New FOIA Policy for East Lansing Hands Power to City Manager and Mayor

Wednesday, December 19, 2018, 1:09 pm
By: 
Alice Dreger

East Lansing’s City Council voted 3-2 last night on a resolution designating a new Freedom of Information Act policy. The new policy as now established hands substantial power to the City Manager and the Mayor, taking away powers that had been held by the Council as a whole.

The vote on the resolution was 3-2, along the typical line, with Mayor Mark Meadows, Erik Altmann, and Ruth Beier voting in favor.

Shanna Draheim and Aaron Stephens voted against, after first trying to defer the matter until Council’s next meeting in January, saying they simply wanted to see the full details of the proposed new approach before voting. They were voted down by their three colleagues.

The resolution passed in the 3-2 vote allows the City Manager to set Freedom of Information Act (FOIA) procedures and policy for the City, without any consultation with the Council.

It also allows the City Manager to change the City’s FOIA policy at will, again without any consultation with the City Council.

This morning, City Manager George Lahanas exercised his new power, once held by the Council, by giving the Mayor another power once held by the Council.

Michigan’s FOIA law states that appeals to FOIA denials at the local level will be heard and determined by “the head of the public body.” The previous policy said that was the City Manager.

But today, in his just-released detailed policy, Lahanas designated the Mayor as “head of the public body for FOIA purposes.”

Securing power for the mayor as the motivating factor:

Based on comments made by the City Manager and City Attorney last night, plus a comparison of the new and old policies, giving the Mayor the sole right rule on FOIA appeals appears to have been the chief motivation behind the whole change.

City Manager George Lahanas explained before the vote last night that the only real change he was planning to institute was “a minor change in the appeals process.”

Similarly, asked why the changes were being made, City Attorney Tom Yeadon referred to a recent undated opinion by Meadows “establishing himself as the head of the public body.”

Meadows issued that opinion, declaring himself in charge of FOIA appeals, in response to a denial appeal from ELi. As ELi pointed out earlier this week, Meadows’ recent declaration was in direct contradiction to the City’s existing FOIA policy, which named the City Manager head of the public body for FOIA appeals.

So, something had to change to secure Meadows’ claim to this power. That’s exactly what has now happened with the 3-2 vote of Council last night, and today’s new policy from Lahanas.

Experts in Michigan FOIA law say that Meadows’ declaration of himself as “the head of the public body” is likely to be found improper by a court, if the City is sued. State law on FOIA refers to meetings of “the head of the public body,” and it appears unlikely legislators would have envisioned one person meeting with himself.

Additionally, as ELi noted in the appeal that appears to have spurred this change, a ruling by the Michigan Court of Appeals indicates that the “head of the public body” in this case would be City Council as a whole.

What’s changed exactly:

The specifics of the new FOIA policy were released by the City Manager this morning and signed by Lahanas with the odd phrase “It is so ordered,” as if it were a judge’s ruling. (It’s the same phrase Meadows used in signing his response to ELi’s FOIA appeal.)

The new policy from Lahanas is different from the old policy approved by Council in 2015 in only a very few significant ways:

  • It formally names the City Manager the FOIA coordinator instead of the City Clerk, but then immediately designates the actual work to the City Clerk.
  • It names the Mayor the “head of the Public Body for FOIA purposes” and allows him the sole right to decide on FOIA appeals, including on appeals of fees charged for release of public documents and appeals on denials of public records requests.
  • It also deletes a paragraph stating that “the City Manager and all City employees shall, at all times, comply with the [State FOIA] Act….The City Attorney’s office is available for assistance as to compliance with the Act and these policies, procedures and guidelines, the legality of any denial, or other questions relative to FOIA requests.”

A quick change, surprising the public, at least two Council Members, and the City Clerk:

As ELI reported earlier this week, the matter of a major FOIA policy change appeared on Council’s docket for yesterday with no clear explanation. The item appeared specifically on the consent agenda, meaning the Mayor had slated it to be voted through without discussion.

It also appeared on that agenda with no clear reference to its purpose, reading simply “Approval of Policy Resolution 2018-14,” with no explanatory title or memo. By last night, Meadows had changed the agenda item title to something much clearer, and said he had made it vague at first simply because he needed a placeholder on the agenda for the item.

At last night’s meeting, Stephens said that the first that City Clerk Jennifer Shuster had heard of this proposed change was from the agenda.

Stephens exercised his right to pull the item off the consent agenda and put it on the business agenda, which was what forced discussion of the matter.

In discussion, Draheim said she did not understand “the time crunch” and said she wanted more time to study the policy and to see Lahanas’s proposed approach before she voted. She said this wasn’t like a simple zoning change that required no discussion.

Altmann said people should not “find a conspiracy” in the matter. He suggested the proposal was just aimed at putting the City Manager in charge, as he said should be according to the City Charter.

Stephens responded by saying he wasn’t a conspiracy theorist, he was simply trying to get information about what he was being asked to vote on.

Stephens also suggested that Council ought to at least vote specifically to give the Mayor the right to decide appeals alone, in order to potentially insulate the City from lawsuits over this issue. 

But in later comments, Lahanas said it would be up to him to decide who would hear appeals. Council, he said, doesn’t get to do a “thumbs up or thumbs down” on his administrative orders.

And now that applies to attempts by citizens, including reporters, to obtain public documents. Council is out of the loop, Lahanas can change the policy at will, and the Mayor alone is in charge of appeals. This will only likely change via a new policy resolution from Council, or a court order.

 

Note, December 27, 2018: The original version of this article referred to comments made by Patrick Rose at City Council. Those references have been removed following Rose's objections.