from Detroit Free Press
Anearly six-month investigation into whether Mayor Mike Duggan gave preferential treatment to a local maternal health program is in its final stages and involves more than 400,000 pages of documents, the Free Press has learned.
The Free Press sought the Detroit Office of Inspector General’s investigative records — emails, text messages, financial reports and other documents it has collected as well as newly created reports — through a public records request last month, but the city’s law department said the newspaper would have to foot a bill estimated at $222,667 to obtain them.
Even if the Free Press pays the six-figure invoice, the city plans to fight releasing documents that the inspector general’s office has collected. The investigation involves Duggan and Make Your Date, the maternal health program run by Sonia Hassan, a woman with close ties to the mayor. Duggan initiated the nonprofit program; recommended Hassan to lead it, and ordered high-ranking city officials to help with fundraising. Make Your Date received more than $358,000 in federal grant money through the city.
The Office of Inspector General (OIG) wants to keep the records secret while the investigation is ongoing so they are not used to “mislead the public.”
“Based on information provided by the OIG … release of the requested information and/or record at this time would: 1) paint a biased picture without any context; 2) unfairly prejudice innocent employees and individuals who are identified in the records; and 3) be taken out of context to sensationalize certain aspects of the records and mislead the public,” reads a Sept. 10 letter to the Free Press from the Detroit law department in response to the newspaper’s records request on Aug. 20.
The letter notes that 400,000 pages of records have been gathered and concedes that the state’s public records law may not justify withholding the records. “While specific exemptions under Michigan FOIA may not apply to the records compiled by the OIG, it is our understanding that the OIG will defend its position if necessary,” a footnote in the letter reads.
The city’s letter responding to the Free Press request sheds new light on the high-profile investigation and underscores the complicated relationship between the city’s administration and Inspector General Ellen Ha.
The OIG is supposed to be the city’s independent watchdog, but staff there collaborated with the city’s law department to object to releasing the records to the Free Press. Ha previously worked in the city’s law department, raising concerns about her objectivity.
Deputy Inspector General Kamau Marable said Friday that the office's objections are not specific to the investigation involving Duggan and Make Your Date.
"We are not opposing the (FOIA) request perpetually," Marable said. "Our concern is the information being released while an investigation is ongoing and that's every investigation — high-profile or not. Every investigation we feel that way and will take that stance."
The investigation encompasses whether the city and Duggan provided Make Your Date with any preferential treatment. The probe expanded in July after the Free Press revealed that city workers deleted emails related to Make Your Date and Hassan, while the newspaper prepared its first report on the mayor’s relationship with the program and Hassan.
The inspector general’s office said it would investigate the circumstances surrounding the deleted emails as part of its overall investigation into Make Your Date.
Duggan and Dave Massaron, the city’s chief financial officer, learned about the deleted emails in May.
During an unrelated meeting with Free Press editors and reporters Thursday, Massaron would not comment on whether the inspector general has interviewed him or how he found out about the deleted emails.
“We have been asked by the Office of the Inspector General not to comment until she completes the investigation. So I can’t,” Massaron said.
When asked whether he has ever known any city officials to delete emails to avoid public disclosure, Massaron also cited the inspector general’s instructions to remain quiet. When pressed, he said, “I’m unaware of anybody deleting emails to avoid discussion, disclosure.”
Michigan Attorney General Dana Nessel also has instructed her criminal division to look into the deleted emails after the issue was brought to her personal attention.
Although the OIG investigation is in its final stages, it could be a while before a final report is issued because any person or agency criticized in the preliminary report has the right to a closed-door appeal hearing, according to the inspector general's administrative rules. The appeals process could take several weeks.
The inspector general’s office would not provide any details about the investigation, only characterizing it as ongoing.
The office confirmed that it raised concerns with the law department about the Free Press’ FOIA request.
“Unless required to do so, we do not discuss or share any information we’ve collected during our investigation with any persons outside of our agency,” an email from the inspector general’s office reads. “Preserving the integrity of our investigation under the charter requires our silence until a final report is issued by our office.”
The city charter's requirement that inspector general records be kept confidential is subject to state law, including the FOIA statute, which supersedes local rules and laws.
The Free Press appealed the law department's FOIA response last week. The appeal cited several areas where the city's response appeared to violate state statutes and it requested specific legal justifications for documents that were denied.
The inspector general has the authority to investigate any elected official, city employee, agencies and any programs or contractors who provide goods or services to Detroit.
According to the city charter, the inspector general also has the ability to access financial and other records of all city agencies at any time.
During the course of an investigation, the office can administer oaths, take testimonies, subpoena witnesses and require the "production of evidence relevant to a matter under investigation," according to the city charter.
Any city employee, elected official or contractor who fails to cooperate with an investigation could be subject to "forfeiture of office, discipline, debarment or any other applicable penalty.”
If it is determined that an illegal act was committed, the inspector general is required to refer the matter to the appropriate law enforcement agencies.
Viki Harrison, director of state operations for the nonpartisan grassroots organization Common Cause, said the city’s handling of the FOIA response raises new transparency questions and damages the public’s trust.
Harrison read the city’s FOIA response to the Free Press and said it is inappropriate for the law department to chastise the media by suggesting it would attack innocent employees.
“Are they writing an op-ed or is this a FOIA response?" Harrison said.
Harrison said the city’s response erodes trust in government.
“I'm outraged just reading some of the language that they've used in here,” she said. “They're being incredibly defensive instead of just doing their jobs and answering the question. The public is going to once again think that their government is hiding something and not playing fair and they're stopping the press from doing their jobs. The lack of transparency and ability for the public to really understand what’s happening is completely erased when you get a response like this.”
The inspector general's office said there should be no transparency concerns.
"We have stated that we have no issues with releasing information after the investigation is concluded," the office wrote in an email responding to questions from the Free Press. "As stated previously this is to protect the integrity of any investigation, high profile or otherwise."
Harrison said she also believes the $222,667 price tag to fulfill the request prevents access to documents that should legally be available for public consumption.
“It is obviously outrageous to charge a newspaper $225,000 for something that is going to be nothing but redactions,” Harrison said. “Charging for staff time is a huge problem, too. If your Information Act requires and allows them to charge to compile information, that should be changed. That is something that makes it cost prohibitive for anyone to use this law to get the information they’re entitled to. How is anybody supposed to be able to afford $200,000?”
Adam Marshall, an attorney with the Reporters Committee for Freedom of the Press, called the city’s bill “shockingly high,” especially considering that Michigan’s public records law allows cities to provide records free of charge if they benefit the general public.
“Any time an inspector general is investigating any type of allegation of wrongdoing, that’s just inherently in the public interest,” Marshall said.
The city’s position that it would fight releasing the records despite any legal justification is “patently unlawful,” Marshall said.
“They seem to readily admit that no Michigan FOIA exemption applies but they’re not going to release these records,” he said. “The letter seems to be flouting that legal obligation on the basis of some purported policy argument. That’s not a legal reason that allows those records to be withheld.
“I’m really at a loss to understand how the city thinks this is appropriate or lawful.”