LANSING — After Lansing City Attorney Brigham Smith spent Wednesday afternoon explaining the policies and procedures he and his working group on Freedom of Information Act adherence put together in the last two weeks to the Lansing City Council’s Public Safety Committee, the committee sent Smith back to the drawing board with requests for more clarifications on the policy.

Councilmember Carol Wood and Lansing City Attorney Brigham Smith

Councilmember Carol Wood and Lansing City Attorney Brigham Smith

Specifically, committee members want Smith to clarify what, if any, punishment employees could face if the policies and procedures are violated as well as a procedure to allow those who submit FOIA requests to have the costs of fulfilling their request waived when it is in the public interest to do so.

Smith said both were areas where the city must tread carefully.

“If there’s a violation of this there needs to be repercussions,” said Carol Wood, an at-large council member and vice chair of the Public Safety Committee. “We are affecting people’s lives everyday.”

“I don’t think we forget that,” said Smith in response. He said such violations were ultimately his responsibility. “That’s with me. The fault lies with me.”

“We’re not looking to place blame, but to inspire confidence that their concerns are being taken seriously,” said Eric Hewitt, a council member from the First Ward.

But the issue of punishing employees for violations is complicated, Smith said, by the fact that any such procedures would be governed by the union contract for those employees and therefore must be in their negotiated contract in order to be enforced.

But council members and Smith may be saved from having to rummage too deep into the controversy of how to take action. A state law allows for action to be taken against public officers or employees who “divulge to an unauthorized person, confidential information acquired in the course of employment in advance of the time prescribed for its authorized release to the public.”

Committee members also battled Smith on waiving fees for news-gathering outlets or media entities. Smith pointed to a section of the FOIA law which mandates that if fees are charged, then those fees must be uniform. He said the city has no choice but to charge everyone, whether media or citizen, for access to public documents.

Wood asked Smith if a procedure could be put in place allowing the City Council to waive fees. She said she was worried that some people might be paying for documents which should already be public, and wanted to make sure there was a mechanism to refund monies under such situations.

Smith said such a move could be possible, and promised to investigate and report back to the committee on Monday at 1 p.m.

The city attorney’s working group — which includes Lansing City Clerk Chris Swope, Lansing Association for Human Rights President Penny Gardner, Triangle Foundation Director of Policy Bernadette Brown, former LAHR President Dennis Hall, Lansing Police Chief Mark Alley and Smith — came under some fire for holding its first meeting on reforming the city’s transparency guidelines in secret.

The policy rewrite became necessary this summer when Smith found himself at the center of a controversy. He released the HIV-positive status of a man arrested in a controversial sex-sting in a Lansing park. Activists said this release violated a stringent, but untested state law. But an attorney general review of the matter exonerated Smith of any wrong-doing.

The new policies and procedures specifically cite the Michigan Public Health Code provision on confidentiality of HIV-status as well as the Health Information Portability and Protection Act (HIPPA) federal law as the basis to redact certain information.

The man whose HIV-positive status was released attempted to file criminal reports against Smith, and after several attempts to file with the Ingham County Sheriff, the Michigan State Police and the Attorney General’s Criminal Division, finally was able to file a complaint with the Lansing Police Department’s Internal Affairs Division. The outcome of that complaint is unknown.

Regardless of how Smith and City Council’s Public Safety Committee resolve the question of accountability for violating the new policies and procedures, Wood asked Smith to write a letter to the man explaining the outcome of the controversy surrounding the release of his HIV-positive status. Smith said he would do so.

The new policies and procedures, as proposed, can be read here, here and here.