Sault Ste. Marie must disclose policies and board rules on police use of force

For the second time, an appeals court panel has ruled that 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 during protests against police brutality and racism in the summer of 2020.

And for the second time, Sault Ste. Marie officials are weighing their legal options as they review the panel’s ruling, even though the Michigan Supreme Court already declined to hear an appeal last year when the city asked it to.

In Hjerstedt v. Sault Ste. Marie, a two-judge appeals court ruled Thursday that a Chippewa County judge must order the city to release an unredacted copy of its police department’s use-of-force policies, writing that the policies are not exempt from certain disclosure provisions of Michigan’s Freedom of Information Act (FOIA). Along with the unredacted policy, appeals judges Sima Patel and Stephen Borrello also ordered the city to pay the plaintiff’s legal fees and said the lower court must decide whether damages are appropriate.

“Michigan has a strong policy that favors public access to government information and provides the public with the opportunity to ‘investigate and review the operations of the federal government and its executive officers,'” Patel wrote, arguing that Sault Ste. Marie did not have the authority to refrain from enforcing the unrestricted use of force policy under Michigan’s public 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’s use of force policies in June 2020. The request for the records coincided with nationwide unrest over police brutality and racial injustice following the killing of George Floyd by a Minneapolis police officer in May of that year.

In August 2020, Sault Ste. Marie city councillors voted to issue Hjerstedt a redacted copy of the department’s use of force policy, The Sault News reported. At the time, city and police officials argued that disclosing the full policy would pose a safety risk to potential attackers who knew how an officer would respond in a given situation.

Hjerstedt then sued the city, triggering a convoluted legal saga that culminated in the appeals court’s decision announced on Thursday.

Generally, Michigan’s FOIA laws allow individuals to request records and other information from government organizations to give the public a better understanding of how their government works. Mark Dobias, a Sault Ste. Marie attorney who represented Hjerstedt in the case, pointed out that other Michigan cities, including Detroit and Grand Rapids, openly publish their policies on use of force by police officers.

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

“It’s called the Sunshine Law for a reason,” Dobias said.

Brian Chapman, city manager of Sault Ste. Marie, said city officials are reviewing their options regarding the lawsuit.

“We are obviously disappointed with this ruling,” Chapman told the Free Press on Monday. Chapman said the city continues to believe that use-of-force policies should be partially obscured for officer safety reasons.

The verdict announced on Thursday represents a further step in a legal process that began four years ago.

Hjerstedt initially sued Sault Ste. Marie in Chippewa County District Court, arguing that the redacted version of the policy did not contain relevant information.

At that level, a judge sided with the city and ruled that the policy’s removal fell under FOIA’s exceptions for law enforcement proceedings.

When Hjerstedt appealed the district court’s ruling, an appeals court panel sided with her in February 2023 and ordered Sault Ste. Marie to provide her with an unredacted copy of the use-of-force policy.

The city then appealed to the Michigan Supreme Court, which did not hear the case but remanded a single provision of the case for reconsideration – last December, the Supreme Court remanded the case to Chippewa County District Court. The judges ruled that the lower court had failed to address a defense that Sault Ste. Marie’s attorneys had raised in the original lawsuit. The city had argued that the use of force policy was an internal personnel manual and exempt from records requests under the FOIA provisions for law enforcement agencies.

The court again ruled in favor of the city. Chippewa County District Court Chief Judge James Lampros wrote in a March ruling that Sault Ste. Marie officials had the right to provide a redacted copy of the use-of-force policy and agreed with their assessment that it fell under the FOIA exemptions for personnel manuals.

Lampros’ decision was appealed again and the appeals court overturned it on Thursday.

“We conclude that the term ’employee handbook’ should be used interchangeably with terms such as ’employee manual’ and is limited to the tools provided to employees to set forth the terms and conditions of employment, internal work-related procedures, and sometimes workplace policies,” Patel wrote. “The City’s use-of-force policy is contained in a stand-alone general order that does not fit this definition and therefore was not exempt from disclosure under (FOIA).”

While Sault Ste. Marie has the option of asking the Michigan Supreme Court to rehear the appeal, there is no guarantee the Supreme Court will take the case.

Sault Ste. Marie is located on the Upper Michigan peninsula on the northern border of the USA and Canada. The population is estimated at over 13,000. The city is about an hour’s drive from the Mackinac Bridge.

— Contact Arpan Lobo: [email protected]

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