The Gang of FOIA
Meet the individualists who use open-records laws to investigate local politics.
From the November, 2019 issue
A battle for the civic hearts and minds of Ann Arbor was fought September 25 in Washtenaw County Ninth Circuit Court, with judge Carol Kuhnke presiding. On one side was city attorney Stephen Postema; on the other was local attorney Tom Wieder.
At issue was an April Freedom of Information Act (FOIA) request for "all text messages, email messages, and messages sent via social media direct messaging ... exchanged between any of the following [councilmembers]: Anne Bannister, Jeff Hayner, Jack Eaton, Kathy Griswold, and Elizabeth Nelson dated January 1, 2019 to present."
Bannister and Griswold were there. So was Pat Lesko, political activist and onetime mayoral candidate, because the FOIA request also demanded her text messages with councilmembers for the same period.
The city clerk had already released 2,800 pages of messages, but the contents were massively redacted. Lesko sued to stop a more complete version from getting out. Wieder was her attorney and also his own; the request asked for his messages to the councilmembers, too.
Wieder argued that communications from citizens to councilmembers are private and shouldn't be disclosed. Postema contended that would be unprecedented.
There "has never been this kind of case in Michigan [because] no one would bring it forward," Postema told the judge.
Wieder retorted that "just because everybody does it this way is no reason to keep doing it."
"I reject that," Kuhnke stated bluntly.
The judge granted the city's motion for summary disposition. The messages wouldn't be released immediately, though: she extended a preliminary injunction to give Wieder time to appeal.
The man behind the April FOIA request is Luis Vazquez. Like fellow frequent FOIAers Kai Petainen and Ed Vielmetti, Vazquez started using the open-records law because he was mad about something.
"I don't know these guys," Vazquez says of Petainen and Vielmetti. "This is not a coordinated effort." But they share a deep interest in the city's inner workings--and know how to use Michigan's Open Records Act to shine light on them.
the trigger was the Observer's January 2019 article "The Education of Ron Ginyard." It described the concerted efforts of a group of councilmembers and their advisors--including Bannister, Griswold, and Lesko--to vet and promote Ginyard as a candidate in last summer's contentious Ward One Democratic primary. After Ginyard announced that he agreed more with their council rivals, they switched their backing to Jeff Hayner, who won.
"I went to the council meeting on February 4 and spoke," says Vazquez, who lives in the Northside neighborhood but works in Cincinnati as an education coordinator with the International Chemical Workers Union Council.
"I brought your article, and I waved it around, and I said, 'How many of you have been subject to this kind of vetting?'" he recalls. To find out, "in April I filed the FOIA. It seems like it made certain people's heads explode."
Bannister and Griswold declined to comply. So did Lesko and Wieder, who went to court to argue that their communications with public officials were a private matter.
Vazquez calls Kuhnke's decision "a victory for transparency. She states pretty succinctly that the communications all involved the business of the city."
A resident of thirty-five years who's served on the city's emergency planning committee and its public market commission, Vazquez continues to make requests. When Griswold said she couldn't comply with a request in part because her city-issued phone had lost her texts, he FOIA'd to see if she had contacted the city's IT department about the loss. The request found no record that she had.
He also submitted a request for "any communications between Jane Lumm and Jack Eaton with all councilmembers and [city administrator] Howard Lazarus, Stephen Postema, [mayor] Christopher Taylor, the Ann Arbor Police Department and the Washtenaw County Sheriff's Office between March 28, 2019 and April 5, 2019." The first date, he says, was when Lumm was given information on Robyn Wilkerson, the city's HR director. The second was when she shared it in a meeting with Lazarus, Postema, Taylor, and Eaton.
Wilkerson resigned after the disclosure of the foul-mouthed text messages she'd exchanged with another employee disparaging the city's "crazy liberals." But beause she'd also made dark jokes about a gun and a bomb, Vazquez saw it as an urgent threat. "They sat on this for days," he says, and he thought the communications might show why.
They didn't. All they showed was that it took Lumm a while to set up the meeting.
Anger over a Huron River oil spill started Kai Petainen on the path to FOIA requests.
"It came from the U-M," says the Sault Ste. Marie, Ontario, native and head of quantitative research for Catalyst Capital Advisors. "I asked them to investigate it. They investigated it, and they couldn't find the cause. I asked them to investigate it more, and they said, 'We don't want to put any more resources into this.' I asked the state and the city, and no one seemed to care--which was odd, because the spill covered the entire river and for hours."
The source of the spill was never identified. That "got me ticked off," he says, "so I got involved in local politics." He started attending council meetings shortly afterwards.
Curiosity led Petainen to this June FOIA request: "Copies of all text messages, email messages, and messages sent via social media direct messaging ... exchanged between Jack Eaton and any City Council member dated January 1, 2019 to present."
He says that he deliberately copied a FOIA Lesko herself had submitted, for messages exchanged with four volunteer members of city commissions.
The commissioners complied, but "I got annoyed with that," Petainen says. He decided "to take her language and copy it and use it against a councilmember." He picked Eaton because he saw him as an advocate of transparency.
When the results came back, parts of it were denied because of Lesko's pending lawsuit. Lesko does "tons of FOIAs on people," Petainen says, "and now she's the one trying to stop it. It's a big hypocrisy, and it drives me nuts!"
Petainen did a search of the redacted documents he got and found "the political connections are certainly there. They can deny it as much as they want, but there are certainly two factions."
As he sees it, council is "mainly split along development lines." He's pro-growth himself, partly because when he moved here twenty years ago, downtown was still recovering from a retail exodus: "I remember what the town looked like back then." Given the growth of the U-M, he adds, he also thinks Ann Arbor needs more housing.
"That's where our main political difference is," he concludes. "But I thought I agreed with them about transparency until now. And that's what makes me so mad!"
"The thing that set me off politically was the DDA," says Ed Vielmetti, a special projects director at IT company Packet Host. "I had a project [that] could do a dial-up app that would tell you which [downtown] garage was free to park in. The DDA's contractor, Republic [Parking], went ballistic" when they found out and refused to share what they said was their data.
"I was angry," continues Vielmetti. "I went to DDA meetings and was very ineffective. Then I realized I could send in a FOIA request for the data I was asking for. I sent it in [and] was denied because the DDA didn't keep that data. The contractor kept it."
While Vielmetti didn't get that data, he did get access to information going forward and permission from the DDA to share it. More importantly, it got him to see "FOIA not necessarily as a way to get records but FOIA as a formal way of taunting institutions to act." Empowered, the policy wonk began going to council meetings and FOIA'ing the city and particular councilmembers.
The eight requests he filed from June through August this year are typical. Most are straightforward--"please provide the following records related to the Sanitary Sewer Overflow of July"--but some are politically charged, like his request for "the 'memos' written by CM Bannister and sent to the city regarding the Michigan Freedom of Information Act."
As Vielmetti explains, Bannister "announced at council that she had written a memo on this topic, and it circulated. But she didn't disclose what the memos were. One of them was her echoing the Lesko line that citizens should have more privacy in their communications with government. The second was redacted because it was under attorney-client privilege."
Then there was his request for "messages from CM [Jeff] Hayner to members of City Council regarding the appointment of Joe Malcoun to the [Zoning Board of Appeals]."
"In my opinion, this should have been discussed at the council table," Vielmetti says, "and not discussed privately among an almost quorum of members by email. Jeff [Hayner] doesn't want Joe on, and it was clear there had been some dialogue. I was looking for a paper trail of 'did council in that deliberation violate the Open Meetings Act?' It was very close."
Vielmetti also requested all the documents provided in response to Vazquez's FOIA. Of the redacted document he got, he jokes, "the interesting things were the bits I couldn't see."
He thinks he figured out how Lesko and Wieder knew to sue. "The city gets a FOIA request that includes some information about you. If you can find out that that's happening, you can initiate a lawsuit to prevent the release of those records." But to do that, he says, you need to be tipped off by "a friend on the council, someone whose records were subject to disclosure"--someone, he suggests, who didn't want their communications with Lesko and Wieder spotlighted.
As one of the most frequent FOIAers, Vielmetti has advice for the neophyte. "Practice makes perfect. Be nice to the clerk. Don't be angry. Be to the point.
"If you send in a request electronically, it is said to be received the next day," he explains. "Then they have five business days to produce a response. Inside those five business days they can invoke the 'no excuses' delay, which gives them ten extra business days. In extraordinary circumstances there are other extensions--like there was a snow day, and I had a FOIA in progress."
Vielmetti says the city's FOIA policies "are really good. They are extraordinarily punctual. They never produce a document early, and they never produce a document late, in my experience."
Despite his critiques, Vielmetti says "on the whole our municipal government is quite good. The current politics get in the way of good government. The underlying structural problem is that council is partisan. Not just council, but every board has become much more politicized. Planning is hugely political."
Vielmetti has two predictions and one hope for next year's council election. "It's gonna be expensive, and it's gonna have some nasty stuff. If the relatively younger rather than the relatively older population votes more--which they usually don't--but if they do, then that could tip the balance."
After losing in court, Tom Wieder continued to argue his case in a series of comments posted to the MLive story covering the hearing.
"I'm flabbergasted," says Vazquez. The attorney reiterated "that he advised Bannister and Griswold that nothing in the FOIA statute compels them to turn over their emails ... And he's all but thrown Jack Eaton under the bus."
That's the same phrase Wieder used in one of his posts. "Eaton supports the city's position in the suit and threw us under the bus. The most significant emails from me were sent to Jack's personal email account, because he said that that way they could be kept private. What a hypocrite! If I was ever an ally of Eaton's before, I haven't been one for a while."
Eaton allows he and Wieder were once allies. Asked about Wieder's claim that he told Wieder to use his personal email account, Eaton says, "I don't have any recollection of that."
The most significant thing Wieder revealed was that he's not going to file an appeal, which means a much less redacted response to Vazquez's April FOIA request could be out by the end of October.
Vazquez can't wait. When he gets all 2,800 pages, "I'm going to review them to uncover the machinations going on behind the scenes. If I find anything pertinent to city politics, I will post those."
from Calls & Letters, December 2019
Our November article "The Gang of FOIA" improperly presented a summary of remarks by attorney Tom Wieder as a quote from him. Wieder, who represented himself and two other plaintiffs in a lawsuit over their communications with city council members, did not respond to city attorney Stephen Postema's statement that there had never been a case of this kind in Michigan by saying, "just because everybody does it this way is no reason to keep doing it."
A review of the court recording confirmed that Wieder actually said: "The fact that municipalities all over the state do it this way--I mean, until somebody challenges a practice, it really doesn't matter."
Wieder added that he "would bet a small fortune" that judge Carol Kuhnke did not respond to that statement by saying "I reject that." He would win the bet. The judge said that, repeatedly, in response to the plaintiffs' claim that FOIA did not require the city to disclose their communications with councilmembers.
He and fellow plaintiffs Pat Lesko and Tom Stulberg did not "decline to comply" with the FOIA, Wieder added, because "no one asked Tom, Pat, or me to do anything." The councilmembers already had the messages--the issue was whether the city was required to release them publicly.
Wieder also disputed Ed Vielmetti's theory that the plaintiffs must have been tipped off to the FOIA by a councilmember. "The city maintains an online log of all FOIA requests filed that anyone can see," he wrote. "Pat frequently looks at the list, saw the one involving us and told me about it."
Separately, councilmember Kathy Griswold detailed her efforts to recover lost texts that limited her ability to respond to a FOIA by Luis Vazquez. Vazquez had subsequently FOIA'd to see if she'd reported the problem to the city's IT department and found no record that she had. But "he FOIA'd electronic records," Griswold said when we ran into her at the Ann Arbor Thrift Shop. She went to the department in person, she explained, and had paper records to prove it. She added that it was her personal phone--contrary to what we wrote, "the city doesn't give us phones."
Vazquez hoped his FOIAs would reveal "machinations going on behind the scenes." After the city won the lawsuit, the documents were posted online at a2docs.org --including emails from Wieder lobbying councilmembers to fire both Postema and city administrator Howard Lazarus.
[Originally published in November, 2019.]
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