GRAND RAPIDS, MI – A state Court of Appeals panel questioned the city of Grand Rapids’ denial of a Freedom of Information Act request for recordings of phone calls made while police investigated an ex-prosecutor’s vehicle crash.
Five calls between the watch commander’s desk to police investigating the crash were recorded on a phone line designated “non-recorded.” The watch commander ordered the officer at the scene to call back on the line after the officer referred to the prosecutor as being “hammered.”
MLive/The Grand Rapids Press sought the recordings under a FOIA request.
The city denied that request – a position upheld by a Kent County Circuit Court judge – because of pending litigation. The city had filed a federal lawsuit asking a judge to declare that the inadvertent recording of the calls did not violate state or federal wiretapping laws.
The appeals panel – judges Thomas Cameron, Peter O’Connell and Michael Talbot – suggested that pending litigation was not a listed exception to deny release of information.
“When MLive filed its request, you filed a response,” O’Connell told attorney John Gretzinger, representing the city.
“In that response, did you cite the exception? As I read it, you did not cite that exception.”
Gretzinger said the exception to FOIA is the possibility that disclosure would violate state or federal laws. He said he does not think the city violated any laws.
MLive attorney Jill Wheaton said: “There is no exception for pending litigation,” particularly litigation that the city initiated.
The case involves a Nov. 19 crash of then-Assistant Kent County Prosecutor Josh Kuiper, who ran his pick-up truck into a parked car, injuring a man, while going the wrong way on a one-way street.
Officer Adam Ickes called then-Lt. Matthew Janiskee from the scene to report the crash. After he told Janiskee that Kuiper was “hammered,” Janiskee told Ickes to call back on the line labeled as non-recorded.
Kuiper underwent dexterity tests but was not given a breath test for alcohol. Instead, then-Sgt. Thomas Warwick drove Kuiper home.
Ickes and Warwick were suspended but were allowed to stay on the police force. Janiskee was fired.
The city filed a lawsuit now before U.S. District Judge Paul Maloney in Kalamazoo asking the court to declare that the recordings were not done illegally. Janiskee then filed a lawsuit, seeking class-action status, against the city for what he called illegal recordings on the “non-recorded” line.
Attorney Mark Magyar, representing MLive, said in appellate court filings the city already has concluded the recordings “do not constitute illegal interceptions of wiretapped phone communications because such interception must be intentional to violate (federal law), whereas the City ‘inadvertently’ and ‘accidentally’ recorded the subject recordings, which does not fall within the federal wiretapping statute.”
The union representing Janiskee has threatened to file a lawsuit against the city if it releases recordings of Janiskee talking to officers at the crash scene, Gretzinger, the city’s attorney, told the appeals panel.
The city is worried about potential liability if the recordings are determined to be illegally made. That’s why the city sought a declaratory ruling from the federal judge, he said.
“Frankly, this case is not a FOIA case to begin with. Our case is totally different,” Gretzinger said.
He called the case “rather extraordinary.”
Talbot said: “What does that have to do with FOIA? … You did not say, ‘We did violate federal law. We did wiretap.'”
He added: “If a lady just walks in and says to you, ‘You may be committing a crime,’ is that good enough for you to deny a FOIA request? As a third party, is that correct?”
Gretzinger said: “MLive says, ‘We don’t care about … federal court litigation, give it to us anyway,'” Gretzinger said.
Talbot responded: “Why not dismiss the federal suit and let (the union) sue you?”
The court did not specify how quickly it would rule in the case.