Bernero challenger gives Lansing city attorney 2 weeks to have new FOIA rules

Councilmember and mayoral hopeful Carol Wood and Lansing City Attorney Brigham Smith.

LANSING — A city councilwoman trying to unseat Mayor Virgil Bernero in November is demanding that his city attorney develop a new Freedom of Information Act policy in the next 14 days or she’ll introduce a new city ordinance that would craft new regulations following the controversial release of an arrested man’s HIV-positive status in a public information request of documents related to a May 22 undercover sex sting.

While Michigan Attorney General Mike Cox has determined that Lansing City Attorney Brigham Smith didn’t violate any law in the incident, Carol Wood, an at-large member of the city council, said there needs to be clarity in the city’s FOIA rules and practices to prevent the release of private medical information.

“No matter what the determination has been from the attorney general’s office I believe the city attorney, who is responsible for writing the policies of the police department, should have one that mirrors that policy and have it in effect immediately. If that cannot be facilitated by the city attorney’s office in a reasonable amount of time, Council should look at an ordinance that would incorporate how and what FOIA information is released,” Wood said in an interview. “I believe I would like to see a policy in 10 days.”

The Lansing Police Department’s policy 200-9 outlines the rules for releasing information to the public, and it specifically prohibits the release of HIV information citing both FOIA provisions and the Michigan’s public health code as the basis. The policy was approved in 2005.

Smith has said the policy does not apply to his office.

Wood, along with fellow council members Sandy Allen of the second ward and Eric Hewitt of the fourth ward, met with the city attorney July 1 and requested a policy to avoid a “failure to communicate” that Smith said caused the city to deny the FOIA request twice. In the original FOIA request, Michigan Messenger along with Lansing’s City Pulse weekly newspaper, the Lansing Association for Human Rights and the Detroit-basted Triangle Foundation were looking for documents related to a controversial undercover sex sting in Lansing’s Fenner Nature Center on May 22.

The request was denied originally by the city attorney on grounds that two men arrested in a controversial sex sting operation in May had not yet been arraigned on charges of indecent exposure. Smith advised Lansing City Council President Derrick Quinney to deny an appeal of the original denial, arguing the case was still under review by the office of the city attorney. On June 29, Quinney denied the appeal.

But on June 30, Smith released arrest reports and internal communications around the sting operation when he learned Ingham County Prosecutor Stuart Dunnings III had already successfully prosecuted both men. One man pleaded guilty to the charge of disorderly jostling, the second man plead guilty to indecent exposure, retracted that plea in July, and again pleaded guilty in August.

On July 1, Smith promised the Lansing City Council’s Public Safety Committee that he would have a policy for them within a month.

Wood said the committee has not seen the promised policy and Smith told Michigan Messenger that he does not yet have a draft of the policy completed.

With the policy still unwritten, Wood wants Smith to include policy provisions to prevent the release of confidential health information as part of public information requests, as well as a way to make sure FOIA denials are legitimate and communication with the prosecutor’s office is clear.

Smith has said he has directed city employees who handle FOIA requests to provide additional scrutiny, which would “likely” result in sensitive health information being redacted. This directive will continue until Smith has time to convene a special working group that will develop a new policy for the city. The working group would include community stakeholders.

But Wood questioned the need for a working group to develop a new policy.

“I am not sure why we are not more forward-thinking and in our understanding state statutes, which are on the books, and incorporating them into city policies already,” Wood said. “Why didn’t [Smith] do something to incorporate this into what [he] does on a day to day basis?”

Bernero was not available for an interview, but spokesman Randy Hannan said the mayor thinks the attorney general’s opinion “speaks for itself,” reiterating that the mayor stands behind Smith.

“He further believes that the city attorney’s plans to develop a new policy in conjunction with community stakeholders is appropriate and sufficient to address the issues at hand,” Hannan said in an email.

The issue is of concern because in the arrest reports released on June 30, a report contained information HIV-positive status of one of the men arrested. After luring the man from Fenner Nature Center, a 130-acre park on the city’s near southeast side, to a local apartment complex, officers arrested him. They searched his vehicle and discovered the man’s medications for his infection, and upon questioning about the purpose of the medication, the man disclosed he had been HIV-positive for 18 years.

The release of the man’s HIV status lead to a controversy, with LGBT and civil rights activists arguing the disclosure violated a stringent state law and the city attorney arguing the release was completely legal. The state law makes it a misdemeanor to disclose a person’s HIV-status — whether negative or positive — except under very specific conditions. None of those conditions include police reports.

The Michigan Department of Community Health weighed in on the controversy in mid-July, saying if the city wanted to handle the situation appropriately, it would request an investigation by the attorney general.

At the end of July, Bernero filed a request for an investigation with the Michigan attorney general.

On Aug. 28, David Tanay, chief of the attorney general’s criminal division, exonerated Smith of any wrong doing.

That ruling has been taken to task by the American Civil Liberties Union. State Sen. Gretchen Whitmer, an East Lansing Democrat eying a run for attorney general, has called the decision “scary.”

Wood will square off with Bernero in a Nov. 3 general election. The winner will serve a four-year term as mayor of the capital city.