To Fund FOIA Lawsuit for Release of Public Records Related to Aura Rosser Shooting, A2 Indy Turns to Knight Foundation

by P.D. Lesko

ON DEC. 18, The Ann Arbor Independent turned to the National Freedom of Information Coalition and the Knight Foundation’s FOI Fund for financial support to fund an open records lawsuit against the City of Ann Arbor and the Ann Arbor Police Dept. The Knight Foundation’s FOI Fund supports open government lawsuits.

The Fund’s significant victories include:

the 2010 U.S. Supreme Court ruling in Doe v. Reed and the subsequent disclosure orders on remand;

a California case that kept the nation’s largest public pension fund from hiding details of a $100 million real estate investment loss;

a case that forced Wisconsin governor Scott Walker to release more than 8,000 emails;

a case involving a New Mexico state college that had declined to disclose records regarding building projects and a search for a new president.

The suit aims to ask a federal judge in the U.S. District Court of decide whether the City of Ann Arbor has improperly withheld public records including the incident report filed after the shooting of Aura Rosser on Nov. 9.

The newspaper also seeks an opinion in District Court about whether the Ann Arbor’s City Attorney has correctly interpreted the state FOIA Statute concerning the redaction of the names of police officers named in citizen complaints.

In a Sept. 2014 Michigan Court of Appeals ruling the panel concluded that the names of a citizen and an officer are not “information of a personal nature.” Thus, the court found that “the names are subject to disclosure.”

Ann Arbor officials refused an appeal of the redaction of the officers’ names on the basis that it was “information of a personal nature” and that public disclosure of the information would constitute a clearly unwarranted invasion of an individual’s privacy.”

As for the incident report the newspaper has sought to have turned over through Freedom of Information Act requests, the Ann Arbor City Attorney through the AAPD reponded that “the incident is open and under investigation. Release of the report would interfere with law enforcement proceedings and is therefore exempt from release.” In essence, the city’s response repeated language found in the state’s FOIA statute.

In 1982, the Michigan Supreme Court ruled in The Evening News Association v. City of Troy that the government must show more than conclusory statements how the particular kinds of records would interfere with a pending enforcement investigation. “A generic determination does not satisfy the FOIA.” The judges went on to say in their opinion, “Justification must indicate factually how a particular document, or category of documents, interferes with law enforcement roceedings.”

The City of Ann Arbor, in its response to The Ann Arbor Independent’s FOIA appeal offered no such factual justification. City Administrator Steven Powers, in responding to the appeal writes, “I have reviewed your request and determined that your request was properly denied.”

The Chief of the Ann Arbor Police Department rose through the ranks before being promoted to the top job in 2012. He began his tenure with the AAPD as a patrol officer, hired in 1990. He has a reputation among his officers as being honest and fair-minded. He has a similar reputation among Ann Arbor City Council members who were asked to describe his performance over the past 30 months.

Seto’s predecessor, Barnett Jones, “retired” from the AAPD and then it was revealed by the Detroit newspapers that he’d been hired as the full-time Chief of Police for the City of Flint, as well as by his former Ann Arbor colleague Sue McCormick, who now heads the Detroit Water and Sewerage Department. Jones was holding down two full-time jobs in cities located over 50 miles apart. He left the Flint Police Dept. and kept his job in Detroit.

Chief John Seto has, until the past several months, enjoyed relatively smooth sailing. After the Executive Director of the Ann Arbor District Library revealed that there had been heroin sales and overdoses in her library since 2011, Seto found himself and his department in the hot seat.

At a public meeting, City Council member Stephen Kunselman (D-Ward 3) asked why the AAPD had not investigated the sale of the drugs found on overdosed library patrons.

Shortly thereafter, the AAPD was involved in a high profile drug bust overseen by the Michigan State Police and country drug enforcement officers on Main Street. Since then, there has been another drug overdose at the downtown library and drug consumption in the building continues, if library incident reports are accurate. Library staffers routinely find drug paraphernalia on the premises.

A series of articles published by The Ann Arbor Independent revealed a decision to withhold information from the public about drug sales on AADL premises by Trustee Prue Rosenthal. After an email from AADL Director Josie Parker to Trustees apprising them about the heroin sales, only AADL Trustee Rosenthal replied. In her email she wrote that she was relieved library patrons knew nothing about the AADL’s drug problem.

Freedom of Information Act requests turned up emails between the AADL’s Security Chief and the AAPD in which an AAPD official asked for AADL incident reports related to the the sale and use of drugs in at the Fifth Avenue library. The request suggests AAPD officials had not investigated the incidents. AADL library incident reports involving drug overdoses show that AAPD officers were called to the scene in every instance.

In March of 2013, shortly before the AADL drug scandal exploded, Seto had appeared before City Council to report favorably on the city’s crime statistics. He did not report on what turned out to be an increasing problem of heroin sale and use in Ann Arbor and neither did he report on the AADL’s problems with the sale of heroin on its premises.

AAPD citizen complaint forms show that in June and July 2014, the department received multiple complaints about a patrol officer allegedly soliciting sexual favors from women in exchange for leniency for speeding tickets. In July 2014, AAPD officials allowed the patrol officer to quietly resign after the Michigan State Police investigated. However, the Washtenaw County Prosecutor’s office has refused to say whether charges against the former officer have been authorized.

It was five months after the investigation and resignation, that an article about complaints against the officer appeared in the media that Chief Seto issued a comment.