Mayor Awards Himself More Power While Admitting City Wrongly Withheld Lawsuit Info

Saturday, December 15, 2018, 8:10 am
By: 
Alice Dreger, Publisher

Mark Meadows has issued a ruling declaring that the Mayor – that is, himself – is the ultimate authority in East Lansing in terms of responses to Freedom of Information Act requests.

Michigan law says that denials of Freedom of Information Act (FOIA) requests may be appealed to “the head of the public body” of a governmental unit. In a recent appeal made to City Council, ELi contended that the “head of the public body” is City Council as a whole.

But Meadows has decided that a clause in the City Charter supports his contention that he alone is “the head of the public body,” and that he alone will rule on the merit of FOIA appeals.

This is in contradiction to the City’s existing FOIA policy, which states, “The City Manager, being the chief administrative officer of the City pursuant to the City Charter, is designated the head of the City for purposes of all appeals made pursuant” to State law.

In the same legalistically-elaborate ruling, Meadows also admits that the City improperly withheld from ELi information about lawsuits in which the City is engaged. He ordered the material we asked for released to some extent.

Here’s the background:

Back on November 8, ELi put in a FOIA request to the City asking for a memo conveyed by City Attorney Tom Yeadon to City Council. That memo was described in a Council agenda as being Yeadon’s “Quarterly litigation status report” – an update on lawsuits in which the City is engaged.

Usually Yeadon conveys this information orally in a closed session of Council, making it impossible to use FOIA to obtain it. (FOIA only allows citizens to obtain existing records.) But seeing that Yeadon had put the information in writing, we saw an opportunity to try to find out for ELi readers more about lawsuits in which the City is embroiled.

On November 14, the City denied our FOIA request, indicating all of the material we requested – Yeadon’s report to Council – is subject to attorney-client privilege. The City released nothing at all, meaning we could not even see how many pages were in the document or how Yeadon addressed Council.

Knowing this was an overreach of a claim to attorney-client privilege, we appealed the decision on November 20.

Our goal was to force the release of information that is supposed to be public, to learn more about the City’s legal situation, and to try to get the City to acknowledge it has been improperly using claims of attorney-client privilege to withhold information that is supposed to be public.

Commenting for ELi on a previous but similar FOIA denial, Adam Marshall, Knight Foundation Litigation Attorney for D.C.-based Reporters Committee for Freedom of the Press, observed, “The whole notion of attorney-client privilege in the context of a government body is a little odd because the ultimate client is the people.”

Marshall also said, in reference to our recent appeal, “The public has a right to know what governmental bodies and officials are doing, including, to the maximum extent permitted by law, their involvement in any litigation. Lawsuits are frequently a costly and time-consuming affair, and the public should be informed as to how their tax dollars are being spent.”

FOIA law strictly limits what the City can withhold from public view, and says explanations must be provided when documents are denied.

And, in fact, in his response to ELi’s appeal, Meadows acknowledged material had been improperly withheld.

Meadows ordered release of a copy in which the redaction would “be limited to that portion of the report which consists of suggested Strategy related to matters identified in the report, language specific to questions raised by Council Members or other City employees relative to the specific cases identified or any other matter that is not purely factual.”

You can see the redacted and released version of Yeadon’s report here. We’ll be following up on some of what the document shows in future reporting.

 

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Note: This article was updated on Dec. 17 to add that the existing FOIA policy designates the City Manager "head of the public body."

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