BY PHIL CUSTODIO
Clarkston News Editor
For the Michigan Supreme Court, ownership of 18 records central to a Freedom of Information Act lawsuit against the City of the Village of Clarkston was a question for both sides.
Justice Stephen J. Markman asked attorney Richard Bisio, representing his wife Susan Bisio in her lawsuit against the city, if the 18 papers were owned by the municipality, despite being in city attorney Thomas Ryan’s office in Sylvan Lake.
“Absolutely,” said Richard Bisio at oral arguments, March 5, in front of the state Supreme Court. “The city attorney was conducting city business – performing an official function of government of the city. He billed the city for his work. The city paid him. He testified that if he were replaced by someone new, he would transfer those files to the new city attorney. Obviously, they are the city’s files, and the city’s records.”
Justice Megan K. Cavanagh asked attorney James E. Tamm, representing the City of the Village of Clarkston, if Ryan would have been obligated to turn the documents over if the city requested them.
“The city decided not to ask to see it, but had they, he would have been obligated to turn it over to them? But because they didn’t, they don’t own it,” Cavanagh asked.
“Correct,” Tamm said. “If the city had asked for the documents or Mr. Ryan had produced documents, provided them to the city, and they used them and relied on them, they would be public record, but that’s not what happened here. Attorney Ryan had communications in order to formulate opinions or advice that he was going to give to the city and the city never requested them. And, as we know through the deposition of Mrs. (Carol) Eberhardt, who was the city manager at that time, she didn’t want this information.”
“I understand that she didn’t want it, but because she didn’t want it, therefore, somebody who does, say a member of the public who thinks that they should be entitled to that, her desire somehow takes it out of the realm of public documents,” Cavanagh asked. “Do you admit there’s a problem that that reasoning is subject to manipulation?”
“I do not, because not everything that’s within an attorney’s file is owned by his client,” Tamm said.
Justice Richard Bernstein hypothetically asked if a city could take advantage of that interpretation.
“Wouldn’t this encourage a circumstance where the lawyer says to the city, I’ve got this file, I prepared all these documents, I’ve done an analysis as to what the question you’ve asked. I don’t think you want to see it,” Bernstein said.
Tamm said that issue came up in Hoffman vs. the Bay City School District.
“In that case, they specifically asked the attorney to prepare and perform an investigation, which the attorney did,” he said. “The attorney provided advice to the city, based on the investigation that he did, but the documents were never provided and the Court of Appeals determined that under those circumstances, those documents weren’t public record because they weren’t possessed – it’s not just that they possess them, they have to use them in some way.”
Justice Stephen J. Markman asked what was the nature of the relationship between a municipality and its charter-based city attorney regarding documents to which the municipality is entitled, if not ownership.
Tamm said the city charter does not indicate the city attorney is a record keeper, or has to provide documents maintained in his private office.
“The legislature doesn’t distinguish between a charter appointed attorney and someone who’s not appointed by charter, and had they wished to do so, your honor, they would have done so, and they would have done so in the multiple occasions that they’ve had these issues come up,” he said.
Bisio said the focus of the case should be the definition of “public record.”
“The question of where these documents are, they’re sitting in the city attorney’s private file versus sitting in city hall, is a location argument that I don’t think properly addresses the intent of the definition of public record,” he said. “If you’re going to focus on ownership, I think ownership means the owner has the right to possession even if they don’t have actual possession, and the right to specify disposition of those records.”
The city’s definition of public record, requiring the record be prepared, used, in the possession of, or retained by a public body, falls short, he said.
“Their simplistic argument is, city attorney, he’s not a public body. Therefore, he can’t have any public records. That ignores the actual day to day operation of how a city does business,” Bisio said.
The city’s interpretation is contrary to the first section of the Freedom of Information Act, which is about people being entitled to know about the official acts of those who represent them as public officials and public employees, he said.
“A city is an artificial entity. It can own facts through its officers and employees, and when it does so, those actions are the actions of the city,” he said.
Tamm said Ryan’s correspondence with people do not qualify as public records.
“It didn’t result here in any action that was taken by the city,” he said.
Justice David F. Viviano asked if the same FOIA request was made to a big city with in-house attorneys, such as Detroit, would that information be turned over.
“Absolutely, it would,” Tamm said. “Under those circumstances, the city attorney is part of the city. Those records are maintained by the city, they’re in the possession of the city. Therein lies the difference.”
If the plaintiff prevails, that interpretation would affect more than attorneys, he said.
“It would apply to engineers, accountants, planners, anybody that has a connection and provides services because that argument could be made that they are owned by the municipality, even though they’re really the documents that belong to the independent contractor,” Tamm said. “This expansive reading that is proposed is inconsistent with the plain language of the statute itself, and the decision the Court of Appeals reached was appropriate and should be upheld.”
Viviano asked Bisio if a civil engineering firm working with the city would have all its files subject to FOIA.
“The records that are compiled in the course of performing the official function of the building official, yes,” Bisio said. “Those would be building permits, inspection records, ordinance violation issues, things of that nature. They certainly would be.”
Viviano asked how Bisio’s agency arguments, that the city attorney is an agent of the city and therefore subject to FOIA, can be applied to “public record,” but not “public body.”
“I’m just having a hard time applying the rationale,” Viviano said. “I don’t think we can just apply traditional agency principles to one subsection of the statute but not to another, and I’m afraid that if we apply it to both that it could lead to unintended consequences.”
“Well, I’m not asking you to apply it to both,” Bisio said. “That would be an expansion, a traditional expansion of the definition of public body, and we’re not asking you to do that.”
“The next person, the next case is going to say you just applied this subsection, so obviously, the same rationale is going to apply,” Viviano said. “You might not be here but we’ll probably all be here.”
Markman asked Bisio how attorney-client privilege applies in this case.
Bisio said it does not.
“The linchpin of the city’s argument, I think, is to say that the common law of principle and agent doesn’t apply here,” he said. “Anybody that I’ve talked to about this case is quizzical about how it can be the city attorney is doing something on behalf of the city and yet he’s really not acting on behalf of the city, because FOIA says he’s not a public body.”
Tamm said the state determined the city attorney is not a public body when it wrote the statute.
“I would define him as an attorney that’s retained on behalf of the City of the Village of Clarkston to provide them with legal advice,” he said.
The charter definition of city attorney does not include maintaining or providing records on behalf of the city, Tamm said.
Viviano pointed out FOIA definition of “public body” includes “employee” in state government, but not at the city and other local levels.
Bisio said the state may have made the distinction because the state has more people and resources for FOIA than municipalities.
“But the reason was not to make public records outside of FOIA just because an officer or employee of the city handles those public records and how could it be otherwise,” he said. “The city is an artificial legal entity. It can act only through its agents, its officers, and its employees. If you’re going to exclude whatever they do in determining whether something is a public record, then virtually nothing is a public record in a municipality.”
The legislature also did not specifically exclude officers and employees of municipalities, Bisio said.
Tamm said the case should be about the words the legislature enacted.
“Had the legislature intended to include agents, it would have done so,” he said. “When it drafted the act, it would have included agents within that definition, and it didn’t do so.”
Bisio said it’s about applying common sense and legal principle to the definition of public record.
“Action by a public body has to include action by its officers, too,” he said. “That’s the only way that FOIA makes sense as applied to cities. During the 40-year-plus history of FOIA, nobody’s ever argued that municipalities don’t have public records, but that’s essentially what the city is arguing.”
“He’s very creative in his argument,” Viviano said.
“I give him credit for that,” Bisio said.
Clarkston resident Susan Bisio sued the city in 2015. She had asked for correspondence referenced in some of the monthly billing invoices submitted to Clarkston by city attorney Ryan.
In response to the FOIA request, the city provided over 700 pages of documents, but not 18 records, saying they were not public 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.
Oakland County Circuit Court ruled in October 2016 in favor of the city, saying the 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. The Court of Appeals decided last year to uphold the Circuit Court ruling in favor of the city, and Bisio appealed to the state Supreme Court.
The Supreme Court accepted the case on Sept. 25 last year. The court will release its decision in the case before the end of the current term on July 31. Oral arguments are posted on Youtube.
BY PHIL CUSTODIO