Washtenaw County Appeal of A2Indy FOIA Case Win Gets Shot Down in Michigan Court of Appeals

by P.D. Lesko

Miller Johnson attorney James A. Buster faced three incredulous Michigan Appeals Court judges. The first question asked of Mr. Buster was telling: “Why isn’t this [appeal] moot?” Buster offered no arguments why his appeal on behalf of Washtenaw County was not moot that any of the three judges found convincing. Based on the judges’ incredulity in the face of Buster’s appeal, it suggests the Court of Appeals will decline to reverse the Jan. 24, 2025 ruling of Washtenaw County Trial Court Judge Julia B. Owdziej. Washtenaw County accidentally released the public records requested by the A2Indy in Dec. 2024, but the records were released nonetheless. The records were then published.

The Supreme Court of Michigan in its 2008 State News v Mich. State Univ ruling held:

“Release of the requested records by the public body during litigation renders the substantive FOIA claim moot.” State News v Mich. State Univ, 481 Mich. 692, 704 n 25; 753 N.W.2d 20 (2008) That Court added, (“Of course, release of the requested public record by the public body would render the FOIA appeal moot because there would no longer be a controversy requiring judicial resolution.”).

On Jan. 24, 2025, Washtenaw County Circuit Court Judge Owdziej ordered portions of a background check done by the Washtenaw County Sheriff’s Special Investigations Unit on Sheriff’s Deputy D’Angelo McWilliams and released accidentally in a court filing be “corrected.” At the same hearing, the Judge refused to grant the County’s request that she clawback the public record accidentally released by the County’s attorney Josh Apel of Miller Johnson. The Judge also refused to force the newspaper to unpublish “County Sheriff and Dir. of Engagement Lied, Knew About Deputy’s Background Check Rape Investigations.”

The Miller Johnson attorney had asked Judge Owdziej in Jan. 2024 that the newspaper to be forced to unpublish an article and be punished for its publication of the public records; both remedies are unconstitutional.

The U.S. Supreme Court ruled on these issues decades ago. In Smith v. Daily Mail Pub. Co., 443 U.S. 97 (1979), the U.S. Supreme Court ruled: “[I]f a newspaper lawfully obtains truthful information about a matter of public significance, then state officials may not constitutionally punish publication of the information….” When a public record has been obtained, there is no further judicial controversy, and the question of whether the Trial Court erred in denying the Miller Johnson Jan. 2025 Motion to Reconsider is moot.  

In Aug. 2020, then Sheriff Jerry Clayton held a press conference at which he put Deputy D’Angelo McWilliams on unpaid leave after the County Prosecutor brought multiple CSC First Degree charges against McWilliams. At the press conference, Sheriff Jerry Clayton said that he had been unaware of McWilliams’s “crimes,” before he’d hired the man as a Deputy Sheriff.

On March 25, 2024, The Ann Arbor Independent submitted a Freedom of Information Act request to the County Sheriff’s Dept. to obtain a copy of the background check done on Sheriff’s Deputy D’Angelo Ladonn McWilliams prior to his hiring.

The request was denied: “…In accordance with MCL 15.243 Sec.13(1)(a) information of a personal nature if public disclosure of the information would constitute a clearly unwarranted invasion of an individual’s privacy and MCL 15.243 Sec. 13(1)(s)(ix) disclose personnel records of law enforcement agencies. This pertains to the background check done on D’Angelo McWilliams. The public’s interest does not outweigh the privacy of the individual.”

In June, 2024, the A2Indy filed a lawsuit in the Circuit Court to compel Washtenaw County to release the requested public record (McWilliams’s background check done by the Sheriff’s “Special Investigations Unit.”

In Sept. 2024, Circuit Court Judge Julia B. Owdziej refused to dismiss the A2Indy’s suit filed in order to obtain the public record withheld. Miller Johnson attorney Josh Apel filed a Motion asking the judge to reconsider her ruling, a Motion which Judge Owdziej also refused.

On Dec. 11, 2024, portions of the McWilliams background check were published. The background check showed McWilliams had lied during his background check, and that two outside investigations which looked into allegations that McWilliams had raped women, had been included in the Sheriff’s background check. On Dec. 13, 2024, Miller Johnson, on behalf of Washtenaw County, appealed Judge Owdziej’s ruling to the Michigan Court of Appeals.

In Sept. 2024, a FOIA lawsuit was filed against Supreme Felons, Inc., when two FOIA requests for financial records were denied citing no reason for the denials based on permitted exemptions in the language of the FOIA statute.