Court orders U.P. city to disclose police's use-of-force policy, for a second time

For the second time, a Court of Appeals panel has ruled an Upper Peninsula city does not have the authority to withhold part of its police department's use-of-force policy, after an individual requested an unredacted copy in the wake of protests against police brutality and racial injustice during the summer of 2020.

And for a second time, Sault Ste. Marie officials are weighing their legal options as they review the panel's ruling, although the Michigan Supreme Court previously declined to hear an appeal when the city asked them to weigh in last year.

In Hjerstedt v. Sault Ste. Marie, a two-judge Court of Appeals panel ruled Thursday a Chippewa County judge must order the city to issue an unredacted copy of its police department's use-of-force policy, writing that the policy is not exempt from certain disclosure provisions in Michigan's Freedom of Information Act (FOIA). Along with the unredacted policy, Court of Appeals Judges Sima Patel and Stephen Borrello also ordered the city to cover the plaintiff's attorney fees and said the lower court must determine whether damages are appropriate.

"Michigan has a strong public policy favoring public access to government information and grants the public an opportunity to 'examine and review the workings of government and its executive officials,'" Patel wrote, opining that Sault Ste. Marie doesn't have the authority to withhold the full use-of-force policy under Michigan's open records laws.

Amy Hjerstedt, a member of the League of Women Voters of Eastern Upper Peninsula, requested a copy of the Sault Ste. Marie Police Department’s use-of-force policy in June 2020. The records request coincided with national unrest over police brutality and racial injustice following the murder of George Floyd by a police officer in Minneapolis in May of that year.

In Aug. 2020, Sault Ste. Marie city commissioners voted to issue a redacted copy of the department’s use-of-force policy to Hjerstedt, The Sault News reported. At the time, city and police officials argued that potential assailants knowing how an officer would react in a certain situation would pose a safety risk if the full policy was disclosed.

Hjerstedt then sued the city, starting a winding legal saga that so far has culminated in the Court of Appeals ruling issued Thursday.

In general, Michigan's FOIA laws allow individuals to request records and other information from government organizations to allow the public to gain a better understanding of how its government is operating. Mark Dobias, a Sault Ste. Marie attorney who represented Hjerstedt in the case, noted that other cities in Michigan, including Detroit and Grand Rapids, openly publish policies pertaining to use of force by law enforcement officers.

He agreed with the panel's interpretation of the state's government transparency laws.

"They don't call it a 'sunshine law' for no good reason," Dobias said.

Sault Ste. Marie City Manager Brian Chapman said city officials were reviewing their options in the lawsuit.

"We're obviously disappointed in this ruling," Chapman told the Free Press on Monday. Chapman said the city's position remains that the use-of-force policy should be partially veiled for officer safety concerns.

The ruling, issued Thursday, marks another step in a legal process that began four years ago.

Hjerstedt first sued Sault Ste. Marie in Chippewa County Circuit Court, arguing that the redacted version of the policy didn't disclose any relevant information.

At that level, a judge sided with the city, ruling that redacting the policy fell within FOIA exemptions for law enforcement proceedings.

When Hjerstedt appealed the circuit court ruling, a Court of Appeals panel sided with her in Feb. 2023 and ordered Sault Ste. Marie to issue her an unredacted copy of the use-of-force policy.

The city then appealed the case up to the Michigan Supreme Court, which declined to hear the case but remanded a single provision of the case for consideration — last December, the high court ordered the case back to the Chippewa County Circuit Court. Justices ruled that the lower court didn't address one defense raised by Sault Ste. Marie's attorneys in the initial lawsuit, when the city argued the use-of-force policy was an internal staff manual and was exempt from records requests under FOIA's provisions for law enforcement agencies.

The trial court again sided with the city, with Chippewa County Chief Circuit Judge James Lampros wrote in a March ruling Sault Ste. Marie officials were within their rights to provide a redacted copy of the use-of-force policy, agreeing with their assessment that it fell under FOIA's exemptions for staff manuals.

Lampros' decision was again appealed, and the Court of Appeals overturned it on Thursday.

"We conclude that the term 'staff manual' was intended to be used synonymously with terms such as 'employee handbook' and be limited to tools provided to employees to outline terms of employment, internal employment-related procedures, and, at times, workplace policies," Patel wrote. "The city’s use-of-force policy is contained in a stand-alone general order that does not fit within this definition and thus was not exempt from disclosure under (FOIA)."

Sault Ste. Marie does have the option of asking the Michigan Supreme Court to hear an appeal once again, although there remains no guarantee the high court agrees to take up the case.

Sault Ste. Marie is located in Michigan's Upper Peninsula, along the northern U.S. border with Canada. It has an estimated population of over 13,000, and is about an hour-long drive from the Mackinac Bridge.

— Contact Arpan Lobo: [email protected]

This article originally appeared on Detroit Free Press: Sault Ste. Marie must disclose police use-of-force policy, panel rules