ELi reported last week on the Nichols v. City of East Lansing lawsuit, which centers on a July 2020 public records request aimed at obtaining copies of City-related records contained on the cell phones and computers of three City Council members.
In arguing that case, East Lansing’s current City Attorney has claimed that if the City purchases a cell phone or computer for a City Council member and gives it to them with no expectation of ever having it returned, the device counts as a “personal” device not clearly subject to Freedom of Information Act (FOIA) requests made to the City.
Because “personal” devices are not City property, the City Attorney has argued that the material on them cannot be considered government-possessed — and therefore “public” — records.
At the Dec. 8, 2021, hearing where East Lansing was represented by City Attorney Laura Genovich, the judge — James Jamo of Ingham County’s 30th Circuit — pushed back on that argument. Jamo noted that Michigan’s Freedom of Information Act (FOIA) law defines a “public record” to include also material that is “used…in the performance of an official function, from the time it is created.”
But the City of East Lansing has, in ELi’s experience, followed a practice that if an individual or a private company owns a device on which otherwise-public records are stored, that material may count as “not in the City’s records” when we try to obtain it via FOIA.
For example, the City has long considered anything housed at the offices of the City Attorney to be “not in the City’s possession.” The view is that the City Attorney is a contractor, not a part of the City, and therefore the City attorney’s computers and cell phones cannot be considered within the possession of the public body that is the City of East Lansing. (This is one reason some have argued it is time for East Lansing to change the City Charter and make the City Attorney position an in-house position, as it is in Lansing, for example: to promote transparency.)
As a matter of practice, the City of East Lansing uses public funds to buy cell phones and computers (including tablets) for City Council members with the understanding that at the moment they are handed over, they don’t belong to the “public body” that is the City. This practice leads to similar ends, resulting in “no records found” responses to certain FOIA requests.
What’s a bit curious about this argument is that it rests on the claim — made by the City Attorney in the Nichols case — that City Council members are not part of “the public body” that is the City of East Lansing.
However, the City’s own FOIA policy seems to run counter to Genovich’s argument. Following City Council’s approval of the City’s most recent FOIA resolution in 2018 — which named City Manager George Lahanas as the official “coordinator” of the FOIA process — Lahanas specifically designated the Mayor, a member of Council, as “the head of the public body” for FOIA appeals.
In any case, if the City’s position is determined to be legally legitimate in the Nichols case, this would mean that City Council members could avoid turning over records that would typically be subject to FOIA if the City kept ownership of the devices the Council members have been gifted using tax dollars.
It also creates the potential for other City business to be shielded from the FOIA process by keeping it on personally-owned devices of City employees or others.
Notably, the City Manager’s current contract calls for the City to purchase him a “mobile telephone and computer at no cost to Manager” for his “professional and personal use.” The City’s position isn’t perfectly clear about whether these devices — when possessed by City employees and used, in part, for City business — are subject to FOIA.
We do know that when ELi has FOIA’d specific text exchanges from the City Manager’s cell phone, we have often been told that there are “no records found” in the City of East Lansing.
If the City’s position is that a cell phone and computer — paid for by the City but “owned” by the City Manager — are not subject to FOIA, then the City Manager could avoid having certain records subject to FOIA by doing work on these “personal” devices.
In a recent Council discussion of the purchase of new security cameras for downtown, the City Manager made clear his position that if footage is housed on a third-party server, it is not subject to public records requests under FOIA.
And, there have been various cases in which City employees and citizens doing business with the City have leaked to ELi that a document does, in fact, exist in the City’s possession when we’ve been told by the City Clerk, in response to a FOIA request, that there were “no records found.”
One such example would be the cultural climate survey conducted at a cost of $15,000 by The Truth & Titus Collective, performed to assess the City employees’ experiences with and views on diversity, equity, and inclusion. While City employees were told that the results of that survey were turned over to the City’s administration, the City Clerk claims no such records exist in the City’s possession when we request the survey results under FOIA. (Could it be the case that the administration has the survey results, but on off-site devices that the City considers not to be FOIAable?)
The “no records found” response is significantly different from the City claiming a public record is exempt from disclosure under FOIA. Michigan’s FOIA law allows the City to redact or withhold “public” information under certain exemptions — if, for example, it is part of an active police investigation or includes someone’s personal medical history.
But when a redaction is done under a specific FOIA exemption criteria, the law requires that the person making the FOIA request be told what was redacted and why.
A “no records found” response, by contrast, denies any information whatsoever. It doesn’t say that the record exists but is housed on so-and-so’s computer. It tells us essentially nothing. We can’t even confirm what we are seeking exists when we get back an answer of “no records found.”
So, the ability for the City to claim “no records found” by keeping records off-site is a way for the City to avoid disclosure altogether under FOIA.
ELi has filed two new FOIA requests this week in an effort to understand how many City employees have contracts that involve the City purchasing and giving away cell phones and computers with no expectation of their return. We will report back when we have that information.
We are also looking into the question of whether the City houses records at third-party sites (warehouses or computer servers) that it might claim are not subject to FOIA requests made to the City of East Lansing.