CITY HAS RIGHT TO DESTROY RECORDS

Well, for the time being …

Three years ago we asked the City of Grand Rapids to disclose, under Michigan’s Freedom of Information Act (FOIA), government records related to the dumping of hazardous waste on a City-owned property. Our request included disclosure of the minutes of closed sessions of the City Commission at which, under pressure from then-Mayor John Logie, the Commission decided against making inquiries into the dumping.

Logie palmed our request off to City Manager Kurt Kimball, who refused to disclose the minutes. So in January 2002 we asked the Kent County Circuit Court to order the City to the disclose the minutes (and other records it was withholding). To prevent disclosure Assistant City Attorney Daniel Ophoff had the minutes destroyed. (Worse yet, the minutes were evidence in a pending federal lawsuit.) Unfortunately for us, the judge assigned to our case, Dennis Leiber, a former city attorney, apparently saw things – after an ex parte conversation – from the viewpoint of his ex-colleague. So, he dismissed our case.

We appealed Leiber’s decision to the Michigan Court of Appeals. Michigan’s high courts have a strong record of enforcing FOIA as one of the foundations of our state’s open government policy. Even so, Ophoff introduced an argument to justify his actions that turned our run-of-the-mill FOIA complaint into a case of first impression in Michigan. This had the effect of turning the appellate court’s attention away from the City’s squalid (and perhaps felonious) destruction of documents recording secret decisions detrimental to public safety and health toward the lofty issue of divining the state legislature’s intent regarding FOIA. We didn’t help our case by making it more complicated than it had to be. We certainly could have argued it better before the Court of Appeals when they heard our appeal in March.

Nevertheless, the appellate court’s dismissive attitude toward the City’s blatant destruction of government records was shocking when it came down with its ruling on Thursday, May 20th. The court said it was OK, in part because we should have anticipated the City’s perfidy and obtained an order from Leiber ahead of time to prevent the destruction! So much for open government.

Suffice to say the Court of Appeals simply got it wrong. It happens sometimes, especially in cases of first impression. We do believe that the government does not have the right to hide its decisions from public view, and FOIA is one of the tools we have to hold the government accountable. So, we will continue on. We’ll ask Michigan’s Supreme Court to look at this issue.

Comments

[Daniel Sloan]

I KNOW the feeling the state of texas did the same to us we filed against 3 lawyers with the state bar.A ruleing from the supreme of Texas told the State to move our case to the 5 Federal judicial court in Louisiana for civil rights issue. The state bar destored the records.Then blackball us from taking any legal action against the lawyers or the state.

[Bridget Dupont-Tingley, Editor L.A.W.]

Hello Mr. Sloan,

Unfortunately, the legal system in this country is extremely unfavorable to the average citizen. The bar for you and I to get justice is very high. The bar for true criminals (legal and otherwise) is very low. So, when they show you how the scales of justice should be even, know that is simply a very clever slight of hand.

Until you get involved in cases where fairness should rule, you will never believe the level of fraud, corruption and deceit that happens, even at the highest levels of our legal system (with judges, clerks, attorneys, their staff and those who interact with them).

Rule of thumb #1 - if a document can be destroyed, they will do so. With virtually no penalty or repercussions.

Rule of thumb #2 - if one party can lie even under oath, that lie can stand providing the other party is simply ruled to not have standing in a case.

Rule of thumb #3 - most judges and attorneys detest pro sae parties (meaning you try to go to court without legal representation and attempt to defend yourself). That is a no-no. You may as well have the plague. Our nations Bill of Rights and Constitution give us many rights, apparently trying to help yourself is not one of them. Either get a very high powered or very expensive attorney with no conflicts of interest or you are doomed.

Rule of thumb #4- if you speak up and speak out, expect the worst. Including being barred from having your day in court. The legal system can get very ugly to those who shine the light on their deceptive, illegal and improper practices and yes, they do protect their own at extreme levels. Be very careful here.

Perhaps one day this will change. It's very hard to be a whistleblower in today's climate. Too often the innocent, the true victims are penalized for coming forward and telling the truth or they are simply demonized away. Those who cover up the truth, often walk away smelling like a rose and with full pocketbooks.

Do your homework.

Be prepared.

Get top level representation.

Expect the worst and hope for the best.

Regards,