What counts as a “public record” – potentially open to the view of citizens under Michigan’s Freedom of Information Act (FOIA) – when it comes to the cell phones, tablets, and computers used by East Lansing City Council members in the course of their work as elected officials?
That’s one of two central questions in the lawsuit known as “Nichols versus City of East Lansing,” a suit whose origin dates back all the way to July 2020, when Ruth Beier was still Mayor. The other is the question of what counts as “too broad” a request for records under FOIA.
The suit touches on a number of long-running but questionable practices by the City of East Lansing in terms of denying materials requested under FOIA — practices that are now under scrutiny in the courts.
The most recent action in this lawsuit came on Dec. 8, when Ingham County Judge James Jamo heard the City’s request to have the lawsuit summarily dismissed. Jamo did not grant the City’s wish. Instead, he sent the parties to mediation to work out the dispute centering around the release of these records.
This was not the outcome the City was hoping for. If the plaintiff in the case (Nichols) ends up getting what he wants, he will not only obtain records the City has so far been keeping out of his hands; he could also make it harder for the City to use certain arguments in denying future public records requests.
The records request in question targeted the devices of three Council members and came from a lawyer who had been representing an ELPD officer.
The plaintiff in the case is Mike Nichols of the Nichols Law Firm and the suit centers on a FOIA request Nichols made to the City of East Lansing on July 10, 2020. At that time, East Lansing’s City Council consisted of Mayor Ruth Beier, Mayor Pro Tem Aaron Stephens, Lisa Babcock, Jessy Gregg, and Mark Meadows.
Whereas many FOIA requests consist of just a few lines, Nichols’ enumeration of what he wanted to see stretched to four pages, single-spaced.
Honing in on the electronic devices of Beier, Stephens, and Gregg, Nichols asked for phone records, text messages, email, internet browser histories, photos, movies, PowerPoint presentations, and so on. He wanted copies of these materials from any device that these three elected officials had used in the course of City business, including personally-purchased and City-provided cell phones, personal computers, laptops, and tablets. Nichols also asked for copies of any conflict of interest disclosures made by Beier, Gregg, or Stephens.
By law, Nichols need not have said why he was interested in seeing all of this material, and he didn’t say. As his attorney in the case, Josh Blanchard, noted in a comment to ELi, “One of the features of FOIA is that the requestor doesn’t have to disclose his purpose in order to obtain access to information.”
Still, FOIA requestors are rarely requesting information at random. At the time he made this request, Nichols was the attorney representing ELPD Officer Andrew Stephenson, whose actions in two arrests were subject to special prosecutorial review because of public allegations of racial bias and excessive use of force.
Stephenson was ultimately exonerated in early September 2020, but at the time Nichols filed his sweeping FOIA request in early July 2020, some members of City Council were openly criticizing Stephenson or at least agreeing with people who were protesting his actions. Nichols found himself in the position of having to actively defend his client in response to remarks being made by Council members, particularly Beier, Stephens, and Gregg. One of the filings made in Nichols’ FOIA lawsuit makes clear that Nichols was interested in records “relating to Officer Stephenson and police matters.”
FOIA law does allow exemptions for various types of personal information and records. But in making his FOIA request, Nichols made clear his position that, if, for example, Beier or Stephens were using their own personal cell phones for City business, certain records from those personal cell phones could count as “public records.” (On the City’s “Meet the Council” webpage, both Beier and Stephens had, as elected officials, invited citizens to call them on their personal phones.)
The City could exempt from disclosure under FOIA certain records if they were truly personal, but, Nichols argued, the City could not wholesale deny all records contained on a device just because it wasn’t owned by the City or located on City property.
Before the City could respond to Nichols’ original FOIA request, Beier suddenly resigned.
In fact, Beier resigned quite soon after Nichols filed his FOIA request. His request was sent to the City on Friday, July 10, 2020. Just two business days later, on Tuesday, July 14, Beier and Meadows resigned in the middle of a City Council meeting. They did so immediately following a vote by Stephens, Gregg, and Babcock to terminate the contract of Tom Yeadon as City Attorney.
Beier’s sudden departure didn’t change anything about Nichols’ request, legally speaking. (A person can’t get out of answering a FOIA request for already-existing public records by ceasing to be a public official.) But Beier’s resignation did mean the immediate promotion of Stephens from Mayor Pro Tem (substitute mayor) to Mayor. Gregg was then elected Mayor Pro Tem.
Because the July 14, 2020, vote was to end Yeadon’s contract at the end of September that year, it was still up to Yeadon’s office to assist the City Clerk’s office in answering Nichols’ FOIA request. And in that answer, the City said they were giving Nichols whatever conflict of interest disclosures they had on file for these three people, but they were denying him everything else. The reason given was this:
“These are not public devices and are not managed by the City or part of the City’s computer system. The devices [i.e., any devices that were given to Beier, Stephens, or Gregg] are presented to the Council members for their personal use by the City with no expectation that they be returned. The devices are not City devices. Any documents stored thereon are not available to the City, in the possession of the City or retained by the City and therefore are not public records as defined by the Act.”
The City’s response didn’t address the issue of Nichols’ request to also see materials on personally-purchased devices that were being used for City business, like Beier’s and Stephens’ personal cell phones.
Nichols had the right to appeal this denial to the Mayor, which he did.
Newly-sworn-in Mayor Stephens’ response to the appeal was apparently written by a lawyer, presumably Yeadon, and came later than required by law, because, Stephens claimed, Nichols’ appeal was “inadvertently overlooked.”
In the formal appeal response, Stephens objected to Nichols that his request was “very broad….Nor were there any time frames specified in the request to narrow its scope.” The response also reiterated the claim that the City didn’t currently own any of the devices, so they didn’t count as having public records on them.
The only thing Stephens granted on appeal was the copies of the emails requested, because, he admitted, “these emails are on City computers and are public records to the extent they involve City business.”
Frustrated in his attempts, Nichols eventually took another step allowed to him under Michigan’s FOIA law: he filed suit against the City on March 15, 2021. By that point, Yeadon was out as City Attorney, and the Foster Swift law firm was in.
Judge Jamo seemed skeptical about the City’s arguments at the recent hearing.
The hearing held a couple of weeks ago, on Dec. 8, centered on the City’s request to the court to dismiss the suit in its entirety.
By this point, Stephens had resigned as Mayor to pursue graduate school, and Gregg automatically rose from Mayor Pro Tem to Mayor. Shortly thereafter — and following the November general election — Ron Bacon was elected Mayor by a newly-formed City Council.
And by the time this court hearing took place, even Foster Swift was on its way out; Council had decided in August 2021 not to continue to seek a new contract with Foster Swift, and is now looking into finding new legal representation.
But for now, Foster Swift is still the City’s attorney, which means Laura Genovich — an attorney with that firm — argued the City’s case before Judge Jamo at the Dec. 8 hearing.
Genovich reiterated the arguments made previously by the City, including that the request was “too broad,” lacked a clearly specified timeframe, and included demands from personally-owned devices.
Genovich told the judge that the City had “acted in good faith” on the matter, and that it wanted to be transparent, but that Nichols’ request amounted to an “intolerable administrative burden.” She objected that it wasn’t really clear what Nichols was looking for — even as she read through the request that specifically named the records being sought.
Genovich obliquely referred to a case dismissed earlier this year in which ELi had sued the City under FOIA and in which Genovich had similarly argued that the FOIA request made was “overly broad.” (In that case, ELi was represented by George Brookover, who has since been elected to Council.)
At the hearing, Jamo appeared to be leaning toward interpreting Michigan’s FOIA law differently from Genovich. He did not agree with the claim that the FOIA request from Nichols was simply “too broad” to answer.
Indeed, Jamo seemed to express some doubt over Genovich’s claim that the request was “overly broad” or that Nichols had failed to sufficiently describe what he wanted. Nichols’ request was certainly large, and the City could require a large payment from Nichols under the law to cover allowable costs of filling the request. But that doesn’t mean a big request is not allowed.
In defending Nichols’ request, Blanchard (the attorney representing Nichols in the FOIA suit) argued that the request had been crystal clear, even if it was large. He allowed that there might be material on the devices in question that counted as legitimately “personal” and private — exempt under FOIA — but Blanchard noted that it was the City’s job to figure out which those were and to exempt them from the response. The City could not just claim that a device is entirely off-limits because it might contain some exempt material.
In his questions to Genovich, Jamo also noted that FOIA law actually defines a “public record” to be a record that is “prepared, owned, used, in the possession of, or retained by a Public Body in the performance of an official function, from the time it is created.”
Jamo focused on the word “used” in the law, suggesting that whether or not the City had kept these records on machines it currently owns, if the records sought under FOIA had been “used” by public officials in the course of their public duties, they could be liable to disclosure under FOIA unless some specific exemption applied.
Rather than granting the City’s request to dismiss the case, Jamo ordered the parties to go into mediation to try to get to an agreement about what will be turned over.
This suggests that Jamo expects the City to turn over more documents than it has so far. And that, in turn, suggests that Jamo’s not going to allow the City to claim that all of these records are off limits either because there are a lot of them or they’re on devices not owned — or no longer owned — by the City.
The case would also seem to potentially implicate City Manager George Lahanas’ recent claims, made at City Council, that security camera footage captured on City-owned security cameras won’t be subject to FOIA because the footage will be stored on a third-party server. (As we reported, Brookover seemed to express skepticism at that interpretation of FOIA law.)
At the most recent meeting of City Council, on Dec. 21, Council went into closed session to discuss the Nichols case with Genovich. Council did not vote on anything about the case after coming out of the closed session, indicating the matter is almost certainly headed for mediation.
Asked by ELi for a comment on the case, Genovich declined to offer one.
For his part, Nichols’ attorney Blanchard told ELi, “FOIA is a pro-disclosure statute which allows any ordinary citizen to get a view of the inner workings of their government. Judge Damon Keith once said that ‘democracy dies in darkness’. Good self-governance requires openness and access to public information. After all, public records do not belong to the government, they belong to the governed.”