Macomb County prosecutor may be violating FOIA

As Michigan Messenger has continued to investigate the unprecedented bio-terrorism charges brought against an HIV-positive man for biting someone during a fight, the Macomb County Prosecutor’s Office, which filed those charges, appears to be violating the Michigan Freedom of Information Act by withholding documents and denying the existence of documents that are known to exist.

Michigan Messenger has made several requests seeking documents connected to the case against 44-year-old Daniel Allen of Clinton Twp. In each case, the prosecutor’s office denied Messenger’s request, saying the documents sought were never created and do not exist.

But court records and attorneys involved in the case indicate that some of the requested documents do exist. A few of those documents have since been acquired by the Messenger from other parties.

“Either they are concealing something or they don’t keep good records in this case. It reflects poorly on the public body,” said Chetly Zarko, who runs the newly formed Michigan Transparency Project. The project is part of the Michigan Accountability Project, a non-profit based in Oakland County designed to assist citizen journalists and others in accessing public documents and monitoring government.

Robert Berlin, Chief of the Appellate Division of the Macomb County Prosecutor’s Office and Freedom of Information Act Officer for the office, says the office is not withholding any information.

“I am not trying to hide anything from you. If we have it, you can have it,” Berlin said.

Berlin said he has personally talked to prosecutors assigned to the case. “No one seems to be hiding anything. Most people don’t even know about this case.” In an office that handles hundreds of criminal cases at a time, he said, this is being handled as merely a “routine” case. In addition, Berlin said officials in the Macomb County Prosecutor’s Office rarely use the county’s e-mail system, relying instead on verbal directives and leaving no paper trail on major decisions.

Allen was charged Nov. 2 with possession or use of a harmful device because Allen was HIV-positive on Oct. 18 when he allegedly bit his neighbor Winfred Fernandis, Jr.’s lower lip. The 2004 law he is charged with violating was intended to punish bio-terrorism. The ACLU of Michigan has called the charges “silly,” and HIV/AIDS activists have called for protests against Eric Smith, the Democratic prosecutor of Macomb County.

Messenger made its first request regarding the case on Dec.15, asking for “any and all communications” regarding the Allen case.

That request resulted in Berlin releasing what he identified as the entire prosecutor’s file on the case, which included very little of the information sought. Specifically, the prosecutor’s file did not contain internal communications by and to various staff members in the prosecutor’s office, budgetary information and communications with constituents.

Michigan Messenger filed an appeal to Prosecutor Eric Smith on Dec. 27, asking him to review the matter. Michigan’s Freedom of Information Act requires the head of a public body to respond to all appeals. Instead, Berlin reviewed the appeal and responded, claiming that no other documents that were requested exist.

A more serious issue may be the refusal to turn over documents that are clearly referenced in other materials related to the trial.

In the transcripts of the Nov. 2 preliminary hearing, defense attorney James Galen, prosecuting attorney Sian Hengeveld and Judge Linda Davis all discussed a fax sent by the prosecutor’s office the morning of Nov. 2 which included the legal justifications for charging Allen with bio-terrorism.

In a FOIA request on Jan. 19, the Messenger specifically requested all faxes, email and other communications from the prosecutor’s office to the prosecutor handling the preliminary hearing on Nov. 2. On Jan. 22, Berlin denied the requested information, writing that “no such items exist nor were any such items created.”

But later that day, James Galen, Jr., Allen’s defense attorney, provided a copy of that same fax to the Messenger. When confronted with that fact, Berlin was surprised.

“It is not in our file. what can I tell you?” Berlin said when contacted by phone last week. “You have me at a loss for words. I have not seen it. Obviously somebody sent it.”

Another key request from Messenger was an inquiry into the costs associated with pursuing these charges. Dwindling revenues lead the Macomb County Board of Commissioners to direct Smith in Nov. 2009 to cut over $700,000 from the Prosecutor’s annual budget of $9.8 million due to the sour economy. In December attorney Ven Johnson sent a letter to Commissioners on Smith’s behalf, telling the elected board that if it did not adequately fund the prosecutor’s office, Smith would sue. Part of the costs of prosecuting this case would be ordering transcripts from the court, which are rather expensive for the first person who orders them but subsequently cheaper for others if they’ve already been prepared.

In reference to the requests regarding the costs associated with prosecuting Allen, Berlin said he didn’t have a precise figure but added, “I would note that no transcripts have been ordered by our office and no office investigators have been involved in this case.”

The prosecutor’s file released by Berlin in December, however, contains a document showing that Tonya Goetz, an assistant prosecuting attorney in Macomb County, faxed a request for the transcripts on Nov. 17 at 2:13 p.m. That request was sent to the court reporter for Judge Linda Davis.

Berlin said he spoke on Jan. 22 with Assistant District Attorney John Paul Hunt who had recently been assigned to the case before responding to Messenger’s FOIA request. At that time, according to Berlin, Hunt said the office had not requested and did not have the Nov. 2 hearing transcript.

Experts in open records laws say the issues in Macomb could range from a lack of adequate record keeping, to individuals working on the case hiding documents from the FOIA officer, or the FOIA officer misleading Messenger and hiding documents. Whatever the case, those experts say, such actions undermine the public’s right to transparency in government.

Charles Davis, head of the National Freedom of Information Coalition, and a journalism professor at the University of Missouri, called the situation “troubling.”

“I think it does cause some serious questions about the veracity of their claims,” Davis said. “FOI law depends on the honesty of government itself… We can’t begin to expect (FOI law) to function if (government)’s not truthful.”

“It concerns me a great deal because they seem to be saying ‘we’re above the law,’” Davis said.

Davis also was troubled by Berlin’s justification about the lack of documentation regarding decisions in the case, in which he admits that the public officials in the prosecutor’s office may be lying to him and hiding documentation from him.

When confronted with the fact that he was denying the existence of several documents that could be proven to exist through references in other documents already available to the public, Berlin suggested that perhaps those documents were being hidden from him by prosecutors in the office.

“What can I tell ya? What’s to say people aren’t lying and hiding e-mail?” Berlin said. “Most of the people up here won’t even use the computer for research, let alone e-mail.”

“There needs to be a paper trail left to be examined,” Davis said, noting that observing how, when and who is involved in enacting policy and deploying resources is key to not only journalism, but “history.”

Calls to Smith’s office seeking comment were not returned.