In its first decision ever, Ingham County’s Freedom of Information Act Appeal Committee recommended that information be released to the Lansing State Journal. The newspaper had appealed the denial of a request to the Sheriff’s Department.
The Ingham County Board of Commissioners voted unanimously to uphold the FOIA Appeal Committee’s recommendation to approve the Lansing State Journal’s request.
This is the first time the FOIA Appeal Committee has been active. They heard testimony from all parties, except the attorney general’s office, regarding the Lansing State Journal’s appeal of the decision to delay the release of documents under Michigan’s FOIA.
“Because we do so much business of a similar nature, where we weigh matters and weigh facts and come to a decision, that this was no different,” said District 9 Commissioner Carol Koenig. “The only part that was different was that one of the parties was not present and the party that was not present was the attorney general.”
The chair of the FOIA Appeal Committee, District 6 Commissioner Randy Maiville, reported that because the attorney general chose not to be represented, the board considered a letter dated March 31, 2016 from the attorney general’s office explaining their stance.
In the letter, Chief Legal Counsel Matthew Schneider wrote that, because the investigation is ongoing, the documents in question are exempt, from public disclosure because they would interfere with law enforcement proceedings and deprive a person of the right to a fair trial or impartial adjudication.
Koenig said the letter repeated that it is an ongoing investigation over and over, arguing against releasing the information. She reported that she asked the sheriff’s office representative if it was still an ongoing investigation. She said the representative indicated that it would be an ongoing investigation if they received a tip.
“They did not have a tip but if they received one then it would be an ongoing investigation,” Koenig said. “Well, a tip could be received between today and 20 years so I guess under that definition, they’d never be released, would they?”
Former Ingham County Prosecutor Stuart Dunnings III was charged on March 14 with 15 prostitution-related crimes. The Journal requested records from the Sheriff Department’s investigation into Dunnings on Aug. 2, after Dunnings had pleaded guilty to misconduct in office and engaging in the services of a prostitute. According to their letter to the Board of Commissioners, their request was approved on Aug. 23.
On Oct. 12, the newspaper was notified that the attorney general had asked that the release of the records be delayed until after sentencing.
The Lansing State Journal said in its letter to the board that it believes the delay is inappropriate because the request does not fall under a FOIA exemption. Even if it did, the letter says , the material that is exempt must be separated or redacted and the material that is not exempt must be released.
Elaine Kulhanek, the Journal’s content strategist, said records contain newsworthy information. Because Dunnings has pleaded guilty to the felony of misconduct in office, Ingham County citizens are all “potential victims.” She said that people would be curious about the case and should have access to information pertaining to it.
The attorney general’s office sent a second letter to the Board of Commissioners on Monday, after the FOIA Appeal Committee had already met. In this letter, Schneider more clearly lays out the attorney general’s concerns at this point in the process, after Dunnings’ plea but before he is sentenced, citing additional passages in the Michigan Compiled Law, as well as the Michigan Rules of Professional Conduct.
According to the letter, the attorney general decided to withhold the records until sentencing to protect the integrity of the case, the privacy and cooperation of the witnesses, and Dunnings’ rights.
However, District 11 Commissioner Teri Banas, said, given the redactions, she felt comfortable what would be disclosed would be appropriate.
“I reread the Freedom of Information Act in terms of what the exceptions provide for and I think we are well within our purview to release this information,” Banas said. “Again, I think it’s time to restore the trust in that particular office, to lift up the shades.”
“In our system anything is possible. Trust me, it’s a conundrum.” Wriggelsworth said. “You never know how the defendant will react, you never know how the prosecutor will react.”
However, Maiville noted that it has been 12 weeks since Dunnings pleaded guilty, and much of the sensitive information would be redacted.
“We need to have open government and for us not to proceed, it would, I think, raise a lot of questions on what it is we’re trying hide,” Maiville said, “and we’re not trying to hide anything.”
Kulhanek said the Lansing State Journal is “very gratified” that the Board of Commissioners voted unanimously to uphold the FOIA Appeals Committee’s decision to release the records. She said this was a win for FOIA.
“Anytime that you get a unanimous support from a governing body I’d say it’s a win,” Kulhanek said, “but it’s not a complete win until you actually obtain those documents.”
Update: On Oct. 27, the Sheriff’s Department released the requested documents to the Lansing State Journal.