Warren

FOIA wars

By Brian Louwers
C & G Staff Writer

WARREN — Mayor Jim Fouts spent years of his life teaching teens about government. It was during those same years he also became Warren’s self-proclaimed “neighborhood councilman.”

For more than two decades on the City Council, Fouts taught high school students by day, while at least two nights a month he championed the concerns of the city’s residents. He authored volumes of press releases that pressed for action on behalf of the man on the street, the senior living alone or the block of neighbors left standing in the shadow of the city’s cold, hard administrative bureaucracy.

From his seat at the council table, Fouts often echoed the “people’s lawyer,” Louis Brandeis, an associate justice of the U.S. Supreme Court from 1916 to 1939 who became a legendary advocate of the general public, a man who railed in the nation’s corridors of power against corruption in government and big business, and its effects on “the little guy.”

Brandeis and Fouts both, in more words or less over the years, proclaimed, “Sunshine is the best disinfectant.”

As the mayor of Michigan’s third-largest city, Fouts later built his administration on a foundation of claimed transparency.

But six months into the mayor’s second term at City Hall, his detractors say that foundation’s construction is flawed, that information is being manipulated or withheld for questionable reasons, and that “selective administrative policy” has made transparency an illusion for some residents and even for some members of the press.

“FOIA frenzy”
Around the time the city’s election campaigns were firing up early last year, the office of Warren City Attorney James Biernat was flooded with a deluge of requests seeking information under the Michigan Freedom of Information Act.

Fouts would later call it a “FOIA frenzy” during the campaign, an attempt by his political rivals to muddy the waters of his first term at City Hall and to harass the administration by forcing them to process dozens of requests for information the mayor labeled as “silly.” He said repeatedly in speeches, interviews and even in a press release last September that the excess number of FOIA requests had overburdened city departments, particularly the legal staff.

“I want to make it absolutely clear that I have believed in an open, transparent city government ever since I became an elected official 30 years ago, and I still do,” Fouts said in the press release. “For that reason, I have always supported FOIA that allows anyone to have information about any unit of government. This is necessary in an open, democratic government.

“But FOIA has been abused by individuals in Warren who disrupt city government by requesting FOIAs in excess with many of them absurd.”

Fouts attached a compilation of what he called “absurd” FOIA requests to the release, and even assembled a “top ten” list to make his point.

Requests on the list sought access to the mayor’s email, his notebook shown in a newspaper photo, notes from his State of the City speech and city phone records. Another sought records of “calls, runs or incident reports” for the mayor’s home on St. Louise.

There were even “FOIAs of FOIAs,” monthly requests for public documents that had been sought by FOIA requests and also for the city’s response to those requests.

Fouts said dozens of FOIA requests were made by former Warren City Council member Mark Liss, who opted not to seek re-election in 2011 after serving one four-year term.

A municipal attorney in Royal Oak, Liss declined comment for this story, but he said late last year, as he claimed victory in the FOIA battle, that he sued for access to Fouts’ phone records, emails, and the names and salaries of city employees, and won.

He later said it took far too long for the city to provide information that should have been readily available to an elected official or any member of the public under state law.

“This was a major test of transparency, and the city failed,” Liss said last December, a month after he left office. “I got everything I asked for.”

Blood in the water
While Liss was requesting FOIA documents from City Hall at all hours of the day and before he sued the city over the requests in July, others started coming forward to request information from the city.

Residents Tomasz Bania and Chris Pasternack, who last summer went to Warren police with documents, they said, showed a discrepancy with respect to the mayor’s date of birth, started making FOIA requests to City Hall for information of all types in June.

Pasternack recently said he sent fewer than 30 FOIA requests in 2011, and he stopped sending them in December after he was “verbally attacked” by the mayor while seeking a DVD copy of Fouts’ speech after his re-election.

The DVD, Pasternack alleged, eventually took a month to provide.

Bania added he sought information through about 200 FOIA requests filed since June 2011, after he ran into resistance with his initial requests.

He admitted he sent dozens on one day alone in September, after what he claimed became “an absolute stonewalling of information.”

“It was apparent to me I wasn’t going to get any answers,” Bania said.

The men said information that had previously been readily available, including the minutes of city meetings, began being withheld. They said they were being told to FOIA for everything.

In the weeks and months to follow, some of the FOIA requests filed by Bania and Pasternack would top the list of the “absurd” variety laid out in the mayor’s press release. But they said they had reasons to justify all of them.

One FOIA sought “any and all receipts for Tony Bennett concert tickets.” Pasternack later said he’d heard the mayor planned to attend the show and wanted to see how the tickets were paid for.

Another “absurd” request sought the contents of the mayor’s trash bin. Pasternack said he suspected some FOIA items could have been discarded, and he wanted to review them.

Pasternack said his request for “employee key card usage of second-floor bathrooms” was denied by city attorneys for security reasons.

Michigan’s FOIA statute regulates and sets requirements for the disclosure of public records by all public bodies in the state. The law defines which bodies are included, which records can be disclosed, and how they can be requested and examined. The law also lays out a list of exemptions.

When requests were denied, Pasternack and Bania said they had been left to appeal the decision to the City Council.

A recent change enacted by the council this month, however, would leave future appeals decisions to a panel of three council members.

And when FOIA appeals are denied, Bania and Pasternack said they and any other Warren residents are left no option short of filing a lawsuit in Macomb County Circuit Court, as Liss did.

But they said the cost prohibits filings for some, who can’t shell out the $150 it takes just to get the case going. Though costs can be returned if the case is won, they said the money could stay tied up for months.

While their filing of FOIA requests has ebbed recently, Pasternack and Bania said they continue to be approached by residents — and even city employees — seeking information they can’t get.

“We are both just citizens trying to make a difference by ensuring that the city runs in a fair, honest and transparent fashion,” Bania said.

Pasternack added, “We’re trying to hold our government accountable for its actions, and we’re basically getting a black eye for doing it.”

The “hands-on mayor”
Make no bones about it — Warren Mayor Jim Fouts believes he is among the most transparent politicians in the city’s history.

But even he admits his policies have toughened in the wake the FOIA deluge he claimed is costing the city big money.

“What we have is a problem with some of these activists running around and demanding DVDs and what have you,” Fouts said this month. “It means we have to be a little bit more consistent and tough with how we give information out, with people who are not legitimately interested in the information, but harassment.

“It becomes unreasonable when one of these people asks for 50 years of council minutes.”

Fallout from the FOIA wars has seemingly had a chilling effect on the flow of information across the city.

Employees, including some top-level administrators, contacted for comment by the Warren Weekly in recent months have cited a need to get proper clearance to speak to the press.

The city’s longstanding policy of making materials produced by TV Warren available to the members of the media has been altered and now requires a FOIA submission.

As recently as his budget presentation before the City Council in April, Fouts blasted the “FOIA frenzy” as a costly burden.

“I’m more open than any mayor’s ever been. The bottom line is, unreasonable FOIAs have cost us hundreds of hours of attorney time, and thousands and thousands of dollars.”

As it pertained to the flow of information in the city, Fouts cited his own right to know.

“I think if the press wants to call, I should know about it. I want to know who’s talking to who,” Fouts said. “That’s just me. I’m a hands-on mayor. Think about it. I’m pretty transparent.

“You check with any citizen. They can call me at night. No mayor has ever given their phone number. Everybody knows my birthday, my age, what high school I went to. There’s been more personal things about me than any mayor in the history of Warren.”

The mayor added, “I am the chief policy maker. I don’t want to pick up the paper the next day and be told somebody is saying something, and I’m not told about it.”

You can reach C & G Staff Writer Brian Louwers at brianlouwers@candgnews.com or at (586)498-1089.