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The May meeting of the University of Michigan board of regents was remarkable for a rare display of discord. It’s the only time I can recall that this particular board has publicly voiced disagreement with the administration. It’s the only time I can remember some unscripted debate unfolding among regents on a substantive issue – the issue was a resolution recognizing the right of graduate student research assistants to unionize.

Bezonki, like The Chronicle, is a different kind of beast – he's sometimes surprised by what he reads in the newspaper. This is a preview panel from the upcoming June edition of The Chronicle's comic – a monthly nod to the time-honored tradition of the Sunday funnies. Bezonki is created by local artist Alvey Jones. (Image links to Bezonki archive.)

After the meeting, I happened to be leaving at the same time as UM president Mary Sue Coleman. As we walked down the hall together, I told her that despite the tension and clearly deep disagreement on this issue, I had found it refreshing to see an actual public debate at the meeting. It simply never happens.

Whatever disagreements exist among regents – or between regents and the administration – seem to be aired privately. When tuition rates are set, some regents will read statements of polite disagreement, before casting their votes of dissent. But most action items are approved unanimously, with little if any comment. I told Coleman that I realized the meeting had been at times uncomfortable, but that I appreciated the debate.

She gave me a withering look. “I’m sure you do,” she said, crisply.

Her pointed disdain took me aback – though I should have seen it coming. From her perspective, she’d been delivered a very public defeat on an issue she is passionate about, grounded in her personal experience. She seemed weary. But her comment also revealed a view of the media that’s more prevalent and more justified than I like to admit. It’s a view of reporters as hungering for headline-grabbing, website-traffic-sucking stories – and if the facts don’t quite deliver the juice, well, there are ways to spice up reality. There’s a reason why news gathering is sometimes called “feeding the beast.”

From that perspective, Coleman perhaps heard my remarks as the comments of someone who was hungry for more drama of regents mixing it up in front of the plebeians. Ouch.

So on my drive home from UM’s Dearborn campus – where the regents meeting was held – I thought about why the exchange had touched a nerve for me. For one, I’m dismayed that elected officials and other civic leaders are so often reluctant to hold difficult discussions in public. The board of regents is not the only body that does its business like a tightly choreographed kabuki dance. But as a journalist, I’m angered when irresponsible actions by those who earn a livelihood as part of the news media give public bodies a cheap excuse to be even more closed-off.

Keeping Deliberations in Public View: Why It Matters

Any reader who  follows The Chronicle’s editorial stance – reflected in our approach to regular coverage, our columns and these monthly milestones – is likely aware that we’re relentless in pushing for openness and transparency in local government. Frankly, it often feels like a Sisyphean task. There are many more forces pressing on public officials to conduct business out of public view than there are motivations for holding all deliberations in public. That’s nothing new. You can make arguments of efficiency, or politesse, or politics – and yes, deliberating in public can be messy.

To which I say: Too damn bad.

That’s why laws like the Michigan Open Meetings Act and Freedom of Information Act are in place – it’s a recognition that legal constraints are sometimes the only thing powerful enough to prompt the type of behavior that citizens of a democracy require of their government.

Openness is also a matter of degree. I was disappointed when Ann Arbor District Library board members recently rejected a proposal to begin videotaping their monthly meetings for broadcast. At their May meeting, the newest AADL board member, Nancy Kaplan, brought forward a resolution to videotape meetings. But it was defeated on a 2-4 vote, with support only from Kaplan and Barbara Murphy. (Trustee Ed Surovell was absent.) It was also disappointing that no trustees spoke publicly during the meeting about their reasons for voting against it.

Those kinds of discussions – explaining the rationale for a particular vote – should happen at the board table.

As an aside, I should point out that, unlike most traditional media outlets, it’s not The Chronicle’s typical practice after a meeting to “get a quote” from public officials on which to base our meeting reports, though we will seek clarification, if necessary. Our rationale is based on the belief that the media shouldn’t need to act as an intermediary – if someone from the rank-and-file public takes the time to attend a meeting or watch it online or on cable television, that interested citizen should have access to the same information that a journalist does.

In the same way, we don’t believe the media should encourage public officials to make statements to reporters privately instead of at a public venue – where those statements can be on the record for everyone – and challenged publicly by their colleagues if they disagree. Obviously, this does not eliminate the role of investigative reporting or basic source development.

But too often, there’s an unhealthy symbiotic relationship between a reporter and a public official as an exclusive source. Readers and viewers often attach undue credibility to journalists who seem to have privileged access to key officials, so it’s in a journalist’s interest to maintain that access. The price for that access is that journalists allow quotes from those officials to frame the public narrative. Sometimes that price is paid unwittingly, simply because an inexperienced journalist lacks enough understanding, history or context for the subject matter.

But back to the library board. I was disappointed by the board’s decision not to make their meetings more accessible – both for anyone who’s interested now, but also for archival purposes. The archival angle is one that I’d think would be especially compelling to a group responsible for the stewardship of the local public library. If no audio or visual record of the meeting is made and preserved, then for someone who is not able to attend in person, the only way to experience the content of the board deliberations is through a reliance on reports from the media, or the official meeting minutes that are available a month or two later.

The argument that it’s a matter of resources doesn’t carry much weight with me – it’s actually a matter of will and priorities. And it seems clear that for AADL library trustees and for the UM regents (whose meetings are also not videotaped for subsequent public access), most members don’t believe a greater degree of public access is important.

And in fact, there’s often not much to witness at these meetings, in terms of deliberations on action items – perhaps an occasional question, though rarely one that’s very pointed or critical. For the regents in particular, who oversee the university’s massive budget and set policy with far-reaching implications, it’s remarkable how little can be gleaned from public meetings about the rationale for their decisions – even if you’re paying close attention.

So I suppose that one argument against spending any resources on videotaping these meetings is simply that there’s not much worth recording for posterity, other than the outcome of votes. And that, I think, is a more fundamental issue.

Public Deliberations: The Media’s Responsibility

While I would certainly put the onus of public deliberations in the hands of elected and appointed officials, the media has some responsibility here, too. That responsibility is to report based on a solid understanding of the subject matter.

That responsibility lies in developing a deep understanding of what’s being discussed around the board or council table, and in providing accurate context and background information so that readers can make sense of it. What prevails, though – in much of the national, regional and local news coverage I see – is parachute-style journalism. A reporter drops in on a public meeting, plucks out the most controversial aspect of the interaction, and trumpets that controversy as if that public body accomplished nothing else at their meeting.

That’s partly an artifact of the basic approach to news as “churnalism,” which puts a premium on speed, brevity and frequency. It’s more of a reporting-as-discussion-prompt approach. Alternately, it’s reporting as a delivery device for a poll. With provocative headlines and scant facts, readers are left to fill in the blanks with comments and speculation. And it’s always easier for someone to have an opinion, if a publication serves up issues as if all a reader needs to know is Choice A or Choice B. All of that drives website traffic, which brings in more ad revenue – if you’re selling ads based on page views and click-throughs. Chronicle ads aren’t sold on that basis.

Believe me, I’ve got nothing against ad revenue – bless the local businesses and organizations that support The Chronicle’s work. And bless the generous individual voluntary subscribers to our publication. But I believe the mission of a news publication should be driven something different from a desire to generate cheap page views.

Against a backdrop of marginally informed, eager-to-hype reporting, it’s no wonder that people in the public eye – even those who might otherwise have no problem with scrutiny – pull back from putting their business on the table. And for those who aren’t inclined to do their work in public in the first place, they’re provided with an easy excuse.

This results in a “governing class” in our community, where the path to making decisions isn’t clear unless you’re member of that class or in the network of someone who is. And those who actually follow public boards closely still have only a partial understanding of decision-making – because it often doesn’t happen where it should: In a public venue.

So while I think I understand Mary Sue Coleman’s reflexive reaction to my comments, I’ll still advocate for more of that kind of candid discussion between her and the regents.

At The Chronicle, we’re committed to proving there’s another way to approach the business of reporting – one that assumes readers can be intelligent, with a sufficient attention span to digest more than a sound bite. It’s an approach that treats the work of individuals and institutions we cover as worthy of our sustained attention – for longer than just the time it takes to collect a few quotes and pound out a few paragraphs.

I believe it’s possible to breed something other than a media beast. That’s why, against some daunting odds, we’re working hard to make The Ann Arbor Chronicle a different kind of creature.

About the writer: Mary Morgan is co-founder and publisher of The Ann Arbor Chronicle.

Purely a plug: The Chronicle relies in part on regular voluntary subscriptions to support our coverage of publicly-funded organizations and local government. Click this link for details: Subscribe to The Chronicle. And if you’re already supporting us, please encourage your friends, neighbors and colleagues to help support The Chronicle, too!

In that article, we indicated that the “the content seems to fall into two categories: (i) adolescent humor, and (ii) apparent ‘backchannel’ discussion of issues before the council, which raises more serious concerns.” The content of some of those emails has now been published in various forms in other media outlets.

We begin our own treatment of this episode in city politics by providing historical context for the Ann Arbor community’s concern about city council email exchanges during council meetings – one that predates the FOIA requests by GLELC.

In that context, we’d like to consider one of the email exchanges in more detail and use it to illuminate ethical issues surrounding the use of electronic communications during official meetings. And on that basis, we’ll explore some possibilities for the use of technology to push information to the public, instead of using it to screen decision-making processes from the public. In addition to the ethical and informational issues, there are legal questions that arise from these FOIA-ed materials. Those legal questions relate to possible  violation of the Michigan Open Meetings Act, as well as the city’s preparedness to meet the requirements of FOIA when electronic records are requested.

Historical Context

The recent publication by The Ann Arbor News of excerpts of the email exchanges between Ann Arbor city councilmembers during their meetings has provoked intense criticism of councilmembers by The News (in a June 7 editorial) and by the newspaper’s readers. The criticism has been appropriately harsh, and some councilmembers have now issued apologies.

In an online comment posted on MLive.com in response to a June 7 Ann Arbor News article, Christopher Taylor (Ward 3) contended he was treated unfairly by The News – a single-word reply he had made was not presented in its accurate context by The News, and he’d been given no opportunity to clarify that context before publication. Apologies from Carsten Hohnke (Ward 5) came on the radio Tuesday morning (June 9, 2009) with Lucy Ann Lance on WLBY 1290AM, and from Leigh Greden (Ward 3) and Margie Teall (Ward 4) via emails sent to some of their constituents.

Criticism of councilmembers for managing email correspondence – or working on their city-issued laptop computers – during their meetings is not new.

On March 29, 2009, LuAnne Bullington (former city council candidate in Ward 3) wrote in a letter to the editor published in The News:

While citizens speak, these council members type away on their computers, whisper to each other and giggle like schoolchildren. Some council members don’t even look at the people speaking to them.

And more than a year ago, on April 8, 2008, Ann K. Dilcher wrote in a letter to The News:

I always question the use of laptops by the council members. They often seem more tuned into their screens than the presentations from the floor. The members may be looking up important documents that relate to the discussion or may be e-mailing family – as an observer, you just don’t know. I think it would be good for them to consider going “topless.”

Councilmembers themselves have historically defended multi-tasking with their laptop computers during meetings as an efficient use of their time, and have not tried to hide the fact that emailing takes place during council meetings. They have also not tried to hide the fact that on occasion this emailing bears in a substantive way on deliberations. As we reported in our Jan. 5, 2009 report on a city council meeting, during deliberations on the postponement of the City Place PUD application, Leigh Greden (Ward 3) announced that the contents of an email he’d received factored into his rationale for a postponement.

Greden indicated that his reasons for postponing had gone from two to three in light of an email he’d just received.

That effort to postpone ultimately failed. In light of The Chronicle’s report of that meeting, some readers inquired with us about Greden’s use of email during the meeting. Here’s my reply to one of those inquiries in excerpted form:

There’s no doubt that the open meetings act and FOIA have not kept pace with current communications technology. I’d note that Greden simply referenced an email – who it was from (a council colleague, a random citizen, the developer, his mom … ) is anybody’s guess. Which, I take it, is part of your point: we shouldn’t have to guess.  … It’s a general issue that I’m attuned to, but would most likely require devotion of considerable resources in order to do it right. I think to take aim at this particular instance of a reference to an email by Greden would come off as a “pot shot.”

Prompted in part by Greden’s announcement about the email at the January meeting, The Chronicle has since then urged the Ann Arbor city council to move its workings more squarely out of the realm of email and into public view. That urging has taken the form of encouraging council members to use their Sunday night caucus in a way that is more constructive than its current use – which can fairly be described as yet another occasion on which to passively entertain input from the public.

And that urging has been coupled with an encouragement by citizens to play a constructive part in a productive Sunday night caucus: one that results in council sharing publicly the way it slogs through its workload. The public’s role in that, we’ve suggested, is to ask “journalist-citizen” questions. In published form, that suggestion was included in our most recent Monthly Milestone, but in draft form, it’s something I’ve conveyed  to several people privately. Here’s a different excerpt from the same reply above to the inquiry about Greden’s email:

Sure, council members sometimes interrupt and ask clarificational questions, but typically the communication is one-way: citizens speak their mind and all council members have to do is sit and listen politely. Imagine, though, a scenario where a citizen had on Sunday asked these questions of councilmembers:

1. What have your conversations (if any) with members of the planning commission focused on?
2. What have your conversations (if any) with the developer focused on?
3. Does the “by right” threat factor into your analysis how to vote? If so, how?
4. What standards should the council apply in not following a recommendation by the planning commission?

The only change I’ve noticed in Sunday night caucus since The Chronicle has made these efforts is that Mayor John Hieftje now introduces the event by stressing that it’s optional for councilmembers to attend and that many of them have family obligations that preclude their attendance.

Efforts by The Chronicle to be included on correspondence from councilmembers to city staff with their “caucus questions” has also met with minimal success. And efforts to be copied in on the staff response to their emailed questions has not yet met with success, despite good faith efforts made by the city attorney to put such a mechanism in place. We’re still optimistic that eventually some kind of mechanism can be established.

It’s in that context that The Chronicle has executed a FOIA request for additional electronic mail records from the city. Factoring in the extension which the city is allowed by law to take, the deadline for compliance with that request is June 15, 2009.

Deliberations on Postponement?

In their public apologies for their emails, some councilmembers have stressed that their future emails during council meetings will not involve the kind of irreverent non-city-related business that has provoked intense criticism from the community. In her emailed apology, for example, Teall wrote: “Any further non-business e-mailing during Council meetings has ceased, and will not continue.”

It is the business-related emailing, however, that warrants our attention, especially because the now-apologetic councilmembers seem to indicate that it will continue unabated.

To illustrate one kind of email exchange that GLELC’s FOIA brought to light, we examine one in which councilmembers – during the Feb. 17, 2009 council meeting – write about the possibility of a postponement of site plan approval and the authorization of bonds for the Fifth Avenue parking garage. For the sake of readability, we’ve excluded some back-and-forth about a “rate-setting meeting” that was included in the message bodies of some exchanges. [The exchanges are in the file "pack5.txt" at the conclusion of the article.]

Sent: Tuesday, February 17, 2009 7:19 PM
From: Hohnke, Carsten
To:  Smith, Sandi

I assume DDA would not be happy with a
postponement of the structure, yes?

----------

Date:  Tue, 17 Feb 2009 19:35:05 -0500
From:  Smith, Sandi
To:    Hohnke

True. But postponing to a date certain
may be palatable...

----------

Sent: Tuesday, February 17, 2009 7:40 PM
From: Hohnke, Carsten
To: Teall, Margie

Are you supportive of postponing the structure?

----------

Sent: Tuesday, February 17, 2009 7:41 PM
From: Teall, Margie
To: Hohnke, Carsten

No. Why is anyone thinking about it?

----------

Sent: Tuesday, February 17, 2009 7:43 PM
From: Hohnke, Carsten
To: Teall, Margie

Marcia!

----------

Sent: Tuesday, February 17, 2009 7:44 PM
From: Teall, Margie
To: Hohnke, Carsten
Cc: Greden, Leigh

But why?

----------

Sent: Tuesday, February 17, 2009 7:46 PM
From: Greden, Leigh
To: Teall, Margie; Hohnke, Carsten

She's against 5th/Division and wants time
to work on excluding that.

----------

Sent: Tuesday, February 17, 2009 7:49 PM
From: Teall, Margie
To: Greden, Leigh; Hohnke, Carsten

Doesn't that put her squarely against Sandi?

----------

Sent: Tuesday, February 17, 2009 7:49 PM
From: Greden, Leigh
To: Teall, Margie; Hohnke, Carsten

Yup. And against Hewitt and maybe Gunn.
I told her that. She doesn't care.

----------

Sent: Tuesday, February 17, 2009 7:50 PM
From: Teall, Margie
To: Greden, Leigh; Hohnke, Carsten

She cares...

----------

Sent: Tuesday, February 17, 2009 7:55 PM
From: Greden, Leigh
To: Teall, Margie; Hohnke, Carsten

She said she doesn't.

----------

Sent: Tuesday, February 17, 2009 7:56 PM
From: Teall, Margie
To: Greden, Leigh; Hohnke, Carsten

She told me what you said, and she was not happy...
I think she does care.
Does Sandi know what's going on?

----------

Date:  Tue, 17 Feb 2009 19:56:33 -0500
From:  Greden, Leigh
To: Teall, Margie; Hohnke, Carsten

I was only telling her the truth.

----------

Sent: Tuesday, February 17, 2009 8:27 PM
From: Higgins, Marcia
To: Briere, Sabra; Smith, Sandi
Subject: I won't be asking for a postponement

[message body was empty as it was conveyed
in the subject line]

----------

Sent: Tue 2/17/2009 8:27 PM
From: Smith, Sandi
To:  Higgins, Marcia
Subject: RE: I won't be asking for a postponement

;-)

-

Other FOIA-ed material by GLELC makes clear that the issue of postponement had been raised by resident Steven Bean with councilmembers up to the day of their meeting. [Bean is also chair of the city's environmental commission, but raised the issue as an ordinary citizen – the environmental commission's input was not sought on the underground parking garage.] Bean’s concern was different from the one attributed by Greden to Higgins in the above email exchange.

In an email addressed to all councilmembers on the day of the meeting, Bean wrote:

I believe that a delay is fully justified given the state of the economy, the upcoming addition of several hundred new parking spaces elsewhere downtown, the incomplete implementation of alternatives for managing peak parking demand, the lack of consideration of environmental impacts (such as greenhouse gas emissions) from increasing parking supply, and the likelihood of a permanent decrease in parking demand early in the lifetime of the proposed structure. (The last two might seem contradictory, but any increase in emissions, no matter how short-lived, would be very detrimental.)

Replying to Bean at one point during their back and forth, Greden wrote: “I enjoy these debates!” Bean responded:

Me too! Why didn’t we (all) have one on this before council decided that the best alternative was an underground structure at the library lot? Or before they asked the DDA to get a design for one? Or before the bond sale was approved? (Okay, we’re a few hours away still.) Or …? Well, at least you and I are having it.

Ethical Issues

John Chamberlin is founder of Center for Ethics in Public Life at the University of Michigan’s Gerald R. Ford School of Public Policy, and spoke with The Chronicle by phone a few weeks ago – but not about the specific emails that have since been published. Reacting to our summary of some of the emails as “adolescent humor,” Chamberlin said at the time, “They ought to know better. There is no public purpose served.”

But emailed communication could serve a public purpose. As for the general question of emailed communication, Chamberlin suggested that one way to frame the issue was by asking if those communications were a substitute for some other mechanism that did serve a public purpose, and asking if that mechanism was something that needed to be brought into the open.

If the communication is a substitute for deliberations on a matter before the council, Chamberlin said, then that communication should obviously be opened up: “You’re acting in your official capacity as a public official. You have hidden part of your commentary.” It’s certainly okay for two members of council to talk, he noted, but the question of whether they should be able to talk privately during a meeting is a different question. You’re permitted to lean over and whisper in someone’s ear, he noted. Such a conversation could be a clarificational matter as simple as “What did he say?” and possibly be more efficient than calling for a recess from the meeting.

But Chamberlin allowed that one of the ways that leaning over and whispering in someone’s ear is different from email is this: It’s readily apparent that some sort of communication is taking place when such whispering occurs – emailed communications are not so readily apparent. Working at a laptop looks much the same to an observer, whether someone is emailing or looking up material on the internet.

In evaluating the ethics of the email exchanges above – about a possible postponement of the parking garage decision – it’s apparent that a postponement was an option that some members of council might have been willing to entertain, even if there were not enough votes to pass a postponement.

There had apparently been conversations before the meeting among various parties on the merits of a postponement. Yet there were no deliberations on the question of a postponement, because no motion to postpone was brought. The emailed exchanges, then, served as a substitute for a conversation at the table about whether a motion to postpone would be brought, as well as a substitute for a conversation at the table about the fact that there had been discussions prior to the council meeting about the possibility of postponement.

If those prior discussions about a postponement had been conducted in a public meeting, then the email exchanges would not necessarily count as a substitute. However, those discussions apparently did not take place in public meetings. One opportunity to talk publicly about the issues related to the postponement would have been the council’s regular Sunday night caucus. However, that meeting was cancelled by Hieftje.

On the standard of whether the above email exchanges were a substitute for communication that should have otherwise been made openly at the council table, I think that they were a substitute. One need not conclude that those actual exchanges qualify as “deliberations” in order to reach that conclusion. And on that basis, I think it’s a fair assessment that the exchanges do not reflect an ethical approach.

Informational and Organizational Issues

If city councilmembers are inclined to use email exchanges as a substitute for communications that should otherwise best be made publicly, then it is worth reflecting on the mechanisms available to the media and the public at large to compel the public availability of those communications.

One obvious tool is to make a request based on the Freedom of Information Act.

Based on the method with which the city of Ann Arbor appears to have complied with GLELC’s FOIA requests, the city does not  seem to be ideally prepared to deal with requests under FOIA for a modest volume of electronic records. In the GLELC corpus, the email exchanges among councilmembers that were provided under FOIA were apparently identified by requesting that councilmembers voluntarily forward them to assistant city attorney Abigail Elias.

Otherwise put, the relevant emails do not appear to have been identified through a computer server-level query, as might be reasonably expected. Even assuming that councilmembers complied in good faith with the request – a fair assumption – human error among 11 councilmembers could result in accidental failure by the city to produce records as required by law.

If the records were identified by both means – voluntary forwarding, plus a server-level request – then it’s fair to ask what purpose the voluntary forwarding served. There have been conflicting reports, but my best current understanding is that The Chronicle’s FOIA request is being completed via a server-level query.

The format of provided documents is another way to evaluate how prepared a public body is to meet FOIA reqeusts. The format of the documents provided to GLELC under FOIA was paper printouts of emails. But the 1994 case “Zeeff v. City of Ann Arbor” makes clear that the original electronic format for FOIA-ed materials can be compelled. Why not provide the format that a requester could compel anyway?

In at least some cases, the city of Ann Arbor seems to opt for needlessly complex solutions to FOIA requests. In an unrelated FOIA request made recently with which The Chronicle is familiar, a request for city staff compensation data was met by the city in the following way: (1) print out the electronic report, (2) physically mask names of personnel, (3) scan the masked document to create electronic images, (4) run an image-to-text program on the scanned image, (5) provide the resulting electronic output as the requested record. As The Chronicle was processing the material, the apparent method came to light due to image-to-text conversion errors, plus an imperfect job done in masking names.

Given the potential need to meet FOIA requests for thousands of email records, it’s thus worth reflecting on the problem from a purely information-technology point of view. Rather than respond to FOIA requests in a reactive way, one could imagine a public body taking the view that any and all records subject to FOIA would be made public as a matter of the usual workflow of that public body.

If all or most of the material that could be requested under FOIA were already publicly accessible, then a public body would be practically immune to any extra work caused by FOIA requests.

It’s worth making the distinction here between “making publicly available” and “publishing.” Take salary information, for example. If there’s a PDF file containing a list of salary information, which citizens can access online if they want to know how much the city administrator is paid, that can fairly be described as “making the information publicly available.” And that’s a reasonable state of affairs to contemplate. Somewhat less reasonable is a “publishing” scenario, where the caption to Roger Fraser’s photograph on the city of Ann Arbor’s website would include his salary.

The University of Michigan is an example of an institution that for years has made its salary information publicly available.

Short of shoving all FOIA-able material into the public realm proactively, one could contemplate a combination of technology and policy that would make compliance with FOIA requests for electronic documents more straightforward than the method apparently employed by the city of Ann Arbor. Until recently, at least, that method seemed to entail voluntary submission of records by councilmembers, printing out the material, inspection of each sheet of paper, redaction with a black marker if necessary, photocopying the stack of paper, then handing it to the requester.

Those redactions reflect exemptions, which an institution may (but is not required to) apply under the law, which include :

15.243 Exemptions from disclosure; 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:

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

(h) Information or records subject to the attorney-client privilege.

(n) Communications and notes within a public body or between public bodies of an advisory nature to the extent that they cover other than purely factual materials and are preliminary to a final agency determination of policy or action. This exemption does not apply unless the public body shows that in the particular instance the public interest in encouraging frank communications between officials and employees of public bodies clearly outweighs the public interest in disclosure.

In the spirit of a desire for a simpler approach to compliance, we posed the following challenge to two faculty members of the University of Michigan School of Information.

Challenge: For an organization subject to FOIA, design a policy standard for use and configuration of email accounts and servers to eliminate the need for any visual/manual inspection of email records in response to FOIA requests.

David Wallace is a lecturer at the school, who focuses on the role of archives in enabling and denying accountability and justice, and the computerization of government records. Professor Virginia Rezmierski’s research interests include institutional norms to address issues of privacy and security of electronic records.

Based on emailed responses from Wallace and Rezmierski, our challenge is phrased in a somewhat extreme way. They both rejected the idea that it was feasible or desirable to provide documents without visual inspection. Wrote Wallace:

… Technologically you could do wide searches but again I cannot imagine any agency releasing records in response to a FOIA request without proper screening. And in fact not screening can lead to improper disclosures of personally identifiable information or sensitive information. To my mind what is needed is a combination of sound records management combined with a transparent and open practices (not rhetoric about transparency – but real efforts at affirmative disclosure in absence of FOIA requests.)

Rezmierski, for her part, said:

… the issue that strikes me is that ALL records need to be visually reviewed before it is possible to identify any exemptions that might apply …

For a long time we have needed email to be configured in such a way that notes and communications preliminary to a decision could be managed by the writer as private, while official responses or decisions could be configured and marked in such a way as to be readily available as records. Even under such a system however, the FOIA request would have to be specific enough that it could be readily identified, and visual inspection for any potential exemptions would still most probably occur.

With respect to Rezmierski’s suggestion of configuration and marking of records “in such a way as to be readily available as records,” the FOIA law itself provides some direction, requiring that agencies subject to FOIA undertake practicable measures to facilitate separation of exempt material from non-exempt material:

15.244 Separation of exempt and nonexempt material; design of public record; description of material exempted.
Sec. 14.
…
(2) When designing a public record, a public body shall, to the extent practicable, facilitate a separation of exempt from nonexempt information. If the separation is readily apparent to a person requesting to inspect or receive copies of the form, the public body shall generally describe the material exempted unless that description would reveal the contents of the exempt information and thus defeat the purpose of the exemption.

In the case of electronic mail, one could imagine a policy, together with a technology, that would prompt the author of an email who hits “send” to flag the correspondence  in an appropriate way – a way of forcing the author of an email to categorize it, say, as “attorney-client privileged” or “personal” or “ready for publication” with a default as “ready for publication.”

Speaking to The Chronicle by phone, Rezmierski told us that she thought exclusive reliance on that approach for release of records wouldn’t work for two reasons. First, the average email author in an agency subject to FOIA would not be familiar enough with FOIA interpretation to make an accurate assessment. Second, the judgment should be based not on an individual’s desire, but rather on the public interest.

Still, Rezmierski points to her own work in this field that calls for a technical solution to allow a distinction to be maintained between “notes,” “preliminary decisions” and “official records.” To designate official records, she has suggested the application of an “electronic letterhead” to documents. One “fly in the ointment” is the reliance on the author of such documents to attach the letterhead.

Rezmierski traces part of the current challenge posed by myriad electronic documents to a historical failure to maintain the proper relationship between policy and technology. When it was recognized that email would be traveling through multiple servers, she said, we too readily accepted that email was not private communication and that there was no reasonable expectation of privacy. Instead of accepting that premise, she suggests, we could have set a policy that electronic communication should be treated just like a sealed letter with the same expectations of privacy associated with a sealed letter. From that policy we could have developed appropriate technologies to ensure that the expectation of privacy was actually met, she says.

In any case, the release of documents without review – that is, based purely on the flags or letterhead attached by document authors – is not something Rezmierski sees as feasible.

In its FOIA request for additional records, The Chronicle has specified the requested records in a way that has a similar effect to a pre-separation of exempt materials from non-exempt materials. Specifically, the way that we specified the request does not target emails to or from constituents of councilmembers (triggering possible redaction due to unwarranted intrusions of privacy). Nor does our request include communications between the city attorney’s office and councilmembers, which we suppose would have a high probability of being exempted due to attorney-client privilege.

Legal Implications: Open Meetings Act

The  Michigan Open Meetings Act provides that the public must be given notice in advance of the meetings of a public body. And the regular meetings of the Ann Arbor city council in council chambers are announced in various ways that fully comply with the act. If councilmembers email each other during such a  meeting – one which has been properly noticed – where does the potential violation of OMA lie?

The potential violation is that the emails themselves could possibly constitute a separate meeting from the one that was properly noticed – a separate meeting that would require its own notice and public access, not to mention its own minutes.

To get a clearer understanding of what it takes to constitute a meeting via email communications, The Chronicle spoke by phone with Lisa Rycus Mikalonis, an attorney with Sommers Schwartz in Southfield, Mich., who specializes in communications law, freedom of information and open meetings acts.

By way of general orientation to the issue, Mikalonis stressed that the basic legislative intent of open meetings acts is to ensure that public work is done in public view. And the spirit of Michigan’s Open Meetings Act, she continued, is “openness.”  Given that emails exchanged between councilmembers are not in public view, isn’t that – on its face – a violation of OMA?

No, says Mikalonis. There are two aspects to determining whether a “meeting” has taken place: (i) whether a quorum was reached (ii) whether the substance of the communications was related to the business of the public body.

In the case of the Ann Arbor city council, for a single email exchange to count as a “meeting” there would need to be six participants in the exchange – the council has 11 members –  and the substance of the communication would need  to be in some sense deliberative. In the  case of some of the emails that have been previously published by The Ann Arbor News – concerning golden vomit and sea turtles, for example – the best defense against a charge of an OMA violation would be to maintain that the communications amounted to horseplay, and were in no way deliberative. In my view, a defense based on the frivolous character of the exchanges is fairly compelling – many of them are uncontroversially frivolous.

However, the example we’ve laid out above – involving the possible postponement of the resolution about the underground parking garage – is less clearly non-deliberative. The communications are gossipy in flavor, to be sure – indeed, Smith’s contribution in its entirety is a winking smiley. Should a winking smiley count as a contribution to a deliberation? On its own, I’d say probably not.

Taken in aggregate, however, all the email exchanges suggest a background in which the merits of postponement were discussed by among multiple parties before the meeting. So it’s those discussions that I think could potentially warrant consideration as an OMA violation.

And it’s worth noting that the number of people involved on any one email exchange or who were a party to any one of those discussions need not necessarily achieve a quorum, in order to count as an OMA violation. Mikalonis pointed us to a 1988 case, “Booth Newspapers v. Wyoming City Council,” in which the court held that serial meetings of sub-quorum groups amounted to a “constructive quorum,” and thus violated the OMA.

But what’s crucial to the question of discussions about the possible postponement of the parking garage resolution, said Mikalonis, is the fact that no motion to postpone was ever brought at the table. If a motion had been brought, and no discussion had taken place at the table on that motion to postpone, it might be possible to argue that the decision against postponement had been made in prior conversations, confirming the nature of those conversations as deliberative, she suggested. But given that no motion to postpone was ever brought at the table, no decision was ever made on that question, so it’s moot to ask when it was made.

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.

If not the letter, then I think the spirit of OMA – openness – is violated when email exchanges take place between councilmembers about matters they could just as well discuss openly at the council table. It’s not particularly important to me whether councilmembers  apologize for the frivolous emails they’ve sent in the past, nor do I attach any particular weight to their apologies – a month went by with no apologies.

What’s important is a recommitment by the Ann Arbor city council to openness and transparency. It’s not a commitment that can be articulated in emailed statement to constituents or in a radio interview. It’s a commitment that will be reflected by conducting public business in public.

Future of Transparency for the City of Ann Arbor

The one example we’ve considered in this column shows that laptop computers – as they’re currently used by councilmembers – can and do serve to screen some of the decision-making process and rationale from the public.

One approach to achieving a city government that is not just transparent, but also illuminates its citizens – so brightly that we might have to contemplate dimming it during certain times of the year to protect migratory birds – is to add even more technology to the equation.

One example: If city council members receive proposed amendment language via email from their colleagues or the city clerk during meetings, it would make sense that council chambers be equipped with wireless internet access so that members of the public can receive the same information if they choose to bring a wifi-ready device to council chambers, or if they’re watching the meeting live on Community Television Network. It would also make sense that the same information be projected on a screen so that members of the public can easily follow along.

The city’s planning commission deals with material on a regular basis that is at least as complex as that handled by the city council. Yet its members are not issued laptop computers by the city, and their meetings are run quite efficiently and transparently with only a single staff member using a laptop computer to project images and text onscreen when necessary.

So it’s not just a matter of adding more technology. It’s a matter of putting aside the use of some “private technology” – like laptop computers – in favor of “public technology” – like projectors.

It’s not a matter of promising to keep laptop computers closed when members of the public are addressing council, or refraining from sending frivolous emails to each other during meetings.

It’s a matter of reflecting continuously on the question:

Is the information on this screen I’m staring at – which by definition is important and relevant to my decision-making … because I’m staring at it during a council meeting – as equally accessible to the public as it is to me?

I think a fair answer to that question is, too often, no.

Email Corpus

The following are raw, uncorrected text files. They are made from the image-to-text processing of digital scans taken of the paper copies provided by the city of Ann Arbor in response to the GLELC FOIA request.

• pack1.txt
• pack2.txt
• pack3.txt
• pack4.txt
• pack5.txt
• pack6a.txt
• pack6b.txt
• pack6c.txt
• pack6d.txt
• pack6e.txt
• pack6f.txt
• pack6g.txt
• pack6h.txt
• pack6i.txt
• pack6j.txt
• pack6k.txt