Government should not be like an open sewer, but it should be open.

Fact: In local government, it doesn’t get any sexier than sanitary sewers.

The study’s full name is the sanitary sewer wet weather evaluation (SSWWE). As background reading, in preparation for next Thursday’s meeting, readers might find it useful to immerse themselves in this recent Chronicle report: “Backups: Lawyers, Sewers, Pumps.” That report is centered on a Jan. 9, 2014 meeting of the city’s citizens advisory committee (SSWWE-CAC) associated with the study.

But this column does not dwell on the substance of either the Jan. 9 or the Feb. 6 meetings. Instead, it focuses on the nature of meetings and expectations of Ann Arbor residents for local governmental activity: Government shouldn’t be like an open sewer, but it should be open.

First, meetings that are accessible to the public – like the one earlier this month or the one next Thursday – are a part of the fundamental standard set by Ann Arbor residents for the function of our local government. Ann Arbor residents don’t consider the convening of a publicly accessible meeting, with data and information available beforehand, to be some kind of bonus, value-added feature of our local governance. It’s just axiomatic.

Of course, Ann Arbor residents don’t have a monopoly in Michigan on an expectation of open government. Two state statutes ensconce a statewide commitment to open government – the Open Meetings Act (OMA) and the Freedom of Information Act (FOIA). From the OMA: “All meetings of a public body shall be open to the public and shall be held in a place available to the general public.”

But a group like the SSWWE-CAC is not, strictly speaking, a “public body” as defined in the statute. So in Ann Arbor, we take the OMA a step further. By longstanding city policy established through a city council resolution passed in 1991, even advisory groups like the SSWWE-CAC are expected (to the best of their abilities) to conduct their meetings in accordance with the OMA.

I’ve written a lot about this topic in the past, and don’t really have much to add now.

What prompted me to write this column, more as a reminder than anything else, was seeing a note sent to SSWWE-CAC members via Basecamp – a piece of project management software that allows group collaboration and communication. The note was sent by one of the city’s outside consultants for the sanitary sewer wet weather evaluation – Charlie Fleetham of Project Innovations.

Fleetham’s note included the following statement about the Basecamp site that’s been set up for the SSWWE-CAC: “… I believe that the CAC is and would be well served by having a site [Basecamp] to discuss this very complex and emotional issue without fear of public scrutiny.”

While I think that Fleetham’s sentiment was likely well-intended, public scrutiny is part of what Ann Arbor residents sign up for when they serve on one of the city’s citizens committees. This kind of service makes a resident a participant in a quintessential governmental function. As such, that service should be and will be subjected to public scrutiny.

City Policy on Open Meetings

The city’s policy on various committees, commissions, boards and task forces was established through a city council resolution, passed on Nov. 4, 1991:

R-642-11-91 Resolution Regarding Open Meetings For City Committees, Commissions, Boards And Task Forces
Whereas, The City Council desires that all meetings of City boards, task forces, commissions and committees conform to the spirit of the Open Meetings Act;
Resolved, That all City boards, task forces, commissions, committees and their subcommittees hold their meetings open to the public to the best of their abilities in the spirit of Section 3 of the Open Meetings Act; and
Resolved, That closed meetings of such bodies be held only under situations where a closed meeting would be authorized in the spirit of the Open Meetings Act.

The idea of the resolution is this: Even entities to which the OMA would not technically apply are still expected to conform to the spirit of Section 3 of the OMA – to the best ability of that entity’s members. Section 3 includes a provision that allows a person to address a meeting of a public body.

The first meeting of the SSWWE-CAC took place on Aug. 21, 2013. The time for public commentary was provided at the end of the meeting. But on that occasion, facilitator Charlie Fleetham indicated to the members of the CAC that they were free to leave the meeting before the public commentary started. And a few CAC members did leave before members of the public addressed the CAC.

Subsequent CAC meetings attended by The Chronicle have, fortunately, not included an invitation to members to depart before the public commentary started.

Just as members of the CAC should not be shielded from the responsibility of listening to what the public has to say, the public should not, as suggested by Fleetham, be shielded from conversations among CAC members. Here’s Fleetham’s side of some communications obtained by The Chronicle:

From: Charlie Fleetham
Date: Fri, 17 Jan 2014 at 2:23pm
Please find attached a draft copy of the FDD Survey report.
Until the CAC has reviewed this report, it is DRAFT and should not be distributed outside of the CAC. We want to gather your input/requests before finalizing and distributing.
Please provide your input before Wednesday, January 22th …

Charlie Fleetham Fri, 24 Jan at 11:22am
Regarding the question of whether or not BaseCamp is subject to FOIA, per a conversation with Abigail Elias, as a private website, BaseCamp is not subject to FOIA provisions.
…

Charlie Fleetham Fri, 24 Jan at 2:06pm
I believe that BaseCamp needs to be off limits to FOIA requests. It provides a venue for the CAC to express their opinions without fears about legal actions/scrutiny etc.
…

Charlie Fleetham Fri, 24 Jan at 8:27pm
The question that was asked was whether or not the BaseCamp is subject to FOIA. According to Abigail [Elias, city of Ann Arbor assistant city attorney] it is not, and that is what I reported. I also said that I believe that the CAC is and would be well served by having a site to discuss this very complex and emotional issue without fear of public scrutiny.
…

Charlie Fleetham Sat, 25 Jan at 6:18pm
Regarding keeping information secret, no one on the project team has ever suggested keeping project data away from the public or using BaseCamp to conceal information. However, I believe it is appropriate to all folks to review draft reports before distribution to the public. That said, Lori and I scanned the project library last week, identified some documents that needed to be uploaded and the City has done so. (Note – we need to correct the year date for the Jan 9 meeting and note that the video covers the last 90 minutes only – we will do this on Monday.)
…

What’s the OMA issue here? If Basecamp is used as proposed by Fleetham, then Basecamp is a venue to conduct what are functionally meetings of the CAC – which are, according to Fleetham, explicitly intended to escape public scrutiny. Because Basecamp is protected by password, the meetings of the CAC that take place in the forum of Basecamp are, in fact, inaccessible to the public. They’re also not noticed to the public as to when they take place. But it appears that there’s a standing, ongoing meeting of the CAC that’s taking place on Basecamp.

In any event, inviting CAC members to share their opinions on Basecamp, shielded from public view, is problematic with respect to the 1991 city policy on the OMA – in at least two ways. First, these meetings are inaccessible to the public when the meetings happen. Second, there’s no opportunity for a member of the public to address the CAC on Basecamp during such meetings.

Basecamp: Freedom of Information

If the 1991 city policy on the OMA is flouted by the use of Basecamp to facilitate closed meetings of the CAC, how does this practice stack up against Michigan’s Freedom of Information Act (FOIA)?

The answer is already included in the communications above: Records held by a private entity are not subject to required disclosure under Michigan’s FOIA.

This technique for shielding records from public access is one familiar to the city’s history of citizen participation in matters related to sanitary sewers and footing drain disconnection. The Feb. 24, 2001 meeting minutes of  Ann Arbor’s sanitary sewer overflow (SSO) prevention task force reflect a conscious choice to use private contractors to hold raw data, so that the data couldn’t be obtained through Michigan’s FOIA:

Raw data will be held by CDM or sub-contractor to prevent anyone from obtaining data under the Freedom of Information Act. [.pdf of Feb. 24, 2001 minutes of the SSO task force]

While the city appears to be on solid legal ground if it were to deny a request for information on the Basecamp site set up for the SSWWE-CAC, I don’t think that would be a good idea. This approach fuels a perception that information that belongs to the public is being withheld from the public. It’s not in the spirit of Michigan’s FOIA to use the statute as a legal guide to keeping public information out of the public’s hands.

We certainly have a legitimate interest that documents still in draft form not be represented to the public as if they were final documents. For example, the initial draft of the survey results to be discussed at the Feb. 6 meeting contained some mistakes and did not include all of the survey responses. Some people were still responding to the survey when the draft was created. So it was important not to present that preliminary draft report as if it were the final version.

However, a concern about the draft nature of documents is not effectively addressed in the way that Fleetham suggests in the communications above – by circulating the drafts to committee members on Basecamp and admonishing them not to share the draft documents outside the group. If a document is a draft, it can simply be clearly designated as such through watermarking or some other digital technique. It’s not a constructive approach to ask committee members not to share the documents outside of a private website that is immune to requests made under Michigan’s FOIA.

Meetings: Coda – Feb. 6, 2014

One complaint I heard from a member of the public at the Jan. 9 meeting of the SSWWE-CAC was that the Jan. 9 meeting had not been posted anywhere on the city’s website. In fact, the meeting had been included in the city of Ann Arbor’s listings of events. Those are a subset of events that are included in The Chronicle’s event listings.

Neither of those sources is perfectly exhaustive for every single meeting. But it’s worth checking those sources.

To reiterate, the next public meeting for the study of Ann Arbor’s sanitary sewer system during wet weather will take place on Thursday, Feb. 6 from 6:30-8:30 p.m. in the Slauson Middle School auditorium.

And again, here’s the link to results of a recent survey of participants in the city’s footing drain disconnection program, which will be part of the agenda. The meeting will also include an update on the study itself, which included flow measurements in the sanitary system made last year.

About the author: Dave Askins is editor and co-founder of The Ann Arbor Chronicle. The Chronicle could not survive without regular voluntary subscriptions to support our coverage of government and civic affairs. Click this link for details: Subscribe to The Chronicle. And if you’re already helping The Chronicle flush its toilet, please encourage your friends, neighbors and colleagues to help support The Chronicle, too!