HONOR — Homestead Township officials acknowledged in court documents, filed as part of an ongoing Freedom of Information Act lawsuit, they “inadvertently failed to produce emails” which should have been disclosed.
Earlier this month, the township released more than 100 pages of communications and copies of invoices for legal services a local winery owner requested in 2020, but that records show were not produced.
“If you look at the history, it’s a theme,” said Kirk Jones, owner of St. Ambrose Cellars, a winery on Pioneer Road in Beulah. “My requests weren’t given the credence or the gravity they deserved.”
Jones last spring filed a series of FOIA requests with the township, seeking copies of legal bills as well as email communications from elected officials to attorneys mentioning Jones or the winery.
Jones was already embroiled in legal action with the township, after challenging in court a ticket he received in October 2019 by an enforcement officer for violating the township’s noise ordinance.
The $125 ticket was issued during a wedding at Jones’ winery where live music was performed, records show. Township officials previously said Jones received warnings prior to the ticket being issued; Jones says he feels targeted by some township officials and filed a FOIA request April 23, 2020.
When that request was not fulfilled, Jones refiled an updated request June 17, 2020, records show.
Michigan’s FOIA laws are designed to provide a standard mechanism for disclosure of certain public records by state agencies and county and local governments, when properly requested.
The act requires a public body to respond within five business days, and either provide the information requested, deny the request in whole or in part and provide a reason for the denial or give notice of a 10-day extension.
Jones sued the township Aug. 24, accusing officials of violating FOIA after he said he either received no response to his requests, received incomplete responses or was told his requests were on hold because of the pandemic and Gov. Gretchen Whitmer’s shutdown orders.
“They were stonewalling me,” Jones said.
Documents show Township Clerk Karen Mallon signed response letters to Jones, and signed legal documents filed in 19th Circuit Court, stating all requested documents had either been produced to Jones, “are available” (but were not produced) or were exempt.
There is no provision under FOIA for a requestor to be informed that records “are available.”
Mallon did not return a call or email seeking comment.
Attorney Jesse Williams said he knew communications were being withheld after Mallon inadvertently added him to an email chain between herself and township attorneys, but then didn’t produce the emails in response to Jones’ FOIA requests.
“My experience being in the Court Room with Judge Thompson is that he is a NO nonsense judge,” Mallon wrote April 27, 2020, at 10:46 a.m. “He does not tolerate slick maneuvers. I have seen him scold Jesse Williams for attempting to delay matters soley (sic) for his own benefit.”
In the above email, sent to three attorneys representing the township as well as to Williams, Mallon weighs in on a possible two-week adjournment of litigation in the noise ordinance ticket appeal, highlighting what she said were 19th Circuit Court Judge David Thompson’s pandemic concerns.
Minutes later, township attorney Christopher Patterson, of Okemos-based Fahey, Schultz, Burzych, Rhodes PLC, alerts Mallon to the error.
“Karen; You have Jesse Williams on the email chain,” Patterson writes at 11:13 a.m. “You may want to delete his email address so that it doesn’t come up automatically.”
These emails were included in the more than 100 pages of communications and copies of invoices for legal services the township later released, in response to discovery requests filed by Williams and an associated attorney, Frederik Stig-Nielsen.
In March Stig-Nielsen deposed Mallon and former clerk Mary Geetings in a video conference where both acknowledged under oath Jones’ requests had not been properly responded to.
Geetings claimed attorney-client privilege on documents Jones’ contends were public and she missed some response deadlines by nearly a month, depositions show.
Mallon cited “the lockdown” as reason for not producing documents, though admitted in her deposition she had “no personal knowledge” of Whitmer’s executive order regarding a public official’s FOIA duties during the pandemic.
The last official tally of legal fees incurred by the township obtained via FOIA requests filed by the Record-Eagle showed about $50,000 had been spent defending the noise ordinance in court and consulting on FOIA requests and policies.
The figure does not include recent legal work or defense of the FOIA lawsuit, records show.
Mike Selden, director of member information services with the Michigan Association of Townships, previously said municipalities like Homestead Township carry liability insurance which generally covers legal fees when a township is sued. Such fees would not be covered when the township is the aggressor and townships involved in multiple lawsuits likely incur fees that fall into each category, he said.
The next court action in the FOIA lawsuit could be a jury trial, in which case Jones said he’d ask for his attorney fees — approaching $20,000 — to be paid for by the township.