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From the Fall 2008 issue of The News Media & The Law, page 29.
Once a rising star in Michigan’s Democratic Party, Detroit Mayor Kwame Kilpatrick abruptly left office this summer a convicted felon, his image and standing in the public eye corroded by back-room deals, perjury and steamy text messages.
Embedded in the back-story, and perhaps obscured in the retelling, is the role played by two local newspapers in their unrelenting pursuit of public records.
“This case is a victory because it makes FOIA a front-and-center issue in Michigan, and it usually takes a backseat,” said Lisa McGraw, public affairs manager for the Michigan Press Association. “I have to thank the ex-mayor for that. I now use him as the poster child for public access.”
Michigan’s Freedom of Information Act was created to provide the public with “full and complete information regarding the affairs of government…so that they may fully participate in the democratic process.” And indeed, the FOIA lawsuit filed by the Detroit Free Press, later joined by the Detroit News, uncovered corrupt leadership and established a precedent-setting distinction between privacy and the public interest in the technology age.
The underlying investigation
Kilpatrick was elected mayor in 2002 after a stint in the Michigan Legislature. Not long after his tenure began, a former bodyguard — a city-paid employee of the Executive Protection Unit in the Detroit Police Department — went to the accountability bureau with allegations that other bodyguards were drinking on the job, crashing city vehicles and padding overtime reports. Harold Nelthrope also told Deputy Chief Gary Brown that he heard talk about a party at the mayor’s official residence, during which the mayor’s wife had allegedly returned home early and assaulted a stripper in attendance.
Nelthrope’s complaints caused Brown to open an investigation into the mayor, his family and his bodyguards in March of 2003. Two months later, Brown was fired from the department, and Nelthrope was demoted. They claimed in their ensuing whistle-blower lawsuit that they lost their jobs because their investigation not only could have tarnished the mayor’s inner circle, but also could have uncovered an affair between Kilpatrick and his former chief of staff, Christine Beatty.
During testimony in the whistle-blower case, both the mayor and Beatty — under oath — flatly denied a liaison. They also claimed to have had no part in Brown’s firing.
It took a Wayne County jury just one hour in September 2007 to find in favor of the officers, awarding them $6.5 million.
Taking the FOI route
A month after that verdict came down and Kilpatrick vowed to appeal, what looked like a simple, if embarrassing, episode of high-level retaliation grew murky. In October 2007, Kilpatrick abruptly announced that the case had been settled for $8.4 million — more than $9 million after legal fees — all of which would come from the struggling city’s coffers.
Unknown even to the city council that approved the settlement, Kilpatrick, Beatty and their lawyers had, in secret, executed a deal for self-protection. Brown’s attorney had gotten his hands on text messages Beatty and Kilpatrick exchanged on their city-issued pagers — messages that proved they’d lied about the affair and the Brown firing. In a bid to keep the text messages under wraps, all the parties — who were at the meeting, along with a legal facilitator, to negotiate attorney’s fees — quickly dismissed the facilitator so they could draft a settlement on their own, without any legal oversight.
The next day, the Free Press filed its first FOI request for all records relating to the deal.
Kilpatrick responded by signing a document rejecting the previously agreed-upon settlement, thus keeping its contents — including discussion of the text messages — from getting out.
Three days later, on Nov. 1, the parties met again to draft a new set of agreements — one for public disclosure, one to be kept secret. In the secret document, the officers agreed to give up their copies of the text messages in exchange for the settlement money. Though all restitution was to be paid with public funds, Kilpatrick and Beatty claimed to have signed the agreement in their “individual” capacities — another stab at avoiding the prying eyes of the state FOIA, which applies to “public bodies.”
“They worked hard to keep us from seeing these documents,” said Free Press reporter Jim Schaefer, who wrote extensively on the case. “In fact, they contend there is no [secret] document to this day.”
The Free Press hit back with a second FOIA request, this time for “any and all documents that the city or its lawyers may consider or have labeled ‘confidential.’”
Only the cleaned-up version of the settlement was released.
On Jan. 24, the Free Press published the now-infamous text messages between Kilpatrick and Beatty — obtained from a confidential source — revealing they lied under oath during the Brown trial.
Civil and criminal cases
Also in January, because the city had stonewalled attempts to bring the settlement into the public eye, the Free Press turned its FOI request into a lawsuit against Detroit.
On Feb.5, Wayne County Circuit Court ruled in favor of the Free Press and the Detroit News, which had joined the lawsuit, and ordered all documents pertaining to the settlement released — effectively saying that the public has a right to know how its government is spending public funds. The decision was upheld by the Michigan Supreme Court in late February. All remaining documents relating to the settlement were then released, including the secret agreement.
At the end of March, Kilpatrick and Beatty were both charged with perjury, conspiracy to obstruct justice, obstruction of justice and misconduct in office.
Nearly six months later, in a packed county courtroom, the mayor of Detroit gave his swan song: He admitted he’d lied under oath, and pleaded guilty to charges of obstructing justice by committing perjury. As part of his plea agreement, Kilpatrick agreed to spend four months in jail, pay $1 million in restitution, and not run for public office during his five years’ probation.
The former mayor is now out of the limelight, but the newspapers’ FOIA case has trudged on. The first half of their suit had already succeeded and the settlement documents had been released, but the Free Press stayed in court, battling for the remainder of the text messages between Kilpatrick and Beatty. After 10 months, the Free Press is still holding out for copies of all text messages sent or received by Kilpatrick, but received a temporary boost during Beatty’s case when, in October 2008, Wayne County Circuit Judge Timothy Kenny ruled to make public dozens of messages culled by the prosecution from roughly a dozen city-issued pagers. Free Press attorney Herschel Fink had previously filed papers with the court asking that the sealed text messages be released in the public interest.
Despite their success, this particularly explosive FOIA battle did not always unfold smoothly for the newspapers.
In July 2008, for example, Kilpatrick’s lawyers tried to turn the case on the Free Press by demanding the reporters reveal the confidential source who leaked the initial text messages back in January. Wayne County Circuit Judge Robert Colombo Jr. vetoed the idea.
“Everyone would like to know how The Free Press got the text messages,” Colombo wrote in his opinion, “but it’s not relevant to this case.”
Kilpatrick then stalled the case for weeks by refusing to testify, finally agreeing to appear after his plea agreement.
When at last he testified in mid-September, he invoked his Fifth Amendment right against self-incrimination 82 times in response to questions about the text messages, following the example of his ex-chief of staff Beatty, who invoked 61 times during her own deposition earlier that month.
And the evening Kilpatrick entered his guilty plea, at a press conference he called, the mayor’s bodyguards physically blocked two reporters, one from a local television station and one from the Free Press, from going inside.
Lessons from the FOI chase
Seen broadly, Kilpatrick’s FOIA saga directly tackled growing issues in the realm of government transparency: as technology offers new methods of communication, when are the messages carried considered public?
Few state laws deal with the issue directly, records experts say, leaving the decision-making up to the judiciary. In his October ruling, for example, Kenny plainly found that text messages written on public time and public property were for the public to see, despite the more private nature of some information discussed therein.
“You’re talking about information that’s being communicated by public officials that affects their public duties — it doesn’t matter if it happened on public property or private, it’s about the content,” said David Cuillier, assistant journalism professor at University of Arizona and Society of Professional Journalists Freedom of Information Committee chair. “Every state should clarify that, because right now, the courts are doing it.”
In other words, when technology progresses faster than the law, courts step in and make the call on what gets released. According to Cuillier, the broad impact of the Detroit papers’ fight is that it invited lawmakers everywhere to clarify what is public and what is private on a government cell phone and beyond.
In recognition of the Free Press’ work on the story, Free Press reporters Jim Schaefer and M.L. Elrick were awarded in September the Eugene S. Pulliam First Amendment Award from the Society of Professional Journalists.
“That’s the great thing about the Detroit case — it brought this issue to the forefront,” Cuillier said. “The award was for their dedication in following through, taking it to court and making the country better.”