To the mayor and members of the Ann Arbor city council:

On June 10, The Ann Arbor Chronicle published its concerns over the
use of electronic communications during public meetings subject to the
Open Meetings Act, MCL 15.261, et seq. in a column that is now being
used as reference in academic settings.

In that column, I wrote:

"I would conclude then, that making a case for an OMA violation based
on the exchange we have published above would require more research.
That research might well show that no violation took place. On the
other hand, it might show definitively that a violation did take
place. It’s not an issue that The Chronicle intends to pursue at this
time."

Subsequent to the  publication of that Chronicle column, the city of
Ann Arbor complied with a Chronicle request under the FOIA.  That
request covered email exchanges among city council members and city
staff on days of city council meetings going back to the date of our
publication's launch in early September 2008.

Examination of the material provided to The Chronicle by the city
from the Feb. 17, 2009 meeting of the Ann Arbor city council showed
that it included email exchanges not provided to Great Lakes
Environmental Law Center under its request – although it appears that
these exchanges fit the description of the GLELC request made under
the FOIA.

Based on additional records of emails from that meeting – together
with email exchanges from additional meetings – we concluded that a
close re-examination of the exact language of the OMA was in order.

In the terms of our previous coverage, we've now done "more research."
 We have concluded that the Ann Arbor city council has shown a clear
pattern of violating the OMA.

The issues we address here are not a matter of juvenile behavior, or
of rudeness to public speakers, or disrespect by councilmembers
demonstrated to their colleagues, and cannot be dismissed as such.
Rather, these are matters of a substantive violation of the law that
is meant to protect the public's interest in open process for public
policy decisions.

One purpose of the Open Meetings Act is to eliminate secrecy
surrounding the deliberations and decisions on which public policy is
based. It accomplishes this purpose by requiring open discussion of
governmental action at public meetings. The requirements of the Open
Meetings Act grow out of the idea that the democratic process depends
on the public having knowledge about the considerations underlying
governmental action, for without that knowledge people are not able to
judge the merits of action taken by their representatives or to
adequately participate in their government. The overriding intent of
the Open Meetings Act is therefore to require open discussion of
governmental action at public meetings.

On examination of the corpus of email exchanges between city council
members during open meetings, it is clear that many of these exchanges
augmented the open deliberations as viewed by a public observer, thus
effectively shielding a portion of the council’s deliberation from
public view.  This is not a gray area and constitutes a violation of
both the letter and spirit of the OMA.

It is The Chronicle's position that the city council should adopt a
policy to prevent such instances of Open Meetings Act violations in
the future. Our concerns for the openness of future discussions of
public policy could be addressed by immediately enacting a council
policy that does the following:

1) Prohibits electronic communications between members of city council
during public meetings, because such electronic communications are not
accessible to the public at the time of the meeting.

2) Defines "electronic communications" broadly enough to include
email, instant messaging, text messaging and use of third party
message services such as Facebook.

3) Does not rely on self-policing or FOIA requests made by citizens to
check for compliance with the policy.

There are obvious technology solutions that would allow for the
council to conduct its business in an efficient and convenient way,
while still enforcing the openness that Open Meetings Act requires, a
requirement which the Ann Arbor city council has not met in its recent
history as demonstrated by the corpus of emails obtained by The
Chronicle under the FOIA.

In a diplomatic way over the last several weeks, The Chronicle has
encouraged the council to enact such a policy, and the council has
conducted closed session meetings to discuss its legal position with
the city attorney in response to our encouragement.   Since we began
applying pressure privately, the council has met multiple times in
open session with no public discussion or indication that action on
the issue might be forthcoming.

In light of the fact that the council has to date shown no material
progress towards enacting a policy to prevent the kind of violations
of the OMA that have occurred in the recent past, we remind you of The
Ann Arbor Chronicle's option to use legal remedy to encourage the
council to take the matter more seriously than it has so far.

Sincerely,


Dave Askins
Editor, The Ann Arbor Chronicle