Dumb exemption to Freedom of Information Act

December 15, 2021 (see update at end)

According to a 2/17/2021 story in the Lansing State Journal, former Lansing firefighter Michael Lynn Jr. was fired in February 2021 "for sharing Police Chief Daryl Green's city-issued cell phone number to Facebook." In 2019. Lynn

filed a federal lawsuit. . .that alleges the city retaliated against him with disciplinary action due to his complaints about racism within the fire department. . . Lynn says he is on unpaid leave while he negotiates to receive paid disability status. . . His 2019 lawsuit says the racism he experienced in the department prompted him to take a leave of absence because of depression and anxiety.

He and his wife Erica host the live Facebook show Merica 20 to Life Mondays and Wednesdays at 8:00 pm. They are also co-owners of The Village Lansing,

a 501c3 nonprofit created to address youth violence by strengthening and supporting the youth and families in our community through outreach, resources, mobilization, mentoring, empowerment, and service.

On October 28, he submitted a FOIA request asking for "any emails and or text correspondence involving city of Lansing employee named Michael Lynn between Mayor Schor and Fire Chief Greg Martin or between Mayor Schor and Police Chief Daryl Green between the dates of February 1st and March 30th, 2021."

On November 4, his request was denied. The reason: MCLA 15.243(1)(v), one of several exemptions from disclosure in the Freedom of Information Act. It says "Records or information relating to a civil action in which the requesting party and the public body are parties."

That sounds like the records exist, but because Lynn is party to the civil action, he can't have them. On the other hand, it could be that the city attorney's office doesn't want make the effort to look for the records, so they use the MCLA 15.243(1)(v) exemption.

The legislator who came up with that exemption could not have been too bright. Same goes for whoever in the city attorney's office used it to deny Lynn's request. What is to prevent the requesting party from having someone else submit the request for him? Someone who is not party to the civil action?

That is exactly what Lynn did. He had me submit the request (actually, I volunteered). On November 4, I asked for "Any emails and/or text correspondence involving former City of Lansing employee Michael Lynn between Mayor Schor and Fire Chief Greg Martin or between Mayor Schor and Police Chief Daryl Green between the dates of February 1st and March 30th 2021."

My request was denied on December 1. The reason:

The City of Lansing has reviewed its files and has determined there are no responsive documents to your request. Your request is denied pursuant to MCL 15.235(5)(b), and this letter serves as a certificate that the requested documents do not exist under the name provided by you or another name reasonably known to the City of Lansing.

So they want us to believe that there was zero written communication regarding Michael Lynn between the mayor and the police chief or the mayor and the fire chief February-March 2021. Or it could be that the records did exist at time of Lynn's request, but they got rid of them by the time of my request.

Update: Mark Grebner, founder of Practical Political Consulting in Lansing, offered an explanation for that dumb exemption to the Freedom of Information Act. He gave me permission to print it:

Steve -

I never want to defend the drafting of any Michigan statute. It seems like one is always on sound footing to assume the language was the product of foolishness or dishonesty. But. . . .

There IS a plausible reason for the exemption of records "relating to a civil action...". If two parties are already in court, and one of them files a FOIA request, and the request is denied, any new lawsuit is going to get tangled with the first one. For example, if documents are already subject to discovery, and they're requested under FOIA, the question is whether they should be provided only to the attorney (discovery) or to the client (FOIA). How much should they be charged? Nothing (discovery) or the FOIA schedule?

Finally, the deadlines are different, as is the procedure for handling appeals of denials. If the two parties are identical, there would be at least a possibility of literally merging the FOIA appeal with the original suit, which might put the judge in a position of deciding which documents to order provided, under two utterly different sets of rules. And of course the court rules for appeals of a judge's decision on discovery are completely incompatible with the rules for appeal of a FOIA decision.

The courts have held the restriction ONLY applies to the exact parties to the pending suit, so even the lawyer's secretary can sign a new FOIA request without triggering the exemption. That might be because if a lawsuit were necessary under FOIA, the secretary's FOIA suit wouldn't really affect the underlying action, since they wouldn't be a party.

-mg

ps. There is no reason to believe the legislature had any sensible theory in mind when they added the "contemporaneous litigation" exception, mine or any other. But when you set a lawyer to thinking about a statute, we can always find reasons to justify its enactment.

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