Lansing City Attorney mishandles FOIA appeals

March 29, 2021

It is pretty hard to believe that the City Attorney's Office did not know that appeals of FOIA requests were to be heard by the City Council rather than the City Council president. For years, the standard language in FOIA denials has been "You are entitled under the Michigan Freedom of Information Act, MCL 15.240, to appeal this denial to the President of the City Council. . ." What the Act actually says is that if a request is denied, the person may "Submit to the head of the public body a written appeal. . ."

If there is any doubt as to who the head of the public body is, the Act also says "A board or commission that is the head of a public body is not considered to have received a written appeal. . ."

And if that isn't enough, there is case law. In 2014, the Michigan Court of Appeals ruled in favor of Ann Antklam, who was suing Delta College for denying her FOIA request. Part of her complaint was that she was told to appeal the denial to the college president rather than the board of trustees. From the Court's decision:

Plaintiff next argues that defendants violated MCL 15.235(4)(d)(i) by failing to advise her that she had the right to file an appeal with the board of trustees, which, according to plaintiff, is the head of the public body in this case. We agree.

The City Attorney's lie is self-serving. He knows that the council president is too busy and/or too lazy to read the appeal and can easily be persuaded to sign a letter prepared by the City Attorney affirming the denial. The denial goes unquestioned, the Administration avoids releasing information they don't want known and unless the requestor has his own website, nobody ever hears about it. I've been the victim of this fraud three times in the last few years:

In January 2018, Council President Patricia Spitzley affirmed the denial of my request for the pension calculation sheets for 20 retirees. The City Attorney provided a list of pension amounts, but refused to give me the calculation sheets because they contained exempt information. The sheets could have been given me with the exempt information redacted. Details.
In August 2018, Council President Carol Wood affirmed the denial of my request for a March 18, 2015 memo from City Attorney Janene McIntyre to Mayor Virg Bernero. The City Attorney had denied my request claiming attorney-client privilege. Details.

In March of this year, Council President Peter Spadafore affirmed the denial of my request for a house inspection report done in April 2018 by the City Development Office. Although there was ample evidence the inspection was done, the City Attorney denied the existence of a report. Details.

The Open Meetings Act says that all decisions of a public body must be made at a meeting open to the public. Lansing's city leaders - the mayor, the City Council and the City Attorney's Office - are on notice that from now on, appeals of FOIA denials must be heard by the City Council in a public meeting. They must be an agenda item and members of the public must be given the opportunity to speak on the matter.

I will be re-submitting all my past appeals of FOIA denials that were affirmed by the City Council president and I encourage anyone who has had a similar experience to do the same.

In addition, City Attorney Jim Smierka must be fired. He should also be disbarred, and the same goes for any member of his staff who knowingly participated in this fraud against the rule of law and the people of Lansing.

James D. Smiertka

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