The Local Area Watch

HIGH COURT OK'S DESTRUCTION OF PUBLIC RECORDS

Well, friends, I regret to report that on January 27, 2005, the Michigan Supreme Court denied us a hearing of our Freedom of Information Act complaint against the City of Grand Rapids.  Only Justices Cavanaugh and Kelly voted to hear our appeal.  That leaves standing the Michigan Court of Appeals ruling that acknowledged that we partly prevailed in our complaint but upheld the City's refusal to disclose the minutes of illicit closed sessions of the City Commission.

Worst of all, it puts the court's imprimatur on Assistant City Attorney Daniel Ophoff's deliberate destruction of the minutes in May 2002 during the original litigation of this matter.  We had requested the minutes in discovery, and Ophoff, as the City's legal counsel, did not turn them over to either us or the trial court when the deadline for their production came.  Instead, Ophoff repeatedly asked for and received from us extensions of the deadline.

We agreed to the extensions because Ophoff told us he needed the time to work out the details of showing us the minutes.   In fact he had conned us.  By promising to cooperate with us, he persuaded us to not go to the trial court to get an order for the production of the minutes.  In the absence of such an order, Ophoff used the delay to destroy the minutes.  With their destruction, Ophoff prevented the trial court from seeing the minutes.  More seriously, he prevented them from becoming evidence in a pending lawsuit in U.S. District Court.

So what's the big deal about the minutes?  Twice the Grand Rapids City Commission met in closed session (euphemistically called "executive sessions" by the commissioners) on March 6, 2001, and May 8, 2001, to discuss investigation of the dumping of the Berkey & Gay's contaminated soil into the abandoned concrete water tanks of the defunct Monroe Avenue Water Filtration Plant.  The sessions were illicit for this purpose, because the City Commission never publicly announced that this topic would be on its closed-door agenda.

What in fact happened in those closed meetings, according to Commissioner James Jendrasiak, was that then-Mayor John Logie persuaded the commissioners to NOT open an inquiry into the matter.  It's no small thing that at the same time the two biggest clients of Logie's law firm, Old Kent Bank (now Fifth Third Bank) and Spectrum Health, were beneficiaries of the removal of the contaminated soil from the Berkey & Gay project site to the Filtration Plant.

So much for the Freedom of Information Act being a tool to make government officials accountable for their decisions.  Furthermore, we can take no comfort that Boss Logie, notorious for his backroom arm-twisting has passed from the scene.  The supposedly saintly Mayor George Heartwell now wants to circumvent the principles of open government by institutionalizing sub-quorum meetings of City Commissioners to make policy decisions behind closed doors.  (Yeah, yeah, the mayor says no actual decisions would be made.  [Roll your eyes here.])

Fellow citizens, take this as an alert of the ongoing assault by City staffers and (at the least) acquiescent City Commissioners upon the principles of open government.  You do have right to know what they are doing.  Moreover, they are required to make this easy for you by doing most everything in full public view.  But not only corners are being cut, rotten deals are being made to benefit the connected at the expense of the unconnected -- i.e., the ordinary taxpayer.

This story will continue ...

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.

JUDGE TO CITY: STOP DESTROYING DOCUMENTS

Good news, Citizens. Judge Leiber of the Kent County Circuit Court today ordered the City of Grand Rapids to stop destroying documents that the Local Area Watch had asked the City to disclose under the Freedom of Information Act. The order was issued as an injunction in the matter of Local Area Watch v City of Grand Rapids.

The bad news is that the City Attorney’s office had already destroyed most of the documents that were of most interest. Another unhelpful sign is that Assistant City Attorney Daniel Ophoff told L.A.W.’s attorney Peter Steketee that he would not agree to a court order instructing the City to delete any evidence of the destroyed documents that might be on computer hard disk drives, because Ophoff resented the implication that he could not be trusted.

(Keep in mind, folks, Apparatchik Ophoff was your trusted public servant who kept asking L.A.W. for extensions on the deadline to produce the documents when he was in fact buying time to destroy them. So, yeah, he can’t be trusted.)

The destroyed documents are minutes of the closed sessions of the Grand Rapids City Commission at which Boss Logie and the Commissioners secretly discussed the dumping of contaminated soil at the historic Monroe Avenue Water Filtration Plant, that Italianate brick building across the street from the V.F.W. post, and decided against informing the public about it.

The City Attorney’s office had those minutes destroyed to stop Judge Leiber from viewing them in order to determine whether or not they should be disclosed to the public, as L.A.W. had requested in its lawsuit.

OPEN LETTER TO CITY COMMISSION: STOP DESTRUCTION OF DOCUMENTS

May 13, 2002

Grand Rapids City Commission
City Hall, Ninth Floor
300 Monroe Avenue, N.W.
Grand Rapids, Michigan 49503

Re: The Local Area Watch v. The City of Grand Rapids, et al.
Case No. 02-00218-CZ

Dear Sirs:

I have received this morning a letter from Assistant City Attorney Daniel Ophoff stating that the City has destroyed and will continue to destroy minutes of City Commission executive session meetings that were explicitly requested in discovery by us in our Freedom of Information Act lawsuit. This is, of course, contemptuous of both the purpose of the Freedom of Information Act and of the Court, which is entitled to review those minutes to determine whether they should be disclosed to us.

What is particularly troubling about the City’s destruction of these documents is that Mr. Ophoff was required to produce them for the Court’s review by the end of February. He refused but asked our attorney, Peter Steketee, if we would give the City an extension while he worked on an agreement with other City officials to informally show us these minutes. Assuming that Mr. Ophoff was making this request in good faith, Mr. Steketee agreed. What in fact happened is that Mr. Ophoff put off Mr. Steketee with various excuses for eleven weeks until the City was able to destroy these critical documents.

I doubt that Mr. Ophoff took it upon himself to obstruct our discovery of these documents. Our investigation will no doubt identify who instructed Mr. Ophoff to deceive Mr. Steketee. Meanwhile, Mr. Ophoff has promised that the City will continue destroying documents until we obtain an injunction to stop the City. As that will take time, the City Commission might for once in this matter act in the public interest and safeguard the principle of the Freedom of the Information Act by prohibiting any further destruction of executive session minutes until the Court has had the opportunity to examine them.

Sincerely,

Wm Q. Tingley III
Executive Director

City Attorney Toasts Incriminating Records

This is outrageous. Today Assistant City Attorney Daniel Ophoff told LAW’s attorney Peter Steketee that the City Attorney’s Office has destroyed the public records that LAW has asked the local court to disclose to it and the public under Michigan’s Freedom of Information Act (FOIA). Instead of turning these public records over to the court so that a circuit court judge can review them to decide whether to disclose them to the public, Ophoff had them destroyed.

These public records were minutes of closed sessions of the Grand Rapids City Commission held on March 6, 2001, and May 8, 2001, in which Mayor Logie and City Commissioners made decisions to NOT investigate the dumping of hazardous waste at the old Grand Rapids Water Filtration Plant located on Monroe Avenue, just north of Leonard Street. Because these decisions were made in secret instead of in an open meeting, where Boss Logie and the Empty Suits would have been accountable to the public and the media, it looked like those closed meetings were conducted in violation of Michigan’s Open Meetings Act.

Because I was twice tipped off by Commissar – ahem – I mean, Commissioner Jendrasiak (you know him, the self-proclaimed champion of the workingman who keeps his blue collar neatly tucked beneath his pinstripes) as to what transpired in those closed sessions, last June I, as your executive director, sent Boss Logie a FOIA request for those closed session minutes and other public records concerning the dumping of hazardous waste at the old filtration plant. After jerking me around for several weeks, City Manager Kurt Kimball finally refused to publicly disclose the minutes.

Consequently Peter Steketee filed a FOIA action in the Kent County Circuit Court (Local Area Watch v City of Grand Rapids, Case No. 02-00218-CZ) in January of this year to compel disclosure of the closed session minutes and other public records the City was withholding. LAW then made a discovery request of the City for those minutes and gave the City until the end of February to comply. When the deadline for producing the minutes came up, Ophoff asked Steketee for several extensions of the deadline because he needed the extra time to answer our discovery request.

Now we know that Ophoff was lying to Steketee. Instead of using the extra time we had given him in good faith to produce the closed session minutes, he used that time to destroy the documents. So much for FOIA and the Open Meetings Act, the tools that the State legislature created a quarter-century ago for mere citizens like us to keep on an eye on our government if stooges like Ophoff can make toast of embarrassing records to prevent their public disclosure. If he and the City gets away with this, we’re just one step away from the Ministry of Truth here in ol’ River City.

Well, we’ll see. Steketee is teeing up an injunction request to stop Ophoff and the City from destroying any further evidence of what happened in those closed sessions. Keep your fingers and we’ll keep you informed.