Introduction:
I’ve found that the best way to convince people of something is to give them the facts and let them decide for themselves. To that end, I’ve posted documents in this and the next several posts that provide the foundation for a letter that I sent in favor of candidates that support transparency and against candidates that I refer to as the “anti-transparency candidates.” To be clear, I believe that the anti-transparency candidates are David Marsh, Sharron Catallo, Al Avery, and Eric Haven. I’m posting documents involving various issues concerning some or all of them – the election, the Open Meetings Act lawsuit, the Freedom of Information Act lawsuit, and some miscellaneous matters accompanied by some additional commentary. I may be posting additional materials here in the future.
You may have heard of a group originating in Waterford that is supporting these anti-transparency candidates. I think that it’s ironic, but very fitting, that anti-transparency candidates would receive support from a group that has been organized outside of the city and populated with members who act in secret. I won’t link to their website, because they aren’t deserving of the traffic, and I will delete any comment that links to their website from this page. I will also delete any comment that, in my opinion, is nasty or unproductive. This is my blog, and these are my rules.
And now, without further ado, some facts.
Freedom of Information Act:
I’ve attached my Letter to the Editor regarding my FOIA lawsuit. I wrote this letter as a “fair reply” to the false statements that have been made by people associated with the city.
I have been criticized for a number of things relating to this lawsuit. One of those was expressing my support in my letter to voters for the majority of city council members who chose to have a public discussion about my FOIA lawsuit, defeating the wishes of those who wanted to close the meeting and have a secret discussion. While a closed session would have been allowed, it wasn’t required. At the time this discussion took place, the circuit court had already made its decision and the case was in the appeals court. Newer council members asked the attorney assigned by the insurance company to come to a council meeting and explain what the lawsuit was about. Municipal attorneys are quite capable of responding to questions at an open meeting without disclosing information that should not be disclosed, and that’s what happened. As taxpayers, we should always applaud and support transparency over secrecy, and I make no apologies for doing so.
One of the strangest claims that I’ve heard is that “four judges agree with the city!” so therefore, my appeal must be a waste of time. Reasonable minds can always differ with regard to legal issues at all levels of our court system, but let’s examine this a bit further. Are these people suggesting that if a bare majority of the Michigan Supreme Court rules in my favor (in a 4-3 decision) that I’ve actually lost my case? Apparently so, because the final judicial score in that scenario would be 4 in my favor and 7 in the city’s favor. What a silly way to look at things.
The Michigan Supreme Court may choose not to consider my appeal. That doesn’t mean that my arguments are baseless, and there are many reasons to decline to review any particular case. The court may be aware of another case that provides a different fact pattern that it would prefer to review. It could choose not to review the decision in my case because it was unpublished (meaning that only city officials and employees in Clarkston can hide public records but the case doesn’t apply across the State as a published decision would). The justices could determine that the matter is better addressed through a change to the FOIA statute by the Legislature rather than the court. The court doesn’t have to give me any reason why if it rejects the case, but that doesn’t mean that I’m simply going to drift off into the sunset.
Not at all.
Once my lawsuit concludes, I have much more work to do with regard to transparency issues generally and shedding light on some local conduct specifically.
I sent my FOIA request on June 7, 2015. In addition to listening to issues raised at recorded city council meetings, I also reviewed the billing records for the city attorney that were posted on the city’s website. I was interested in a number of things, including issues relating to Curt Catallo’s property at 148 N. Main (during the time he’d planned to build a coffee shop) as well as issues associated with the property at Waldon and Main Street. Cara Catallo, as the chair of the Historic District Commission, challenged the Waldon and Main property owners for cutting down trees on their own property. Here are links to two Clarkston News articles about that issue:
http://clarkstonnews.com/rumors-surround-corner-lot/
http://clarkstonnews.com/agreement-proposed-to-settle-main-and-waldon-corner-issue/
I received some records initially by the end of June, but many were clearly missing pages (as an example, I may have been given pages 1 of 4 and 4 of 4, but not pages 2 and 3) while other records were obviously missing attachments. The city attorney separately denied the request for 18 pieces of correspondence by letter using his office letterhead; all 18 related to the Curt and Cara Catallo matters. This was strange, since my request was sent to Clarkston, the City Clerk is the FOIA Coordinator for Clarkston, and she has the sole responsibility for answering FOIA requests. Every lawyer I know (me included) provides file copies of correspondence to the client as a matter of course to meet the ethical obligation to keep clients informed about their matters. It seemed very odd that the city didn’t have file copies of the correspondence that I’d requested.
The FOIA statute would have allowed me to sue for materials that were not given to me immediately, because failing to provide all the requested records was a partial denial of the request. I wasn’t interested in suing the city (I’ve never sued anyone in my life), but I did ask my husband Richard and his law firm to act as my attorneys for the purpose of drafting a letter to the city at the end of August 2015. The purpose of the letter was to explain why the response was deficient and to ask the city to provide the missing records. (I occasionally get letters like these, and I appreciate them because the purpose of such a letter is to allow me to avoid having my client dragged into a FOIA lawsuit because something was inadvertently omitted.)
Richard’s letter wasn’t a formal appeal, but the city attorney treated it as though it was. If it was an appeal as he seemed to believe it was, then the FOIA statute required that the appeal be decided by the head of the public body within 10 days. It’s an open question regarding who the head of the public body is in the City of the Village of Clarkston, but I think we can all agree that it’s not the city attorney. He’s an officer appointed under the charter, on equal footing with the city manager (who is also a charter appointed officer). The purpose of an administrative appeal is to have someone independently review a denial.
The city didn’t respond until mid-October 2015, well past the 10 day appeal window. I was provided with additional records at that time, i.e., missing pages and attachments. The city attorney decided once again withhold the 18 documents related to Curt and Cara Catallo on his own, without letting anyone else at the city make an independent decision regarding whether withholding those records was appropriate or desired.
The FOIA statute requires that a lawsuit be brought no later than 180 days of the final determination to deny the FOIA request (even if it’s only partially denied). Since I hadn’t filed an appeal, the clock was ticking from the end of June as of the city’s first response. That meant that if I were going to sue, it would have to be in December. After mulling it over, I decided to ask for a judicial review because I didn’t believe that it was appropriate for the city attorney to withhold these 18 records. (I still don’t.)
I asked the judge to decide the case immediately because there was only one legal question involved – whether a charter appointed officer (here, the city attorney) can keep an off-site file containing city correspondence that he was paid to create or review and claim that these documents are not public records under the FOIA. The city objected to an immediate decision and wanted a full-blown law suit so the attorneys could explore whether any exemptions applied to the 18 records. After working with the FOIA almost exclusively for the last 11 years, I know how to write a request that doesn’t call for privileged or exempt records, and to his credit, the Clarkston city attorney agreed with me. When his sworn testimony was taken at deposition, he admitted that none of the records were subject to any privilege, and none of the records were exempt under the FOIA statute.
The city’s decision to pursue a full-blown litigation meant depositions and discovery for almost a year at great time and expense for everyone, but at the end of the case, the judge ended up ruling on the only issue that I’d raised in the first place. Imagine how much money, time, and community frustration could have been saved if:
1. The charter appointed city attorney had simply turned the documents over to the city, so the FOIA Coordinator could provide them to me, rather than deciding on his own not to release them;
2. The city attorney had forwarded what he thought was an appeal to “the head of the public body” to make an independent decision about whether the 18 documents should be provided to me; or,
3. The city had agreed to submit the issue to the Oakland County Circuit Court judge to decide right away.
Unfortunately, none of those things happened.
I’ve attached the city attorney’s bills and highlighted the entries that involved the correspondence that he decided independently to withhold from the city – and from me.
The circuit court found that the city attorney WAS an agent of the city and that he COULD possess public records. (Have you heard that before now?) I disagree with the circuit court’s reasoning after that point, because the court held that these particular records were not public records because they weren’t “used” by the city.
The reason that I disagree is because the FOIA statute has five different options that could make a document qualify as a public record if it’s used in the performance of an official function of the public body – it can be prepared OR owned OR retained OR possessed OR used by the public body (any one of the five are sufficient). The court only looked at the use of the records and thought that the city hadn’t used them – even though they concerned the city attorney’s actions on behalf of the city.
The circuit court’s decision in my case really doesn’t start until page 17. Everything before that lays out the arguments. But, as before, it’s all there for you to read.
This is the decision from the Michigan Court of Appeals. I’ve highlighted a few things, but the whole opinion is there for you to read. It’s quite different from the circuit court’s opinion, which held that the city attorney was an agent of the city and could possess public records.
The court of appeals didn’t agree with circuit court and used a different ground to deny my appeal – those judges looked at only one sentence of the FOIA statute (as opposed to the statute in its entirety) and held that the definition of a “public body” does not include officers or employees acting on behalf of cities, townships, and villages. Therefore, records in the hands of officers and employees aren’t public records that are subject to the FOIA.
Let that sink in. Every officer and employee of Clarkston can keep city records away from public view because a record they hold is not a public record.
Why is that a problem? Because it allows Clarkston officers and employees to conduct city business outside of public scrutiny. It enables them to keep secret files of records that you aren’t allowed to see. This doesn’t just apply to the city attorney, who is an officer appointed under the city’s charter – it applies to ALL officers and employees in Clarkston city government. The number of ways to hide records from the public is limited only by the imagination.
Is that OK with you? It’s not OK with me, and that’s why I filed an appeal to the Michigan Supreme Court.
It has been stated at city council meetings that my case is about sending FOIAs to contractors OF public bodies. This is untrue. My FOIA request was sent to the city, not to a contractor. It’s also been claimed that a ruling in my favor would open the floodgates for FOIA requests to be sent to contractors who are not public bodies (i.e., entities that are not the government but who do business with the government).
That is completely inaccurate. FOIA requests can only be sent to government entities (such as a city, village, town, or the state), and the government is required to produce records that it prepares, owns, uses, possess, or retains in performing an official government function. I’ve never argued otherwise. For example, I’ve never suggested that it’s OK to send a FOIA request to Blinds ‘R Us just because they happen to have a contract with Clarkston to install window treatments. The contract would be a public record, and so would the bills and payments – but those records could ONLY be obtained through a FOIA request to the city, not Blinds ‘R Us.
On a more personal note, I would also point out that the court of appeals also held that my motive for making a request was not relevant. Have you heard that in any public meeting? Have you been told that I didn’t really file the lawsuit (my husband used me to file it) or that it’s not about me wanting information about my government (it’s because my husband has a “vendetta”)? These are lies, plain and simple.
The city’s attorneys claim that because I made my request close in time to the date that Richard filed his Open Meetings Act lawsuit, it therefore had to relate to him. It didn’t, and I’ve outlined why that is a baseless claim in my Letter to the Editor. (The city’s attorneys have also said that requests that I made to other communities were made by Richard [they weren’t] and that they were related to my FOIA lawsuit [they also weren’t]. They don’t have any proof to support these claims either, and it’s not even clear that they’ve seen these other requests based on the statements made at council meetings.)
But did you know that the city’s insurance attorney never asked me why I made the request? Or why I sent it when I did? Had he done so, he would have learned that during the time period in question, I was caring for a dying parent. He would have learned that I have a 2-3 hour round trip commute to work (sometimes more). He would have also learned that the request was sent on the day before my child’s last day of school – after all of the bake sales, teacher gifts, year end trips, and every other bit of minutia was finally finished for the school year. Honestly, I think the city’s attorney didn’t ask these questions because he didn’t want to know.