Column: FOIA Hazards, Christmas Gifts

Dave Askins — Wed, 21 Dec 2011 22:54:56 +0000

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.

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.

To be clear, this column doesn’t attempt an analysis of the ICMA report or a comparison of the two draft versions of the report. We begin by looking at a super-boring meeting – of the city council’s audit committee.

City Council Committees: Where Democracy Dies?

So, why do we need to talk about the city council? City councilmembers aren’t “first responders” to a FOIA scene, right? That’s right, they’re not.

Ann Arbor’s procedure is that FOIA requests first go to the FOIA coordinator. The requests then get distributed to a relevant staff person, and the assembled records get checked over by the city attorney’s office, before they’re given to the requester. Or if a request is denied, and the requester appeals the denial, the appeal could wind up on the city administrator’s desk.

So two potential key actors in Ann Arbor’s current FOIA system are the city attorney and the city administrator. And it’s those two positions that the city council hires and fires in Ann Arbor’s council-manager form of government. So any pattern of behavior we’d like to see in the city attorney or the city administrator needs to be supported by a majority of the city council.

One problem with our current city council is that a majority of them don’t appear to believe in basic, actual democracy. You know, the ordinary garden-variety kind where you have, say, a bunch of people sitting around a table, and they need to reach a consensus about who will be the chair of a committee. And somebody says, Hey let’s just vote on it! Let’s elect someone! Let’s get Margie, she’s been here the longest! Let’s elect Margie!

I didn’t make up that scenario out of thin air. It was essentially what unfolded when the audit committee of the city council met on Monday, Dec. 19. Carsten Hohnke (Ward 5) was absent. Attending were Stephen Kunselman (Ward 3), Sandi Smith (Ward 1), Sabra Briere (Ward 1) and Margie Teall (Ward 4). As Teall began to preside over the committee’s work, Briere asked Teall to pause.

Briere wanted to engage in a deliberate act to elect a chair of the committee. Her desire for some sort of elective process was based on the fact that the previous year, the audit committee didn’t meet. The committee didn’t meet because the chair, Stephen Rapundalo, hadn’t called a meeting. But how was it determined who the chair was, if no meeting had been held to determine a chair? This was actually a question that Kunselman had previously raised at city council meetings.

In Briere’s remarks, it was plain (to me, in any case) that she had no problem with Teall chairing the committee – Briere simply wanted to engage in the act of electing Teall as chair. Smith poo-pooed the idea that there was even an open question, saying that Teall had more seniority than any one of them – by three elections. Teall herself appeared to bristle at the suggestion that they should vote on who would be chair, saying that she was concerned about the precedent it would set.

As near as I can tell, that precedent would be democracy.

Karen Lancaster, who is accounting services manager for the city, was taking minutes for the committee. She appeared a bit flummoxed by the discussion, and inquired if the committee members would be voting. Briere then smoothed things over by saying she would be content if it was simply explicitly documented that Teall would be chair, based on her seniority on the council. (No worries, the city’s audit turned out to be basically in good shape, except for some persistent P-Card issues – more on that in a meeting report sometime in the future.)

Later on the evening of Dec. 19, at the city council meeting, Teall reported out from a closed session held towards the end of the council meeting. The council’s administration committee had produced a resolution on the city attorney’s contract renewal. Most of the council had attended the closed session on city attorney Stephen Postema’s performance review. Briere declined to participate in the closed session, emerging from the council’s workroom to take her seat for a while – at the otherwise empty table in the council chambers.

When the rest of the council returned, Briere’s reason for sitting out the closed session became clearer. When the resolution was put before the council, including Briere, she said she didn’t believe the council’s administration committee – consisting of Teall, Tony Derezinski (Ward 2), mayor John Hieftje, Marcia Higgins (Ward 4) and Christopher Taylor (Ward 3) – had solicited non-committee members before the closed session for input on Postema’s performance, or provided an opportunity to do so. And no one from the administration committee could point to such an occasion in the relevant timeframe.

So, twice in one day, two different committees of the city council apparently balked at following the most basic of democratic principles. That’s just internal city council politics, I suppose. Or call it city council culture.

But even if the council can’t organize itself internally in a democratic way, I still hold out hope. I hold out hope that the council could demand that its two direct reports – the city attorney and the city administrator – act in an open and democratic way with respect to the FOIA.

Ann Arbor’s FOIA Procedures Policy

Former city administrator Roger Fraser’s FOIA procedures policy from March 2010 (Policy 104) runs 30 pages long. Printed out on paper, I suppose it would make excellent kindling, just like any Chronicle meeting report. Two key points of the policy:

6.2.3 Document Review; Exemptions
…The general policy of the City is to not release information that is exempt from disclosure under FOIA or other law. (1)

6.2.3.2 Exemptions Identified – Copy Requested The service area shall highlight or otherwise identify public records (or portions) for which it determines an exemption applies or may apply and provide the public records to the FOIA Coordinator, along with information as to which exemptions the service area believes apply. The FOIA Coordinator shall present these initial determinations to the City Attorney for review. (2)

Together, the effect of these policies is to release the absolute minimum amount of information to the public, and to give a central role to the city attorney’s office in the process.

So, for rank-and-file city staff members who are assigned to track down the requested records, their first task under the policy is to try to figure out which exemptions apply or even might apply. By way of example, some commonly cited exemptions are attorney-client privileged communications, physician-patient privileged communications, or information of a personal nature that would amount to an unwarranted intrusion into someone’s private life.

Then, once staff has identified the exemptions, the city attorney’s office reviews the records and the possible exemptions.

It’s easy to imagine the opposite approach, based on the insight that the exempt status of information under the FOIA does not require a public body to withhold it. Here’s a “draft” of what that could look like:

Document Review: The general policy of the city is to release any information requested under the FOIA, without regard to its possible exempt status under the FOIA, to the extent that such release would not violate some other law.
Disadvantages Identified: The service area shall identify any perceived disadvantage to the city as an organization or to the public that would arise from disclosing the requested records. The fact that a record is exempt under the FOIA shall not be cited as a disadvantage that accrues to the organization on disclosure. If any perceived disadvantage is identified, then the FOIA coordinator will submit the records and the specific concern about disadvantages to the city attorney. If the city attorney is able to identify a qualifying exemption under the FOIA, then the information will be withheld.

This approach would take the city attorney out of the automatic loop for review for some requests. For example, if a fire chief receives a request from someone who wants a copy of a draft report, and the fire chief can’t think of any reason to withhold it, or maybe even actually wants to push it to the public, then the report wouldn’t even get reviewed by the city attorney before being given to the requester.

Of these points, the most important is the first. The second is more like a staff management issue than a policy point. Trying to describe who reviews a request, and when, is more like an implementation question than a policy question. If the first point is in place, it shouldn’t matter who’s reviewing – the service area staff or the city attorney’s office. But like I say, that’s a draft. I don’t think it would be too hard to come up with a task force of interested citizens who would be willing to invest the time to sit down with the city administrator to hammer out a revision to Fraser’s Policy 104.

Results of the “Disclose the Minimum” Policy

So what happened when the city implemented Fraser’s Policy 104? One result was that the city denied a request for maps showing the boundaries of the geographic area reachable in different time periods by firetrucks deployed from different fire stations.

What triggered the request was a map, which I observed hanging on the wall of city hall on Nov. 20, when I attended the city council caucus. (For you councilmembers who had a perfect record of non-attendance at Sunday caucus in 2011 – that is, everyone who’s up for election in 2012, including the mayor – that’s the kind of thing you might miss.) It was hanging there with other maps as part of GIS Day at the city earlier in the week.

The map I saw shows the response time areas for fire stations #1 and #2 on the same map. (Station #2 is no longer used as a fire station, but presumably could be converted back to one.) This map piqued my curiosity because I’d heard speculation from rank-and-file firefighters that the city was exploring a “super station” concept – a deployment of trucks and firefighters to just two of the city’s six fire stations. On that kind of approach, each station would be staffed with more staff and firefighters than the individual five currently operating stations are. So I was keen to get an understanding of other possible maps that the city had created.

Maps are facts assembled for visual display. They’re just data. Yet the exemption cited by the city asserted that the maps were of “an advisory nature.” Specifically, here’s what the denial letter asserted [emphasis added]:

Your request is denied to the extent that electronic files have been exempted under the following, based on a determination that has been made that the public interest in encouraging frank communication between officials and employees of public bodies clearly outweighs the public interest in Disclosure:

1. 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. MCL 15.243(1)(m)

Please be aware that the map you photographed is an internal document that falls within the foregoing exemption as well, but was inadvertently posted on the wall on the second floor of City Hall. It was removed when the inadvertent posting was noticed.

So the city attorney is denying FOIA requests based on the exemption that begins with the phase “communications and notes within a public body” apparently without attention to the requirement that to qualify for the exemption, the communications must be “other than purely factual materials.”

Here’s how I put it in a revised request, in which I stressed that it had not been my intent to be requesting anything other than purely factual materials:

… what I intended to request was purely factual information. Indeed, I believed I was in large part requesting sets of lat-long coordinates together with the metadata that would allow for their correct interpretation. The line on a map showing a boundary for 7-minute response time, for example, would ultimately consist of lat-long coordinates. The exemption in 15.243 Sec.13.(1)(n) cited by the city clearly does not apply to purely factual information like sets of lat-long coordinates. From the city’s use of the exemption in 15.243 Sec.13.(1)(n), however, I conclude that the city understood my request to be for information other than purely factual information. I hereby clarify that my request intended to identify only factual information.

That revised FOIA request included a request for the draft copy of the report for the fire protection study from the ICMA, a kind of request that by then had already been denied to other media – based on the “internal communication” exemption. An outside consultant’s report, like the draft of the ICMA’s report, is simply not a “communication within a public body.”

It’s actually surprising that there’s a Court of Appeals case from 1987 that is right on point. Who would even contemplate the possibility that the FOIA exemption on communication “within a public body” would extend to an outside consultant’s report? Apparently the state of Michigan’s Department of Management and Budget did. But the Court of Appeals made short shrift of the argument [DeMaria Building Company v. State of Michigan, Department of Management and Budget 1987], concluding that “… we interpret the provisions of §13(1)(n) as not providing for exemption from disclosure of communications of independent consultants to a public body.”

While the maps are clearly internal documents, they are not exempt – because they are simply facts, and are not advisory. And while the draft ICMA report is clearly at least in part advisory, and preliminary to a final decision, that’s not relevant – because the draft ICMA report is not a communication within a public body or between public bodies.

Merry Christmas: Fighting Fire with FOIA

So here are the Christmas presents, in case you haven’t found them elsewhere online:

I haven’t reviewed either draft report in great detail. But I did look through them with an eye to testing the consistency of the ICMA’s findings (based on a comprehensive look at Ann Arbor’s fire department) with my own very tentative conclusions based on the tiny set of data (from four fires) I examined in detail. That examination was prompted by police chief Barnett Jones’ complaint made during a city council meeting that reporting in other media about AAFD response times had been inaccurate.

As part of The Chronicle’s May 16, 2011 council meeting report, I was able to show that constructing an accurate timeline for AAFD response to a fire is not as simple as pulling numbers off an AAFD report. In AAFD reports, some time points that are actually different are systematically collapsed into one time point. Augmenting AAFD reports with computer-aided dispatch data helps to reconstruct more precisely what happened.

And subsequent analysis of the computer-aided dispatch data that The Chronicle was able to obtain shows that even the computer-aided dispatch data contains regular inconsistencies, which are nonetheless explainable. So I found that by drawing from the computer-aided dispatch data, the AAFD reports (including firefighters’ written narratives), and the physical reality of station locations, it’s possible to construct plausible timelines for alarm times, vehicle station departures and vehicle arrivals on a fire scene.

What I concluded was this: The time interval that seemed much longer than it should be (based on national standards), and that provides the greatest opportunity for improvement is the interval between the time a call comes to a station and the time a firetruck starts rolling to the scene (turnout time). That is to say, the other time interval – the travel time from fire station to fire scene – did not look like the place where the AAFD could improve most. Here’s a link to a GoogleSpreadsheet summarizing that analysis: [AAFD fire response data]

The ICMA report seems consistent with that conclusion [emphasis added]:

… ICMA data analysis reveals the greatest opportunities for improvements. According to NFPA standards, fire departments should comply with an 80 second turnout time for fire and special operations and 60 second turnout time for EMS response. The AAFD average turnout time was between 1.8 and 3.1 minutes. The average turnout time between 1 a.m. and 6 a.m. was longer than 2.9 minutes, significantly outside the recommendation. This could be due to a number of factors.

First, the method of communication between the dispatch center and the fire station may be causing a delay in getting the units out of the station faster. Improvements in this area may include equipping response vehicles with mobile data units, upgrading station notification systems to automatically turn on lights and open fire apparatus bay doors, or again, monitoring crew turnout to ensure a timely exit from the fire station. As might be expected, ICMA’s analysis indicates increased turnout times during the twenty-four hour shift schedule when crews are sleeping. In review of the current average response time for AAFD there appears to be opportunities to decrease response time without adding additional stations or resources.

At the same time, I don’t see a clear recommendation anywhere to reduce deployment to just two stations. That is, I don’t see an explicit case for a “super station” anywhere in the ICMA report. I might have missed it – so if you’re inclined, go ahead and unwrap this Christmas present yourself, and don’t just play with the box.

I’m also not sure it’s fair to conclude that the set of recommendations in the report explicitly rule out a “super station” concept as not viable. Based on the existence of maps showing two scenarios for such a concept, the downtown fire station #1 would be a part of that kind of solution, along with either station #6 or station #2 (a building now out of service as a fire station).

If this is a strategy that continues to receive study and review, and if it eventually finds its way to recommended implementation, then there’s no question that Ann Arbor residents will expect fire chief Chuck Hubbard to stand up in front of the coverage map and explain to the community how coverage would work. We would need to be prepared at least to listen to that explanation – if it ever even comes to that. And Hubbard would need to be prepared to hear why we think he might be wrong.

In the end, I think all the information we wanted regarding fire reports (for now) has now been provided by the city. But on the whole, I think too much effort on this project had to be invested in getting the information.

And many questions remain about that information. How are we supposed to interpret the fact that the city initially denied a FOIA request, denied it again on appeal, but then produced the information? Why does the final ICMA report have this weird “Draft” watermark? Who actually wrote the ICMA report? (Chief of police Barnett Jones gave the name of one of the authors at a city council meeting in May – Don James, a Florida firefighter.) What was the point of the earlier draft – why not just produce the final version to the city? Who at the city read the draft? What are the city’s next steps? Will there be public meetings presenting the report and fielding questions?

In a followup phone interview on Dec. 21, I talked to Powers about some of these questions. Speaking generally, he said his basic approach is first to follow the law and to follow the ethics policies of the ICMA – he’s a member. Part of that ICMA ethics policy, he continued, is that the public should have access to information because democracy works only if people are informed. As far as some delay in getting the report to the public, he noted that he does report to the city council, so from a pragmatic view, it’s important not to get out ahead of the council.

Accommodating the city council was not, of course, the basis of the city’s denial of the FOIA requests. So I asked Powers if we could interpret the release of the earlier draft, after an appeal had been denied, as an indication that the city had implicitly reversed its legal position. What exactly was the city’s legal position on that now? Powers indicated that he would defer to the city attorney as far as any “official legal position,” but indicated that he felt the city attorney would disagree with my assessment that the city was required to disclose the initial draft report when it was requested under the FOIA.

On the question of why the initial draft was produced by ICMA to the city at all, Powers indicated that this was fairly common for consultant work – it gives the client an opportunity to correct simple factual errors (the earlier draft spelled one of the cities in our region as “Lavonia”) and any significant mistakes, as well as to review whether the consultant covered the required scope of work.

The initial draft was examined by Powers, chief financial officer Tom Crawford, chief of police Barnett Jones, and fire chief Chuck Hubbard, Powers said. Even with respect to the report that’s now been widely circulated, Powers indicated that there may be some factual issues concerning response times contained in the report.

Next steps for the report are first to get ICMA to “clean up” the document. That includes removing the “Draft” watermark, and putting a date on the document, Powers said. Asked if there was a specific mechanism by which the ICMA report, once finalized, would be introduced to the public – through a public meeting, a presentation at a city council meeting, or a council work session – Powers indicated that the audience he’d be looking to now would be the rank-and-file firefighters. As for the general public, he said, there are no specific plans, but he’d work with the council on that.

On the more general question of taking a look at FOIA policies and procedures, Powers did not commit to anything, saying he’d need to give that some additional thought.

Steve Powers: Let’s Not Turn Him into Santa Clause

Now, it’s not entirely clear to me what the impact of this ICMA fire report episode will be on future information requests. I told Powers back on Friday, Dec. 16, that I’m less concerned about what information the city attorney believes he might be entitled to withhold, than I am about having the city simply produce it.

On the sketch I made earlier for a new city FOIA processing procedure, the city attorney would not necessarily have an automatic role to play in processing FOIA requests, even when some city staffer thinks an exemption might apply. Ultimately, though, whoever is doing the review – city service area staff or the city attorney’s office – would be affected most by the overarching point of Policy 104: “The general policy of the City is to not release information that is exempt from disclosure under FOIA or other law.” So that’s the part that I think needs attention.

In this recent case, I almost feel like Santa slid down the chimney in the form of Steve Powers and landed right on the FOIA and put it out – but unpacked a giant sack of toys for all us good girls and boys. But like I wrote earlier, the toys feel more like underwear and socks – this is basic stuff we should get year round. And I don’t want to have to ask Santa every time I can’t get the information I’m asking for.

So I’m betting on Steve Powers, but not as Santa.

The release of this information, after the initial denial (albeit not under the auspices of FOIA) could be the start of a shift in culture towards releasing information more easily. To effect that shift, Powers would have to balance the individual interests of the community, the city as an organization, the city council, and the city attorney. The most difficult piece, I think, could be the city attorney.

But as a former county administrator in Michigan, Powers has experience managing people who are a part of his organization, but who don’t necessarily report to him. When Powers interviewed for the Ann Arbor city administrator job, he talked about that balance, saying that elected officials who are part of the county government in Michigan (like the county clerk, or the county prosecutor) are independent: “They have to be respectful at budget time, but they can do what they want.” So Powers’ county government experience should be useful in “managing” the city attorney’s office within the city organization. That’s because the city attorney reports neither to voters nor to the city administrator, but rather to the city council.

And that brings us back to where we started: the Ann Arbor city council. For Powers to succeed, he needs to have the council’s support. I would hope that the council supports him if the new city administrator decides he wants to take a more liberal approach to releasing information to the community.

The city of Ann Arbor already has a good platform to build on – the DataCatalog and A2OpenBook, for starters. I’m looking forward to 2012. I feel like it could be a year when our stockings will be stuffed year round with information from the city.

In the meantime, please consider this column The Chronicle’s Christmas greeting. Please check your tree for water.