CITY ATTORNEY OPINION 09-36

TO:

CAROL WOOD, CITY COUNCIL MEMBER CITY COUNCIL MEMBERS

FROM:

BRIG SMITH, CITY ATTORNEYJACK ROBERTS, CHIEF DEPUTY CITY ATTORNEYSARA STURING, SPECIAL ASSISTANT CITY ATTORNEY

CC:

VIRG BERNERO, MAYOR JERRY AMBROSE, CHIEF OF STAFFRANDY HANNAN, DEPUTY CHIEF OF STAFFOCA PERSONNEL

DATE:

AUGUST 18, 2009 (UPDATED NOVEMBER 9, 2009)

SUBJECT: FREEDOM OF INFORMATION ACT POLICIES AND PROCEDURESBACKGROUND

This opinion responds to a request for a clear statement of the City’s policies and procedures for Freedom of Information Act (FOIA) requests. The request stemmed from amiscommunication between the Office of the City Attorney (OCA) and the Ingham CountyProsecutor’s Office (ICPO) regarding a FOIA request for police records relating to a May 22,2009 undercover sting at Fenner Park. Ex. A.The sting resulted in two arrests, including one individual who indicated during a policeinterview at the time of his arrest first that he was “clean” as to HIV status and later he was HIV positive. The original June 1, 2009 FOIA request was denied on the grounds that theinvestigation was still pending, and indeed, neither individual had yet been arraigned. Ex. B.Based on discussions with LPD, this office understood that the charging decision rested with theOCA, not the ICPO. The FOIA denial was appealed. On June 29, 2009, City Council PresidentQuinney denied the appeal. Ex. C. On June 30, 2009, the OCA discovered that the ICPO hadobtained the police records relating to the sting, and had already issued charges. Indeed, the twoindividuals had even entered guilty pleas. The OCA immediately released the records requestedin the June 1, 2009 FOIA, redacting specific confidential information pursuant to statute. Ex. D.The records released on June 30, 2009 included information about one of the individual’sconflicting statements about his HIV status. This prompted additional questions about the propriety of releasing such information. On July 29, 2009, Mayor Bernero requested that theAttorney General conduct a formal independent investigation of the OCA and its release of thisinformation. Ex. E. On August 28, 2009, the Attorney General exonerated the OCA. Ex. F.

CITY ATTORNEY OPINION 09-36

2This opinion addresses some of the procedural and substantive issues the Fenner Park FOIA raises. The original inquiry from City Council dealt with how appeals of FOIA denials arehandled, in light of President Quinney’s June 29, 2009 decision and the subsequent release of documents on June 30, 2009. This opinion addresses that inquiry. The opinion, however, goes beyond just the appeal process to address broader questions of procedure and substance.Procedurally, the opinion provides the OCA’s latest FOIA Policies and Procedures, andincludes references to FOIA Policies and Procedures other state and local agencies use, includingthe current FOIA Policies and Procedures of the Attorney General.Substantively, the opinion addresses, through these Policies and Procedures, safeguardsto be implemented when considering release of information under FOIA and redaction of suchinformation pursuant to exemptions. The substantive issue of privacy, and specifically of medical information like alleged HIV-positive status, is the subject of a Working Group thatincludes the ACLU, the Triangle Foundation, Lansing Area Human Rights (LAHR), and lawenforcement. The OCA’s FOIA Policies and Procedures will be updated following completionof the Working Group’s efforts, and City Council will be provided with the updated Policies andProcedures.

QUESTIONS PRESENTED1.

What OCA Policies and Procedures exist for handling FOIA requests, denials, andappeals?

How must appeals of FOIA denials be handled?

SHORT ANSWERS1.

The OCA FOIA Policies and Procedures follow, as they must, the FOIA statute itself.The latest versions of the Policies and Procedures are attached, and incorporatesafeguards modeled after the FOIA Policies and Procedures the Attorney General uses.

The appropriate procedures for handling FOIA appeals are contained within the FOIAstatute and are reflected in the attached Policies and Procedures.

ANALYSISI.

THE OCA’S UPDATED FOIA POLICIES AND PROCEDURES REFLECTSAFEGUARDS GLEANED FROM STATE AND LOCAL AGENCIES.

The OCA has had FOIA Polices and Procedures in place through the last several CityAttorneys. Following the Fenner Park FOIA experience, we have updated these Policies andProcedures based on issues uncovered in coordination with the ICPO and based on FOIAPolicies and Procedures used by other agencies, including the Attorney General. The revised

CITY ATTORNEY OPINION 09-36

3Policies and Procedures are attached as Exhibit G. The Policies and Procedures used by other agencies are attached as Exhibit H.

II.

THE OCA HANDLES FOIA APPEALS PURSUANT TO STATUTE, WHICH ISREFLECTED IN THE OCA’S FOIA POLICIES AND PROCEDURES.

As reflected in the OCA’s Policies and Procedures, Michigan’s Freedom of InformationAct allows a person whose FOIA request has been denied to either appeal to the head of the public body or bring an action in circuit court.

See

MCL 15.240(1). If, instead of filing the courtaction, an appeal is first taken to the City as the public body, the appeal is made to

the

“head of the public body.” Because FOIA does not define the term “head of the public body,” this office,in consultation with then Police Legal Advisor, Paul McComb, has previously concluded that theCity Council President is the head of the public body for purposes of FOIA appeals and, as such,appeals are solely to be considered by the City Council President and not the Council as a whole.To meet the formality of the FOIA, an appeal to the City Council President: (1) must bein writing, (2) must contain the word “appeal,” and (3) must identify the basis for reversing thedenial.

See

MCL 15.240(1)(a).Within 10 days of receiving an appeal, the City Council President must: (a) reverse thedenial, (b) uphold the denial in writing, (c) reverse the denial in part and uphold the denial, inwriting, in part, or (d) under unusual circumstances, extend, in writing, for up to 10 businessdays, the period for responding, after which time the City Council President must do (a), (b), or (c).

See

MCL 15.240(2). Unusual circumstances are defined as, to the extent necessary to properly process the request, “[t]he need to search for, collect, or appropriately examine or review a voluminous amount of separate and distinct public records pursuant to a single request”or “[t]he need to collect the requested public records from numerous field offices, facilities, or other establishments which are located apart from the particular office receiving or processingthe request.” MCL 15.232(g). Thus, in the absence of one of these situations, the City CouncilPresident has ten days to uphold the denial, reverse the denial, or uphold the denial in part andreverse the denial in part. Any denial that is upheld or upheld in part must be done in writing.“If the [City Council President] fails to respond to a written appeal . . . or if the [CityCouncil President] upholds all or a portion of the disclosure denial that is the subject of thewritten appeal, the requesting person may . . . commenc[e] an action in circuit court.” MCL15.240(3). The action must be commenced within 180 days of the final determination to denythe request.

See

MCL 15.240(1)(b). In such an appeal, “a court that determines a public recordis not exempt from disclosure shall order the public body to cease withholding or to produce allor a portion of a public record wrongfully withheld.” MCL 15.240(4). If the party seekingdisclosure completely prevails, “the court shall award reasonable attorneys’ fees, costs, anddisbursements.” MCL 15.240(6).Further, “[i]f the circuit court determines in an action commenced under this section thatthe public body has arbitrarily and capriciously violated [FOIA] by refusal or delay in disclosingor providing copies of a public record, the court shall award, in addition to any actual or compensatory damages, punitive damages in the amount of $500.00.” MCL 15.240(7). Finally,