The City Has Quite An Interesting Take On My FOIA Lawsuit – Too Bad That They Are Still Trying To Minimize Their Abhorrent Conduct

It is really hard to know where to begin to address the “City of the Village of Clarkston Summary of the Bisio v City of the Village of Clarkston Lawsuit” contained in the April 26, 2021 city council packet. As much as the City would like to put a good face on its defense of the suit, it still will not admit that it fought this suit to uphold the “principle” that city officers and employees can conceal records of their conduct of city business by maintaining the records outside city hall in “private” files. Although the City tries to characterize this as “follow[ing] FOIA guidelines,” there are no such “guidelines” and nowhere does the statute say that is the law. The simple fact is that the City took it upon itself to conceal what its own summary characterizes as records “pertaining to city business” under a made-up “guideline” that supposedly says nothing is a public record unless it is “in the possession of the City Office.” Nowhere does the City’s summary realistically justify spending hundreds of thousands of taxpayer dollars to establish the “principle” that city officers and employees can keep secret off-premises files about their conduct of city business. And, since the lawsuit dealt only with the City Attorney, one can question whether the City will apply its new-found “mission to ensure government transparency” to other off-premises files kept by other city officers and employees.

What is also clear is that there is still a lot of cover-your-tushie going on, especially as it relates to protecting the Clarkston City Attorney, Tom Ryan.

Never, ever forget that Ryan’s personal malpractice carrier contributed to the overall $160,000 settlement, an entity that the City still tries to characterize as “the city attorney’s insurer.” You can put lipstick on a pig, but it’s still a pig. You can claim that you were just following guidelines, but if that were true, then there wouldn’t have been a need to involve Ryan’s malpractice carrier. If the City really supported transparency, then the City Manager wouldn’t have recently admitted to the Clarkston News that the City promised to hide the amounts contributed – $90,000 from the Michigan Municipal League Liablity and Property Pool and $35,000 from Ryan’s malpractice carrier – toward the $160,000 total payment by all wrongdoers. (“After More Than Five Years, Bisio FOIA Suit Settled for $160K,” Clarkston News, April 7, 2021.) Nor would the City have refused to authorize the settlement in an open session of the City Council. And to this day, the City has not provided you with a copy of the settlement agreement – only I’ve done that. And, if the City were “just following guidelines,” there wouldn’t have been any reason to pay a dime to my attorneys because I wouldn’t have prevailed in the Michigan Supreme Court.

Never forget that the City could have simply produced the records when I asked for them – period. This after-the-fact justification for deliberately choosing to hide records from the public is disgusting. There is absolutely nothing in the FOIA statute that prevents a public body from releasing any records it chooses to release. Not now. Not ever. The only exception to this general rule is if there is a statute outside of the FOIA that forbids the City from releasing all or part of a record, such as protected health information under the Health Insurance Portability and Accountability Act (HIPPAA) or a social security number under the Social Security Number Privacy Act (SSNPA). There was absolutely nothing that required that the City hide records for five years – except for a steadfast belief that no one was entitled to see the records.

Let’s review the more slimy comments in the statement, shall we?

The City provided a large volume of documents, but 18 emails in the possession of the City Attorney were not, on the basis that the emails were not considered public records because they were never in the possession of the City or used in the performance of an official function.

The City did provide a large volume of documents to me in response to my FOIA request. Let me congratulate the City for doing what was legally required with regard to those documents while pointing out that those records had nothing to do with the 18 records that were withheld – which are the only records that are germane to a discussion about the five-year FOIA lawsuit. Eventually, I will post them all for you so you can see what the City provided – and what the City wanted to keep hidden. If you look at all of the documents together, you will be left with the unmistakable conclusion that the City had no business hiding any of this and putting the community – and me – through more than five years of litigation over records that I was absolutely entitled to see.

Ryan also had no business keeping these records from his client – the City of the Village of Clarkston – or the public. Even though Ryan carefully controlled the “cc” and “bcc” lines of his emails to exclude other city officials from receiving a copy of his communications, that doesn’t change the fact that Ryan was obligated under the ethics rules governing lawyers to turn those 18 records over to his client on request.

I’m attaching a June 25, 2015 correspondence from the FOIA Coordinator (then-Clerk Sandy Miller) telling Ryan that she couldn’t find all of the information that I’d requested in my FOIA as part of her record search:

20150625 – Miller letter to Ryan

The appropriate response would have been to forward the records to the FOIA Coordinator to provide to me. As we know, that didn’t happen.

While I don’t have a copy of Ryan’s response to Miller, I do have Ryan’s June 30, 2015 response to my request withholding the 18 records, as well as to the follow up that Ryan characterized as my FOIA appeal (which should have gone to the “head of the public body,” which was obviously not Ryan). Both of these letters are proof that Ryan basically flipped the bird to his client – and to me – by refusing to turn over Clarkston records from his file, records that the City was entitled to receive, merely by asking for them:

20150630 – Thomas J. Ryan PC response

20151019 – Thomas J. Ryan PC ‘appeal’ response

I knew that the 18 records existed because Ryan described them in the bills that he sent to the City that we paid for. If Ryan hadn’t created or received these 18 records “in the performance of [his] official function” as the Clarkston City Attorney as the City has claimed in its statement above, then why was he charging the taxpayers for his time? And, if he wasn’t performing the “official function” of the Clarkston City Attorney, then he had no business representing himself as the Clarkston representative to other lawyers or to the City’s engineering firm on Clarkston matters. Clearly, the claim that these weren’t records created or received in the performance of an official Clarkston function was nonsense from the beginning.

The additional characterization that the records “were never in the possession of the City” is also wrong. They were in Ryan’s possession. Ryan is a city officer. The City’s “possession” isn’t limited to something that is physically in City Hall. It includes the “possession” of any of the City’s officers and employees who are conducting city business, even if they’re conducting that business outside City Hall. If that weren’t true, then the City could conceal anything just by keeping off-premises files.

The Michigan Freedom of Information Act defines Public Records as “a writing prepared, owned, used, in the possession of, or retained by a public body in the performance of an official function, from the time it is created.”

The language above is taken from the definition of a public record contained in MCL 15.232(i). While the language of the definition is incomplete, I would agree that this is the relevant part of the definition of a public record.

The Act includes various references to “public body”, but none suggest that a contract City Attorney is one, a point agreed to by both the City and the Bisio’s.

Oh wow! They’ve got me there. The phrase “city attorney” is not in any of the definitions of public body in the FOIA statute that are contained in MCL 15.232(h), which I’ve cut and pasted here:

“Public body” means any of the following:

(i) A state officer, employee, agency, department, division, bureau, board, commission, council, authority, or other body in the executive branch of the state government, but does not include the governor or lieutenant governor, the executive office of the governor or lieutenant governor, or employees thereof.

(ii) An agency, board, commission, or council in the legislative branch of the state government.

(iii) A county, city, township, village, intercounty, intercity, or regional governing body, council, school district, special district, or municipal corporation, or a board, department, commission, council, or agency thereof.

(iv) Any other body that is created by state or local authority or is primarily funded by or through state or local authority, except that the judiciary, including the office of the county clerk and its employees when acting in the capacity of clerk to the circuit court, is not included in the definition of public body.

And gosh, there’s also no mention of the phrase “city attorney” in MCL 15.231(2), right at the beginning of the FOIA statute, which gives all of us the broad right to know what our government is doing:

It is the public policy of this state that all persons, except those persons incarcerated in state or local correctional facilities, are entitled to full and complete information regarding the affairs of government and the official acts of those who represent them as public officials and public employees, consistent with this act. The people shall be informed so that they may fully participate in the democratic process.

I can imagine that there are a bazillion specific titles that are assigned to public officers, officials, and employees in counties, cities, townships, and villages throughout the state. I readily concede that none of the statutory language that I quote above contains any title, including “city attorney.”

Throughout the lawsuit – and continuing through today, apparently – Clarkston has tried to distance itself from Ryan by calling him a “contract attorney.” But Tom Ryan is not merely a “contract city attorney,” even though he bills us by the hour. Section 5.1 of the Clarkston Charter (which is the equivalent of our constitution) tells you exactly what he is:

ADMINISTRATIVE OFFICERS

 (a) The administrative officers of the City of the Village of Clarkston shall be the City Manager, the clerk, the Treasurer, the City Attorney, the Assessor, and the Financial Officer. The Council may, by ordinance or by resolution, establish such additional administrative officers or departments, or combine any administrative officers or departments, in any manner not inconsistent with law or this Charter, and prescribe the duties thereof as it may deem necessary for the proper operation of the city government.

(b) The City Manager and the City Attorney shall be appointed by the Council for an indefinite period, shall be responsible to and serve at the pleasure of the Council and shall have their compensation fixed by the Council.

This tells you that Tom Ryan is an administrative officer of Clarkston. If you think that it was OK for the City Attorney to hide records in off-site files and claim that they aren’t public records, then you must also think that it’s also OK for the City Manager, Clerk, Treasurer, and Financial Officer to hide Clarkston records in off-site files and claim they aren’t city records – because all of them are officers under the Clarkston Charter.

Do you know that there actually is no written contract with Ryan? If you don’t believe me, send a FOIA request to Clarkston and ask for a copy of Ryan’s contract. If you happen to get one, then the City’s litigation attorney misrepresented the existence of the supposed contract both in discovery responses and in an email to my lawyer assuring us that “no contract or other written document could be found” in the City’s records:

20160729 – Tamm email – no contract found

Lawyers aren’t independent of their clients, and Ryan isn’t independent of Clarkston while he’s doing work for us, whether or not there is a written contract. Though Ryan carefully kept information away from Clarkston officials by excluding them from the cc or bcc line of his emails, all of those emails were prepared by a Clarkston-paid official, used by a Clarkston-paid official, possessed by a Clarkston-paid official, and retained by a Clarkston-paid official. The City’s attempt to characterize Ryan as someone supposedly separate and independent from the City itself (so it can argue the records were not in the City’s possession) is an attempt to deny these facts. The records themselves were owned by the City of the Village of Clarkston, and the City was entitled to a copy of these documents that were sitting in Ryan’s off-site Clarkston file on request – as was I.

However, in January 2020, the Michigan Press Association (MPA) submitted a Press Amici to the Supreme Court, arguing that the Office of the City Attorney, even though one does not physically exist, is part of the Public Body and that documents utilized in the performance of his official functions must be considered subject to FOIA requests.

In July 2020, the Michigan Supreme Court, largely echoing the MPA’s Press Amici, ruled in favor of Ms. Bisio, stating that Clarkston’s contract City Attorney is, in fact, an agent of the public body and, as such, any written communications while representing the City are subject to disclosure under FOIA.

First, let’s pass the butthurt cream to Clarkston city officials because they seem to really need it.

They apparently still haven’t gotten over the fact that I won the case. Apparently, only the MPA press amici won the case. 🙄

Now, let’s look at what the Michigan Supreme Court actually said, quoting from the Clarkston Charter, which has nothing to do with any physical office:

And §§ 5.1(d) and (h) of the City Charter provide that the administrative officers identified in the City Charter, including the city attorney, occupy “offices” within the institutional defendant:

(d) In making appointments of administrative officers, the appointing authority shall consider only the qualifications of the appointee and that person’s ability to discharge the duties of the office to which he/she is appointed.

 * * *

(h) In the event of a vacancy in an administrative office the Council shall appoint a replacement within one hundred twenty (120) days or may appoint an acting officer during the period of a vacancy in the office.

This is consistent with the common understanding that an “officer” generally occupies an “office.” Compare Webster’s New World Dictionary (1974) (defining “officer,” in relevant part, as “anyone elected or appointed to an office or position of authority in a government, business, institution, society, etc.”) with Hallgrene v Campbell, 82 Mich. 255, 258-259, 46 N.W. 381 (1890) (“A person actually obtaining office with the legal indicia of title is a legal officer until ousted.”) (quotation marks and citations omitted). Accordingly, we conclude that the City Charter creates the “office of the city attorney.” Such office is therefore a “public body” because the office constitutes an “other body that is created by . . . local authority” under MCL 15.232(h)(iv).

It certainly sounds like the City is claiming that because there is literally no door plaque in City Hall identifying a particular office as “the office of the city attorney,” this provided justification for hiding records created or received by a Clarkston city official – right up until the decision was handed down in my case. Using the City’s and Ryan’s logic, if Ryan did have a physical office inside City Hall from which he did Clarkston work, then the records would be public records. But, since Ryan decided to hide the 18 records in his office in Sylvan Lake, that meant that the records weren’t public records. Fortunately, the Michigan Supreme Court saw through the subterfuge and reached the correct decision, which has nothing to do with a literal, physical office.

I would also note that it’s a misreading of the decision to claim that the supreme court determined that Ryan was an agent of Clarkston. Legally, he actually is an agent because all attorneys are acting as agents when doing work on behalf of a client. In a concurring opinion, the Chief Justice of the Michigan Supreme Court said that she would have held that Ryan was an agent of Clarkston, but the majority opinion left the issue of agency for another day.

Why did the City withhold the 18 emails? The City followed the FOIA guidelines that state that only documents that are in the possession of the City Office or used in the performance of an official function must be disclosed. The 18 emails were never in the City Office and never used in the performance of an official function. The Trial Court and Court of Appeals agreed with our interpretation of the guidelines. The Supreme Court’s ruling that the possession clause should include the contract City Attorney represents a new interpretation of the guidelines.

The City didn’t follow any “guidelines” because there are none. And the FOIA was never intended to allow public officials to avoid the FOIA just by not keeping records “in the City Office.” The FOIA statute recognizes that a public body might try to hide records somewhere else, and MCL 15.240(4) explicitly allows a judge to order “the public body to cease withholding or to produce all or a portion of a public record wrongfully withheld, regardless of the location of the public record.”

Just as Dorothy could have clicked her ruby slippers and returned home to Kansas at any time, the City could have simply produced the 18 records if it wanted to do so at any time. It was always within the City’s power to direct Ryan to turn over the records, which is what happened at the end of the lawsuit when the City ran out of appeals. If they could do it then, they could have done it in June 2015 when I made my FOIA request. The City deliberately decided to withhold the 18 records solely because it wanted to do so.

Clearly, the records were created, retained, used, and possessed by the City Attorney who is also a Clarkston official. The records were owned by Clarkston, which the City Attorney recognized when the records were turned over to Clarkston at the end of the lawsuit. If the records weren’t owned by Clarkston, the City Attorney could have made Clarkston sue him over the records. That didn’t happen because the City Attorney didn’t own the records.

If the records weren’t used in the performance of an official Clarkston function, then Ryan’s bills to the City were fraudulent. Clearly, Ryan’s billings were not fraudulent. Why not? Because Ryan was performing an official function of the Clarkston City Attorney as defined under Section 5.6(a) of the Clarkston Charter, which states that “[t]he City Attorney shall:

1) Advise the Council on all matters of law and changes or developments therein, affecting the City;

2) Act as legal advisor and be responsible to the Council.

3) Advise the City Manager concerning legal problems affecting the city administration and any officer or department head of the City in matters relating to official duties when so requested in writing, and file with the Clerk a copy of all written opinions;

4) Prosecute ordinance violations and represent the City in cases before the Courts and other tribunals;

5) Prepare or review all ordinances, regulations, deeds, contracts, bonds, and such other instruments as may be required by this Charter or by the Council, and promptly give an opinion as to the legality thereof;

6) Upon request of the Council, attend meetings of the Council or any other meeting;

7) Defend all city officers and employees in all actions arising out of the performance of their official duties as directed by the Council;

8) Obtain the Council’s approval to commence or conclude any civil litigation; and

9) Perform such other duties as may be prescribed by this Charter or the Council.”

What information was included in the 18 emails? The emails contained communication [sic] between the City Attorney, the City Engineer and private attorneys pertaining to potential real estate development in the City. The documents are now public record to anyone wishing to see them.

The documents were always public records, and the Michigan Supreme Court confirmed that fact. The only thing that happened as a result of the supreme court decision was that the City was no longer able to hide the 18 records from any of us. If you want to know what was in the 18 records, let me save you a trip to City Hall. I posted them here:

https://www.clarkstonsecrets.com/foia-documents-released-updated/

The City mentions that some of the communications were with “private attorneys” without telling you that these “private attorneys” represented Curt Catallo and concerned his unsuccessful attempt to build a coffee shop at 148 N. Main as well as the attack by former Historic District Commission Chair Cara Catallo on the property owners at Waldon and Main after they cut down trees on their own property. These discussions clearly pertained to city business and were in no way “private” – even if “private attorneys” were involved.

In retrospect, what should have the City done differently? What will be done differently going forward? The City always has and always will fully support the Freedom of Information Act. The fact that 18 emails were withheld from the hundreds of documents provided was not because the City had something to hide, but because the FOIA guidelines as we understood them – and many other communities in Michigan understood them – indicated the documents not in the City’s possession or not used in the performance of an official function were not subject to disclosure.

The 18 documents were in the possession of a Clarkston official. If the City has understood the FOIA “guidelines” to allow this particular Clarkston official to hide these records, then I think that begs the question – what other documents have been hidden in offsite files over the years? After all, city officers include not only the City Attorney but also the City Manager, Clerk, Treasurer, Assessor, and the Financial Officer.

We contract our engineering work to Hubbell, Roth & Clark (HRC). If you think that I’m overreacting with regard to the City’s cavalier approach to the FOIA, here is a cut and paste from an email between Gary Tressel of HRC and Carol Eberhardt from April 2016, sent during the time that the City was wasting our money during its first effort to force an expansion of the City Hall/DPW building down our throats:

From: Carol Eberhardt [mailto:eberhardtc@villageofclarkston.org]
Sent: Monday, April 04, 2016 9:33 AM
To: Tressel Gary
Subject: RE: Clarkston—-DPW Building Expansion—–Planning Commission Comments for proposed Village Hall expansion for DPW services

Great…thanks Gary. Cory and Robin were here Friday taking pictures of the blue prints and they FIOA’d your stuff. That should get interesting!

Carol

From: Tressel Gary [mailto:GTressel@hrc-engr.com] Sent: Monday, April 04, 2016 9:42 AM
To: ‘Carol Eberhardt’
Subject: RE: Clarkston—-DPW Building Expansion—–Planning Commission Comments for proposed Village Hall expansion for DPW services

We are not subject to Foia, but whatever they want is fine.  We tested the dump truck entering the bays, and it works fine. I am bringing Melissa with me tonight—-You want to grab Dinner before the 6:15 PM meeting and talk about tonight?

<image001.gif>

Gary J.    Tressel Senior Associate
Hubbell, Roth & Clark, Inc.
555 Hulet Drive
P.O. Box 824
Bloomfield Hills, MI 48303-0824
Phone: (248) 454-6300
Direct: (248) 454-6373
Cell: (248) 535-3312
Fax: (248) 454-6312
E-mail: gtressel@hrc-engr.com<mailto:gtressel@hrc-engr.com> 

<image002.jpg>

Engineering. Environment. Excellence. www.hrc-engr.com<http://www.hrc-engr.com/>

The sender intends that this e-mail is for the exclusive use of the person/company to whom it is addressed. This message may contain information that is confidential or privileged and exempt from disclosure under applicable law. If the reader of this e-mail is not the intended recipient, be aware that any disclosure, dissemination, distribution or copying of this communication, or the use of its contents, is prohibited. If you have received this e-mail in error, please immediately notify the sender of your inadvertent receipt and mail the original copy to: Hubbell, Roth & Clark, Inc., P.O. Box 824, Bloomfield Hills, MI 48303.

Notice that the FOIA request was made to then-City Manager Eberhardt by two taxpayers seeking information regarding work that HRC was doing for the City. While Tressel didn’t object to providing information in this particular instance, it’s clear that Eberhardt and Tressel thought that it could be withheld because the taxpayers had FOIA’d “their” (HRC’s) stuff. One might ask what else has been kept on HRC’s premises and away from you.

The Supreme Court’s decision, closely mirroring the recommendation of the Michigan Press Association, is a new interpretation that Clarkston and all of Michigan will need to recalibrate to.

Not really. And the Michigan Supreme Court addressed that those claims in Footnotes 7 and 10 of the decision in my case, which I’ve quoted in part below:

From footnote 7:

We recognize that this argument was offered only by amici–specifically, the Michigan Press Association and other related press organizations–on behalf of plaintiff. Nonetheless, we exercise our judgment to take cognizance of this argument because the instant case implicates a pure question of statutory interpretation and may correctly be resolved, in our judgment, on the basis of this argument.

From footnote 10:

The dissent asserts that “[t]he majority’s holding today portends a radical expansion of the definition of ‘public body’ under FOIA such that it will now encompass all local officers (not just city attorneys).” To the extent the dissent is concerned with the practical implications of our decision, we again disagree that it will effect any radical change in the operation of FOIA.

And this is what has happened. There has been no radical change to the operation of the FOIA as a result of the decision in my case. Groundbreaking cases are widely discussed in legal circles, and this case has not been widely discussed. I’d like to think that it’s because there aren’t other city officials who are affirmatively trying to hide things in off-site files and claim and they aren’t public records and hope that Clarkston is merely a disgusting aberration.

Conclusion

The City of the Village of Clarkston understands and fully respects the importance of the Freedom of Information Act. We also fully respect the ruling of the Michigan Supreme Court and their decision that Susan Bisio is the prevailing party. The lawsuit has been a significant focus for the City for the last five years and we are anxious to return our focus to the operations and protection of our beautiful and historic Village, especially in these difficult times. Of equal importance will be our mission to ensure government transparency. Residents or members of the public that have questions about City operations are strongly encouraged to visit or contact the City office, where the staff will openly share all available information on any topic. City Council meetings on the 2^nd and 4^th Mondays of every month are another opportunity for anybody wishing to speak on a topic or ask a question.

If the City understood and respected the importance of the FOIA, they would have simply released the 18 records when I asked for them. If the City valued transparency, they wouldn’t have promised secrecy regarding the $90,000 contribution from the Michigan Municipal League Liability and Property Pool, and the $35,000 contribution from Ryan’s malpractice insurer, toward the $160,000 total settlement. They also wouldn’t have conducted two settlement approvals in secret and in violation of the Open Meetings Act. To this day, the city council has never formally approved the settlement agreement – which is nothing more than a contract like all others – in an open session. This leaves the door wide open for someone to challenge the agreement in court or to file a criminal complaint against the individual council members with the Oakland County Sheriff.

I’m truly glad that the City has finally accepted the fact that I am indeed the prevailing party in the lawsuit. This was something that they couldn’t bring themselves to admit during settlement discussions, and they refused to sign an agreement that didn’t also include a statement that they contested the fact that I was the prevailing party. In fact, the City asked the court to force me to sign an agreement stating that I was not the prevailing party.

The City says that residents are encouraged to visit City offices and will be provided with “all available information on any topic,” but does this include City information that is kept in an off-site file somewhere? Does the City consider off-site information “available” or “unavailable”? For example, the Charter doesn’t establish the city engineer (currently HRC) as a city official, but we know from the email posted above that HRC believes that information it is paid to create for Clarkston isn’t subject to the FOIA. While I agree that no one could send a FOIA request for Clarkston records to HRC directly, is the City committing to making a request for records pertaining to Clarkston business from HRC, if HRC has chosen not to copy anyone from City Hall? (I’m not suggesting that all HRC records are subject to a Clarkston FOIA, but I am suggesting that material that they are paid to prepare for us belongs to us.) The City also regularly contracts with other entities to perform the official functions of the City, such as ordinance enforcement. Will the City go out and get those Clarkston records upon the request of a citizen, or will they consider those records to be “unavailable”?

I have multiple examples of city officials using private email to discuss city business. Engaging in that conduct means that those email records aren’t contained on the City’s servers. Will city officials continue to use personal email (or text messaging or other communication channels) to discuss city business and claim that information is “unavailable”?

Whether or not the City is serious when it says that “[t]he City of the Village of Clarkston understands and fully respects the importance of the Freedom of Information Act” remains to be seen. What is certain is that I’m not going anywhere, and obstreperous and questionably ethical litigation tactics haven’t scared me away from doing whatever is necessary in the future to exercise my legal rights.

Just sayin’. Let’s hope that the City means what it says.