Stories indexed with the term ‘Michigan Freedom of Information Act’

Column: DDA Pay Increases, Open Meetings

Earlier this month, Ann Arbor Downtown Development Authority executive director Susan Pollay received a 5% raise from the DDA board. That brought her annual compensation to $114,570.

Excerpt from performance evaluation for Ann Arbor Downtown Development Authority executive director Susan Pollay. The DDA board appears to have decided her salary increases in FY 2013 and FY 2014 in a way that did not conform with the Open Meetings Act.

The free response portion of a performance evaluation for Ann Arbor Downtown Development Authority executive director Susan Pollay. The DDA board appears to have decided her salary increases in FY 2013 and FY 2014 in a way that did not conform with the Open Meetings Act.

The procedure used this year by the board to award Pollay a salary increase appears to have conformed completely with the requirements of Michigan’s Open Meetings Act (OMA).

However, that procedure was different from the one used to award raises to Pollay in each of the two previous years.

Those raises worked out to 8% and 6.7%, respectively. In each of the two previous years, the decision to award Pollay those raises appears to have been made in a way that is contrary to the most basic requirement of Michigan’s OMA: “All decisions of a public body shall be made at a meeting open to the public.”

That conclusion is based on records produced by the DDA to The Chronicle in response to requests made under Michigan’s Freedom of Information Act (FOIA), as well as records the DDA was not able to produce.

The analysis below begins with an overview. [Full Story]

Column: Connecting Dots – DDA, FOIA

Some good news for open government came out of Lansing this last week, on Nov. 12.

Extract from Ann Arbor Downtown Development Authority records of attendance at committee meetings.

Extract from Ann Arbor Downtown Development Authority records of attendance at committee meetings. Scanned by The Chronicle.

A piece of legislation that would “modernize” Michigan’s Freedom of Information Act moved out of the House Oversight Committee.

Progress on that legislation will be interesting to track as the bill possibly makes its way into state law. [.pdf of HB 4001]

For now, I’d like to focus on just one clause of the proposed legislation. And I’d like to connect that to some otherwise unrelated dots, one of which is an upcoming Ann Arbor city council vote.

That vote – on an appointment to the board of the Ann Arbor Downtown Development Authority – will take place either at the council’s next meeting on Nov. 18 or possibly at its following meeting on Dec. 2. [Full Story]

Column: Making Sunshine with FOIA

National Sunshine Week started yesterday. That’s not a celebration of daylight saving time, which started the same day. But the two could be connected. Yesterday’s annual conversion to daylight saving time is supposed to give everyone some extra literal sunshine toward the end of the day. Sunshine Week is an occasion to remind ourselves of the extra figurative sunshine in our governance – ensured in many states through legislation enacted in the 1970s.

FOIA Sunshine Law

Assertion of the attorney-client privilege can, on occasion, inappropriately shield public records from view. This column shines a light on the subject by considering such a case.

Sunshine Week is an occasion to remind ourselves that open government is good government.

Michigan has two laws that are key to open government: the Open Meetings Act (OMA) and the Freedom of Information Act (FOIA). Both of these laws rely crucially on good faith. For example, the FOIA allows a public body to deny access to certain public records – like those that are protected by the attorney-client privilege.

If a record is requested and then denied based on the attorney-client privilege, a requester has no way of judging whether the assertion of privilege is appropriate. A requester relies on the good faith of government officials that privilege is not inappropriately extended to records that are not in fact protected by privilege. A requester can resort to a lawsuit, which under Michigan case law can result in the review of the records by a judge to confirm – or refute – the public body’s assertion of privilege. But few requesters have the wherewithal to file a lawsuit over a FOIA denial.

Here at The Ann Arbor Chronicle, we’re celebrating Sunshine Week by laying out a recent occasion when we requested records under the FOIA, were denied the records, appealed to the city administrator, were denied under the appeal, but then were able to obtain some of the records by other means. The record in question is an email written by Ann Arbor city attorney Stephen Postema. This provides an opportunity to evaluate independently, without filing a lawsuit, whether the city inappropriately asserted attorney-client privilege in denying access to a record.

We consulted on the matter with an attorney, Marcia Proctor, who agreed to analyze the relevant factors in a hypothetical scenario. Proctor is former general counsel of the Michigan Bar Association, a specialist in legal ethics, whose practice specializes in professional responsibility for lawyers and judges.

We first present the hypothetical scenario, followed by a brief discussion of the relevant factors in the scenario identified by Proctor. We then present the text of the email and apply the various tests outlined by Proctor. We reach the conclusion that the city inappropriately asserted attorney-privilege to the document.

We then evaluate whether a different exemption provided by the FOIA might apply. That exemption allows a public body to withhold communications internal to the body – to the extent that they are non-factual and preliminary to a final decision by the body. In the balancing test prescribed by the state statute, we reach a different conclusion than the city did: We think the public interest in disclosure outweighed any interest the city had in shielding this frank internal communication from public view.

Finally, we urge the city council to weigh in on the city’s administrative policy on FOIA response, which is currently being revised. It’s important for councilmembers to set the overarching principle that guides the city’s FOIA responses. And we think that guidance should be biased in favor of disclosure. [Full Story]

AATA Revises FOIA Policy

The AATA board has adopted a revised policy for responding to requests made under Michigan’s Freedom of Information Act. [.pdf of revised FOIA policy] The vote came at its Jan. 17, 2013 board meeting. The new policy replaces the old one, which was approved on Feb. 16, 2004. [.pdf of old FOIA policy]

The old policy was brief (one-page) and essentially outlined how much would be charged for copies, for labor to retrieve records, and how much would be charged as a deposit. The new policy is more detailed, and specifies how requests are to be logged and documented by the FOIA coordinator, a form that requesters can use to request records, and an internal form that is to be … [Full Story]

UM Regents Call April 2 Special Meeting

The University of Michigan board of regents has called a special meeting for Monday, April 2, 2012 in the boardroom of the Fleming administration building, 503 Thompson St. in Ann Arbor. The announcement was emailed to media on Saturday morning, March 31. No topic for the meeting was identified.

This is the third special meeting for the regents so far in 2012. Most recently, the board met on Feb. 21 – with all members participating via conference call – and voted 6-2 formally to oppose Senate Bill 971. The legislation, which was subsequently enacted, made explicit that graduate student research assistants (GSRAs) are not entitled to collective bargaining rights under Michigan’s Act 336 of 1947. The board’s two Republican … [Full Story]

Column: FOIA Hazards, Christmas Gifts

Christmas came a little early for Ann Arbor’s fire department, as well as for the local news media. A report on Ann Arbor’s fire protection services arrived five days before Santa.

Fire Station 1

This does not depict Ann Arbor dressed in Christmas colors. Numbered locations are fire stations. This map pertains to Station #1. The green area is the area of the city reachable from Station #1 in four minutes. The red area corresponds to 10 minutes. (Image links to higher resolution file)

The report was a long time arriving, though. It was almost a year ago – on Feb. 7, 2011 – when the Ann Arbor city council authorized the expenditure of up to $54,000 for a contract with the International City/County Management Association to conduct the study.

It was a study that then-city administrator Roger Fraser had wanted, and it came in the context of a city council budget retreat a month earlier. At that retreat, councilmembers were briefed on various alternatives to the city’s current approach to staffing its fire protection – including an approach that uses a combination of paid on-call and full-time fire service professionals. At the same council meeting when the ICMA report was authorized, Stephen Rapundalo, who at the time was chair of the city council’s labor committee, criticized the city’s firefighters union for its reluctance to accept a benefits package similar to the one for non-union city workers.

So, how important was the ICMA fire protection study to the city?

Here’s one way of answering that. When Fraser announced his resignation, the city council’s search committee identified in April of this year a handful of top priority items for the interim administrator. The interim – Tom Crawford, the city’s CFO – was supposed to keep the place running, and make sure a small list of priority items didn’t fall through the cracks during the transition in the city’s top position. The ICMA fire protection study made the list.

The report was originally due in the spring, and then was delayed, and delayed again. The city was paying the ICMA for its work – a total of $38,000 in June 2011. I spoke with Crawford about the report this fall – he couldn’t offer much in the way of explanation, but indicated that the delay was on the ICMA’s end.

New city administrator Steve Powers started the job in mid-September. No ICMA report had materialized. Then in mid-November, the city paid an additional $400 to the ICMA. Shortly after that, word filtered through firefighter rank-and-file that a draft report had been released to the city by the ICMA.

At the time, The Chronicle had a Freedom of Information Act (FOIA) request pending with the city for a different set of records – maps depicting fire response-time boundary areas. Why? I’d seen one such map hanging in a public area on the second floor of city hall, that had – ahem – sparked a burning desire to see copies of all such maps.

When that request came back partly denied (no maps were produced), The Chronicle submitted a “clarification” of the original request, and added a request for the draft ICMA report. Other media had reported that their request for the draft report had been denied – but the city’s given reason for the denial was, to us, simply wrong. We figured that citing a specific prior court case might give us a shot.

We didn’t receive a denial. Instead, the city asserted its right to a 10-day time extension. And apparently this extension came on the very same day that the city turned down an appeal made by a different requester regarding the city’s denial of a similar request. It’s not entirely clear why the city denied an appeal made on one request, while on the same day claiming an extension for a similar request – from a different requester.

During the extension, I approached Powers, essentially outside the formal mechanism of the FOIA process. My pitch to Powers was not a legal argument. My pitch was based on the organizational interests of the city and the public interest of the community. We met on Friday, Dec. 16.

In that meeting, Powers assured me the draft report, the final report (which is still watermarked “draft”) and the maps would be released the following week. And the records were, in fact, released. We withdrew our FOIA request when we got the information we requested.

So Christmas did come early, right? But seriously, WTF? By the way, that does translate politely – as “Where’s the fire?”

We got what we wanted, and we should be happy about that.

Yet I still feel like the city wrapped up new socks and underwear in colored paper and called it a Christmas present. I want socks and underwear every time I yell FOIA in this democratic theater that we call Ann Arbor, not just at Christmas time. [Full Story]

Medical Pot Amendments May Yield Vote

Ann Arbor city council meeting (March 7, 2011) Part 2: At its first meeting in March, the city council undertook extensive amendments to a licensing proposal for medical marijuana businesses that it began considering for the first time at its Dec. 6, 2010 meeting. However, at the early March meeting, the council ultimately decided to postpone again its initial vote on the licensing proposal, which will eventually require two votes by the council, if it is to be enacted.

The city council will again take up the issue of licenses for medical marijuana businesses at its Monday, March 21 meeting.

Sabra Briere Ann Arbor city council raised hand to speak

Councilmember Sabra Briere (Ward 1) raised her hand and waited to be acknowledged by the mayor before speaking at the March 7, 2011 council meeting. (Photos by the writer.)

The council had previously heavily amended the licensing proposal at its Jan. 3, 2011 meeting as well as at its Feb. 7 meeting. The amendments made on March 7 put the council possibly in a position to make any final amendments, and to take its initial vote on the licensing proposal at its March 21 meeting. [.pdf of medical marijuana licensing proposal after March 7 amendments – "clean" version] [.pdf showing amendments undertaken at the March 7 meeting – "marked up" version]

Also at the March 21 meeting, the council is expected to extend the moratorium on use of property within the city for medical marijuana businesses – first enacted at the council’s Aug. 5, 2010 meeting. The initial moratorium was supposed to last only 120 days, but was subsequently extended at the council’s Nov. 15, 2010 meeting for another 60 days, and again at its Feb. 7, 2011 meeting an additional 60 days, until March 31, 2011. The council wants to coordinate the second and final vote on a medical marijuana zoning ordinance, which it passed initially on Oct. 18, 2010, with the vote on the licensing ordinance.

An additional medical-marijuana-related item, postponed from the March 7 meeting until March 21, is a proposal to enact a clear non-disclosure policy for information that the city might gather from people who have registered with the state of Michigan as medical marijuana patients and caregivers under Michigan’s voter-approved Michigan Medical Marijuana Act.

Part 1 of the March 7, 2011 city council meeting report – which deals with the non-medical marijuana issues on the agenda – was previously published as a separate article. [Full Story]