Michigan Supreme Court rules forces disclosure in Clarkston records case

Craig Mauger
The Detroit News

Lansing — The Michigan Supreme Court ruled Friday that a city attorney's correspondence with a consulting firm was subject to the state's open records law despite the documents being kept in the attorney's own files and not the city's.

The ruling is "faithful" to Michigan's Freedom of Information Act, which provides "broad rights" to residents to obtain public records, said Justice Stephen Markman, a Republican nominee who wrote the majority opinion.

The Michigan Supreme Court.

But Justice David Viviano, a GOP nominee, said the decision would bring a "radical expansion" of the transparency law to affect "many thousands of local officers."

"The majority’s mangling of the meaning of 'body' and 'office' will, I am afraid, have many serious consequences beyond this case," Vivano wrote.

The 6-1 decision was spurred by a 2015 public records request in Clarkston, where Susan Bisio sought correspondence between Clarkston's city attorney — a private attorney who contracted with the city — and a consultant over a development deal.

The Oakland County city refused to release certain documents contained in the files of the city attorney off premises, arguing that the city attorney wasn't a "public body" that would have to release records under FOIA. So Bisio sued.

The trial court and the state Court of Appeals agreed with Clarkston's interpretation of the law. But the Michigan Supreme Court reversed the lower courts, saying the city attorney was a city "office" under the city's charter so the documents would have to be released.

Four justices signed onto Markman's opinion. Chief Justice Bridget Mary McCormack, a Democratic nominee, wrote a concurring opinion, finding that the city attorney's was an agent of the city so his communications were public records that would have to be released.

Viviano was the lone dissenter. He said under the majority's opinion, "any legal authority creating an officer position ipso facto creates an office subject to FOIA."

"The 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," Viviano added.

But Markman rejected the argument that the ruling marked a "radical expansion" of FOIA, a law that already requires city officials, like mayors, to release records prepared in the performance of "an official function" with some exceptions.

"We therefore struggle to conceive of an example or illustration of a 'public record' subject to disclosure under FOIA in which the pertinent 'public body' is the 'office of the city mayor' but is not also understood to be the city itself," Markman wrote.

Attorneys working on behalf of the Michigan Press Association and media outlets, including The Detroit News, filed a brief in the case, arguing in favor of the release of the documents.

Robin Luce Herrmann, general counsel to the Michigan Press Association, said she didn't see the court's ruling as a radical broadening of what documents are subject to the open records law.

Luce Herrmann said she couldn't think of many examples similar to the Clarkston city attorney. But there have increases in outsourcing or contracting out of government functions that were previously performed by public employees, which could cause a similar situation to arise, she said.