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Recent legal developments by the Michigan courts regarding the Freedom of Information Act (FOIA) have both helped determine the scope of the statute and presented new legal challenges for public bodies. In 2020, the Michigan Supreme Court issued a decision now requiring certain municipal attorneys to be subject to FOIA disclosure requirements. The impacts of the decision are not fully known, and other municipal offices now previously considered subject to FOIA disclosure requirements and may now be the subject of future litigation. The Michigan Court of Appeals further released several decisions that affect how public bodies must comply with FOIA and contain good reminders of longstanding FOIA principles. This E-Letter highlights and discusses these decisions.
Supreme Court Decides Municipal Attorney is a Public Body Subject to Disclosure Requirements
Simply put, the FOIA provides that a public body shall disclose a public record. Public records include any “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.” On Friday, July 24, the Supreme Court of Michigan expanded the definition of “public body” to include a City Attorney whose office was “created” by City charter. Bisio v. City of the Village of Clarkston, ___ Mich. ___ (2020). The dispute centered around whether certain documents in the City Attorney’s possession were “prepared, owned, used, in the possession of, or retained by a public body.” The City denied a FOIA request looking for correspondence in the City Attorney’s files between the City Attorney and a consulting firm assisting in a City project. The City argued the City Attorney was not a public body and, therefore, documents in his possession were not public records.
The Court looked heavily towards certain sections of the FOIA, including the FOIA’s language that an individual, single officer, or office may be a public body, the FOIA’s explicit exclusion of the governor, lieutenant governor, and their respective offices, and the exemption of the office of the county clerk and its employees. The Court used this language to conclude that an individual officer or office could be a “public body.”
Applying this view of the FOIA, the Court found that the City Attorney, under the City’s charter, was identified as an administrative officer. The City Charter further provided that the administrative officers, including the City Attorney, hold offices within the City. Since the Charter created the “office of the city attorney,” that office is therefore an “other” public body subject to the FOIA. The Court ultimately required the disclosure of correspondences between the City attorney and others on a specific project.
While the Court’s holding will have unknown impacts on City charter created offices, one justice of the Court hinted of a legal theory, that if adopted by the majority, could impact even more employees and contractors of municipalities. In a concurrence (meaning that it is not currently accepted as the law), the Chief Justice comes to the same conclusion that the City Attorney is a public body using a separate theory—the agency theory. Because the City Attorney works on the City’s behalf, it “stands [its] shoes” and created the records as a representative of the City conducting government business. Therefore, the documents were written, in the possession of a public body, and created for an official function. This means they are subject to disclosure under the FOIA. This theory, if adopted (which although not adopted at this juncture could be adopted in the future) would greatly expand the scope of the FOIA because it could make any outside firm contracting with municipalities for municipal business an agent subject to disclosure. This could include engineering firms, architects, public works contractors, insurance agents, and a plethora of various services that municipalities obtain through outside vendors.
The decision does not address the scope of application and it is important to note that its applicability does not appear to apply to townships the same as it would for cities. For many cities, the City Charter establishes the office of the attorney, which the Supreme Court finds significant in holding city attorneys subject to FOIA. But for general law townships, there is no specific charter. General law townships operate under the various statutory authority granted to them. MCL 41.187 does authorize township boards to employ an attorney and compensate an attorney. There is no indication of creating the office of township attorney. Similarly, the Michigan Charter Township Act does not establish the office of township attorney. Thus, the Supreme Court’s majority decision does not seem squarely applicable to townships.
As the dissent notes, for cities, there may be many unintended consequences. City charters often recognize the City Manager, Clerk, Treasurer, Assessor, and Financial Officer as administrative officers in the same sentence as City Attorney. While many of these documents were already considered subject to disclosure, it could impact individuals that provide contracted services to these offices. For instance, if assessing or financial services use independent contractors for support, the impact of this decision on those individuals is unclear.
This decision expands the definition of “public body,” but does not clearly define its scope. This decision also does not address how or whether this holding applies to other municipal corporations, such as townships, villages, and authorities. This will likely not be the end of the conversation on what constitutes a public record and who constitutes a public body.
FOIA Coordinators Should Clarify Whether a Request is Under FOIA
Although the FOIA is a pro-disclosure statute and is construed as such, a written request under the FOIA must follow certain statutory requirements. When a request is made under the FOIA, the public body must provide the public records requested unless exempted. Written requests must be a writing describing the public record sufficiently for the public body to identify it. Receiving a written request triggers the public body’s responsibility to respond within five business days by either granting the request, denying the request, granting in part and denying in part, or extending the response period by no more than ten days.
The Court addressed how a public body should process a written request that explicitly states it is not a FOIA request, but nevertheless substantially conforms to the FOIA requirements for written requests. A citizen sent an email requesting certain documents under the Michigan Constitution’s disclosure requirements for specific financial records. The email specifically stated the citizen was submitting the request under the Constitution and not the FOIA. Although the email fulfilled the basic requirements of a FOIA written request, it was made under the Michigan Constitution, which is a separate law that does not trigger the same response duties. The Court explained that, based on the request, the public body would not have been prompted to respond under FOIA. Therefore, the public body did not have an obligation to issue a response in five days under FOIA.
However, if a FOIA coordinator is unsure if a written request is made under the FOIA as opposed to another law, the coordinator should confirm with the requestor in order to assure the public body is meeting all of its statutory obligations. If the written request is not made under the FOIA, the coordinator does not have to process it under the FOIA requirements. Davis v. City of Detroit, Mich. Court of Appeals, March 24, 2020.
Privacy Exception Is Still Available, But Not if the Requestor is the Person Being Protected
The FOIA provides an exception that allows public bodies to redact certain information or deny a request that would invade an individual’s privacy if that privacy interest outweighs the public’s interest in knowing the information. The privacy exemption has two prongs: (1) the information must be of a personal nature and (2) the public disclosure of that information would constitute a clearly unwarranted invasion of the individual’s privacy. Personal information can include intimate, embarrassing, private, or confidential information. After determining whether the information is private, the public body must weigh the individual’s interest in privacy against the “extent to which disclosure would serve the core purpose of the FOIA.” However, the Privacy Exception cannot be used to redact information or deny a request based on privacy if the requestor is the very person the public body is seeking to protect. Revealing personal information to the subject does not violate any privacy interest, so it is not reasonable to withhold it. To the extent private information does not pertain to the requestor and is outweighed by privacy interests, the public body may redact it. Boswell v. Department of State Police, Mich. Court of Appeals, (May 7, 2020).
Law Enforcement Exemption Only Applies When Interference Would Occur
The FOIA provides an exemption for materials related to ongoing law enforcement investigations if the disclosure would interfere with the law enforcement proceedings. The Court held the mere fact law enforcement is waiting on a pending lab analysis to complete the investigation is not sufficient to use this exemption. When pressed, law enforcement agents stated their belief that, depending on the outcome of the analysis, a potential witness seeing the report might be tainted. The Court stated that relying on a presumption of what a record might contain and how a witness who might see it might react is simply not enough to justify a denial. For this exemption to be justified in its application, the public body must articulate that the production of the records would interfere with the ongoing investigation and explain why. A generic statement that releasing the reports would interfere or could interfere is not enough.
Because the burden is on the public body to show disclosure of investigation records would hamper an ongoing investigation, the public body should be prepared to present a particularized explanation of a denial when using this exemption. The public body should prepare an affidavit or memorandum for its files containing the particularized explanation. The FOIA is a pro-disclosure statute, and the exemptions are read narrowly. When in doubt over whether an investigation record might be exempt under the law enforcement exemption, a public body should err on the side of disclosure. Radford v. Monroe County, Mich. Court of Appeals, (March 17, 2020).
Reminder: The FOIA Requires a Public Body’s Policy to Be Available Online
A public body must have its FOIA procedures and guidelines and a public summary posted online. The policies and procedures must explain to the public how to understand written responses, list any deposit requirements, explain fee calculations, and provide avenues for challenges and appeal. The public summary must be written so the general public can easily read and understand it. The policies and guidelines and summary must be free and also available upon request in the public body’s office. Any public body not conforming with these requirements must continue to process FOIA requests but cannot require deposits or charge fees that would be otherwise permissible under the FOIA. This requirement only exists if the public body has a direct or indirect official internet presence. Most public bodies administer or maintain a website or other official internet presence and must conform to these standards to collect fees in processing a request. Bleau v. Alpena Community College, Mich. Court of Appeals, (February 25, 2020).
Reminder: The Frank Communications Exemption Protects Certain Communications
Certain communications within a public body that are preliminary to a final decision are exempt under from disclosure. The frank communications exemption allows a public body to redact or deny requests if the matter is (1) advisory in nature, (2) preliminary to a final agency decision, and (3) contains material other than purely factual matters. Public officials’ current and future willingness to communicate frankly while reaching a final decision is essential. To use this exemption, the public body must show in the specific instance that the public interest in encouraging frank communications within a public body clearly outweighs the public interest in disclosure. In a recent Court decision, the committee report recommending whether a professor continues to earn professorship was prepared in an advisory report for a university’s use in making a final decision. The Court upheld redaction of parts of the committee report. The committee report was preliminary to the final decision because it was used by the University as a recommendation to aid in a final determination. Disclosing the full report would deter frank communications between committee members because their identities and opinions would be revealed.
This exemption is rarely litigated, so its contours and scope are not well-established. The analysis is highly fact-specific, and the Michigan Supreme Court warns against speaking in generalities or platitudes when weighing public interest against frank communications. Although difficult to apply to specific situations, it nonetheless exists and can be used to redact information or deny requests in certain circumstances. Schaubroeck v. Michigan State University, Mich. Court of Appeals, (May 14, 2020).
If you have any FOIA questions arising out of these recent legal developments, please contact your Township Attorneys at Fahey Schultz Burzych Rhodes, PLC. We are happy to help with any legal challenges related to Township FOIA.
Chris Patterson & Kristin Sutor
>Fahey Schultz Burzych Rhodes PLC, Your Township Attorneys, is a Michigan law firm specializing in the representation of Michigan townships. Our lawyers have more than 150 years of experience in township law and have represented more than 150 townships across the state of Michigan. This publication is intended for our clients and friends. This communication highlights specific areas of law and is not legal advice. The reader should consult an attorney to determine how the information applies to any specific situation.
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