When Open Government and Open Investigations Collide

[XLFD]

Part One:  Presenting FOIA Law to Try to Get Information

 

I have went in front of the Ludington Student Council twice to appeal two similar Freedom of Information Act (FOIA) request responses by the City's FOIA Coordinator, City Manager John Shay and have got shot down unanimously both times.  The first time I asked for various records including police interviews, reports, statements, polygraph results, etc. (all written records) from the Baby Kate case regarding Ariel Courtland's involvement, then the next time it was for the same type of records for someone who played a much lesser part in the case, Dan Ruba. 

The first time I used the investigators' own words:  "Previous speculation as to the involvement of the mother, Ariel Courtland, in the disappearance of Katherine Phillips is also not supported by the evidence. Extensive investigation into Ms. Courtland has been conducted by multiple law enforcement agencies. It has been concluded by investigators, and through judicial proceedings, that she did not have the time, means, or motive necessary, or that she has any knowledge of Baby Kate's whereabouts."  And followed them up with what the relevant FOIA exemption law said.  I concluded that they had the power to separate the truly exempt material from the non-exempt material, but they could not issue a blanket denial of each record requested. 

I also countered their claim that a little known Polygrapher's Act would overrule their duties under FOIA, which became a moot point once Ariel Courtland herself declared she wanted them released.  I finished with an orational flourish: 

"In conclusion, the FOIA is pro-disclosure and exacts a duty on a public body to provide the people public records on request. As the FOIA puts forth in its first section: "It is the public policy of this state that all persons are entitled to full and complete information regarding the affairs of government and the official acts of those who represent them as public officials and public employees, consistent with this act." If the City of Ludington refuses to follow Michigan's public policy by voting with the FOIA Coordinator to quash the release of these records owned by the public, they have become little more than a rogue element with continued disdain for the rights of individuals and their obligations as a home rule city of the State of Michigan."

 

Part Two:  Presenting Court Records of Michigan Court Decisions on This Topic

 

Since the councilors were not impressed with what the actual FOIA law said-- none of them even had a copy of that law to make a ruling on it the first time-- I had used over 15 seconds of my precious 5 minutes (that was strictly enforced by the Mayor) during the first appeal to confirm this.  So this time I would impress them with what the courts actually say about the releasing of investigatory records, and started off with what the State's Michigan FOIA Handbook (to be used by municipalities) said.  Here was that argument:

 

"Dan Ruba's contribution to the Baby Kate case has been ancillary; when he testified at the trial of Sean Phillips, his contributions to the case were primarily character based-- he commented on actions prior to the disappearance of the baby by Sean and Ariel. Since then, I have talked with him and Ariel's mother, and they are as frustrated as I in the lack of transparency in the investigation, especially now that Sean is to serve 10-15 years. We are being officially told that the investigation is concerned now with pinning a murder charge on Sean, which means that they should be able to make almost all records available to the public from the lesser charge that convicted him.

But that is not being done, and the County and the City of Ludington are violating FOIA law fiercely to do so. Why? That's a theory that could lead us down many avenues, but if I were Ariel Courtland, I would be wondering about whether I actually passed those polygraph tests (like she was allegedly told) and presume that I would still be under investigation. As a favor to anyone who may have been involved with the disappearance of Baby Kate: don't trust the investigators here, they are defying the law, and likely lying to the public.

But here are the reasons why you need to vote for the release of these records, suitably redacted with explanations when applicable. I quoted the FOIA law last meeting, this time I will quote the precedents of public bodies having to release investigatory records, as stated in Michigan courts.

The Michigan FOIA Handbook says:

MCL 15.243(1)(b) provides an exemption from disclosure under FOIA of investigating
records compiled for law enforcement purposes, but only to the extent such records would
trigger any of the six (6) specific circumstances enumerated in the Act. To qualify for the
exemption, the public body must demonstrate how disclosure of particular kinds of records
would amount to interference with an investigation and not merely provide conclusory statement
that recite the language of FOIA. See Payne v. Grand Rapids Police Chief. Notably, the law enforcement exemptions of the Michigan FOIA are more restrictive than parellel provisions under the federal FOIA. The correct standard under Michigan FOIA is whether a document “would” interfere with law enforcement proceedings or disclose investigative techniques or procedures – not whether such disclosure “may” do so.
Additionally, an investigation will not be considered “ongoing” for purposes of 3(1)(b) without an active, ongoing, law enforcement investigation. See Herald Co. v. Kalamazoo.  See also dicta in Meredith Corp. v. City of Flint (City acknowledged that law enforcement investigation
is concluded once criminal defendant charged and bound over for prosecution).  Based on
Yarbrough v. Dep’t of Corrections, the exemption under 3(1)(b) is broad enough to include records compiled in the course of an internal investigation into a sexual harassment charge.

[A look up around this time at the City Councilors reminded me of what I might see if I tried to teach Calculus to First Graders, except for the City Attorney, whose mind was working on a refutation.  I continued.]

 

In Post Newsweek Stations v. Detroit the judges of the appellate court stated the following rules should be used in analyzing a claim of exemption from disclosure under the FOIA:
1. The burden of proof is on the party claiming exemption from disclosure. .
2. Exemptions must be interpreted narrowly. .
3. "[T]he public body shall separate the exempt and nonexempt material and make the nonexempt material available for examination and copying."
4. "[D]etailed affidavits describing the matters withheld" must be supplied by the agency.
5. Justification of exemption must be more than "conclusory", i.e., simple repetition of statutory language. A bill of particulars is in order. Justification must indicate factually how a particular document, or category of documents, interferes with law enforcement proceedings.
6. The mere showing of a direct relationship between records sought and an investigation is inadequate.

[Here is where the Mayor would not allow me to continue, because my 5 minutes were up, and he disallowed me to conclude in what I had planned to cede from Toni's 5 minutes.  She had nothing planned and offered a good commonsense reason why the records should be open to the public, but due to her dyslexia, the Mayor effectively shut us up from providing these other precedents.]

 

Herald Co v Kalamazoo, says in part:
3(1)(b) provides in pertinent part:
"A public body may exempt from disclosure as a public record under this act (b) Investigating records compiled for law enforcement purposes, but only to the extent that disclosure as a public record WOULD do any of the following"
In contrast, the federal FOIA allows exemption of documents that “could” reasonably be expected to interfere with law enforcement proceedings.   The trial court properly recognized in its  oral opinion that the exemptions provided for law enforcement-related matters by the Michigan FOIA are less expansive than similar provisions of the federal FOIA:
[T]his Court's conclusion is that Michigan, by using the word, Would, has imposed a more restrictive standard on the exemption continued [sic] in M.C.L. § 15.243."
This decision quoted Evening News Ass'n v. City of Troy:  " The Michigan Supreme Court reversed, holding, inter alia, that the trial court erred in its “generic determination” that the defendants, the city of Troy and its police chief, had met their statutory burden to sustain their claim of exemption where it was only alleged in conclusory fashion that disclosure would “‘[i]nterfere with law enforcement proceedings'” or “‘would indeed have a chilling effect on the investigation.’”    The Court outlined a three-step procedure to be followed by Michigan trial courts in evaluating the rejection of an FOIA request:
1.  The court should receive a complete particularized justification as set forth in the six rules above or

2. the court should conduct a hearing in camera based on de novo review to determine whether complete particularized justification pursuant to the six rules exists; or

3. the court can consider “allowing plaintiff's counsel to have access to the contested documents in camera under special agreement ‘whenever possible.’”  

Let's review Krug v. Ingham Co. Sheriff:  In the trial court:  " Plaintiff's request was denied by defendant who stated that the investigation was still open and, therefore, disclosure would interfere with an ongoing criminal investigation.  Before denying the request, the FOIA Coordinator failed to review the file. Defendant's policy was to deny any FOIA request regarding open investigations."  The trial court backed this denial. 

 The appellant Court found "We first note that the trial court incorrectly determined that plaintiff's initial request was properly denied.   Defendant was not entitled to deny plaintiff's FOIA request without actually determining that the entire case file was exempt from disclosure.   Defendant was required to review the case file and release any nonexempt information-any information whose release would not have interfered with the investigation (case reference).  As the FOIA Coordinator admitted that defendant's policy is to issue blanket denials of all FOIA requests relating to open case files and that he actually failed to review the file before issuing defendant's response, defendant's denial was clearly improper."

Courts deciding such cases are unanimous, you can't issue blanket denials of an investigation just because you claim there's an investigation going on.  Let's look at the George Zimmerman- Treyvon Martin case down in Florida.  The prosecution has been ordered by the courts to release his lie detector tests, the police reports, interviews, etc. and they have released it.  And they haven't even got to the original trial.  waste more of the people's money in blocking the inevitable?

That's seven court cases, many going up to the appellate courts or MI Supreme Court, that effectively say what decision the City and the County Prosecutor has made to totally seal all records in the Baby Kate case is illegal.  And something from the Michigan Municipal League, which met at Ludington last year and was attended by most councilors. 

But how did they defend such a juggernaut of case law?  Well, City Attorney Dick Merlin Wilson said the Prosecutor Paul Spaniola said it was OK to do so, repeated statutory language in a conclusory fashion, and explained why by using words like "may" and "could" and avoiding the word "would", and any further explanation that might result.  Unbelievable how the public attorneys of an area can collude to suppress public records without any regard for the law.  But that's what you get when you hold the law in such low regard and you find there is no one responsible watching over the watchmen.

[Willy]

I'm afraid your just blowing in the wind when you adress the City Council, Mayor and Shay. They will happily stand behind Spaniola's  decision to keep the information you seek out of your hands. Why not file a FOIA with Spaniola's office and see where that takes you? Good luck

[XLFD]

That FOIA was already done the same day I sent the Ariel Courtland request out to Ludington.  Once the prosecutor responded, much later than the 5 days required to by law, he made an unsatisfactory response.  FOIA-maniacs, see whether you can make out what all is wrong with this reply: