Ann Arbor withholding staff communications cited as reason for rejecting conference center proposal
Ann Arbor City Council members decided this week to reject a private developer's proposal to build a hotel and conference center on city-owned property downtown, citing concerns about the legal and financial risks. But what exactly were they told by city staff?
That information is privileged, city officials say.
Council Member Stephen Rapundalo, D-2nd Ward, last week cited communications from CFO Tom Crawford and City Attorney Stephen Postema as the primary reason for changing his mind about the proposal from New York-based Valiant Partners.
City Council Member Stephen Rapundalo
Ryan J. Stanton | AnnArbor.com
"It's like anything, the devil's in the details, and I think really what changed my mind, in terms of what was presented to us, was an analysis that we received from the city attorney's office and from the CFO about a number of issues that were raised," he said. "It was enough to give me pause for thought."
AnnArbor.com attempted to obtain copies of those communications under the Freedom of Information Act. But the city sent AnnArbor.com a rejection letter on Thursday, citing two reasons why it believes the records are exempt from disclosure.
1. Information or records subject to the attorney-client privilege. MCL 15.243(1)(g)
2. Communications and notes between City staff and Council members that are of an advisory nature to the extent that they cover other than purely factual materials and are preliminary to a final agency determination of policy or action and for which the public interest in encouraging frank communication between officials and employees of public bodies outweighs the public interest in disclosure. MCL 15.243(1)(m)
AnnArbor.com is considering its options for appealing the city's decision.
In its FOIA request, AnnArbor.com asked for copies of all communications since March 1 from Crawford or the city attorney's office to City Council regarding Valiant's proposal.
Ryan J. Stanton covers government and politics for AnnArbor.com. Reach him at ryanstanton@annarbor.com or 734-623-2529. You also can follow him on Twitter or subscribe to AnnArbor.com's e-mail newsletters.
Comments
Mick52
Sun, Apr 10, 2011 : 12:35 a.m.
Not only do I hope AA.com takes this to court, I think it is time the legislature look at amending the statute so that issues like this can be transparent. The Ann Arbor Amendment. Citizens have a right to know why these decisions are being made, particularly if developers might come back and sue, or if decisions are made for frivolous reasons. I cannot imagine why decisions on this cannot be made public unless something in appropriate occurred.
DonBee
Sat, Apr 9, 2011 : 11:35 p.m.
It is so simple - The answer to any FOIA in Ann Arbor will be: We are Ann Arbor so we don't have to be transparent, after all Ann Arbor only votes Democratic, so we can't be voted out of office.
say it plain
Sat, Apr 9, 2011 : 4:53 p.m.
I hope that this very clear issue of the wording in the City's disclosure policy *become a rallying point in the next set of city elections*! Please, note, those of you out there inclined to run for office against this current crew... There is an obvious point to make here! Force the incumbents to justify this wording, or else change it, because clearly they are willing to stand by its meaning as they decide what they deem 'appropriate' knowledge for the citizens to have! In the context of a civil, uncontroversial campaign season, without all those pre-fab animosities and oddities that seemed to exist last time around (imho ;-) ), this would be an interesting and important point to bring up for debate and discussion, no?! Perhaps the journalists in the region can help with that, not so sexy as some of the dross from last time, but rather important?!
Tom Wieder
Sat, Apr 9, 2011 : 3:10 p.m.
I hope that AA.com does pursue litigation. The city's (read: Roger Fraser's) view of the balance between encouraging "frank communications" between officials and the public's right to know is unnecesarily tilted toward secrecy. As Cahill correctly points out, the official policy says, essentially, "withhold info whenever the law allows you to do so." It may take a lawsuit to challenge this particular decision. For the future, however, a City Council committed to openness could change the policy and make disclosure the routine response, and defending secrecy the extraordinary one.
Tom Whitaker
Sat, Apr 9, 2011 : 2:24 p.m.
Thank you for doing this Ryan. I hope you keep up the pressure. This administration seems to have decided a long time ago that it's more efficient to exclude the public from any real decision-making, or from knowing anything about the decisions made on their behalf that isn't carefully presented at Council meetings. Seems to me that life would be easier (and cheaper) for everyone, if the administration instead focused on absolute transparency and communication instead of forcing the public and the media to file FOIAs or lawsuits every time they want to know the REAL story.
michaywe
Sat, Apr 9, 2011 : 2:15 p.m.
David Cahill Keep up the good fight!
sbbuilder
Sat, Apr 9, 2011 : 1:04 p.m.
David and Craig Excellent points. Most of the time I involuntarily stiffen when I hear the word 'lawyer', yet every now and then I'm glad when one is on my/our side too. What would be the likely scenario whereby it would be in the citizens' best interests Not to know what's going on with their own elected officials? Did they have to sign non-disclosure agreements? No. Will the citizens of AA be harmed in some way by knowing what is going on? That's a stretch.
Moscow On The Huron
Sat, Apr 9, 2011 : 2:36 a.m.
Too bad you laid off the guy who knew a few things about FOIAs.
pbehjatnia
Sat, Apr 9, 2011 : 12:48 a.m.
And we are supposed to be surprised? AA.com: please press this issue. City Council: get a clue. You are all elected by the people to serve the people. Not to treat your constituents like children.
Veracity
Sat, Apr 9, 2011 : 12:31 a.m.
I wonder who sent the rejection letter? The refusal to divulge the communications suggests to me that city officials fear that the details will be embarrassing if not incriminating. Citizens will speculate about hidden illegal or unethical activities, IMHO.
Ryan J. Stanton
Sat, Apr 9, 2011 : 3:57 a.m.
You can download the letter linked in the story. It came with the city clerk's name on it.
Craig Lounsbury
Fri, Apr 8, 2011 : 10:49 p.m.
"1. Information or records subject to the attorney-client privilege." we the people ARE the client...we pay the attorney.
average joe
Sat, Apr 9, 2011 : 10:34 a.m.
I agree- The attorney doesn't represent the CFO in this case. He represents the city, which is made up of it's citizens....
say it plain
Sat, Apr 9, 2011 : midnight
How naive of you to say such a thing @Craig Lounsbury ;-) We really NEED AA.com to act on our behalf and go forward with the FOIA appeal, because as @David Cahill points out, the city somehow feels it is in *your* best interests, citizens of Ann Arbor, that they have a general policy of non-disclosure. I can't imagine a scenario wherein that would make sense, whatever your politics or stance on development might be! Look what needed to happen to get people like Rapandulo to 'change his mind', and lets insist that we not have to get signatures and dedicated opponent groups going just to find out what our city 'leaders' might have planned for us! Lets insist that we learn what our elected officials have access to, information-wise, and where they may be getting hoodwinked, or worse.
Vivienne Armentrout
Fri, Apr 8, 2011 : 10:38 p.m.
Congratulations on pursuing this question. The real mystery, however, is why these glaringly obvious problems with the proposal were not highlighted earlier. There was a working session of the council on March 14. In response to questioning, it was revealed that neither the city attorney nor the DDA's attorney had reviewed the material. Further, changes that the RFP advisory committee had requested had not been inserted into the draft LOI. Why was the council rushed into a working session without any of those steps being taken? A group of citizens (we call ourselves Public Land, Public Process) wrote a formal memo to the RFP advisory committee highlighting defects in the LOI and requesting that they recommend against it. (See <a href="http://publicannarbor.blogspot.com/2011/03/open-letter-to-rfp-advisory-committee.html" rel='nofollow'>http://publicannarbor.blogspot.com/2011/03/open-letter-to-rfp-advisory-committee.html</a> ) Instead, they simply forwarded it to council. It was announced at that working session (by the city administrator, Roger Fraser, who appears to be setting the council agenda) that council would consider the LOI on April 18 (later 19). Because of this, we established a citizens' campaign, Citizens Against the Conference Center, finally with over 100 signatories (<a href="http://www.nodowntownconferencecenter.org/)" rel='nofollow'>http://www.nodowntownconferencecenter.org/)</a>. In two weeks, we raised $3000 (without any donations from hoteliers or other commercial interests) from citizens, without a direct solicitation - I'm still receiving checks which I am returning. We placed an estimated 500 yard signs and were well on our way to placing the remainder of our 750 ordered. The outpouring of concern on the part of ordinary residents of Ann Arbor was considerable and nearly spontaneous. We merely provided a channel. I applaud the council for canceling the proposal. But it should not have been necessary to raise a major citizens' campaign for this clearly flawed proposal to be halted. There should have been serious review by responsible parties earlier. This was apparently lacking.
David Cahill
Fri, Apr 8, 2011 : 9:25 p.m.
It may come to a court case for all I know. What the City sent AnnArbor.com is its standard form rejection letter - the same one I have seen many times in my role as an attorney. In order to "show" that the exemption applied, the City could easily have said something like "If Tom Crawford's memo were disclosed, he would in the future be discouraged from issuing such memos for fear of embarrassing the developer." But instead the City did not condescend to make such a statement. But wait - there's more! The Freedom of Information Act says "A public body *may* exempt from disclosure" a whole laundry list of records. Claiming an exemption is permissive, not mandatory. The statute doesn't say "shall exempt", only "may exempt". Does the City of Ann Arbor make a reasoned determination of when it should claim an exemption and when it should not? No. The City has an official "Release of Public Documents" policy approved by the City Administrator (and available on the City's website). Section 6.2.3 of that policy says: "The general policy of the City is to not release information that is exempt from disclosure under FOIA or other law." So the City's policy is nondisclosure, rather than transparency.
AAresident
Fri, Apr 8, 2011 : 8:50 p.m.
I hope AA.com files a successful appeal!
David Cahill
Fri, Apr 8, 2011 : 8:48 p.m.
Ryan, the second rejection is incomplete under FOIA. To claim this exemption, FOIA states: "This exemption does not apply unless the public body shows that in the particular instance the public interest in encouraging frank communications between officials and employees of public bodies clearly outweighs the public interest in disclosure." The City must show this, not merely state it. It has not done so.
Tom Wieder
Fri, Apr 8, 2011 : 9:06 p.m.
The public body does have to "show" this, but when? David seems to feel it's when the rejection is made. I think, perhaps, it need only show it if the FOIA is contested in court.
Ryan J. Stanton
Fri, Apr 8, 2011 : 8:54 p.m.
Thanks, David. We've got our people looking into it. I definitely appreciate your perspective on this.