FOIA Coordinator by Edward Vielmetti

Petoskey News-Review seeks email sent during Charlevoix County public meeting

UPDATE: A lawsuit has been filed in this case.

The story is told in the Petoskey News-Review, in this July 25 article:

The News-Review seeks to compel Charlevoix County Prosecutor John Jarema to release emails between himself and Chris Christensen, county commissioner, requested by the newspaper after the board’s purchase of Apple iPads on May 11. The newspaper requested the emails to determine whether another commissioner’s hunch is on the mark.

In a curious turn, the county prosecutor is said to threaten the newspaper if it writes about the issue:

“Mr. McBain you are hereby placed on notice that anymore spoken or written word of me violating the OMA when it is an impossibility in these types of situations will result in civil action for libel and slander. Mr. McBain has now put it in writing in his denial that I am violating the OMA and he is hereby on notice. All an attorney has is his reputation and ethics and for McBain to be ignorant of the law and allege such false and malicious allegations will not be tolerated,” Jarema wrote in an undated letter to the News-Review’s attorneys.

Previously in the Petoskey News, a newspaper not unaccustomed to taking on public officials for their openness:  FOIA requests are not scarlet letters (2009); Local police often require more formalities to see records (2009; on access to police logs). 

Michigan: 83 requests in 83 counties for medical marijuana records

Freelance journalist Eric VanDussen is working to document the differences in how medical marijuana cases are being prosecuted in Michigan counties, according to a Holland Sentinel story of May 28, 2011, "Ottawa County turns over medical marijuana records". It details his requests to 83 counties for their prosecution records for marijuana offenses, and notes that he took Ottawa County to court in his home county (Grand Traverse County?) to get them to produce the records. They settled before the matter went to trial; similarly, the Leader and Kalkaskan reports COUNTY PROSECUTOR SETTLES FOIA LAWSUIT: Journalist to Receive 'Confined' Material where a similar settlement was agreed to in Kalkaska County.

When you are telling a statewide story in Michigan and using public records from a plethora of local governments to tell it, it's worth noting that if you have to go to court you can pick and choose where to go, within reason. From MCL 15.240(4), emphasis added:

(4) In an action commenced under subsection (1)(b), a court that determines a public record is not exempt from disclosure shall order the public body to cease withholding or to produce all or a portion of a public record wrongfully withheld, regardless of the location of the public record. The circuit court for the county in which the complainant resides or has his or her principal place of business, or the circuit court for the county in which the public record or an office of the public body is located has venue over the action. The court shall determine the matter de novo and the burden is on the public body to sustain its denial. The court, on its own motion, may view the public record in controversy in private before reaching a decision. Failure to comply with an order of the court may be punished as contempt of court.

If you think your request is going to go to court, then you should decide carefully where to ask it from; this is especially true if you want to take advantage of the fact that it can be a 10 hour drive from Houghton to Ann Arbor and people will be willing to settle their differences instead of going to trial somewhere inconvenient.

Previously: a profile of VanDussen.

Update: a thread on the Michigan Cannabis Patients forum (warning: link may be fragile; search for "kalkaska michigan foia michigan cannabis") has a complete copy of the Kalkaska lawsuit and some of the back story behind it in that county.

Update: a thread on the same forum re Ottawa County includes the complaint filed and also the settlement agreement entered into.

Michigan supreme court won't hear Howell teacher email case

The AP story on the Howell schools email case, via NECN:

HOWELL, Mich. (AP) — The Michigan Supreme Court won't take an appeal in a dispute over whether e-mail is public if written on a school computer.

The state appeals court has ruled that e-mail written on Howell computers by members of the teachers' union is not public. The Supreme Court refused to take the case in a 4-3 decision released Thursday. Conservative justices wanted to hear it.

 The Mackinac Center weighs in

“A Supreme Court hearing in this case is vital,” Wright observed. “Just consider what the Court of Appeals’ ruling condoned. It effectively said that a school employee can sign onto a school district computer system provided at public expense, read a warning that clearly states that anything on the system can be monitored and copied, and then go to court to prevent e-mails written and sent on that system from being reviewed by citizens who are concerned that the employee used the e-mails to break the law. This is awful. Illegal activity by public officials using public resources is precisely what the Freedom of Information Act was meant to expose. The ruling will severely hinder reporters and citizen activists in their role as government watchdogs.”

More from the Lansing State Journal, noting the court's direction to the legislature:

In 2008, a Circuit Court judge favored releasing the e-mails, but the appeals court overturned that decision, concluding that "personal e-mails were not rendered public records solely because they were captured in a public body's e-mail system's digital memory."

In addition, the appeals court said the issue in the case is "one that must be resolved by the Legislature, and we call upon the Legislature to address it."

FOIA access to teacher email was also a key point in a case in Wisconsin, with a similar ruling. 

Eric L. VanDussen, Benzie County, Michigan

A profile of Benzie County, Michigan reporter Eric VanDussen as published in the Northern Express:

(Benzie County Sheriff Rory) Heckman has nothing but praise for VanDussen, who said he did the right thing by going through the court system to address his grievances.

“Eric spent a lot of time learning, a lot of time schooling himself, asking questions; he’s very intuitive,” he said. “He’s even argued his cases in front of a law judge and won. Those early days were challenging. But Eric and I get along very well because I understand the Freedom of Information Act. There’s no argument here. What do you need? I’ll give it to you.  I do that with all requests. The law is black and white, there are not a lot of gray areas, and we rarely have any differences.”

External requests for faculty records under FOIA trigger union notification at Northern Michigan University

The Marquette Mining Journal has a copy of the Northern Michigan University faculty contract. It includes this FOIA clause, designed to trigger an internal records review before release of records which may have personal privacy implications.

www.miningjournal.net/pdf/news/533646_1.pdf

5.4.2.11.2 As to external requests for faculty records:

a. The University agrees to maintain the confidentiality of faculty records to the extent permitted by law. This provision does not impact upon the University's duty to comply with lawfully issued subpoenas, court orders, discovery demands, garnishments, or other such routine information requests required by law, including routine requests for information under the Freedom of Information Act (the FOIA).

b. If the University receives a nonroutine FOIA request for access to faculty records (e.g., a request for specific items from a faculty record which may constitute a clearly unwarranted invasion of privacy as provided in a FOIA exception), the University will take reasonable steps to notify the faculty member and the Association of the request. If the University determines it is required to release faculty records pursuant to such a request, it will take reasonable steps to notify the faculty member and the Association of its decision so that the faculty member and/or the Association can respond to the decision before the release of the records, with the understanding that the University must meet statutory time lines.

There is, as you might expect, a tension between personal privacy and public records when things like individual performance evaluations are included. This particular clause allows ample time for a "reverse FOIA" lawsuit to be filed should the faculty member decide to fight the records release.

2009 House Bill 4613 (Extend FOIA to governor and legislators ) - Michigan Votes

Introduced by Rep. Pete Lund (R) on March 18, 2009, to repeal the exemptions from disclosure under the Freedom of Information Act for records in the possession of legislators and their staff, the governor, lieutenant governor, their executive offices and employees. Communications from constituents to legislators would still be exempt from disclosure.

via www.michiganvotes.org

This is being pitched as "ending the exemption on disclosure of legislative salaries", but appears to be much broader than that to end the FOIA exemption for all legislators and their staff.

Editorial: Close loophole that hides salaries of gubernatorial, legislative aides | detnews.com | The Detroit News

Seldom-discussed provisions of Michigan's Freedom of Information Act (FOIA) exempt the state's executive office, lawmakers and the judiciary from disclosing the names and salaries of their employees. The provisions are unique, in that the White House, members of Congress and local governments in Michigan are required to provide such information upon request.

via www.detnews.com

As noted on today's #foiachat; this is an editorial from the Detroit News calling for an end to this exemption.

Branch County, MI denies animal shelter access to pet breeder licenses citing privacy concerns

from the Coldwater Daily Reporter, Judge O’Grady: RPSM will not be privy to information regarding licensed kennels:

Refurbished Pets of Southern Michigan, Inc. (RPSM) will not get information from Branch County on licensed kennels, after Branch County Circuit Court Judge Bill O’Grady ruled against the organization in a lawsuit filed under Michigan’s Freedom of Information Act (FOIA). Judge O’Grady granted a summary judgement for the county, Sheriff Warren, Canon, who operates animal control, and county Treasurer Sandy Thatcher, as she handles records of county funds collected for the licenses. The judge said there is an exemption for information “of personal nature if it constitutes an unwarranted invasion of a person’s privacy.” That includes names, addresses and telephone numbers.

The relevant bit of the law at MCL 15.243

15.243 Exemptions from disclosure; public body as school district or public school academy; withholding of information required by law or in possession of executive office. Sec. 13.

(1) A public body may exempt from disclosure as a public record under this act any of the following:

(a) Information of a personal nature if public disclosure of the information would constitute a clearly unwarranted invasion of an individual's privacy.

University of Michigan DRDA guidelines on FOIA and CRIA

from the University of Michigan Division of Research Administration:

Michigan Freedom of Information Act (FOIA) and the Confidential Research Information Act (CRIA)

Under the Michigan Freedom of Information Act (FOIA), a public record prepared, used, owned, possessed or retained by the University must be made available for inspection and/or copying upon presentation of a written request, unless that record is determined to be exempt from disclosure under the provisions of the 1976 Act.

The Confidential Research Information Act (CRIA) was enacted in 1994 to specifically protect confidential research, intellectual property, and trade secret records maintained by a public university in Michigan. Under the Freedom of Information Act, CRIA may be cited as an exemption for such records.

Under CRIA, trade secrets, commercial information and financial information provided to the University by a private external source may be withheld from disclosure if all of the following conditions are met:

1. The information is used exclusively for research, testing, evaluation, and related activities;
2. The information is designated as confidential by the external source before or at the time it is received;
3. The University has entered into an authorized agreement to keep the information confidential;
4. A document containing a general description of the information to be received under the confidentiality agreement, the term of the agreement, the name of the external entity with whom the agreement was made, and a general description of the nature of the intended use for the information, is recorded by the University within 20 regular working days after it is received. This document must be maintained in a central place and made available upon request.

Here is the CRIA act from the Michigan Legislature. Noted here are exemptions from CRIA not spelled out on the University of Michigan's pages.

390.1553 Information provided to public university or college by private external source; exemption from disclosure; conditions; affirmative duty to notify agencies; applicability of subsection (1) to information regarding sold or marketed product or process.

Sec. 3.

(1) Except as otherwise provided in this section, trade secrets, commercial information, or financial information, including that information as it relates to computer hardware and software, that is provided to a public university or college by a private external source and that is in the possession of the public university or college in the performance of a lawful function is exempt from disclosure as a public record under the freedom of information act, Act No. 442 of the Public Acts of 1976, being sections 15.231 to 15.246 of the Michigan Compiled Laws, if all of the following conditions are met:

(a) The information is used exclusively for research, testing, evaluation, and related activities.

(b) The information is clearly designated by the external source before or at the time it is received by the public university or college as being confidential.

(c) The public university or college has entered into an agreement to keep the information confidential, and the confidentiality agreement was authorized by the chief administrative officer of the public university or college, or his or her designee.

(d) A document containing a general description of the information to be received under the confidentiality agreement, the term of the confidentiality agreement, the name of the external source or person with whom the confidentiality agreement was made, and a general description of the nature of the intended use for the information is recorded by the public university or college within 20 regular working days after it is received, is maintained in a central place within the public university or college, and is made available to a person upon request. The description of the information to be received shall be sufficient to provide the public with the necessary information to understand the nature of the research or product involved in the confidentiality agreement.

(2) Subsection (1) does not apply to information that meets both of the following:

(a) Is otherwise publicly available.

(b) Is submitted as required by law or as a condition of receiving a government contract, license, or other benefit.

(3) To the extent that the information indicates a substantial likelihood that a person may be killed or injured by the use of the product or process, a public university or college has an affirmative duty to take reasonable measures to promptly notify appropriate local, state, and federal regulatory agencies of information regarding a product or process that is in the stream of commerce at the time the public university or college receives the information or actively uses the information in its research, and subsection (1) does not apply to the information. The affirmative duty described in this subsection is not intended to and does not create a separate or additional liability or cause of action outside of the remedies provided for in Act No. 442 of the Public Acts of 1976. A provision of a contract between a public university or college and another person that conflicts with this subsection is void for the purposes of this act as a matter of public policy. However, the affirmative duty described in this subsection does not apply to information described in this subsection if 1 or more of the following apply:

(a) There already exists a duty upon the manufacturer, distributor, seller, or owner of the product or process to disclose the information to a regulatory agency and the public university or college does not have actual knowledge that the information has not been disclosed in accordance with that duty.

(b) The hazards of the product or process are obvious to the user or consumer.

(c) The hazards of the product or process are disclosed to the user or consumer in recommendations, warnings, or other instructions supplied to the user or consumer by the manufacturer, distributor, seller, or owner of the product or process.

(4) To the extent that the information and its commercial value are capable of being adequately protected by copyright, patent, or trademark protection and are not encompassed by a pending, unissued patent application, subsection (1) does not apply to information regarding a product or process if the public university or college is selling or marketing the product or process to the general public.

First I'd heard of CRIA; it would be worth looking at those CRIA filings since they should be interesting (even if they don't disclose details, they do disclose the existence of things that are not to be disclosed.)

Lansing, Michigan municipal FOIA policy on release of private medical information

from the Michigan Messenger:

Lansing City Council committee demands FOIA policy from city attorney

By Todd A. Heywood 11/5/09 10:18 AM

LANSING — The city council’s Public Safety Committee demanded that City Attorney Brigham Smith provide a draft policy to that body in a special 6 p.m. meeting Monday night, or it will introduce an ordinance to address problems with the city’s responses to Freedom of Information Act requests.

First Ward Council member Eric Hewitt said the release of private medical information earlier this year by Smith shows there is “a chasm” on FOIA policy. Michigan Messenger has documented two cases in which the city attorney’s office has released private medical information. The first instance was in July when Smith himself released the HIV status of a man arrested in a controversial sex-sting operation in a local park. Smith said he had ordered city staff not to release medical information in FOIA responses as a result of the situation.

Getting the right balance between releasing information and redacting it is a common theme in FOIA problems for municipalities, especially smaller ones.