At a hearing for summary disposition on Thursday, July 15, 2021, in Ingham County Circuit Court, the Honorable Wanda M. Stokes dismissed ELi’s case, stating that fulfilling the Freedom of Information Act (FOIA) request made by ELi would place an undue administrative burden on the City of East Lansing. She agreed with the City Attorney’s argument that the request was too broad.
Stokes encouraged ELi to file a new FOIA request with more specific language to receive the documents it seeks.
The FOIA request in question was made by ELi’s Andrew Graham on January 29, 2021 and asked for:
“Any and all documentation regarding rent paid to the City for the use of the property at 300 M.A.C. Avenue (the Marriott downtown), including, but not limited to, contracts, leases, invoices and rent agreements. Any document demonstrating or showing that the City is, or isn’t, being paid rent for that property would be responsive to this request. Also any records of payments made to the City regarding the use of that property.”
ELi sought the documents because the 40-year land lease will end soon and ELi has been unable to obtain information from City staff about the past and likely future of the property. Comments from City staff to Council in the past have suggested that the owners of the hotel project have been renting the City-owned land – now worth millions of dollars – for only $10 per year.
After receiving a denial to the request from City Clerk Jennifer Shuster, claiming that Graham’s request was “too broad, both as to scope and duration,” on February 3, 2021, ELi made the decision to sue the City for the documents. The decision was approved by ELi’s Board of Directors and came because ELi’s staff told the Board that the City has made it increasingly difficult to obtain documents under the current City Council and new City Attorney, Foster Swift.
At Thursday’s hearing, Laura Genovich of Foster Swift argued the City’s case, stating that the City had not fulfilled the FOIA request because the request was overly broad and would require City staff to comb through 35 years’ worth of documents. She said that if the City missed any related documents, it could be subject to litigation for not providing the document as required under Michigan’s FOIA law.
She also stated that the City responded to the request quickly, and that ELi never narrowed the scope of its request after the total denial.
When asked by Stokes why ELi did not narrow its scope, ELi’s attorney George Brookover pointed out that the City only explained why it determined the request overly broad when it responded to ELi’s lawsuit with court filings. The City argued that the term “rent paid to the City for the use of the property at 300 M.A.C. Avenue” could include not only leases with the Marriott but also parking validations and agreements with vendors at the Underground Market.
Brookover argued that ELi used the best language it could when filing its request and could not reasonably be expected to use the same, precise language that the City uses when discussing these issues.
Stokes asked Genovich why the City had not at least attempted a basic computer search of documents that might fall within the parameters of ELi’s request and assess appropriate estimated fees to fulfill the request. Stokes suggested that this may have been an appropriate course of action, but Genovich countered that many of the City’s documents are on paper and not digital.
Before issuing her ruling, Stokes called for better communication between requestors and the public body.
Stokes said she believed that the City could have called ELi for clarification if it found the request too broad, acknowledging that citizens and government workers do not always use the same language and terminology.
All FOIA requests made to the City include the requestor’s name, email address, phone number, and address. In comparison to the City’s general FOIA system, the East Lansing Police Department has on occasion called ELi to make clarifications when it is unclear what is being sought.
Leading up to Tuesday’s hearing, the case caused difficulties for both ELi and the City.
ELi learned in late June that Brookover intended to run for Council, posing a conflict of interest for ELi, which remains non-partisan in elections. Executive Director and Publisher Alice Dreger acknowledged this in an article and described her search for new counsel for ELi.
ELi was unable to find counsel who could assume the case before today’s hearing.
On the City’s side, at this Tuesday’s meeting, Council member Lisa Babcock called for City Council to enter closed session to discuss the case. Babcock expressed frustration that Council had not been briefed by the City Manager or City Attorney on the case, had not heard pros and cons, and had not seen any filings.
Mayor Aaron Stephens said that he did not like the idea of last minute additions to the agenda but did vote in favor of entering closed session, where Council members apparently discussed the case with Genovich.
“In the future, our reporters will make extra clear to City staff that they should call us if they think our requests are ‘overly broad,’ so that we can understand why they think that,” Dreger said after the hearing. “But after seven years of accepting the City’s approaches to FOIA, this case was brought because of the larger trend of rejection of our requests and appeals by City Manager George Lahanas and Mayor Aaron Stephens under the counsel of Foster Swift. We can certainly continue to hope the City becomes more transparent, in keeping with Council members’ stated values, in the coming days.”