I was wrong about FOIA appeals

June 12, 2021

I was wrong when I said appeals of FOIA requests should be heard by the entire city council rather than the city council president. I said that in my story Lansing City Attorney mishandles FOIA appeals.

The Freedom of Information Act says that if a request is denied, the person may "Submit to the head of the public body a written appeal. . ." The Act has a definitions section, but although it defines "public body", it does not define "head of the public body." The phrase "head of the public body" occurs 13 times in the Act and "head of a public body" appears 7 times, yet the term is not defined. Sloppy legislation.

Section 10(3) suggests that a board or commission may be the head of a public body:

A board or commission that is the head of a public body is not considered to have received a written appeal under subsection (2) until the first regularly scheduled meeting of that board or commission following submission of the written appeal under subsection (1)(a). . .

If the Act intended the head of the public body to be the pubic body's entire legislative body, the decision on the appeal would have to be made in an meeting open to the public. We'd expect the decision to be made after a public hearing, yet the word "hearing" does not appear in the Act except in regard to a court.

It was Ingham County Commissioner and founder of Practical Political Consulting Mark Grebner who told me my FOIA appeal was supposed to heard by the entire city council rather than the president of the city council. He based this on the case Anklam v Delta College Board of Trustees, in which the Court of Appeals decided that Ann Anklam's FOIA appeal should have been heard by the board of trustees rather than the college president:

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.

Note that is says "in this case".

It has been pointed out to me that Anklam is an unpublished opinion; Mark says that's true, but it is the only case law on the matter. Mark also says

The puzzle in all this is exactly where the phrase "head of the body" came from. I haven't run into it anywhere else, so it doesn't come predefined. The reference in the statute seems to say it's the entire legislative body of a local government. But if somebody claimed it was a mayor in a strong-mayor system, or a county exec, I don't know for sure they'd be wrong. But it's definitely NOT the city council president.

It is unclear to me who the "head of the public body" is, but it sure would be nice if the law said it was the entire legislative body. An appeal would then get a hearing in a open, public meeting. The appellant would get the opportunity to argue his case. That is so much better than the current system in which the city council president signs a letter prepared by the city attorney affirming the FOIA denial without ever having read the appellant's written argument.

In March, the City of Lansing denied my request for 2020 employee wage information for all City employees. I appealed to the entire city council, but the response was from city council president Peter Spadafore. He affirmed the denial. I have now retained an attorney to start a civil action in circuit court. My attorney tells me that I should never appeal to to the head of the public body, whatever it is. It's a waste of time.

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