Judge Rules Against Washtenaw County’s Motion to Dismiss The A2Indy’s FOIA Suit

by P.D. Lesko

On Sept. 18, 2024 Washtenaw County Trial Court Judge Julia B. Owdziej ruled against a Motion for Summary Disposition filed by the law firm of Miller Johnson, retained by Washtenaw County to defend against the A2Indy’s lawsuit filed June 11, 2024 seeking disclosure of the background check done on a Sheriff’s deputy named D’Angelo McWilliams. The County Sheriff claims it is not in the public’s best interest to know how McWilliams, an alleged serial rapist under investigation by the Ypsilanti Police Dept. when applying to work as a Sheriff’s Deputy, passed a background check done by the Sheriff’s Special Investigations Unit. McWilliams was hired in May 2019, given a badge, a gun, a uniform and policed Washtenaw County until Aug. 2020.

It was the same Special Investigations Unit that did a background check on former DEI Dept. Dir. Alize Asberry Payne. While applying and interviewing for the job she subsequently was hired for by the County Commissioners, Payne was the subject of a California Superior Court arrest warrant for financial crimes. Asberry Payne also falsified her educational credentials and work experience in her job application materials. Asberry Payne subsequently resigned following the A2Indy’s investigation.

The newspaper is using its FOIA Fund to finance the lawsuit against Washtenaw County. The unique fund accepts donations from the newspaper’s 155,000 readers and the general public.

McWilliams is presently on unpaid leave from the Sheriff’s Dept. On Aug. 17, 2020 McWilliams was bound over to face a dozen charges, including multiple charges of criminal sexual conduct in the first degree. As a student at EMU, McWilliams was the subject of an investigation for alleged criminal sexual conduct. Prior to his hiring by the Sheriff, he was the subject of an investigation by detectives in the Ypsilanti Police Dept. for alleged criminal sexual conduct.

Josh Apel, one of the County’s Miller Johnson attorneys, argued that, without exception, Michigan’s FOIA Statute protects absolutely against the release of the personnel records of law enforcement officers. It doesn’t. The Statute requires that the public body prove that keeping the requested law enforcement record secret outweighs the public’s right (and need) to know.

The newspaper’s response to the County’s Motion for Summary Disposition argued that it is in the “overriding interest of the public to know if the County Sheriff knowingly (after a background check done by his own agency) hired an alleged serial rapist.”

On Aug. 6, 2020, the Sheriff and his Dir. of Community Engagement, Derrick Jackson, told the media and the public “the department” was not aware of McWilliams’s “crimes” prior to hiring him in May 2019.

The A2Indy, in its response to the County’s Motion to Dismiss argued, “It is in the overriding interest of the public to know if the County Sheriff and his Director of Community Engagement subsequently lied to the public on August 6, 2020 when stating to the media and the public ‘the department’ was not aware of McWilliams’s ‘crimes’ prior to hiring him.”

The County’s Motion to Dismiss argued that the public record was being withheld to protect the privacy of D’Angelo McWilliams. At the hearing County attorney Josh Apel argued that just because the details surrounding McWilliams’s arrest and trial were “salacious,” that was not justification to release his background check to the public.

The newspaper argued that McWilliams’s background check is not being withheld from the public to protect the privacy of D’Angelo McWilliams, but rather to protect County Sheriff Jerry Clayton and his employee Derrick Jackson, both of whom were responsible for hiring an alleged serial rapist under investigation by the Ypsilanti Police Dept. as a Sheriff’s deputy.

The newspaper’s Response argued that Judge Owdziej needed to first examine the requested record in camera, an argument supported by decisions of the Michigan Court of Appeals, as well as the Michigan Supreme Court.

Judge Owdziej ruled that she does, indeed, need to examine the requested public record in camera and gave Washtenaw County 21 days to turn over the background check to her. In response, the judge can order the record to be released in its entirety absent redaction, order it released with redaction (which she will oversee), or order that the record was properly withheld. Michigan law requires Judge Owdziej to perform a two-pronged balancing test in which she must determine if public disclosure outweighs non-disclosure. County officials should have conducted the required balancing test before twice denying the newspaper’s request for McWilliams’s background check, but did not do so.

The County’s lawyer argued that disclosure would have “a chilling effect” on the County’s ability to find job applicants.

The Judge gave Apel an opportunity elaborate.

“What if there was a driving violation?” offered Apel. He went on to say that having such information made public could make it more difficult for his client (Washtenaw County) to recruit job applicants.

Driving records may be purchased for a small fee. Driving violations involving a District or Circuit Court are public records available online.

Judge Owdziej will issue a written opinion that explains her upcoming decision. If she denies release of the public record in its entirety, The Ann Arbor Independent will appeal to the Michigan Court of Appeals. Usually, that body takes 24 months to rule, but FOIA appeals are dealt with much more quickly.

In its suit against Washtenaw County, the newspaper asked the Court to order:

1. The Defendant not to charge for 75 percent of FOIA requests, as the University of Michigan agreed to do in 2016;
2. The Defendant make 12 months of all FOIA requests submitted publicly available on its website; as the City of Ann Arbor has done since 2017;
3. The Defendant publish an annual report on its website that informs the public about the County’s FOIA response performance, including time to completion and amount (if any) charged, as the University of Michigan has done since 2016.

Judge Owdziej refused to grant these requests. Washtenaw County has a history of using high fees to discourage public records requests.

The newspaper has filed a FOIA request for records that show how much money Washtenaw County is paying the outside law firm Miller Johnson to keep the newspaper from making D’Angelo McWilliams’s background check public.

On Aug. 1, 2024, D’Angelo McWilliams’s bond was continued through August 2025. He remains free on bail.