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THURSDAY, AUGUST 17, 2017
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Judge rules Aug. 7 recording to be disclosed
errien County Circuit Court Judge Dennis Wiley issued one ruling on a matter that was heard in the Civil Circuit Court in St. Joseph, Michigan, Monday, Aug. 10. The case, which was brought by Raimundas Kirkus versus The City of New Buffalo and Tony Ashbaugh, involved the city’s denial of two Freedom of Information Requests (FOIA) that Kirkus submitted to obtain a copy of two DVD recordings. One pertained to a recording of a conversation that took place Sunday, Aug. 7, 2016, and one pertained to a recording of a conversation that took place Saturday, Aug. 13, 2016. The recorded conversations took place in City Hall when the offices were closed for public business. The private Aug. 7 conversation was between Ashbaugh, who serves as the city’s street superintendent, and contract employee and former City Treasurer Debbie Lambrix. There was no mention in court of who, besides Ashbaugh, was involved in the conversation. The recordings at the center of the hearing were not played in the courtroom for the public to hear, and the judge stated that he had never heard either of them. The city was represented by Attorney Matt Cross of Cummings, McClorey, Davis and Acho, Inc., who was hired through the Michigan Municipal Risk Management Authority (MMRMA), the Michigan Municipal Leagues (MML) risk management division. Ashbaugh was represented by Attorney William J. Stevens of Bridgman and Kirkus was represented by Attorney Michael Homier of Foster, Swift, Collins and Smith P.C. Cross opened the hearing by stating that the city did not release the Aug. 13 recording because they couldn’t find it; however, they later learned that it was circulating around City Hall. He said that he had both recordings in his possession in the courtroom. Cross added that the city was relying on the same exemption - a privacy exemption - for both recordings. He said that the city was in a precarious position in this case. “If they released the recordings they are threatened by a suit by Mr. Ashbaugh and if they did not release the recordings they were threatened by a suit by Mr. Kirkus,” he said. Meanwhile, Stevens argued that Ashbaugh “opposes the motions for Summary Judgement and relies on the pleading he filed that asserts that the recordings were in violation of the statue.” “He did not consent to the recordings and the recordings were unique in that they were made when the office was closed, not open to the public, and they were made in an area that there was no expectation that the conversations would be overheard,” he said.
LINDA HENDERSON IN ST. JOSEPH
With regards to the Aug. 13 recording, Homier stated nothing to rise to the level of an invasion of someone’s that the city claimed, in a correspondence, that they privacy.” didn’t have the recording due to there being a problem Regarding the Aug. 13 recording, Wiley said, “I’ve with the server and not because they couldn’t find it. He heard nothing from either side regarding the Aug. 13 said they never claimed an exemption and, in fact, never recording, other than pure speculation.” responded to the FOIA request. Wiley then ruled that “regarding the Aug. 7, recording “To assert it now, it is too late,” he said. that is to be turned over to the plaintiff. The plaintiff Homier stated that the city admits that both prevails. It is to be disclosed.” recordings are public records. They also claim that they The Aug. 7 tape must be released seven days following are clearly an unwarranted invasion of privacy. the issuance of a court order, providing that neither of Homier said the city manager at the time the defense parties files issued counseling an appeal. The case, which was brought by memorandums to Stevens previously Raimundas Kirkus versus The City of New various employees on the filed a federal lawsuit Buffalo and Tony Ashbaugh, involved the matter: Chief Pitchford, involving this matter city’s denial of two Freedom of Information Secretary Diana Selir and April 3, 2017, in the Requests (FIOA) that Kirkus submitted to Ashbaugh. He stated that United States District obtain a copy of two DVD recordings. One Ashbaugh responded Court for the West pertained to a recording of a conversation by saying that the District of Michigan that took place Sunday, Aug. 7, 2016, conversations were work located in Grand Rapids, and one pertained to a recording of a related. Michigan. That suit conversation that took place Saturday, “You can’t have it both Aug. 13, 2016. The recorded conversations remains open and is ways,” Homier said, scheduled to be heard in took place in City Hall when the offices adding that “comments February 2019. were closed for public business. The that may be embarrassing private Aug. 7 conversation was between are not personal.” cting on Ashbaugh, who serves as the city’s street He said that there are the advice superintendent, and contract employee two prongs that have of Special and former City Treasurer Debbie to be met in this case: if Legal Lambrix. There was no mention in court the conversation was of Counsel to of who, besides Ashbaugh, was involved a personal nature and the City Attorney Sara in the conversation. The recordings at the if disclosure constitutes Bell Senica, the city had center of the hearing were not played in a clearly unwarranted not released the audio the courtroom for the public to hear, and invasion of privacy. recordings at the center the judge stated that he had never heard “It’s about city of the suit to the public, either of them. business, the public has a nor had they released right to know. They are a it to the parties that matter of public record,” Homier said. have filed FOIA requests for the recordings and their The judge agreed that the conversations were content, prior to Monday’s ruling. At the Nov. 15, related to city business and not of a purely personal 2016, City Council meeting, the published minutes nature, like personal health issues. He also stated that state: “Bell spoke about disclosure of the information, the conversations were recorded on a surveillance and the possible liability to a person who republishes apparatus that exists within City Hall, where notice of the tapes or is found to disclose the information.” the surveillance is posted. Bell made four recommendations to the city with Cross stated that the city does not believe that the regards to its current audio taping system and lack conversations were solely related to city business. He of city policies, advising that “all city employees and added that the parts of the conversation not related to elected officials who are aware of the recording be city business should be redacted. admonished accordingly. Additionally, they should On issuing a ruling in the two matters, Wiley said, “Neither side really raised anything to get me past in the again be advised that any release, discussion or any republication of any of the recordings to any person arguments. Nothing has been asserted by either party.” outside of the city would result in their actions being As far as the Aug. 7 recording is concerned, Wiley outside of the scope of their authority as a city employee said that he hasn’t “heard anything that arbitrates that or elected official.” these conversations were of a strictly personal nature -
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