Column: When Lawyers Fool with FOIA

Two weeks ago, the city of Ann Arbor took a deliberate step to remove a document that had been publicly available on its website for nearly half a decade. Why?

Redacted version of Library Lot RFP No. 743  from Aug. 14, 2009 produced by the city of Ann Arbor in response to a recent FOIA request. The un-redacted document had been disseminated on the a2gov.org website from Aug. 14, 2009 until sometime around March 20, 2014.

Allegedly, that document contains information that – if it were disclosed – would constitute a clearly unwarranted invasion of someone’s privacy. Never mind the fact that the context of the document itself makes clear that the information in question is clearly and deliberately intended to be publicly available.

To erase any possible doubt about that, I resorted to an advanced investigative technique: I asked the guy. And it turns out that current Ann Arbor Downtown Development Authority board member John Splitt had been content to have jsplitt@comcast.net publicly disclosed as his email contact information in the document – the same as elsewhere on the Internet.

The document in question is RFP No. 743 – issued in 2009 by the city for development of the Library Lot. Why did it even occur to anyone at the city to delete RFP No. 743 from a2gov.org?

It’s actually The Chronicle’s “fault.” The city had redacted Splitt’s email address in some records it provided to The Chronicle – in response to a request made under Michigan’s Freedom of Information Act. The RFP was not a part of that records request. So we pointed out to the city that Splitt’s email address was being disclosed on the city’s own website on an ongoing basis – in RFP No. 743. On that basis, we reasoned that the city couldn’t possibly think it was invading Splitt’s privacy by disclosing his email address as part of a records request made under the FOIA. We wanted the city to stop gratuitously redacting Splitt’s email address out of public records.

Instead of conceding that there was no privacy basis for the redaction, the city now ventures that the inclusion of Splitt’s email address in the RFP had been “inadvertent.” And the entire document (RFP No. 743) has now been deleted from the city’s website. If you ask the city for the document under Michigan’s FOIA, as we subsequently did, it will be provided – but with Splitt’s email address redacted.

Meanwhile, a different digital file containing Splitt’s email address – a document we didn’t tell the city about – continues to be disseminated to the entire planet by the city of Ann Arbor. If we thought there was any merit to the city’s position that Splitt’s privacy were being invaded, we’d help the city out and just say where that other file is located.

I can’t imagine a more foolish state of affairs. But it’s hard to say who’s more foolish.

We are apparently fools to be spending our time trying to get the city to reform its FOIA policies – by trying to convince the city at least to stop making gratuitous redactions. But a year now after we provided extensive commentary to the city administrator on the draft of a possible new FOIA policy, we’ve seen no action. So we’re willing to push the issue – at the risk of appearing foolish – by insisting  that the city stop redacting information that is already public.

And surely the city administrator and the city council must feel foolish in defending the following position: Disclosing Splitt’s email address as part of a records request under the FOIA is an invasion of his privacy, but disclosing it through the city’s website is not an invasion of his privacy.

Screenshot of Tweet sent by the city of Ann Arbor’s official Twitter account on Feb. 27, 2014: “A2Gov website is a communication tool, not a document archive system.” That’s an unfortunate policy choice, but one that supports the wholesale deletion of a public document – in the interest of defending a foolish position.

In connection with requests made under the FOIA, the only actors in the drama who don’t have to publicly play the fool are the staff in the city attorney’s office.

When a city attorney writes the words justifying the initial redactions, it is not an attorney’s signature that appears below those words. The signature belongs to the city clerk. And when a city attorney writes the words justifying the denial of the appeal of a redaction, it is not an attorney’s signature that appears below those words. The signature belongs to the city administrator.

In my experience, city administrator Steve Powers and the city clerk Jackie Beaudry are not foolish; if fact, they’re common-sense, rational folk. And for the majority of city councilmembers, I can point to at least some evidence from personal experience that they are capable of common-sense, rational thought.

So I think the city administration and the city council should stop letting city attorneys make them appear foolish when it comes to the FOIA. A useful first step would be for the council to direct its city attorney to provide responses – suitable for a public audience – to all of the questions raised by The Chronicle in its March 4, 2013 commentary on a new draft FOIA policy.

The fundamental principle for which we advocated in that commentary was one based on a presumption against redaction and for disclosure. (That’s the opposite of the city’s policy.) If that kind of policy were in place now, it would never have occurred to anyone to try to redact John Splitt’s email address. We would not have complained. And the city would not have deleted RFP No. 743 from its website.

In case the city of Ann Arbor is so stubborn that it really does not want to restore the document to the city’s website – reasoning that a2gov.org is “a communication tool, not a document archive system” – here’s the unredacted RFP: [.pdf of RFP No. 743]

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