Judge says AG Dana Nessel must release court exhibits requested through FOIA

LANSING — Attorney General Dana Nessel's Office must release records it withheld and may have to pay a journalist's legal fees after refusing a Michigan Freedom of Information Act request for copies of exhibits introduced in open court during criminal proceedings, under a Wednesday ruling.

Independent journalist Eric VanDussen filed a FOIA request last September, asking for all exhibits the AG's Office entered into evidence during preliminary examinations held in state court in Antrim and Jackson counties for eight defendants charged in connection with the plot to abduct Gov. Gretchen Whitmer, plus exhibit lists.

Nessel's office issued a broad denial, citing FOIA exemptions related to interfering with law enforcement proceedings, depriving defendants of a right to a fair trial, and unwarranted invasion of personal privacy.

In response, VanDussen, who is based in Benzie County and whose work focuses, in part, on FOIA, government transparency, and extremism, sued the attorney general.

In a 13-page ruling released Wednesday, Michigan Court of Claims Judge James Robert Redford ordered Nessel to release the exhibits, saying none of those exemptions apply. Redford granted "summary disposition" to VanDussen, meaning he ruled in the journalist's favor without the need for a trial.

"The documents at issue were offered by the Attorney General's Office as exhibits in open court, in a public hearing, in a public trial, in a public courthouse," Redford wrote. "There were, to this court's understanding, no motions made by the Attorney General's Office seeking closure of the proceedings, protective orders, or any other ... measures as relates to the requested documents."

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Nessel will not appeal the ruling and will turn over the records "with all deliberate speed," spokesman Danny Wimmer said Thursday.

"This department has always operated in a manner favoring transparency, however, as prosecutors we believed there were legitimate concerns about our office releasing documents to the public that could be exhibits in a future trial, including impacts to continuing investigations, tainting potential jury pools, and affecting future defendants’ right to a fair trial," Wimmer said in an email. "The court disagreed and we will comply with the court’s order."

But VanDussen said Thursday that Wimmer's statement is not consistent with what he has heard from the assistant attorney general handling the case. He produced emails sent after the judge's ruling in which the assistant AG said he doesn't plan to release the records until the Antrim County trial for the defendants is concluded, which will likely be sometime in September.

"We are not going to agree to any (delay)," said VanDussen.

"If they really were going to provide all the exhibits to me with 'all deliberate speed' they could’ve already (electronically) sent my attorney a ... folder containing them all by now."

Redford also called for briefs from the parties on whether VanDussen should be awarded attorney fees.

VanDussen said Wednesday he will be requesting at least $20,000 in attorney fees and court costs.

In public statements, Nessel has championed FOIA and government transparency. But she has also sought secrecy in other high-profile cases.

Redford said that during a hearing in the case, Nessel's office abandoned its arguments related to the privacy exemption.

Redford wrote that the records may have initially been compiled as part of a law enforcement investigation, but VanDussen was only seeking the exhibits, not the underlying investigative materials. Once presented in court, the exhibits are for "adjudication" purposes, he said. Nessel's office expressed concern that the release of the exhibits might lead to more news media coverage, which could affect jurors, but did not explain how viewing exhibits introduced in court would affect jurors any more than any other news media coverage, he said.

As for impacting a fair trial, "the presentation of evidence and testimony during a preliminary examination is part and parcel of a proceeding specifically designed to afford a defendant due process and a fair trial," Redford wrote. "Defendant's argument that the information, if re-released, would deprive the criminal defendants of a fair trial is without merit."

Contact Paul Egan: 517-372-8660 or pegan@freepress.com. Follow him on Twitter @paulegan4.

This article originally appeared on Detroit Free Press: Judge says AG Nessel must release court exhibits requested under FOIA