Attorney General: 'Human error' revealed in FOIA lawsuit

Jun. 2—GRAND RAPIDS — Human error was behind release of 458 pages of redacted prosecution exhibits from a downstate trial of defendants in the 2020 plot to kidnap Gov. Gretchen Whitmer, according to an assistant attorney general.

"All that was produced, to my understanding, were memes that didn't really identify who the poster was, or who the particular, you know, defendants were," Assistant Attorney General Adam de Bear said during a Court of Claims hearing Thursday.

"Those records were trial exhibits," de Bear went on, "and being candid with the court, their production is contrary to the justification set forth in our declaration. That production, your honor, I'm submitting to the court, was the result of human error."

This admission came during oral arguments in a Freedom of Information Act lawsuit a Benzonia-based filmmaker, Eric VanDussen, filed last fall against Michigan Attorney General Dana Nessel.

VanDussen, represented by Frederik Stig-Nielsen, claims Nessel's office misapplied FOIA exemptions in the office's denial or partial denial of his request for an exhibit list and copies of exhibits previously shown by kidnap plot prosecutors in open court.

Court of Appeals Judge James Robert Redford, who is presiding over the case, questioned de Bear about the release, which also included 30 mp3 audio files, as referenced in VanDussen's pleadings.

VanDussen confirmed he received these redacted exhibits, which were presented in state court during the kidnap plot trial in Jackson County.

VanDussen also filed a FOIA request with the AG's office, seeking exhibits in the Antrim County case, where four men await trial in 13th Circuit Court, on terrorism and firearm charges. The AG's office issued a partial denial, citing a variety of exemptions such as personal privacy rights and fair trial rights, and VanDussen, in September, filed suit.

The state is asking Judge Redford to dismiss the case, arguing they cannot release the materials VanDussen requested, while acknowledging they have already been shown in open court.

The state argues such a release would "flood" the jury pool with news coverage and impact the fair trial rights of remaining defendants in Antrim County, who have been bound over, but not yet faced trial, which is scheduled for August.

Judge Redford questioned this argument.

"Can you cite me any case in the United States of America, where a trial court has concluded, under either a state or federal FOIA application, documents that were introduced in open court, admitted onto the record of a public hearing, are deemed to be investigative materials?" the judge asked de Bear.

Criminal investigations do not cease when court action begins, de Bear said, and many exhibits in criminal cases are considered to be investigative materials even after a trial begins.

The issue of law, de Bear continued, is whether those exhibits, as investigative materials, can be exempt from FOIA.

Judge Redford re-phrased his question, asking de Bear, "Is there any case in America, where a trial court has held, once introduced in open court, the documents are still exempt from disclosure?"

Public domain decisions in federal court related to civil cases do address this issue, de Bear said, yet the attorney said he was not aware of Michigan-based case law.

"As it relates to these particular exemptions that the department of attorney general is invoking here your honor, I cannot point you to any Michigan case law on point for those propositions," de Bear said. "To be frank, I don't think the courts have addressed it."

Stig-Nielsen, on behalf of VanDussen, argued the law states that government entities when they deny a FOIA request must specifically describe each element they are withholding and why.

Records staff responsible for responding to FOIA requests cannot, as was accused in VanDussen's lawsuit, issue blanket denials or partial denials, using generic exemptions, without offering any further explanation.

Also concerning, Stig-Nielsen said, was language in the FOIA denials VanDussen received from the AG's office that the denials didn't take long to process.

"We have spent, I don't know how many hours, in this litigation briefing these issues back and forth," Stig-Nielsen said. "These are complicated issues. So, that it took minimal time to process is concerning."

Stig-Nielsen also argued a point made by the state, that VanDussen knew so much about the case already that the AG's office didn't need to provide him with specific reasons for denials, was irrelevant, and the judge agreed.

Trial exhibits in Jackson County equalled about 500 pages, said de Bear, and he did not estimate page length of Antrim County exhibits, in answer to a question from the judge.

"There's nothing in the plain language of the FOIA, or in Evening News, that says an index for each particular record is required," de Bear said. "You can provide a description of a category of records."

Oral arguments lasted just shy of two hours Thursday morning, with Judge Redford asking pointed questions, then reading aloud from the signature FOIA case referenced by de Bear and decided in 1983 by the Michigan Supreme Court — Evening News v. City of Troy.

Judge Redford read, into the record, how the burden of proof is on the party claiming exemption — in this case, the AG's office — then cited exactly how exemptions must be justified.

Judge Redmond said he hoped to issue a ruling on the state's motion for summary judgement by the end of June.

He could dismiss the case; deny the motion and allow the case to continue and allow VanDussen to depose witnesses; he could require the state to provide VanDussen the exhibits; or he could require the state to provide more specific reasons for redactions.

In the meantime, VanDussen's request to depose Christy Wendling-Richards, who is the AG's FOIA coordinator, Nessel and Danielle Hagaman-Clark, head of the AG's criminal unit — which de Bear said was entirely inappropriate — were stayed, or paused, by the judge.

There was a moment of levity when de Bear characterized the court as "the final FOIA coordinator."

"What a wonderful description," the judge chuckled, "I'm the final FOIA coordinator."

Danny Wimmer, the AG office's press secretary, stated Thursday the office would respond to the lawsuit in court filings.

VanDussen, also on Thursday, said he was pleased with how oral arguments went.

"Their position is ludicrous," VanDussen said. "There's no rhyme or reason to anything that they do. I think the questions from Judge Redford pointed out the numerous weaknesses to their arguments."