Lansing State Journal’s FOIA request highlights government transparency

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After Ingham County’s former prosecutor, Stuart Dunnings III, pleaded  guilty to 15 misdemeanors and misconduct in office, the Lansing State Journal filed a request for the investigative report.

The newspaper  submitted the request under Michigan’s Freedom of Information Act, a 40-year-old act that enables public records requests. The newspaper  said its request was initially approved. However, the paper  did not receive the documents until Oct. 27, after it  appealed to the Ingham County Board of Commissioners.

To read more about the Ingham County Board of Commissioners’ decision, read the article “Ingham FOIA committee supports release of information on ex-prosecutor Dunnings.”

“The press is only as good as its information is. And how do you get the information from the government that the government doesn’t really have to release?” said MSU First Amendment Clinic director Nancy Costello. “FOIA gave the press a chance to say, ‘no, our government is a government for the people, of the people, elected by the people, and a lot of this information should be public information, because we want our government to be transparent so we understand the decisions it makes, if it’s representing us, the citizens.’”

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From the sheriff’s perspective: the Dunnings case

Ingham County Sheriff Gene Wriggelsworth said he did not intend to release the documents until after Dunnings was sentenced.

“If there was an officer involved shooting today, they (the LSJ) would want it tomorrow. They’re just not going to get it. It’s just not going to happen that quick,” Wriggelsworth said. “But we will get it within reason. We’re the ones that end up determining what’s reason. I understand that’s the rub, but we’ve got to have a chance to do our job. That’s the dilemma, the public’s right to know and our right to investigate.”

The reason the Sheriff’s Department did not want to release the records, Wriggelsworth said, was that Dunnings could withdraw his plea up to the time of sentencing. When the Lansing State Journal appealed to the Board of Commissioners, Dunnings’ sentencing was scheduled for Nov. 10, eight days away. Wriggelsworth said that it was hard to say how the Lansing State Journal’s article could influence Dunnings, and he didn’t think it was worth the risk.

“What’s the big rush? Why can’t the journal wait eight more days? They wouldn’t tell me either,” Wriggelsworth said. “They wanted, ‘my golly, we’re the State Journal, we get to have it, and the freedom of the United States rests on this whole case, so if you don’t get this case out, the Constitution is gonna melt.’”

Beyond not wanting to release the records, Wriggelsworth said FOIA requests involving government officials can take longer. He said, often, the prosecutor wants to ensure that they’ve “got their act together.” He added that it is usually not significantly longer. Requests can also take longer than initial estimates because of backlogged requests.

The Lansing State Journal’s request for the records on Dunnings was, in part, delayed because the computer program used to redact exempted names redacted Dunnings’ as well, Wriggelsworth said. This meant the program had to be rerun.

“Sometimes the media, they think that we’re intentionally scamming them or something like that. It’s just human error sometimes. I mean we’re people like everybody else,” Wriggelsworth said. “It stretches it out a little bit more than anybody wants, but our clerical staff is a finite resource.”

Wriggelsworth said, after the Board of Commission’s decision he decided to release the documents. He said, because he is an elected official  he does not directly answer to the Board of Commission. He said, because he holds the records in question, they cannot tell him he has to release it. However, he said they put him “in a real bad box.”

“They in effect, put themselves at odds with me. And I just thought, do I want to draw a line in the sand over eight days? No. You’ve got to fight your battles. That wasn’t one I wanted to fight, so I released it.”

From the sheriff’s perspective: FOIA and transparency

Wriggelsworth said he understands the importance of a transparent government and the media’s role in that.

“Their business isn’t to make the sheriff happy or the chief of police happy. Their business is informing the public on how government works,” Wriggelsworth said. “Front page of the paper is always about the government watchdog role that they take. This great country was formed on that. Quite frankly, I get that.

“I think that’s probably their biggest issue: they feel that the media in general has a right to keep the public informed.”

Wriggelsworth has been the Ingham County Sheriff for 28 years, and is retiring at the end of the year. Ingham County Sheriff-elect Scott Wriggelsworth, who is Gene Wriggelsworth’s son, said the FOIA is “kind of” about transparency. He said it governs government transparency but added that some requests they receive are “ridiculous.”

“There’s some things that we get asked for sometimes that just kind of defies logic, why the media would think anybody would care,” Scott Wriggelsworth said. “FOIA is very, very easy to just throw this blanket, huge request to local law enforcement, even if they’re willing to pay. It’s not just as easy as, ‘oh you want this? Here it is, give me your check, go do your thing.’”

FOIA requests can be made for any public record. Requests can be denied if the information is exempted under the law or if the record does not exist under the name requested or under another name “reasonably known” to the public body, according to the law. However, depending on how much information you request, the public body can charge the hourly rate of the lowest paid person capable of retrieving it. This means, it could cost thousands to millions of dollars for a large request.

Scott Wriggelsworth has served as East Lansing Police Department’s public information officer, and will transition into the Sheriff’s office in January. He said the FOIA should be about how law enforcers are doing their job, focusing on what they’re doing in the present, some significant historical data and what they’re going to do in the future. He said his goal has been to be the “conduit to transparency.”

“If you’re doing it right, you should be ready, willing and able to say that,” Scott Wriggelsworth said. “There are some times that we are bound by acts, laws, whatever the case may be, contracts, that we can’t say stuff, but I think we’re pretty good about this is what we did, this is why we did it, or this is what we can’t say because it’s an open investigation or we have a policy against it.

“It doesn’t mean we’re doing anything wrong. I think sometimes, the general public says ‘well, they won’t comment on it, so it means they did something wrong or they screwed up, and that’s not the case at all.”

Often, Scott Wriggelsworth added, there are certain details the police keep from the media in an investigation to weed out false information or determine if a suspect is legitimate. He also said that some law enforcement tactics and practices need to be protected.

“Some of that stuff we just have to protect to be able to protect society, and the public really doesn’t have a right to know some of the stuff we do,” Scott Wriggelsworth said. “There’s no conspiracy theory here; we’re not doing something wrong.”

Gene Wriggelsworth said that, though he isn’t always able to give the media all the information they ask for, he makes an effort to maintain communication.

“I might not answer the question the way they want it answered,” Gene Wriggelsworth said, “but I’ll call them back and tell them what I’m thinking, so I don’t know what more they could ask.”

Scott Wriggelsworth said cops hate when they’re working a case and people don’t call them back or open the door. Yet, a lot of cops will do the same with the media.

“Well, it’s a little hypocritical to me to get upset when people do that to you but you’re willing to do that,” Scott Wriggelsworth said. “We’re all kind of in this together; everybody’s just doing their job. It’s not a personal thing.”

Gene Wriggelsworth said he always tries to be as open as possible, based on the case. He said his philosophy is “if there’s nothing more to be gained by waiting, do it.”

From the media’s perspective: the Dunnings’ case

The Lansing State Journal  felt there was more to be gained in not waiting, said Elaine Kulhanek, the newspaper’s content strategist. After Dunnings had pleaded guilty, the newspaper  requested the records to be able to inform the public on what investigators had found.

Because Dunnings pleaded guilty, the case would not go to trial. Plea deals are not uncommon, Kulhanek said, but that meant the details of the case would not be made public.

“We felt like the public should have the ability to form an opinion on whether they thought that the plea agreement was a wise one or not, whether that was an appropriate thing to do,” Kulhanek said. “The majority of cases end in a plea agreement, so it’s not such a big deal that there’s a plea agreement.

“But when the person who is receiving the plea agreement was the county’s top law enforcement official, in many people’s eyes, that puts it into a different context.”

Initially, the newspaper  requested all the records, including photographs and video, Kulhanek said. The Sheriff’s Department responded with an estimated cost reaching $3,000. After that, Kulhanek said they narrowed their request to written records, costing just more than  $1,000.

The newspaper took the cost estimate  as approval of the FOIA request. According to their appeal letter to the Board of Commissioners, they submitted a deposit and later, checked in to see when their request would be fulfilled. On Oct. 12, they were told the Sheriff’s Department was withholding the documents until after sentencing.

“There’s no provision in the law for changing your mind,” Kulhanek said. “We thought they were waffling on giving us some records that we thought, by that point, should be public.”

That was when they decided to appeal, Kulhanek said. At the Ingham County Board of Commissioners’ FOIA Appeals Committee meeting, Kulhanek said the Sheriff’s Department arguments were that it was still an open investigation and that an article could hinder Dunnings’ right to a fair trial.

“You can get a tip about a case years after it’s been adjudicated,” Kulhanek said. “You can’t claim that everything is an ongoing investigation just because there might, someday in the distant future, be another tip.”

Kulhanek also said that releasing the articles would not affect a fair trial. She said if it went to trial, it likely would not be held in Ingham County. She also pointed out that the attorney general had held a news conference the day Dunnings was charged, and he invited the Detroit media.

“You can’t have it both ways,” Kulhanek said. “If you’re concerned about a fair trial, you don’t seek all of this massive publicity, and stand in front of the media and say ‘hundreds of times, he’s paid for sex’ and you only charge him with 15 misdemeanors. That just doesn’t make any sense.”

The FOIA Appeals Committee and the Board of Commissioners voted unanimously to support the Lansing State Journal’s appeal.

“As it turns out, the county commission had very strong feelings about shining the light of openness on what had been going on in the prosecutor’s office. So, they stood up to this lawyer on their own and really pushed for those records to be public,” Kulhanek said. “That part of it was pretty gratifying, to see a whole elected board of 14 officials voting to make records public.”

The newspaper  received the records Oct. 27 and published an article Oct. 28 detailing the findings. Kulhanek said they received positive feedback on the article. She specifically pointed to a comment on the web version of the article, posted by Jim DeLine, a retired internal auditor for the City of Lansing.

The comment reads, “Way to go, LSJ. 500 pages received on Thursday, and a well-written piece posted by evening of the next day. Thanks for rolling up your sleeves and digging in. People have a right to know this stuff!”

From the media’s perspective: FOIA and transparency

Kulhanek said she saw the Dunnings FOIA request as a win for the FOIA law. However, the attorney general’s recommendation to the Sheriff’s Department, encouraging it not to release the documents concerned her.

“The idea that a state agency could step in and try to tell a local level of government that ‘you can’t release these records,’ or ‘we don’t want you to release your records,’ that was rather alarming to me,” Kulhanek said. “The fundamental basis for these Freedom of Information laws is that the work of government belongs to the people, so therefore the product of that work, the records and documents that are the product of that work, belong to the people, and you have to have a clear and compelling reason not to make those things public.”

She pointed out that the way the Michigan law is written, only one exemption is mandatory. The rest read “may be exempted,” making them optional exemptions.

“The whole law is constructed around the idea that openness should be the default position unless there’s a stronger reason not to,” Kulhanek said. “In general, I think journalists find it’s the other way around, that government officials in some cases work from the ‘keeping as much private as we can,’ not the ‘keeping as much open as we can.’”

Costello said it’s easier in a way for government officials to streamline decision making and policy making by keeping the public out of it.

“Democracy is messy. But that is the reality of democracy,” Costello said. “That it’s not just about the majority rules, it’s a marketplace of ideas that should get put out there to the public and the truth should sift to the top and then people should be able to make good decisions by looking at this truthful information. That means they have to have the truthful information to make the good decisions.”

Jane Briggs-Bunting, founding president of the Michigan Coalition for Open Government, said this concept evolved out of World War II  when governments found that if the public doesn’t know something, they can’t “make a stink about it.”

“Public bodies know that most media organizations don’t have the money or the staff or the stomach to go and challenge in court,” Briggs-Bunting said. “So they’ll say, ‘OK, we’ll give it to you but it’s going to cost thousands of dollars.’”

According to Michigan law, the governmental agency can charge FOIA requesters the hourly rate of the lowest paid person capable of retrieving the requested information. The word “capable” leave some interpretation up to the public body, which can result in high, sometimes exorbitant, fees.

When she taught at Oakland University, Briggs-Bunting’s students conducted a FOIA survey of every school district, police department and government. They found police departments to be the least receptive and schools to be the most receptive, though they also charged the most.

Costello said because the government knows the media doesn’t have the money to force them in court to fulfill the FOIA requests, the government is not going to respond in a timely fashion, if at all.

“So now what do we have then? We have journalists who are supposed to be the watchdog of government unable to shine that bright light into government to show how that processes of government and if they are doing so in a legal, ethical, fair fashion. This is a threat to democracy,” Costello said. “If the FOIA process is shut down, what’s left? We’re just sort of depending on what we believe should be the integrity of this particular administration.

“That’s what FOIA gives us: It keeps people on their toes, because they know at any moment, they could get a FOIA request and people could be looking back on the process of what they’ve been doing, so they better be doing it right, because they’re entrusted public servants.”

Kulhanek said that though the media has experience with using FOIA, the law was written for regular people, to enable them to look into their government.

“Another thing that people need to always remember is that the Freedom of Information Act is not just for the media. It is for any citizen,” Kulhanek said. “We as journalists use that law quite a bit, but it’s not just for us.”

Briggs-Bunting said if the public is not careful to maintain open government, but “squanders” it, there will no longer be open government.

“I am a doomsayer on this,” Briggs-Bunting said. “You absolutely, positively have to have the ability to watchdog your government, because absolute power corrupts.”