BY MATT MACKINDER
Clarkston News Editor
The Michigan Supreme Court ruled 6-1 last Friday that Clarkston City Attorney Tom Ryan’s correspondence with a consulting firm was indeed subject to the state’s Freedom of Information Act (FOIA), despite the fact the documents were being kept in the attorney’s own files and not the city’s files.
Resident Susan Bisio sued the city in 2015 for violating the state information law regarding a FOIA request. She had asked for correspondence referenced in some of the monthly billing invoices submitted to the City of the Village of Clarkston 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, related to proposed redevelopment of 148 N. Main Street, and cleanup of vacant property at M-15 and Waldon Road.
Bisio filed suit, arguing the records produced by Ryan were subject to FOIA.
The Court of Appeals decided in 2018 to uphold an Oakland Circuit Court ruling in favor of the city. The opinion held the city properly denied a FOIA request by Bisio, a city resident, and she appealed to the state Supreme Court. 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, and Bisio appealed.
“We’re happy we won,” said Richard Bisio, Susan’s husband, speaking on the family’s behalf. “It was upon an argument that one of the people supporting us made, rather than on the main argument that we made, so it’s a little bit narrower of a ruling that we asked for but it still applies to city officers, like the city attorney.
“The bottom line is that city officers like the city attorney, treasurer, city manager, clerk can’t just keep a separate file off-site and say it’s not a public record if it has to do with official business of the city. That’s the ultimate ruling and I think it significantly undercuts the city’s view of things where anybody who is a city employee can keep
separate files pertaining to business and they’re not subject to FOIA.”
The Bisios said they are waiting to hear what the next steps are.
“It’s a good result and I don’t know what’s going to happen next,” Bisio said. “I have sent an email to the city’s lawyer asking him, ‘OK, are you going to give us the records now? Are you going to agree that we win?’ I just sent that (Saturday), so I haven’t got a response from him yet. We hope they would take this to heart and give us the records and agree that the litigation should be over. There is a question of awarding fees to us as the prevailing party under the statute. Most people would, I think, sit down and negotiate an amount and be done with it. I don’t know what the city’s disposition is as I haven’t heard back from their lawyer yet.”
According to Bisio, the city’s insurance company appointed a lawyer to defend the case for the city – James Tamm from Kerr-Russell Law Firm – and that is who the Bisios have been in contact with. Tamm has spoken at past city council meetings regarding the matter.
Will this ruling have an impact on similar FOIA cases in the future?
“It makes something clear,” Bisio said. “I was surprised that the city made the argument that it did. I think most municipalities wouldn’t follow a theory that their city officers can keep off-premises files and are not subject to FOIA. I’m not sure this makes a big practical difference, but it certainly clarifies if anybody’s thinking of keeping off-premises files that they are subject to FOIA.
“That’s an increasingly litigated question with respect to phone records, texting, and emails where some people would say, ‘Well, this is on my private computer and it’s not a city record.’ If it’s dealing with official city business, then I think this opinion says it’s a public record and it’s subject to FOIA. It clarifies what I think the law should be and what I expect most people dealing with FOIA thought the law actually was any way. It’s a good decision to make things clearer about off-premises files.”
Clarkston Mayor Eric Haven said he would comment formally this week.
“I want to review all the documentation first,” Haven said.
Robin Luce Herrmann, who serves as general counsel to the Michigan Press Association, said the decision is a positive one.
“We are very pleased with the decision and the Michigan Supreme Court’s upholding Michigan citizen’s broad rights to obtain public records,” Luce Herrmann said.
In an opinion regarding the outcome of the case, Michigan Supreme Court Justice Stephen Markman, joined by Justices Brian Zahra, Richard Bernstein, Elizabeth Clement, and Megan Cavanagh, said “Clarkston’s city charter expressly recognizes several administrative officers, including ‘the City Attorney.’
“The charter further provides that the named administrative officers occupy ‘offices’ within the city,” Markman wrote. “Because the charter thus creates an office of the city attorney, this office is a public body in that it constitutes an ‘other body’ created by local authority under MCL 15.232(h)(iv). It cannot be reasonably disputed that the office of the city attorney retained the documents at issue in the performance of an official function pursuant to MCL 15.232(i). Therefore, the documents were public records for the purposes of FOIA.”
Chief Justice Bridget McMormack agreed with the majority that the documents requested by Bisio were public records subject to disclosure under FOIA, but she wrote separately to address the issue the court granted leave to decide: whether common-law agency principles apply to FOIA such that the records created by a public body’s agent while representing the public body in government affairs are subject to disclosure.
She concluded that “common-law agency principles are applicable.”
“Therefore, Ryan was an agent of the city, and as such his written communications with third parties were public records, regardless of whether the documents were ever in the city’s possession,” wrote McCormack. “Because the city attorney created the requested documents while representing Clarkston in the course of conducting government business, the documents were subject to disclosure under FOIA.
“Common-law agency principles apply to FOIA because the common law applies to statutory law unless it is affirmatively abrogated by the Legislature. Because there was no evidence that the Legislature intended that the common-law theory of agency not apply to FOIA, she presumed that it is applicable.”