MINUTES

Committee on Public Safety

Wednesday, December 16, 2009
1:15 p.m.
Tenth Floor Council Chambers
City Hall

CALL TO ORDER

The meeting called to order at 1:19 p.m.

ROLL CALL

Councilmember Sandy Allen, Chair

Councilmember Carol Wood, Vice Chair
Councilmember Eric Hewitt, Member

OTHERS PRESENT

Diana Bitely, Council Staff

Brigham Smith, City Attorney
Chris Swope, City Clerk
Todd Heywood, Citizen

PUBLIC COMMENT ON AGENDA ITEMS

None.

DISCUSSION/ACTION

Discussion on the FOIA Policy

Mr. Smith reviewed the policy changes and the work done in Committee. He commended the group on
their work on the FOIA Policy changes. Privacy issues were the big issue under discussion. Training
underwent some changes to ensure that the FOIA officers have sufficient training.

Councilmember Wood questioned if there is record keeping with the training to show that the training
was done.

Mr. Smith will add language that will ask for written certification of initial and ongoing training.
Language was included to ensure that information covered under HIPA, Health Code or Mental Health
Code remained confidential.

Mr. Swope stated that due to discrimination with HIV status, we wanted to ensure that it was specifically
addressed, but that it also covers other potential situations as well.

Mr. Smith added that language was added that would ensure that redactions are made for “information of
a personal nature if public disclosure of the information would constitute a clearly unwarranted invasion
of an individual’s privacy.”

Councilmember Hewitt questioned if in the procedure portion of the policy, we could ensure that
redactions are secure, that there are no imprints of the redacted language.

Mr. Smith indicated that as an informal policy, they do have a system for checking to ensure that the
redactions are completely redacted.

Councilmember Wood stated that costs are a concern to make sure that the public is financially able to
procure information under the FOIA policy.

Mr. Smith stated that they do use the lowest statutory billable amount. He would like to see this tracked,
particularly if a formal “buddy system” is required. When a FOIA request comes in, it is handled by
either LPD with supervision from the City Attorney, or by the City Attorney’s office itself. Depending
on the scope of the request, the cost varies. Personnel files are a difficult request because of the large
amount of confidential information within those.

Councilmember Wood questioned if he has prepared a draft ordinance.

Mr. Smith stated that he has reviewed case law, and “an ordinance will be pre-empted by State Law if the
state has already produced one, or if it conflicts with the proposed ordinance.” He expounded upon the
four factors by which they test to see if something is pre-empted by the State.

Councilmember Hewitt questioned if the City would be precluded from identifying who within the City is
responsible for handling the FOIA requests and collection of revenues.

Mr. Smith indicated that an ordinance would be field pre-empted. We are aware of no city who has
adopted a FOIA ordinance. In reviewing the policies, it is the statute, no more, no less. The procedures
are what are particular to the City Attorney’s office. They are purposely separated. He addressed the
Committee’s request to reduce the cost to the media. The statute does not allow us to vary the fee
structure; however, what we can do is to decide on an open door policy.

Councilmember Wood questioned that even though there is a fee established, what prohibits Council from
waiving that fee.
Mr. Smith stated that there is a mechanism in the statute that says if you cannot pay, there is a process for
those who are unable to pay those fees. He is very hesitant for the city to alter that.

Councilmember Hewitt questioned if an open door policy would create a bigger liability.

Mr. Swope stated that he would be concerned about the regulation of confidential information.

Councilmember Hewitt is concerned that there might be a way to circumvent the FOIA through loopholes
not addressed, specifically with information gathered by the legislative body during an “investigatory”
inquiry while trying to determine if further action is necessary by the public official.

Councilmember Wood commented that aside from things that are provided Attorney-Client privilege
would be provided during a public meeting, therefore, it is public information.

Mr. Smith stated that every document should be treated as though it were subject to FOIA to be on the
safe side. To the extent that this is an issue, it precedes our time here and the statute is implicated only
when a request is made under its provisions. If records are handed out without a FOIA request,
consideration should be taken when providing information.

Councilmember Hewitt suggested that documents being provided by individuals should be seriously
considered and possibly taken to the presiding FOIA officer for review to ensure that the standards are not
violated.

Councilmember Wood feels that this is excessive, particularly with documents and records, which are
presented during committee meetings and are, therefore, public information. She questioned what the
punishment for violation of the FOIA procedures.

Mr. Smith stated that if we have violated the act, the court should award up to $500 in punitive costs to
the individual requesting FOIA.

Councilmember Wood questioned who would investigate a claim.

Mr. Smith indicated that the City Attorney’s office would discipline his own employees, in accordance
with their contract. In terms of a person’s recourse if they feel they have been wronged, they could
approach the Council, address it at a public meeting, or call on Mr. Smith for answers.

Mr. Swope commented that complaints could come from providing too much or too little/none
information under the FOIA request.

Councilmember Wood questioned if confidential information is provided, what recourse the affected
person has on that.

Mr. Smith commented that he feels that the pieces are there already. If it is an issue of justice, the court is
there.

Councilmember Wood suggested that notations should be made in the offending officer’s personnel file,
that there should be repercussions, particularly if highly sensitive and confidential information is released.

Councilmember Wood questioned if there is a way that a claim could be filed to determine that the
information provided under a FOIA request should have been accessible to start with to get their money
back.
Mr. Smith stated he would return to the Committee and have further discussion on that. Cost is a factor in
determining to charge a fee for FOIA requests.

Mr. Swope responded to questions about the cost of putting all contracts online and indicated that right
now, it is cost prohibitive to do that, and we do not have the capability to do that yet. In the future, he
will have to decide how it should be made available to the public.

Councilmember Wood suggested that they make a commitment to do a portion of that at a time and set a
goal to get it done.

Councilmember Hewitt stated that it costs money and the storage capacity must be able to accommodate
the vast amount of information.

Mr. Swope stated that there are quality assurance issues that must be addressed before moving forward
this, as well as having the proper system for retrieval of that information.

Councilmember Wood requested that Mr. Smith make the requested changes, review the possibility of
reducing the costs for FOIA for the media or a claim process with regard to information already provided
during a public meeting. She requested that the Committee could say that they approved the policies and
procedures and a letter is done to the man whose confidential information was made public along with a
copy of the FOIA policy and procedures changes.

Councilmember Wood thanked the Ad Hoc Committee for their work and efforts on this.

PENDING

Fireworks Ordinance
Noise Ordinance
Underground Storage Tanks Regulations EPA Funding Grants – Eric Hewitt and new Chairperson
Update on Motor Carrier Ordinance Procedures – Final Draft for Approval
Walter Brown U of M and MSU– Surveillance Cameras

ADJOURN

The meeting adjourned at 2:38 pm.

Submitted by,
Diana Bitely
Recording Secretary
Lansing City Council
Approved by the Committee on __________________.

PENDING

Appropriate documents attached to original set of minutes.