County board rejects vaccine resolution-related FOIA appeal

Dec. 1—TRAVERSE CITY — Grand Traverse County will not release a dozen emails to a Traverse City resident who requested them through the Michigan Freedom of Information Act.

The emails were originally denied Oct. 13 on the basis they fell into the category of attorney-client privilege, according to board civil counsel Kit Tholen.

The board upheld the denial on Monday with a vote of 4-2, with Democrats Bryce Hundley and Betsy Coffia voting "no." Commissioner Penny Morris was absent.

Commissioners met after the scheduled Dec. 17 meeting was canceled for lack of business.

Ted Wendling submitted the FOIA in September in an attempt to find out how the county was carrying out a directive to send a copy of the Resolution in Support of Vaccine Awareness and Medical Autonomy to every county commissioner or their counterpart in the United States.

Wendling also wanted to know how much money the county was spending to achieve the massive undertaking of sending out more than 3,000 copies of the resolution, which he said is not a legitimate use of taxpayer money.

At Monday's meeting board Chairman Rob Hentschel said no county funds are being spent to acquire email addresses, a job he said is being done by volunteers, but staff time is being used to send the resolution out.

Some of the emails that Wendling received show that Lisa Emery, administrative assistant to county Administrator Nate Alger and the board, has been sending the resolution out using email addresses she received from the Michigan Association of Counties.

Hentschel sent Emery an email asking her to check whether a commissioner in another county had received the resolution.

"I do know that the resolution has been received by multiple counties as I have gotten responses from quite a few commissioners," Emery wrote in an email.

Wendling filed an appeal after his request was partly denied. The decision of whether to grant the appeal must be made by the county board.

Wendling said Monday's denial was not unexpected.

"It was frustrating," Wendling said. "They seem to be playing the game 'we know what you want but you're not asking the right questions.'"

Coffia said Wendling's FOIA is just trying to get an answer about how the county is using taxpayer resources.

"That seems like that should be a pretty straightforward answer," Coffia said. "They shouldn't even need to jump through a bunch of FOIA hoops to be able to say, 'Are we spending money on sending emails out in response to the resolution or is that being done by 50 volunteers?'"

Hentschel, who wrote the resolution, said at the August meeting when it was approved that there were 50 people who volunteered to take a state each and provide the emails of all the commissioners.

When contacted a little more than a week ago, Hentschel said that hasn't happened. This week he said he did not actually organize 50 volunteers, that a community member who did not wish to be named stepped forward to do that.

"It looks like it's now going to happen," Hentschel said.

The resolution, passed Aug. 18, bans the county from mandating vaccines and COVID testing for employees and required the Grand Traverse County Health Department to change its messaging to encourage people to talk to their health care provider about the vaccine.

The health department was also directed to not encourage private employers in the county to establish mandates.

Denial based on attorney-client privilege is allowed by state FOIA laws. Tholen said in this case the emails were communications with him made in confidence for purposes of obtaining legal information.

Ethically, the documents could not have been sent out without approval of the commission, Tholen said. There are several reasons a document obtained by FOIA can be redacted before being released, such as personal or intimate details of a person's life, Tholen said.

"There is nothing in those emails that I would have redacted for other reasons, but without your approval I simply could not have sent those out," Tholen told commissioners.

The law says they don't have to be released and going with the law is a pretty black and white answer, he said, though the board could choose to make a case-by-case determination.

Wendling's request netted more than 1,300 miscellaneous documents with little to do with the resolution. He paid $80 for the documents and said he did not ask for a refund for the extraneous documents in his appeal.

Tholen, speaking at Monday's county board meeting, said it was better to err on the side of caution and provide too many documents.

Wendling said he's not done.

"I'm persistent and I'll take another swipe at it," he said.