I did not plan to write about the topic below. I am writing this now, only because I see flippant mischaracterizations and gross misinformation shared on Facebook by Mayor Taylor. I have serious concerns about quite a lot of the news I’ve read in the last month, but I see little value in offering my own opinion about facts that are either still in dispute (response to sexual harassment in the workplace) or facts that are admitted and acknowledged (falsehoods in campaign materials). More importantly: I do not believe personal family matters should be exploited for political purposes.
In the last month, MLive and other media outlets (Eclectablog, Detroit News, Detroit Free Press, Michigan Advance, Lansing State Journal, Lansing City Pulse, Deadline Detroit, etc.) have published many stories about a member of Ann Arbor City Council. These stories covered three separate topics: insensitivity to sexual harassment in the workplace, false statements published in campaign materials, and a family situation that resulted in a 911 call and police report. It happens that one of those topics – the third, most personal and private situation – should have been included in the City’s response to a Freedom of Information Act (FOIA) request filed by Ryan Stanton, a writer at MLive.
BACKGROUND
In late January 2021, Ryan Stanton was working on an article about threats and extreme hostility directed at specific Council Members. For research on that topic, Mr. Stanton filed a FOIA request for all police reports attached to (and 911 calls from) every Council Member’s home address. In response to that FOIA request, the City turned over a number of reports from my colleagues, as well as emails I have written to our police chief about a potential stalker.
https://www.mlive.com/news/ann-arbor/2021/03/death-threats-dried-pig-fetus-among-concerns-ann-arbor-officials-reported-to-police.html
In late March 2021, Ryan Stanton learned about a police report and 911 call (connected to the home address of one of my colleagues) that clearly qualified for inclusion in his January FOIA request, but was withheld by our City’s legal department. He consulted with attorneys for the Michigan Press Association who specialize in FOIA compliance.
STATE LAW
Michigan law includes certain exemptions for FOIA requests. This particular situation may have qualified under MCL 15.243, Section 13, which exempts disclosure of public records that would be an “unwarranted invasion of personal privacy.” However, MCL 15.244 Section 14 also requires:
(1) If a public record contains material which is not exempt under section 13, as well as material which is exempt from disclosure under section 13, the public body shall separate the exempt and nonexempt material and make the nonexempt material available for examination and copying.
In its response to Stanton’s FOIA request, the City made no attempt to redact or otherwise ‘separate’ what did or did not qualify under the privacy exemption. Moreover, MCL 15.235 Section 5 explains that any FOIA denial (i.e. exclusion of records requested) must contain:
(a) An explanation of the basis under this act or other statute for the determination that the public record, or portion of that public record, is exempt from disclosure, if that is the reason for denying all or a portion of the request.
When Ryan Stanton explained to me that he received nothing from the City that would have complied with either of these sections of Michigan FOIA law, I was quite surprised. Obviously, I believe that City procedure should comply with state laws. I am not interested in the private details related to that police report and 911 call. I am, however, interested in discussing the City’s policy and procedures around FOIA requests and whether they comply with state law.
FOIA COMPLIANCE
In late March 2021, Stanton wrote an article about the City’s failure to comply with FOIA:
https://www.mlive.com/news/ann-arbor/2021/03/city-withheld-police-records-about-ann-arbor-official-and-ex-senator-citing-privacy.html
His article included quotes from me:
It’s “just weird” that the records involving Eyer were entirely withheld and that shouldn’t have happened, Nelson argued.
“I certainly do believe if you have described with specificity what you’re interested in (in a FOIA request) that you should receive it, and it concerns me that anybody internally would be using discretion inappropriately, particularly given the fact that we have the power to redact,” Nelson said.
“This bothers me a lot. We’ve got to do a better job with our processes. If we’re not even following the standards of redacting as opposed to withholding, that bothers me a lot.”
Stanton also talked to my colleague, Council Member Griswold. He quoted her:
“I feel very strongly about transparency and that city employees should follow the rules,” Griswold said.
“I definitely want to get to the bottom of it,” she said of whether the city withheld records it should have provided under FOIA and who made the call.
“If it met the criteria, it needed to be provided.”
At our Council meeting on April 5, Council Member Ali Ramlawi spoke at the table:
“I’m concerned that the complete omission of that record is troubling. I know that [the City] could have completely redacted to protect the privacy, There’s something there that needs to be looked at.”
COUNCIL CONCERNS
Ryan Stanton’s original FOIA request prompted the public release of information about events at Council Member homes and businesses. One of my colleagues points out that the police reports attached to his home highlight how and where his family is vulnerable. This FOIA release was not especially helpful to me, either: the person who I identified as a potential stalker saw the emails I had written (describing his behavior) and he continues to send messages to me, more confidently. Arguably, Council Members are less safe now that people know we can be intimidated. The most hostile people in our community have read in the news: vicious and threatening behavior does actually get our attention.
After that article was published, I asked my colleagues – CM Griswold, CM Hayner, and CM Ramlawi – about City staff contacts they had regarding the January FOIA request. We have also talked about staff contacts regarding FOIA requests, generally. In January, none of us were invited to discuss what would or would not be released. In the past two years, none of us have been invited to discuss (or requested discussion) with City staff about what publicly held records do or do not qualify for a specific FOIA request. All of us share the same perspective: the release of a public record is beyond our control. The City’s legal department (with oversight from our City Administrator) is charged with searching the public records, finding what is responsive to a FOIA request, and making sure that requests are granted in compliance with the law.
This is important context to understand why several members of Council and I have questions about how this particular FOIA request was processed. Our colleague admitted to MLive that she
“did talk to Postema about the FOIA request and what records were going to be released. She wanted to make sure things were handled properly, she said.
“Of course, I was wondering if this was going to come out and I wanted to make sure that they were doing what they needed to do,”
Public records are accessible via FOIA request and are not a subject of debate, negotiation or influence from Council Members. We do not supervise compliance with FOIA to “make sure.” That is not our job.
FACTS
Last week, Ryan Stanton filed an appeal – challenging the exclusion of the 911 call and police record – and our City Administrator produced the records (with appropriate redactions). MLive has now published several articles about this incident, describing how records were withheld and how FOIA was violated, as well as details of the incident that were revealed in public records. This incident attracted more attention because of how the City chose to respond to the original FOIA request.
ALTERNATIVE FACTS
This weekend, Mayor Taylor shared the following MLive article on his Facebook page:
https://www.mlive.com/news/ann-arbor/2021/04/city-reverses-position-releases-police-report-involving-ann-arbor-official-and-ex-senator.html
Additionally, he offered his own interpretation of what has happened and who is at fault:
This FOIA re-traumatizes a domestic violence survivor who happens to be a public official. It is harmful to her and to survivors throughout our community. It is voyeuristic and beneath contempt.
This release contains new information not because the City has devalued privacy, but because the sensitive information had already been published.
CMs Griswold, Hayner, Nelson, and Ramlawi have all spoken in the media and at the Council table with skepticism and worse about the City’s first, more redacted FOIA response. These words cause pain and domestic violence survivors need to know that these statements do not reflect policy. Ann Arbor will do whatever we can to protect survivor privacy. If councilmembers think that’s weird, or if they are concerned, they can bring a resolution to roll back those crucial privacy protections. I stand with domestic violence survivors and look forward to the conversation.
Bombastic commentary like this is unhelpful, unnecessary and irresponsible. At least one of the statements is misleading: the City did not produce a “first, more redacted FOIA response” because for some of the relevant records, the City actually failed to produce anything at all. Another statement (about me) is simply false: I have not expressed “skepticism and worse” at the Council table because I have not raised this issue in any way at Council.
Vilifying rhetoric like the Mayor’s (“beneath contempt”) inspires the exact behavior that prompted the original FOIA request. It is worth remembering: the original Stanton/MLive FOIA request was not aimed to reveal personal family matters. Rather, it was aimed to reveal when, where, and how a small number of people in our community are motivated to threaten certain Council Members at their home or business. (NOTE: Since he originally posted it, Mayor Taylor has replaced the phrase “beneath contempt” with the word “wrong.”)
It is intellectually dishonest to center this discussion on privacy, survivors, and violence. This is at least the second time (since my election in 2018) that I’ve seen legal terms and topics twisted by someone who should know better. Mayor Taylor is a practicing attorney who – as an elected official – has been subject to FOIA requests for many more years than I have. He knows very well that the questions being asked now have nothing to do with trying to “roll back crucial privacy protections.” The issue – raised by Ryan Stanton and MLive – is compliance with FOIA requirements to either produce a document that is redacted (in some cases, almost completely) or provide explanation as to why that document was withheld entirely. A fully redacted document or short explanation of why it was withheld would accomplish the goal of privacy protection, in compliance with the law. Mayor Taylor is capable of understanding this and I believe that he does understand it.
STRATEGY OF DISTRACTION
As elected officials, we are supposed to have some basic respect for the rule of law. It is the subject of our public service, the foundation of our job and why our positions exist in the first place. State FOIA requirements matter and the City’s failure to meet those requirements is worthy of discussion. Conversations around our FOIA process would obviously center on state law for procedure and practice. Most of those conversations would appropriately happen among high level City staff, without any additional publicity of specific incidents or specific public records.
In that context, the Mayor’s Facebook post is particularly bizarre. While posturing as a defender of “survivor privacy,” the Mayor effectively draws extra attention to a specific incident and a specific person, sharing an article that includes details. He calls out four colleagues (two of them women) and accuses us of “causing pain” to domestic violence survivors (plural). He refers to City “policy” but fails to mention that state law actually dictates that policy.
To repeat words I have used before: it’s just weird.
Mayor Taylor specifically names me in his Facebook post and so I feel comfortable responding with some personal perspective: I am sympathetic to anyone who feels targeted and attacked by a frivolous or malicious FOIA request. I am sympathetic because it was done to me. Some people see this as a legitimate political tactic, but I see it as a huge distraction away from the substance of issues that local government should be debating and discussing. MLive wrote about what happened to me (and others) in 2018:
https://www.mlive.com/news/ann-arbor/2018/08/dark_money_attacks_on_ann_arbo.html
NEXT STEPS
I look forward to serious conversations about how our City processes FOIA requests in compliance with the law.