As city attorney stands his ground, new documents raise questions in Lansing sex sting case

LANSING — New documents obtained by Michigan Messenger show Lansing City Attorney Brigham Smith may have violated city policies and state laws when he released the HIV-positive status of a man arrested in a May 22 sex sting operation in a city nature center. Smith argues he has not broken any laws.

The information about the man was released by Smith in response to a Freedom of Information Act request by Michigan Messenger and City Pulse newspaper, the Detroit-based Triangle Foundation and the Lansing Association for Human Rights. The information sought included police reports and internal communications related to the undercover operation. The HIV-positive status of the man was included in his arrest report. And while Smith redacted the names of undercover officers involved in the sting operation, he did not redact the man’s HIV-positive status, something the Ingham County prosecutor’s office chose to do when prompted to release information related to the case.

Michigan Messenger is not naming the arrested man because of privacy concerns related to his HIV status.

Advocates for the lesbian, gay, bisexual and transgender community as well as for the HIV community have said the release violated a stringent state law that makes it a misdemeanor to disclose a person’s HIV status, except under very specific conditions. Smith argues the law does not apply to the office of the city attorney and that he was within his rights to release the information.

The county prosecutor’s office did not believe the HIV-status information should have been released and in a FOIA request to that office, Assistant Ingham County Prosecutor Eric Matteo redacted the HIV information from the report.

“I also have deleted a paragraph on page 4 of the police report,” Matteo wrote on July 9. “This information is exempt from disclosure under FOIA section 13(1)(b)(iii) because releasing it would constitute an unwarranted invasion of these individuals’ personal privacy.”

Matteo also deleted the name of the accused man’s wife, in addition to the couple’s address, telephone number and Social Security number, information that was not redacted by Smith.

Matteo relied on a provision of FOIA which allows agencies to redact information from otherwise public documents if the information would constitute a clearly unwarranted invasion of a person’s privacy.

That section of the FOIA law and others are also contained in a Lansing Police Department policy released to Michigan Messenger after multiple requests.

Operational Procedure 200-9 specifically prohibits Lansing police officials from releasing HIV information, and cites the state law as the basis for that rule. The procedure was adopted by the police department in 2005, before Smith was hired by the city, but would have been approved by the office of the city attorney as a matter of standard procedure.

Smith is standing his ground, saying the procedure doesn’t matter.

“I would also reiterate that the policy governs only communications as to direct media inquiries, and then only as to LPD personnel, to ensure consistency and reliability in the contacts,” Smith wrote in an email to Michigan Messenger. “It is not intended to govern FOIA responses by the Office of the City Attorney.”

However, the Statement of Policy dictating the reason for the policy states:

The Lansing Police Department (LPD), recognizes the public’s right to have access to public records and the news media’s right to report on matters of public interest. Michigan’s Freedom of Information Act (FOIA) governs access to/and release of public records and information. It is the policy of the LPD to maintain a cooperative approach to providing information on matters of public concern to the media and general public. Information will be released to the media without partiality. Employees of the LPD shall not delay the release of information to favor any particular news representative.

The policy regularly references Michigan’s FOIA law, including specific provisions about the disclosure of HIV or other serious communicable disease information.

In addition to citing the Public Health Code prohibition on releasing a person’s HIV status, the policy also cites the FOIA law’s exemption on releasing “information of a personal nature which, if released, would constitute an unwarranted invasion of an individual’s privacy.”

While Lansing police policies and the Ingham County Prosecutor’s office believe the HIV status of individuals arrested is private and not to be released, Smith did the opposite.

The resulting controversy led Lansing Mayor Virgil Bernero to ask Michigan Attorney General Mike Cox to investigate the case “to determine whether the release of this information pursuant to FOIA violated either HIPAA or the Michigan Public Health Code,” the mayor wrote in his request to the attorney general.

One media attorney, Dawn Phillips Hertz from the Michigan Press Association said the request is a “political hot potato” for the attorney general, but notes that she does not believe that any of the three laws were violated.

Hertz said her reading of HIPPA and the Michigan Public Health Code clearly indicate the police and prosecutors are not obligated to follow those laws. She said they apply only to those involved in medical care. On the other hand, she said the FOIA law provision on exemption information of a personal nature was the call of each FOIA officer, because it is not an automatic exemption, but rather a permissive exemption.

She did sound some sympathy for those who have voiced concerns about the release of the man’s HIV-positive status, noting that the information may not have needed to be in the report at all.

“Is it in the public interest [to have the HIV status in the report]?” she asked. “If they’re just trying to make him a pariah that gets into another issue. It raises a lot of other issues.”

A copy of the Lansing Police Department’s policy is below.

200 9 Public Access to Dept Information