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Wednesday, June 30,2010

THE PLEASE DEPARTMENT

Some reasons it might be harder to get access to public information from your local police department.

by Neal McNamara

Three Mondays ago, a paraplegic medical marijuana user from Meridian Township — or so he described himself — called me and said that he had been robbed at gun point in his home in the middle of the night by three armed “black guys.”


The man did not want to give me his name, but he described the home invasion this way: He was sleeping, naked, on his couch very, very early on a Sunday morning when the men barged in waving guns. They demanded his money and his medical marijuana, which they eventually found and allegedly stole. They also took a Fender Yngwie Malmsteen Stratocaster (apparently, the burglars knew a $12,000 guitar when they saw one) and some other musical equipment. Further, he told me that when Meridian Township Police showed up, they confiscated his remaining medical marijuana. Between the burglars and the police, the man told me, his planned medical marijuana growing co-op was devastated.


True, untrue, or grossly exaggerated, the man had a story. The timeliness of the medical marijuana issue, the fact that Meridian Township police allegedly confiscated the medical marijuana (under state law, you can possess 2.5 ounces and 12 plants), and the bizarre nature of the home invasion made the man’s story of interest.


When I got off the phone, I immediately called up Meridian Township police and asked to speak to the public i n f o r mation officer, Lt. Greg Frenger. But what happened next turned the story from a guy who got robbed of his medical marijuana to yet another example of how authorities constantly thwart the public’s right to know — a problem not just with the Meridian Township police but throughout Ingham County (with some exceptions) that I’ve discovered in covering the Greater Lansing scene for the last two and a half years.


When I asked Frenger if he could confirm and give details about the incident, he told me, “No comment.”


I did not ask for names of suspects or confidential informants, I didn’t ask for Social Security numbers or for private photos of the victim — I asked, as any reporter or member of the public has the right to do, for the basic facts of a situation that involved public resources (the police department, who knows what else).


I pleaded with Frenger to simply confirm that there was a home invasion and that police were investigating.


“Yeah, we’re not going to comment on this,” he told me on a second phone call.


In one more attempt to shake something loose, I e-mailed Frenger and several of Meridian Township’s leaders with an example of a press release I had received from a different police department. But no one, from Township Supervisor Susan McGillicuddy, Clerk Mary Helmbrecht, Trustees Brett Dreyfuss, Elizabeth LeGoff, Lynn Ochberg or John Veenstra, responded to the e-mail. And certainly not Frenger.


So, I filed a Freedom of Information Act request. Personally, I don’t think I and any member of the public should have to invoke state law, wait 10 days and pay to find out about something their government did. But I did it — and the results were no better than Frenger’s “no comment.” (On a followup call, McGillicuddy, who is a Republican challenging state Rep. Mark Meadows, D-East Lansing, said she did not have time to talk, but would call back. She never did, Nor did she respond to a follow-up email.)


After more than two weeks, a FOIA request, a flurry of e-mails and a conversation with Meridian Township Chief David Hall, I’m no closer to finding how police responded to the alleged incident on Van Atta Road on June 17.


Since my interaction with Lt. Frenger, I have embarked on a quest to find out if the situation is similar at other area police departments. Do police departments willingly hand over information to the public, or do you have to pull teeth? I found that police departments think that giving out arrest information is a violation of a person’s privacy, and that no department in the area makes a detailed log of police activity available to the public. The days of reading about all the arrests and crimes — significant, silly and mundane — in your local newspaper are over. Now, you have to use to state law to get that stuff.


The Bard speaks


Stratford, Conn., is a community of about 50,000 straddling the Housatonic River and the Long Island Sound. It is the home of attack helicopter company Sikorsky Aircraft and is between rundown Bridgeport and affluent Milford.


A couple of years go, at my first reporting job, I would daily go down to the Stratford Police Department and take a gander at their activity log, or blotter. It was just a manila folder with a bunch of police reports inside. The cop at the administration desk would hand it over and you could peruse it for anything newsworthy. I never knew of this happening, but I am sure members of the public could go and look at it, too.


Stratford’s system was not exceptional in Connecticut. All the departments I knew did the same. Later, when I worked in Anderson, Ind., it was the same deal: police incident reports in a manila folder at the front desk (in fact, Indiana state law specifically states that these records must be continuously made public).


But it’s not like that in Michigan, at least in the Lansing area. I found that out when, on one of my first days at City Pulse in 2008, I went down to Lansing Police headquarters to look at the blotter. I was stared at like an alien and told by then-public information officer Lt. Bruce Ferguson I could call him and he would dole out information, but a FOIA would be required for everything else.


Last week, I called Lansing’s new PIO, Lt. Noel Garcia, and asked him why I could not get detailed information on arrests or police activity, like a blotter, without filing a FOIA.


“There’s a law that says what can be released and what can’t with specific information on suspects until they’ve been arraigned,” Garcia told me. “I know that, I was provided a copy of that law by (Ingham County) Prosecutor Stuart Dunnings.”


The law that Garcia seems to be talking about is not actually a state law, but a rule that governs the conduct of attorneys and prosecutors. It’s called the Michigan Code of Professional Conduct, and it was put into effect by the Michigan Supreme Court in the early 1990s. Rule 3.8 (e) states that a prosecuting attorney must "exercise reasonable care to prevent investigators, law enforcement personnel, employees, or other persons assisting or associated with the prosecutor in a criminal case from making an extrajudicial statement that the prosecutor would be prohibited from making ... ."


Though police departments in Ingham County are under no direct threat from this rule, Dunnings is. So, he points to that rule as a reason departments don’t just hand out information. But there is no automatic punishment for violating the rules, said Dawn Parker, director of professional standards at the Michigan State Bar Association.


"The police themselves aren’t subject to the rules, they’re not lawyers. It’s (Dunnings’) obligation to take these seriously," she said. Someone could report Dunnings to the Michigan Attorney Grievance Commission if he were suspected of violating any of the rules of conduct.


Dunnings told me that it is his preference that the names of all people arrested be kept confidential until they are arraigned — the general public gets the information, he said, just not instantly as it would reading a police blotter.


"The information will be made public. The information is not being delayed," he said. "The only people concerned about getting the information now is the billion-eyed beast of the media."


Dunnings says that he does not order that police departments resist giving out arrests or other information ("We are consulted," he told me. "They’re an independent agency and their decision is their decision”), but let’s the departments know his opinion — and that’s to let most information come out during court proceedings.


"The rules of professional conduct puts the onus on prosecutors to communicate (how to release information) to police. It’s in the interest of fair trial. It’s in the interest of ongoing investigations," he said. "It’s not as though the information will never come out. It’s not a matter of if, it’s when."


No?


You might not recognize Herschel Fink’s name right away, but you’re probably familiar with his work. An attorney with Detroit’s Honigman, Miller, Schwartz and Cohn, he may be the state’s preeminent First Amendment lawyer. He has represented filmmaker Michael Moore and the Detroit Free Press as it was facing Kwame Kilpatrick in court over some text messages.


He’s also an author of a very handy online guide for reporters (and the general public) about the release of police information in Michigan. I asked him if there’s any law in the state that prohibits police from releasing information without a FOIA.


“There
is no law that prohibits the police from releasing information without
a FOIA,” he told me. “In fact it’s done all the time. It is the norm. I
would think that insisting on a FOIA would be inconsistent with both
practice and frankly, with what I consider the obligation of law
enforcement to keep the public advised of what’s going on in its
communities.”


In
fact, Fink pointed to a state law — a complement to FOIA — that
declares all “books, papers, and records created by (or received in)
any office or agency of the political subdivisions of the state of
Michigan are considered public property, belonging to the people of the
state.”


“Except
for certain kinds of information that would fall in law enforcement
investigative records in FOIA, the fact of an arrest, or an incident
report, we are all entitled to know," he said. "There is no way for the
public to hold its officials — including police chiefs — accountable
unless the public is informed. If the public is not informed about
crime in its community and the police acting under the direction of
government officials can keep the public from knowing about crimes,
then the public is in the dark. The public is ignorant of what is going
on. It can’t hold its public officials accountable. That’s the entire
rationale for the open government laws in this country.”


(There
are a couple of opinions from the state Attorney General’s Office from
1980 that say police departments can refuse to release the names of
arrestees who have not been charged — but AG opinions are not legally
binding.)


In the
interest of finding out how police departments respond to information
requests without submitting a FOIA request, I traveled to several local
police departments to see if I could get my hand on arrest or incident
information. I visited police departments in Delhi Township, Mason,
Williamston, Dewitt Township, Eaton County, Charlotte and Lansing
Township. Only Mason and Lansing Township regularly released an
activity log. In Mason, Chief John Stressman compiles a narrative of
about a week’s worth of events, but it doesn’t reveal the names of
arrestees or exact locations of crimes. For example from June 21: “A
Mason man came to the department to report harassment. The victim
stated he is receiving magazines by mail he has not ordered and
suspects the harassment is generated by a neighbor he is has a
longstanding dispute with. To make matters worse, the prankster
misspelled the victim’s name. The complaint remains open.”


“We do our best to give as much as we can without compromising investigations,” Stressman said.


Lansing Township issues a similar report on its website, but did not have information available at the station.


However,
the other departments had no information immediately available. A man
who works at the front desk at the Dewitt police station seemed upset
when asked for an arrest log, saying, “You’re not going to look at the
arrest book because it’s not open to the public.”


In
Williamston, I was told that no one has ever asked for a blotter or
activity log and was referred to the police chief. The Eaton County
Sheriff’s Office referred me to the sheriff’s secretary, and in
Charlotte I was told that information is only ever released through a
FOIA request, and even that has to be approved by a lieutenant. Delhi
Township (actually a section of the Ingham County Sheriff’s Department)
referred me to Sgt. Brian Valentine, who told me that he is not sure
anyone has ever asked for a log, but it would probably have to be a
FOIA, anyway. Valentine says that he e-mails specific activity logs to
Channel 10 and the Stockbridge Sun Times (for 10, it’s mostly
robberies, burglaries and larcenies, and for the Times it’s just
incidents from the southeast part of the county), but that was a
procedure in place before he became PIO.


Though
our search turned up no way to just walk into a police station and get
an peek at what they do, that does not mean information is not getting
out. Law enforcement officials like Valentine, Garcia and Stressman
often cooperate with the media about crimes and vice versa. It is just
that the information is released at their discretion.


From
a sampling of citizens we queried about this topic, police information
is important. A number of people think that departments should have to
show the public their activities.


“It’s
important that it is public because it keeps (police) on their toes,”
said Hillie Waddles, who was studying at the Gone Wired Café on a
recent day. “It’s important they know people are watching them. I had a
family member who was head of investigations for the Detroit Police
Department for a while, and just the stuff that they cover up, you
know, how they cover for each other and whatnot. So yeah, I think it
all needs to be public just so there’s accountability.”


Though, some were hesitant whether arrest information should be public before an arraignment.


“Yeah,
and I say that because there are too many public opinions and the news
media pinpoints what they want us to hear,” said LaShawn Peoples when
asked about arrests. “So, then there could be a lot more substance to
the case that nobody ever hears about but all of a sudden everybody’s
turning against this person without knowing what’s really going on.”


“It
should be public knowledge,” Kathy Ryttewski answered to the same
question. “If they’re going to commit a crime, I think it should be
public knowledge, because, also, if you think about it, if they can’t
afford an attorney they’re going to get a court-appointed attorney and
where does that come from? All of our tax dollars. So if they’re going
to put themselves out there, commit a potential crime, yeah, I think it
should all be public knowledge.”


Adversarial relationship


On
Monday morning, I went down to the Meridian Township Police
headquarters to pick up the results of my FOIA. Counter to many of the
other FOIA responses I’ve received, Cummings told me what I would not
be getting — not what I would be getting. So, I wanted to see it before
I paid for it.


When
I approached the window at the department’s administration desk, I told
a secretary what I had come for. She said, “OK, $15,” to which I told
her I would first like to look at the documents, which I was advised
was my right under the FOIA law. But the secretary told me she would
have to ask Cummings first.


It
was about 20 minutes before Cummings, accompanied by Frenger, showed up
to deal with me. I watched a uniformed officer toil with a photocopier,
and two retired police dogs — Trevor and Bandit — stared at me from
pictures mounted on plaques on the wall. When I had talked to Frenger
on the phone, I had pictured him as having a bushy moustache. But the
real Frenger has spikey gray hair and a stern look in his eye.


The
sum of Cummings and Frenger’s thesis to me was that I could not see the
FOIA without handing over $15. And, they told me, $15 was a bargain
given all the work they had put into it. However, I did convince
Frenger to flip through the FOIA from behind a glass partition.


As
I suspected, most of the documents were awash in black Sharpie,
redacted. The FOIA response letter Cummings had sent to me indicated as
much. In her FOIA response, she wrote, “The Meridian Township Police
Department has granted your request in part pursuant to Section 13
(1)(b)(iii) of the FOIA because disclosure would constitute an
unwarranted invasion of personal privacy MCL 15.243 (1)(b)(iii), and
the public record you have requested is an investigating record
compiled for law enforcement purposes and disclosure at this time would
interfere with law enforcement proceedings.”


Their
response — that the documents are part of an investigation, and thus
cannot be released — is partly the subject of an important state
Supreme Court ruling. In the 1983 case Evening News Association vs. the
City of Troy, the court stated, “The mere relationship between the
information sought and the investigation is inadequate.


“Conclusory
statements which simply recite the language of the act are
insufficient; rather, the agency must demonstrate by detailed affidavit
how disclosure of the particular records or kinds of records would
amount to interference on the basis of facts.”


The
ruling points out that the government and the FOIA-seeking public is in
an unordinary adversarial relationship. Adversarial, that is, because
the government has access to all the facts, the public has nothing.
When I pointed this out to Frenger — specifying that I was using
"adversarial" in a legal context — he said, “I’m sorry that’s the way
it is, but it is.”


The chief of Okemos speaks


Last
Friday, I got a chance to speak with Chief David Hall. He was initially
reluctant to participate in an article about the release of police
information. Though, he did eventually confirm that Meridian Township
Police are in fact investigating a crime related to the burglary of
medical marijuana.


He
also told me (and sent me via e-mail) that the department has a press
release policy and routinely issues press releases. The policy says a
lot about what can’t be released, though it does pledge “the public
reasonably needs to be informed about police activities and operations.
The Department has an obligation to provide information with openness
and candor.”


Still,
Hall said requests for information must be taken case by case. The
privacy of individuals and the facts of an ongoing investigation must
be considered, too.


“Our goal is to solve crimes and protect victims,” he said. “There is a fine line that we follow.”


And
though I failed to get any information from Frenger, I got the most
information from Steven Hollabaugh. Though, I don’t know how much of it
is true.


A few
days after the home invasion allegedly happened, Hollabaugh came to the
City Pulse office, identified himself as an acquaintance of the victim
and said that this story would be bigger than even the O.J. Simpson
trial. He also told me that the burglars took 26 ounces of useable
marijuana, and that the police took a crop of burgeoning pot plants —
20 to 40, Hollabaugh estimated. The victim, Hollabaugh told me, was
Bill Baechler, who is a graduate of Hydroworld — a sort of Home Depot
for medical marijuana growing in Lansing.


I
have since been unable to contact Hollabaugh; a phone number he gave
goes to someone else now. But, the last I left it with him, he was
pissed that the medical marijuana crop was taken, and he was concerned
that Baechler only had a little of his medicine left.


Referring to Baechler’s effort to set up a medical marijuana grow business, he said: “The police and these thugs broke it up!”


(City Pulse intern Jane Alexander contributed reporting for this story)

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