Ann Arbor reacts to ruling permitting FOIAs on conversations between public officials and private citizens

Monday, September 30, 2019 - 7:51pm

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Design by Roseanne Chao

Washtenaw County’s Judge Carol Kuhnke ruled Wednesday to allow residents access to records of communication between private citizens and city officials under the Freedom of Information Act. In doing so, Kuhnke ruled in favor of Ann Arbor resident Luis Vazquez whose April FOIA requested, among other things, any interaction between city councilmembers and Ann Arbor resident Pat Lesko over email, texting or social media direct messaging since Jan. 1, 2019.

Vazquez said his interest was piqued through a personal distrust of Lesko. Lesko has been named by many as an active participant in Ann Arbor politics, even running for mayor almost a decade ago. Vazquez called her “Machiavellian” and said she often wrote or spoke poorly about her adversaries in the media. 

“I was just curious as to how things were going to be with a new majority on council, which she obviously helped to elect,” Vazquez said.

He and others also pointed out the frequency with which Lesko requests FOIAs herself.

“Those who want to find out information about everybody else should be prepared to reveal information about themselves,” Vazquez said.

Vazquez’s FOIA also asked for communication between resident Tom Stulberg and attorney Tom Wieder with any public official over the same period, as well as communication between council members Anne Bannister, Jeff Hayner, Jack Eaton, Kathy Griswold and Elizabeth Nelson who, according to Vazquez, constitute a new majority in the city council whose views and actions stand in contrast to his own interests and shared the political support of Lesko, Stulberg and Weider.

Lesko did not respond to multiple requests for an interview, and Stulberg directed The Daily to Weider. Kuhnke’s office declined to comment for this story.

In response to the FOIA, Lesko, Stulberg and Weider sued to stop their records’ disclosure. Kuhnke stated in her ruling that because the messages in question concerned city business, they therefore constituted part of the public record and could be subject to FOIA.

However, Weider said he believed it was more complicated. Weider said he thought citizens should have the right to raise an issue with their public officials without fear that their neighbors may FOIA those communications and use it against them.

“There’s no reason that citizens can’t have confidential communications with people to the government,” Weider said. “In fact, there are good reasons why they should. … It could keep people from actually communicating with their own counsel people.”

Weider also said that according to his understanding of FOIA, the city does not have to release the records of communication between private citizens and public officials — they are allowed to do so, but the act does not compel that action. Weider said he and the others brought the suit against this FOIA hoping the judge would point this out in her ruling, but it was never referenced by Kuhnke.

“I don’t think any of the three of us really care very much about the substance that’s going to be damaging or embarrassing,” Weider said. “It’s just a matter of principle.”

City Attorney Stephen Postema has previously stated the city of Ann Arbor is compelled by statute to fulfill FOIAs of the nature of that filed by Vazquez.

Griswold and Nelson each said they believe the judge ruled correctly and the records of their communication with private citizens is applicable to FOIA regulation.

“I don’t want to be having secret conversations with anyone,” Griswold said.

Mayor Christopher Taylor said FOIA should function as a “window into the workings of government.” He said he does not get offended when people FOIA his records and others who wish to influence governmental proceedings should be prepared for the same scrutiny.

“It’s the right of every person to make such a request,” Taylor said.

However, Griswold and Nelson each voiced a concern that FOIA rules may be becoming more out of touch as technology evolves. Nelson noted that people who are not as active in Ann Arbor politics may not know how to take advantage of FOIA capabilities.

“For people who want to be informed, who want to be involved, we need to make it easier for them to understand how our government is working,” Nelson said.

Nelson also raised concerns regarding how this ruling will affect communication obtained through FOIA which revolve around campaigning, not governing. Griswold, likewise, indicated the only outcome she predicts this ruling will render will be an uptick in FOIAs coming election season.

The records have not yet been released and will remain sealed so as to allow the plaintiffs the opportunity to continue their case in the Michigan State Court of Appeals. Weider told The Daily he and the others will not be continuing with the case. Vazquez promised to publish the records as soon as they are made available to him.

However, Vazquez admitted he does not believe there to be any inflammatory information included in the documents obtained through FOIA. He too believes primarily in defending the principle of his position: the preservation of transparency.

“I’m not expecting any smoking guns or anything because if you look through the documents that were given to me, they’re all pretty tame,” Vazquez said. “But for Lesko, Stulberg and Weider to stand in the way of full disclosure tells me and many people they’ve got something to hide.”

In the end, none of the parties truly believe this case will be influential to the greater landscape of Ann Arbor politics. Many believe it simply serves to emphasize the value they see in governmental transparency.

“In the end, it’s a competition of values, and what the court decided — I gather — is that the value of transparency overrides,” Taylor said.