The contested records are not public records because there is no evidence to support the claim the city used or retained them in the performance of official functions, or that (city attorney Thomas) Ryan shared the contested records to assist the city in making a decision,” according to the ruling.
Susan Bisio, represented by attorney Richard Bisio, her husband, sued the city in December 2015 for violating FOIA.
The city was represented by James E. Tamm and Paul T. O’Neill, provided through the Michigan Municipal League.
The lawsuit stems from a FOIA request Susan sent to the city on June 7, 2015, requesting invoices to the city by Ryan.
The city responded on June 30, 2015, producing over 700 pages of documents, but declining 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 148 N. Main Street and a hold-harmless agreement for its development, as well as vacant property at M-15 and Waldon.
The issue in this case was whether the contested records are “public records” subject to FOIA. The city argued its attorney is not a “public body” and his records are not public records, as defined by FOIA.
The City Charter says the city attorney is a city administrative officer but not its employee, receives no benefits, and doesn’t send or receive emails from the city email address or have an email address associated with the city.
Ryan said the records were never in the possession of city officials or personnel.
The defendants also said state law and case law intentionally omits “city attorney” from its definition of “public body.”
Susan said the records of a public official who conducts public business are subject to FOIA even if they are in its attorney’s private files.
“It is irrelevant the defendant’s attorney is not a ‘public body,’” according to the complaint.
She argued she filed the FOIA request for city records, not its attorney, and the records are public even if in possession of a public body’s agent because “to conclude otherwise would mean no records would be in the possession of a public body.”
Indisputed facts in the case included the contested records were not in the possession or owned by the city; private parties, not the city, prepared the contested records; there was no evidence the contested records were ever used or retained in the performance of an official function of the city; and Ryan had the contested records in his private files and he never shared them with the city council.
Richard Bisio, who said they will appeal the ruling, said FOIA should be construed in favor of disclosure, the records meet the definition of public record because Ryan was acting in his official function, and their physical location should not matter.
Richard filed a 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 last year, but declined to file charges.