By Joel Thurtell
You would think from reading the August 18, 2015 Detroit Free Press article about two Wayne State University student reporters who were stonewalled by Detroit Mayor Mike Duggan’s staff that the Free Press broke the story.
Thanks to Jack Lessenberry and Metro Times for noting the role of joelontheroad.
The story appeared here on May 22 – nearly three months before the Free Press published.
In my novel, CROSS PURPOSES, OR, IF NEWSPAPERS HAD COVERED THE CRUCIFIXION, a newshound opines that what newspapers refuse to print often is more interesting than what they publish.
I can’t explain why the Free Press chose not to report why WSU students Alexander Franzen and Timothy Carroll came to request records from the mayor. But I believe the story would have been more interesting if the newspaper had explained the background.
Why, for instance, did the students make two trips – May 12 and 14 – to the mayor’s office asking for the proposed Riverside Park land swap agreement between Duggan and Ambassador Bridge owner Manuel “Matty” Moroun?
Why, as the Free Press reported, did the student reporters not make their request for the agreement under the Michigan Freedom of Information Act instead of relying on a provision in the Michigan Penal Code few have heard of?
The student reporters were sent by me. I was their teacher. I am a retired Free Press reporter who has written extensively about Moroun since I left the paper eight years ago.
In May, I told the Free Press what happened to the WSU reporters. Later, I supplied their reporter the audio recording of the students’ encounter with Duggan’s staff that the Free Press published without attribution.
The Free Press noted that Duggan’s staffers told the reporters the agreement did not exist on paper and was merely “an idea.” The paper reported that the mayor’s staff lied to the students: the agreement did indeed exist and had been signed by the mayor. Those too were pieces of the story.
The Free Press chose not to explain why the students used the Penal Code instead of FOIA. And the paper didn’t mention that on May 22, the teacher – me — asked the Wayne County prosecutor to investigate this apparent violation of the Penal Code by Duggan’s staff and repeated the request on July 26. My request to the prosecutor contained a written request for an investigation written by the two reporters. The newspaper was aware that the prosecutor had declined to respond to my requests,but elected not to mention those facts. (There is still no response from the prosecutor.)
What was I thinking? Why did I send student reporters to Duggan’s office? Why use the Penal Code instead of FOIA?
Back in May, I was at Wayne State teaching a journalism class, Communications 5310. COM 5310 is unusual. Instead of having 15 weeks to study and produce, students have one week: eight-to-five Monday through Friday for 40 hours, plus five hours of homework equals 45 hours.
When your class is over in five days, May 11-15, the 15-day delay built into FOIA makes that law useless.
But there is the Michigan Penal Code. The Penal Code requires that public officials turn over records upon request during normal office hours. If the officials refuse to comply, they can be imprisoned for up to a year or fined $1,000.
The Penal Code — a disclosure law with teeth!
I have never encountered another journalist familiar with the penal code’s public record clause. But faced with five days to finish an investigation, it seemed worth trying.
When I agreed to teach COM 5310, I wondered what the class project should be. Whatever the topic, it needed to concern Wayne State or Detroit, and it needed to be compelling.
Then, on April 29, Mayor Duggan announced his land swap deal with Matty Moroun.
I first wrote about Riverside Park on September 22, 2008, when I reported Matty’s ambition of swapping land to acquire a piece of park he needs to build a replacement span for his Ambassador Bridge. Now here was Mike Duggan agreeing to make Matty’s dream real. The issue was controversial. It affects Detroit, the region and has international implications.
Thank you, Mike Duggan. We had our project.
I wrote in the COM 5310 syllabus:
This one-week intensive class will focus on techniques and tactics of investigative reporting. Part classroom, part newsroom, students will work on a real investigative project with local, state, national and international overtones.
Forty hours of class time multiplied by seven students is 280 hours of time that we can use to conduct an investigation. The focus of the course will be Mayor Duggan’s recent proposal to swap land from Detroit’s Riverside Park to Ambassador Bridge owner Matty Moroun in return for nearby land owned by Moroun.
Now that we had our focus, how would we get records? In the syllabus, I continued:
In a five-day class, there is no time to file Freedom of information Act requests that allow government officials 15 days to respond. Instead, our tools will be the Michigan Constitution, which requires that officials disclose financial records on demand; and the Michigan Penal Code, which makes it a crime for public officials to refuse to disclose public records.
Given that the Penal Code was largely unknown to journalists, our use of that law would test a novel use of a little-known law meant to help citizens get access to public records.
This is how I explained the class in an email to the Free Press’s Joe Guillen:
I envisioned the class use of the Penal Code as an experiment that would run parallel to our investigation of the park agreement. What would happen if we requested information through the Penal Code rather than through FOIA? If this were truly an experiment, we could not confuse matters by using two request formats. We needed to stick to the Penal Code alone if we wanted uncontaminated results.
Had we filed FOIA requests while invoking the Penal Code, we might not know which technique led to success or failure. Moreover, FOIA would give officials an escape route away from the threat of criminal action contained in the Penal Code.
It appears that Duggan’s people are retroactively trying to use that escape hatch by saying that no FOIA request was made. My response: no FOIA request was necessary. The students made their request under a different law, the Penal Code.
The results so far of this experiment have been fascinating. We have detected Duggan’s staff blowing off student reporters with the lie that the documents did not exist. Now the officials say the students should have filed a FOIA request for what were claimed to be non-existent records.
The Penal Code is a law separate from the Freedom of Information Act. It does not mention written requests. It does not mention deadlines and reasons why officials might procrastinate or stonewall. It simply says, turn the records over upon request, or face criminal action.
So far, the prosecutor has ignored my request for her to investigate. Her behavior shows the weakness of the Penal Code as a tool for obtaining documents. While FOIA provides document requesters a way to challenge officials in court, the Penal Code provides only criminal sanctions and thus relies on the good will of a county prosecutor to challenge a denial.
I told Joe Guillen:
The experiment continues: Does a state law requiring immediate disclosure of public records with criminal penalties for refusal have any meaning?
Drop me a line at joelthurtell(at)gmail.com