New Lansing FOIA policies to be developed behind closed doors

LANSING — City Attorney Brigham Smith wants a working group being put together to develop new Freedom of Information Act policies for the city in the wake of a series of incidents earlier this year where he was criticized for being careless with private information. But the details of the capital city’s information disclosure guidelines will be hammered out in private.

“I actually think it’s better if we don’t [open the meetings] for the reason we can probably be more candid that way,” Smith said late last week when asked if the meetings would be open to the public.

Omar Chaudhary, a lawyer from Butzel Long, which runs a legal hotline in conjunction with the Michigan Press Association, said Smith can argue the group is creating a legal opinion, which would be protected by attorney-client privilege. That, he said, means the group can meet in closed session and with no public input.

“They’re trying to be very clever with the law,” Chaudary said.

Carol Wood, an at-large Lansing City Council member, said the proposed closed meetings trouble her.

“This is government, shouldn’t we have an open-door policy with this?” Wood asked.

Penny Gardner, the president of the Lansing Association for Human Rights who has been named a member of the working group, said the closed-door meeting is “another roadblock to transparency.”

Lansing City Clerk Chris Swope, also a working group member, said he doesn’t have a problem with the group meeting behind closed doors. “I think it’s not a body covered by the Open Meetings Act,” Swope said. “I think it’s appropriate to have some discussions as the perceived problems as a working group.”

Other working groups members identified by Smith include Bernadette Brown, policy director for the Detroit-based gay rights group Triangle Foundation; Nancy English, from LAHR; Dennis Hall, the former LAHR president; and Lansing Police Chief Mark Alley.

The working group is being formed, Smith said, to advise him in the development of new policies for the city in responding to FOIA requests. FOIA is a broad state law which gives citizens and the media access to public documents. Lansing is reviewing and developing new policies in response to a controversy from this past summer over the release of the HIV-positive status of a man arrested in a controversial undercover sex sting.

Leaders in the gay community have said the release violated a strict, yet untested, state law which prohibits the release of a person’s HIV status except under specific circumstances. The man was charged with one count of indecent exposure, and pleaded guilty in Ingham County Circuit Court.

The controversy over the release of the man’s HIV status resulted in Mayor Virgil Bernero asking Michigan Attorney General Mike Cox to review the matter. In late August, the attorney general ruled that Smith had not violated any laws in releasing the HIV-positive status of the man arrested.

As a result, Smith said he directed staff in his office to redact medical information in FOIA requests, but shortly after that order went out, lawyers from the city attorney’s office released a police report in the case of a false accusation of an antigay hate crime in Lansing where private medical information, names and addresses of minors and the names and addresses of people falsely accused of a crime were improperly redacted.

Smith and the city council have been at odds over the policy since July, when the Public Safety Committee ordered Smith to provide a new policy in a month. No policy was presented. That drove Wood to declare in September she was giving Smith two weeks to develop and release a new policy or she would introduce an ordinance.

Draft ordinance language was released to Public Safety members on Nov. 9, and Smith quickly released a draft document which he said the working group would review and revise. Wood asked Smith to consider the draft ordinance language and explain if it could be implemented in a new policy.

During last week special Public Safety meeting on Friday, Smith released a memo to the committee explaining that the ordinance language could not be included in the policy, because state law prohibited the city from creating an ordinance about FOIA.

Smith and council members have said they will have a new policy in place by the end of the city council legislative session in December.