Lansing City Council continues to wrestle with FOIA policy

The Lansing City Council may have two new members, and a brand new committee structure and leadership, but it is still wrestling with a proposed Freedom of Information Act policy.

The body’s newly reconstituted Public Safety Committee, with Councilmember Carol Wood now at the helm, took the issue up again Tuesday morning. During that meeting, Brigham Smith, Lansing’s city attorney, presented the public safety committee with two memos dealing with FOIA proposals.

The issue has been brewing since July when Smith released the arrest reports of two men caught in a controversial sex-sting operation in Lansing’s Fenner Nature Center. Included in one of those reports was the HIV-positive status of one of the men arrested in the sting operation. Activists argued the sting operation was “entrapment” and argued releasing the HIV status violated a stringent but untested state law. The attorney general ruled in August that the release of the HIV-status had not broken any laws.

At the heart of the debate is whether or not the city can adopt a local ordinance which makes FOIA disclosure compulsory by creating punishment for not doing so, and whether the city can waive fees for media groups seeking information in the course of their jobs reporting on city actions. Smith says the answer to both is no.

In relation to an ordinance, Smith writes to council and the mayor:

FOIA is one of a number of statutes that have “preempted the field,” which means that the State exclusively occupies regulation, and municipalities can neither add to nor take from the State’s regulation.

Council members on the Public Safety Committee have heard this argument for months now, but say they don’t buy Smith’s understanding of the law. They point to other laws the city has been ordered, by state law, to pass. Those laws, the members argue, were adapted to tighter rules and different regulations than the state law.

In relation to releasing documents to the media at no cost, Smith says the answer is both yes and no.

Although the City can neither add to nor take from the FOIA Statute, the Statute itself provides for a waiver or reduction of fees if it is determined that this would “primarily benefit the general public,” and it also provides for a waiver of the first $20 of fees if the requestor submits an affidavit showing indigency. Beyond that, however, the Act clearly states that “[f]ees shall be uniform and not dependent on the identity of the requesting person,” whether the person be a member of the media or the general public.

So, who decides if the release of documents would “primarily benefit the general public?” Well, the city attorney’s office, of course. Smith then goes on to argue that releasing documents to the media at no cost could get overly burdensome. He says each case must be taken on a case by case basis.

To buttress this argument, he attaches a FOIA request from Kevin Grasha, the cops and courts reporter at the Lansing State Journal, which sought information on all traffic stops involving state Sen. Gretchen Whitmer. The letter denying the request says that no tickets were issued to the senator but offers to do a hand search of all field notes for the department for the estimated cost of $12,000.

Smith also released the number, costs and actual revenues associated with FOIAs in 2009. He says the city received 242 such requests, with 40 of them being from media outlets. The total costs for media related FOIAs was $363, with the media allegedly only paying out eight dollars. The remaining 202 FOIAs had a price tag of $3,141 of which only $1,213 had been paid out.