Friday, February 7, 2014

FOIA Friday: breaking news vs document dumps in the case of Fire Station Four

When you send a FOIA request to a unit of local government, there's no telling what you'll get back. Chances are, if your request is interesting, it won't come back quickly, so there's little chance that you'll be breaking any sort of news that someone else might want to leak out more quickly. When you do get back records, they may look like more of a document dump and less of a story. That's the nature of the beast.

This week's FOIA Friday stares at a recent FOIA request I sent in, where the results that came back looked more like a document dump than a neat story. In each of the cases I've published the results to the Ann Arbor Area Government Document Repository (a2docs), in the hopes that if and when the story comes around again there will be some background to draw on. Read on to learn about Fire Station Four and the moldy living quarters that caused it to be temporarily closed for renovation.
I am responding to your request under the Michigan Freedom of Information Act received December 23, 2013 for records associated with the closing of Fire Station 4, test reports showing the presence or absence of mold, mildew, asbestos, or other noxious or toxic substances, contracts, agreements and plans for the abatement of mold, mildew, asbestos, and other noxious or toxic substances, including but not limited to steam cleaning, carpet repair, and asbestos abatement, correspondence to and from the City Administrator, the City Safety Manager, the Safety Services Administrator and the Fire Chief regarding conditions at Fire Station 4, correspondence to and from members of the Ann Arbor City Council and the Mayor regarding Fire Station 4 and copies of press releases, web pages, or correspondence produced by the Communications office regarding Fire Station 4.
Fire Station Four was closed on November 21, 2013 because of high levels of mold in the firefighters quarters and because of complaints of respiratory illnesses among firefighters. The Ann Arbor News broke the story, based on a tip that has remained anonymous. When reporter Ryan Stanton wrote to the city describing the story he was going to publish, they got back to him the next day with details. When my FOIA request went in the next day, it took 15 business days to fulfill, but it also unearthed a level of detail about the problems on site that the News didn't have at the time.

1. All documents that would have showed communications with the City Attorney's office were exempted from disclosure, and there was no list provided of these documents. This is typical, and hard to appeal. Attorney-client privilege is enshrined in law and practice, and it's easy to find cases where appeals to look at privileged information are turned down with flat denials that stick.

2. Documents were also exempted from disclosure under the "deliberative process" exemption, which means that the juicy details of internal debates about what to do did not get included in the document collection. The law reads:
Communications and notes within a public body or between public bodies of an advisory nature to the extent that they cover other than purely factual materials and are preliminary to a final agency determination of policy or action.   This exemption does not apply unless the public body shows that in the particular instance the public interest in encouraging communications between officials and employees of public bodies clearly outweighs the interest in disclosure․  
No particular reasons were given for this exclusion, so it's reasonable to appeal it on two grounds. First, there may be "purely factual materials" mixed in with the deliberations; those are subject to disclosure. Second, the city did not "show in that particular instance" any reason not to disclose. Any appeal would have to imagine some compelling public interest that would be served by disclosure.

3. The detailed test results (p. 40) showed the presence of unacceptable levels of Penicillum/Aspergillus spores. Did you know that it's hard to tell the two apart? Other tests ruled out Stachybotrys ("black mold"), which is a good thing.

4. While the money spent on remediation appears to have been fairly small (less than $10k), the underlying issue seems to be related to structural problems with water leaks within the building. I would not be surprised, when construction season rolls around, if there might be a need for non-routine repairs to address the root cause of the problem.

There are unanswered questions that come up when looking at this, questions that I had hoped to answer. Why wasn't the public notified, even with a notice on the front door of the station, when the station was closed - was that an oversight or a deliberated decision? An appeal might unearth that answer, which has been omitted from this particular document collection.

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