Third-Party Government Contractors Are Not Exempt from FOIA

In this case, the majority of Michigan Supreme Court held that the Clarkston city attorney, a third party contracted to work with the city and not a city official, was nonetheless subject to the Michigan Freedom of Information Act (FOIA) because he constituted a “public body” under the statute’s language. The decision of the Court to extend the definition of a “public body” to include a single office, not just a department — even one not formally created by a municipality or the state but contracted by them — under Michigan’s FOIA statute has the potential to greatly increase the number of office positions subject to FOIA requirements. This outcome could lead to increased access to government officials and their correspondence going forward, with the potential to ensure greater transparency in local and state government.

The Court was asked to review whether emails of the Clarkston city attorney, a local attorney contracted to work with the city, were subject to a public records request. The majority of the Court found that a single office or individual officer may be considered a “public body” under Michigan’s Freedom of Information Act (FOIA) statute, and even though the city attorney’s emails were never in the possession of the city, they were subject to a public records request. In a concurring opinion, Chief Justice McCormack reasoned that the city attorney was acting as an agent of the city, so his records were subject to a records request. Justice Viviano wrote separately to dissent, reasoning that a single office or individual was not a “public body”.

Bisio made a FOIA request for email records between the Clarkston city attorney and a consulting firm working on a development project within the city. The City of Clarkston refused the request, claiming that the city attorney, a local attorney contracted to work with the city, was not subject to the requirements of Michigan’s FOIA statute, and that the emails were never in possession of the city. 

The lower courts ruled in favor of Clarkston, concluding that the city attorney was not a “public body”, the email records were not public records because Clarkston had not used them for decision making, and the city attorney had not shared the documents with Clarkston.

1. Is a single office or individual officer considered a “public body” for the purposes of Michigan’s FOIA statute? 
2. Is the city attorney an agent of the city such that their correspondence with third parties is subject to a public records request?

The Michigan Supreme Court held that a single office constitutes a “public body” under FOIA based on the definition of a “public body” under the law. Since the city attorney is an established office under the Clarkston city charter, the city attorney’s emails could be subject to a public records request. Furthermore, the Court held that because the emails were sent by the attorney in the performance of an official function, the documents were subject to a public records request.

Chief Justice McCormack wrote a concurring opinion to state Clarkston’s city attorney was an “agent of the city,” which would indicate that his emails with third parties, whether they were shared with the city or not, were public records subject to the FOIA statute. Justice Viviano wrote in dissent, noting that the ordinary meaning of a “public body” does not lend itself to the extension to individual offices. He further reasoned that even if the “office” of the city attorney could be considered a public body, the city did not create an office of the city attorney as a collective department, but rather as an individual role. Justice Viviano concludes that the majority’s interpretation will make all officer positions (including local officials) subject to FOIA requirements.