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Mixed ruling in Charlevoix County FOIA case

By Benjamin J. Gohs, Editor

Read our electronic copy of Judge Johnson’s ruling at the bottom of this article.

What began on May 11, 2011, with a Petoskey News-Review request for documents under the Freedom of Information Act (FOIA) resulted in nearly 10 months of legal wrangling and an ultimate judgment in favor of the newspaper for two of the six e-mails they had sought.

In his March 9 written opinion, Emmet County Circuit Judge Charles W. Johnson ruled that the denial of portions of some of the documents requested of Charlevoix County Prosecutor John Jarema and Charlevoix County Commissioner Chris Christensen by the Petoskey News-Review (PNR) was inappropriate.

“Based upon the court’s rulings herein, plaintiff (PNR) has prevailed, but only in part,” Johnson wrote.

There were three FOIA requests in all.

“The county prevailed in total on not having to release the four personal e-mails, not releasing the entire e-mail on the real estate matter until after the trial and they do not have to release the personnel matter at all,” Jarema said. “This whole fiasco started on a hunch from the reporter (Sheri McWhirter/PNR) after she misquoted Mr. Christensen about what he was doing during a meeting and then PNR stated that if we were communicating during a meeting we were potentially violating the open meetings act … which is an impossibility.”
However, according to the PNR, this was a win for the public’s right to know.

“We strongly stand by Sheri McWhirter’s reporting, and it’s time Mr. Jarema owns up to his mistakes and stops blaming other people,” said PNR News Editor Jeremy McBain. “I want the taxpayers of Charlevoix County to know it is not us that is costing them this money, it is the actions of the prosecuting attorney – he is the one that broke the law, not us.”

The first information request was for documents pertaining to “any e-mail sent or received by County Commissioner Chris Christensen to or from Charlevoix County Prosecutor John Jarema … between the periods of May 10, 2011 and May 13, 2011.

Jarema responded that the e-mails during that time period were “not covered under FOIA” because they “did not deal with county business or the function of county government.”

Document request number two decreased the time window to communications between Jarema and Christensen to between 9:32 a.m. And 12:57 p.m. On May 11, 2011.

Jarema admitted to one communication during the second time-frame, but denied it under the Freedom of Information Act citing an exemption due to the personal nature of the e-mail.

Document request number three resulted when the PNR was denied a police report on a criminal case. Jarema’s letter of denial to the PNR stated that the investigation was on-going and therefore the report was incomplete.

The question before the court was whether Charlevoix County properly denied release of the requested documents.

Johnson detailed the six rules which govern how a public body may withhold information from the public under the Freedom of Information Act.

  1. The burden of proof is on the party claiming exemption from disclosure.
  2. Exemptions must be interpreted narrowly.
  3. The public body shall separate the exempt and nonexempt material and make the nonexempt material available for examination and copying.
  4. Detailed affidavits describing the matters withheld must be supplied by the agency.
  5. Justification of the exemption must be more than conclusory, i.e., simple repetition of statutory language. A bill of particulars is in order. Justification must indicate factually how a particular document, or category of documents, interferes with law enforcement proceedings.
  6. The mere showing of a direct relationship between records sought and an investigation is inadequate.

E-mails #1 – #4 were computer generated real estate advertisements sent by the Multiple Listing Service, also known as “MLS,” to Jarema’s personal e-mail address from the automated system.

“While Jarema was not required to produce personal e-mails under FOIA, he could have chosen to do so,” Johnson wrote. “This would have proven that he and Christensen were not communicating during the commissioners’ meeting in question. I would have shown candor and openness as to the workings of government, consistent with the spirit of FOIA.”

Jarema said, “I find it ironic and somewhat confusing when the judge says we do not have to turn over those e-mails because they are private and personal, and then somewhat takes me to task saying that I should have turned them over to alleviate this. The letter of the law was followed regarding those four e-mails.”

Jarema further stated, “I requested a meeting with Mr. Caldwell on June 28, prior to PNR filing suit. Mr. Caldwell was given my personal information and I never heard from him at all. Then I called PNR attorney for clarification and I was forbidden to speak with the PNR News Editor Jeremy McBain.”

According to PNR Attorney Robin Luce Herrmann, Charlevoix County was given plenty of opportunity to cooperate with her client.

“If you look at the complaint you will see there was a ton of correspondence going back and forth with Mr. Jarema and the commissioners,” She said. “Attempts by the Petoskey News-Review to resolve this included asking for simple meta data – who these e-mails were to and from – to help us try and figure out this issue, and we were denied that information with respect to all six e-mails.”

The judge ruled that the first four e-mails were exempt from disclosure under FOIA citing “Mere possession of a record by a public body does not render the record a public document … rather, the use or retention of the document must be ‘in the performance of an official function’; for the e-mails at issue to be public records, they must have been stored or retained by defendants in the performance of an official function,” Johnson wrote.

Jarema agreed e-mail #5 was a public record, but thought it exempt because it was attorney work product as it was a document requested by Jarema from Christensen dealing with a real estate property in connection with an embezzlement case.

“Nothing in e-mail #5 would have disclosed anything whatsoever about the alleged embezzlement investigation,” Johnson wrote. “There is nothing in e-mail #5 that supports withholding this e-mail.”
Johnson added, “Jarema’s response which denied production of e-mail #5 violated his duty under FOIA to produce this document. Had Jarema provided e-mail #5 instead of stalling and stonewalling in response to the request, plaintiff (PNR) would have seen that this e-mail did not occur during the board meeting on May 11, 2011. This may well have ended the matter, at least with respect to this e-mail.”

The judge further stated that any sensitive or “identifying” information on the document could have simply been redacted before being released to the PNR.

E-mail #6 was kept from the PNR due to alleged attorney-client privilege as it dealt with a personnel matter between Christensen and another Charlevoix County Commissioner.

“It clearly was a communication that was made and kept in confidence,” Johnson wrote. “The court has reviewed the letter, and does not believe that there is any content in the letter itself that can be segregated as not being part of Christensen’s confidential communication to Jarema.”
He added, “Thus, the court finds the entire letter to be protected by the attorney-client privilege and exempt from disclosure.”

While the court upheld Charlevoix County’s contention that document #6 was confidential, Johnson opined that the cover letter showing who the letter was from, who it was to, the date and signature of sender could have been released along with a copy of a newspaper article that was attached to the confidential document.

FOIA #3 dealing with the police report in connection with a criminal investigation was found moot as Jarema’s office released the report two days before the FOIA suit was filed by the PNR.

In all, the PNR will receive a copy of one of their newspaper articles on an unrelated matter, the cover letter dealing with the personnel matter between Christensen and another commissioner, and a redacted version of a real estate listing in connection with an ongoing embezzlement case.

Attorneys for both sides are supposed to meet Thursday March 15, to discuss how to handle the issue of fees and costs before appearing before the judge again.

“The court is … required to exercise discretion in determining whether to award all or ‘an appropriate portion’ of plaintiff’s attorneys’ fees and costs,” Johnson wrote. “Unless the parties can agree how to resolve this matter, a further hearing to address this issue will be necessary.”

Christensen released the following statement on the matter:

“I am grateful the Court looked at the information and agreed with Mr. Jarema and I that the only e-mail sent during the meeting was in fact generated by the MLS System and not subject to FOIA request. What is unfortunate is that Mr. Jarema and the County had advised the PNR in our responses that this was the case, however they chose to challenge those facts.

The Court held that the issue of the e-mail sent during the meeting is private, as we have stated all along. The Court stated that Mr. Jarema has to turn over a redacted e-mail which pertains to a current embezzlement case, that is still on-going. As soon as that case is finished, a full disclosure will be forwarded to the PNR. Lastly, regarding the personnel issue, the Court again agreed with us that an attached document is also protected. However, the Court stated that we should have provided the email as it basically served as a cover letter to the attached documents.

As to the punitive damages, I have spoken to Mr. Jarema and he understands the decision of the Court and respectfully disagrees with its interpretation of some of the facts. The Court has mandated a redacted version of one email which deals with an on-going criminal investigation. Mr. Jarema stated he believed, that based on his research, this information was fully exempt from the disclosure during the criminal case, and the Court found it was only partially exempt. Mr. Jarema is passionate in prosecuting cases and is extremely careful and mindful that both sides are entitled to a fair and impartial jury which is not influenced by the media. Since Mr. Jarema has acknowledged it was his decision to withhold the information during the ongoing investigation he has offered to pay the punitive fine himself.

In regards to costs and sanctions issue, both sides of this case have yet to discuss the details. I am hopeful that we can work this out without further involvement of the Court and optimistic that we can identify a fair and conclusive end to this issue”

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