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.