City Council to provide lead water pipe information after FOIA request

Sunday, November 25, 2018 - 4:54pm

As the result of a unanimous vote by the Ann Arbor City Council at a recent meeting, the City now has to disclose information regarding where lead materials have been used in the Ann Arbor water system.

At last Monday’s meeting, councilmembers gave city staff until the end of the year to produce the information, which identifies places where some homeowners may be exposed lead contamination and need to replace their water service lines. The decision follows a Freedom of Information Act request filed by the Ann Arbor News and MLive. The city originally asked for a payment of $667.94 for copies of the records, but at the meeting last Monday, the council voted to waive the fee.

City Councilmember Jack Eaton, D-Ward 4, said it was important to waive the costs given the funding constraints of local media outlets.

“I think that all of us are aware of the dire economic circumstances of local media,” Eaton said. “Newspapers are struggling to survive in small communities like this, and it’s so essential that a community like ours have a good, healthy paper. We shouldn’t burden our local newspaper unnecessarily.”

Eaton also noted the state law regarding public documents favored disclosure, adding the city itself sometimes struggled to disseminate information.

“Any opportunity that we have, we should cooperate with the local media in their attempts to take city information and digest it and disseminate it to the public, and this is that kind of circumstance,” Eaton said. “This particular Freedom of Information Act request asked for the location of everywhere in the city that the city has removed lead gooseneck connections from the water main to the home’s supply line, and it also asks for the location of every home that has galvanized pipe from the water main at the street to the house.”

The decision to release the information comes after the state put stricter lead regulations in place. In June, Michigan started enforcing the toughest laws in the country for lead levels in drinking water following the Flint water crisis, in which the city’s thousands of residents have been exposed to lead from the city’s water pipes. The rules dropped the “action level” at which utilities must take corrective action from the federal limit of 15 parts of lead per billion to 12 ppb by 2025. The rules prohibited the partial alteration of lead pipes save for emergencies, while lead service lines buried underground are set to be switched out by 2040.

According to city officials, all known lead elements have been taken out of Ann Arbor’s water system. However, galvanized supply lines that remain in place could still retain lead, which could contaminate drinking water.

Eaton said the location of the lead goosenecks the city has replaced should be “readily available.” He added he did not believe the city should charge the newspaper for the costs involved in completing a list of these locations when he felt the city should have compiled the list itself anyway.

City Administrator Howard Lazarus said he worried about the precedent this would set for future FOIA requests, saying covering the cost could change the intention of future requests.

“While I recognize the intent of Councilmember Eaton’s desire, there are very real concerns about this,” Lazarus said. “Many times we hear council talk about the slippery slope. This is a slippery slope. The ability to recover costs from a FOIA request is in many ways a counter that keeps the FOIA process from being used as punitive and disruptive, and these $400 is something that a for-profit such as MLive ought to be able cover and it is, in fact, consistent with past practice.”

Lazarus rejected a fee waiver in October, maintaining the $667.94 was necessary to reimburse Ann Arbor for the time the city’s public services manager would have to dedicate to locating the information. However, the Ann Arbor News argued the law bars a public entity from charging more than the hourly pay of the lowest-paid employee capable of handling the request. The city then dropped the fee to $409.71 and assigned a different employee to complete the task.

Both Councilmember Julie Grand, D-Ward 3, and City Attorney Stephen Postema echoed Lazarus’s concerns about waiving the FOIA fee, saying continuing to do so for other requests would be untenable. Councilmember Chip Smith, D-Ward 5, added an amendment to the resolution to waive the FOIA fee to make the compiled information suitable for distribution to all of the public, as opposed to just being provided to MLive.

Transparency in city government has been a campaign issue of City Council candidates for years, and the council has debated FOIA fee waivers in the past. Councilmember Ali Ramlawi, D-Ward 5, said there was a greater urgency for government transparency after the Flint water crisis. 

“Many in the community are asking for greater transparency and greater public safety in light of what happened in Flint,” Ramlawi said.

Councilmember Elizabeth Nelson, D-Ward 4, said she had heard concerns among residents about the lack of information.

“I think it would be helpful,” Nelson said. “It’s probably information that the city had to compile anyway, and making it public would be useful to know what time period of homes is most likely to be affected, if there are patterns to which homes had this problem address already or still need it to be addressed.”