If there is indeed a Detroit Free Press cover-up (as the mayor claims) in Detroit’s everlasting text message scandal, it is one Mayor Kwame Kilpatrick won’t enjoy hearing about.
He’ll probably scream it’s illegal.
Since when, as the mayor claims, is filing a request for government information illegal, anyway?
Here’s what I mean by “cover-up”: It’s not really a cover-up. It’s the simple and for Kwame and Detroiters unpleasant fact that while the paper isn’t headlining it, there’s a good chance taxpayers will foot the bill for the mayor’s own lies and cover-ups.
The right and proper thing for him to have done was simply hand over the records when requested by the Free Press. As I noted in an earlier post, the state Constitution requires that custodians of public financial records make those records available on demand during normal business hours in the government office. Which is what the Free Press did. The mayor and his legal hacks refused to give them up. THAT was illegal. The Michigan Penal Code makes it a misdemeanor if the official refuses.
But the Michigan Freedom of Information Act goes goes beyond that: It says, under “Penalties for Violation of the Act,” that “If the circuit court finds that the public body has arbitrarily and capriciously violated the Freedom of Information Act by refusal or delay in disclosing or providing copies of a public record, in addition to any actual or compensatory damages, award punitive damages of $500 to the person seeking the right to inspiect or receive a copy of a public record.”
So, if a court determines that the government violated FOIA in withholding records, a judge will assess the costs of the citizen-requester’s (it doesn’t have to be a newspaper) litigation to the government, i.e., taxpayers.Think I’m kidding? Back in the eighties, I filed a Freedom of Information/Open Meetings Act request for information with the University of Michigan seeking records of their illegal and secret search for a new university president. The big U denied my request. Eventually, a court, having agreed with us reporters, assessed UM roughly a quarter of a million smackers to reimburse law firms hired by the Free Press and the Ann Arbor News.
A few years ago, Royal Oak Township turned me down on my requests under FOIA and OMA for documents related to their abysmal finances, and they ejected me from a public meeting. These were violations of both the FOIA, OMA and the state Constitution, not to mention the penal code which makes refusal to disclose records a misdemeanor. An Oakland circuit judge ordered Royal Oak Township to turn over the records. And the judge ordered the township to reimburse the Free Press’ $14,000 in legal costs.
Royal Oak Township was bankrupt and couldn’t cough up the 14 grand. The township treasurer wound up paying the paper’s law firm on the installment plan.
Without the provision that governments perpetrating violations of the sunshine law must pay for litigation, there would be no point in having that kind of law. Governments would simply refuse to disclose records. Most citizens would face bankruptcy if they had to cover the legal costs of forcing bureaucrats to obey the law. The law sets a balance: If governments refuse to disclose, they, or their taxpayers, will have to pay for the lawsuit if they’re found to have acted illegally.
Free Press cover-up? Hizzoner’s gotta be kidding.
But he may not laugh when he gets the bill for Free Press court costs. Free Press attorney Herschel Fink was billing at $365 an hour during the lawsuit against Royal Oak Township. I hear he’s up to $400 an hour these days. And then you have all the other costs of litgation — filing fees, court reporters, deposition transcripts are just he beginning of a long list of court costs.
Imagine the bill Detroiters will wind up paying. Why, the Detroit News‘ lawyers will also be sending bills.
This shouldn’t surprise the mayor — the city paid out $25,000 a couple years ago to cover Free Press litigation costs in another of his obstruction-of-documents fiascos.
Wait a minute. Didn’t I say refusal to disclose records violates the state penal code? Maybe Wayne County Prosecutor Kym Worthy, already investigating the mayor’s alleged perjury, should add failure to disclose to the list of possible crimes the mayor committed.
Just a thought.
Contact me at joelthurtell(at)gmail.com
