Lansing City Council committee demands FOIA policy from city attorney

LANSING — The city council’s Public Safety Committee demanded that City Attorney Brigham Smith provide a draft policy to that body in a special 6 p.m. meeting Monday night, or it will introduce an ordinance to address problems with the city’s responses to Freedom of Information Act requests.

First Ward Council member Eric Hewitt said the release of private medical information earlier this year by Smith shows there is “a chasm” on FOIA policy. Michigan Messenger has documented two cases in which the city attorney’s office has released private medical information. The first instance was in July when Smith himself released the HIV status of a man arrested in a controversial sex-sting operation in a local park. Smith said he had ordered city staff not to release medical information in FOIA responses as a result of the situation.

But a second incident followed in September when an attorney in the city attorney’s office released private medical information as well as names and addresses of people falsely accused of a crime in bizarre case where a gay man beat himself up and accused others of the crime.

Smith was not present at the Public Safety Committee meeting on Wednesday, as he was out sick. But he called Michigan Messenger back, and in between coughing fits, explained that he has a draft policy but that it does not yet address all the concerns the committee has expressed. “It will be evolving,” he said.

Smith on July 1 promised the committee he would present a policy within a month to address a break down in communication between his office and county prosecutor Stuart Dunnings which lead to a request for police reports in the sting operation being denied under FOIA. An appeal by Michigan Messenger, City Pulse, and several community organizations was also denied by Lansing City Council President Derrick Quinney.

Council members also expressed concern that a policy might not be enough. Under FOIA, public bodies have broad latitude in determining what information is considered “private information which would be considered an unwarranted invasion of privacy.” That part of the law is what legal experts call permissive, meaning the public body gets to decide if it wants to redact certain information.

“I am not sure a policy is enough,” said at-large council member Carol Wood. “I want people to be able to do something if the policy is violated, and I think the only thing for that is an ordinance.”

By codifying FOIA policy into an ordinance, the city would create a misdemeanor crime for anyone violating the ordinance — meaning they could face up to 93 days in jail and a fine.

The man whose HIV status was released attempted to file criminal complaints against the city attorney and city police, only to be given a run around by several law enforcement agencies including the Ingham County Sheriff’s office, the Michigan State Police, and the Criminal Division of the Attorney General’s office. He finally filed a complaint with the Lansing Police Department, with the help of Penny Gardner, president of the Lansing Association for Human Rights, a Lansing area gay rights group.

The disclosure of the man’s HIV status lead to a review by the office of the Attorney General Mike Cox, who ruled it had not violated an untested and stringent state law which makes it a crime to release a person’s HIV status. That ruling lead Wood in early Sept. to call on Smith to have a new policy in two weeks. No policy was presented.