Lansing city attorney’s office still grappling with FOIA practices

Lansing City Hall

Earlier this summer, City Attorney Brigham Smith endured weeks of controversy over the release of an arrested man’s HIV-positive status in a police report, which culminated in a decision by Michigan Attorney General Mike Cox who ruled that no crime had been committed with the questionable disclosure of private medical information. Following the attorney general’s decision, Smith said he had issued new directives to staff to redact medical information from police reports.

But a recent Freedom of Information Act request is raising new questions about procedures to protect such sensitivities.

Michigan Messenger recently sought documents relating to the alleged anti-gay beating in Lansing. In between the time the FOIA request had been filed Aug. 22 and Sept. 8 when it was responded to, Shawn Bennett, the man who claimed he was beaten, had recanted his story and admitted to fabricating it.

According to the police reports and his own appearance on local CBS affiliate WLNS, Bennett claimed to have been brutally assaulted in Lansing’s Comstock Park. He claimed he was beaten, had cigarettes extinguished on his arm and had gravel put in his ears. He later admitted to police he had made it all up, and inflicted the injuries on himself.

The newly released police reports contain the names, addresses, telephone numbers, descriptions and private medical information, such as medication prescribed by local hospitals.

The city attorney’s office attempted to redact the information with black marker. However, such redactions are not complete unless the redacted document is then photocopied and the photocopy of the redacted document is released. The office of the city attorney released the original redacted document, allowing Michigan Messenger to easily read all the information meant not to be disclosed.

“All I can say is it is a mistake and I will do what I can to make sure it does not happen again,” said Smith, who issued a memo to office of the city attorney employees Friday which reminded them the proper procedure for redacting materials, including sending a photocopy of the redacted original to assure the completeness of the redaction.

Smith also said he believes the information that was not redacted was information he was not obligated to redact from a report. FOIA has both mandatory redaction clauses and discretionary clauses. The attorney general’s office has determined that the release of private medical information is up to the agency making the release, noting that the clearly unwarranted invasion of personal privacy provisions of the law are discretionary.

But the letter accompanying the release of the information, written by Chief Deputy City Attorney and FOIA coordinator John M. Roberts, notes that some of the information was redacted under the Michigan Crime Victims Rights Act. Under that provision, Roberts attempted to redact “for each victim, being those falsely accused by Shawn Bennett, their home address, telephone number, work address and work telephone number.”

Roberts’ letter also said that he had attempted to redact some information in the police report because “disclosure would constitute an unwarranted invasion of personal privacy.” Michigan’s FOIA law prohibits the release of information of that nature, as well as forbidding the release of information that might violate the “right of crime victims to be treated with respect to their dignity and privacy.”

Lansing City Council member Carol Wood, who is trying to unseat incumbent Mayor Virgil Bernero in November, said the release of the information by the city attorney was not acceptable.

“These mistakes cannot continue to be made,” said Wood. “It does not make the city look good.”

During the city council’s Public Safety Committee meeting July 1, members of the panel directed Smith to develop a new policy to prevent the release of private medical information, as well as to improve communications and flow of information between the office of the city attorney and the county prosecutor’s office. Wood, who is a member of that committee, said that to date no such policy has been presented.

Smith has said he is developing a working group to assist in writing the new policy on the release of private medical information. He said he will add the issue of proper redaction to what the committee will review, but he said he is waiting for the committee to invite him back to present the new policy, currently in draft form.

“For him to wait to be called into another public safety committee isn’t acceptable,” Wood said.

Lansing City Council member Sandy Allen, who chairs the Public Safety Committee, declined to comment for this story until she had a chance to talk with the city attorney’s office.

A call to Randy Hannan, spokesman for Bernero, was not returned before publication.