On asking for something you know doesn't exist
This week's FOIA Friday relates the process of asking for documents that do not exist. The Ann Arbor Historic District Commission has not prepared minutes for its last 5 months of meetings, even after I requested them via the FOIA process. I'm appealing the rejection of my FOIA request, knowing full well that I might get rejected on the grounds that the city can't provide something that doesn't exist. Nevertheless, this is a reasonable thing to do.
FOIA Friday is a weekly series; the first one in the series is a good introduction, if you're new to it.
As a part of a process of looking for historical information about the Old West Side for our new neighborhood coverage, I started looking through the Historic District Commission website. The board packets provided to board members and the public contain all kinds of interesting and useful information about historical properties and the people who lived in them.
As I started to look, a puzzling result came up: meeting minutes for most of 2009 and all of 2010 were not on the city's website. This became obvious when looking at a Historic District Commission meeting announcement that said that previous meeting minutes, which would normally be approved at board meetings, were not available to the board for review.
The FOIA request
Usually, a public body - especially which hosts meetings that are subject to the Open Meetings Act - has a recording secretary at each meeting who writes meeting minutes for the board so that they are available. Not knowing whether these meeting minutes existed, I asked the City Clerk's office; they looked and did not find them. And rather than ask informally for information from the city, I've been taught by previous experience with a request for information about sign replacement to ask for public records, not just for information.
The FOIA request was sent on Feb. 5, 2010, asking for the missing minutes, as well as for meeting agendas and bylaws.
The waiting time
The general policy in my experience in sending FOIA requests to the City of Ann Arbor is that I get a response at the very end of the maximum legal waiting limit for responses. That's OK, nothing I'm asking for can't wait a little bit if it means the search for records is thorough. The response came back 15 business days later, after an initial letter asking for a 10 day extension.
In response to the initial FOIA request, the city published several months of Historic District Commission minutes which had been prepared and approved but which had not been published to the HDC minutes web site. That's a good thing, and how it's supposed to work: you ask for something, and it gets published in response.
The puzzling part of the response was the rejection of a portion of the FOIA. My request for the minutes of October, November, and December 2009, and for all of 2010, were denied on the grounds that those minutes did not exist.
Open Meetings Act
The Michigan Open Meetings Act specifies that public bodies that hold meetings are required to keep minutes and to provide those minutes upon request to the public. Draft minutes must be available within 8 days of a meeting, and the final minutes must be available within 5 days of the minutes being approved. There are statutory penalties for non-compliance.
As an aside, the University of Michigan Regents are being sued for violating this portion of the Open Meetings Act.
The minutes of these meetings do not exist. But the video and audio recordings of these meetings do exist, and are published on CTN's "a2govtv" service for replay on demand. It's completely plausible that someone could listen to each 2 hour meeting and produce a competent record of the meeting, as specified by law.
I thus wrote an appeal of the rejection of my FOIA, asking again for the minutes of the Historic District Commission which are known not to exist. This avoids the need to pursue this issue immediately in court, since the city can decide to fulfill the request for minutes by preparing those minutes as required. It's possible, however, that the FOIA will in fact be rejected again, on the grounds that the city has no ability to provide records which do not exist and no obligation to create new records or reports where none exist now.
In either case, I should get what I want: either the city admits twice over that it was in violation of the Open Meetings Act, or it produces the minutes in a timely fashion.
Why you might read minutes
The minutes from the historic commission that did come back have some fascinating bits, mixed in with the mundane details. A person who made two public comments was asked to leave the meeting by Ann Arbor city police, according to the draft notes from September 10, 2009. A petitioner from Ohio with a historic home in the district with windows in need of repair noted that their experience with local contractors was that most of them would not touch window repairs in historic areas, as noted in the minutes from June 11, 2009. Several other petitions that were denied reflected conflicting opinions within the HDC about how a historic property owner is expected to maintain historic windows in a home where the originals were previously replaced and where the current windows are beyond economic repair.
Window repairs and replacements have come up at multiple meetings, and the behavior of the Historic District Commission in dealing with this should be of interest to people who currently live in a historic district, or who are interested in how their lives might change if their neighborhood becomes historic. More fundamentally, people have a right to know what their elected bodies are doing, at least at the very basic level of getting a prompt written record of their decisions.
The next step
The city of Ann Arbor has 10 business days to prepare a response to the FOIA appeal, and they can, in extraordinary situations, extend the response time an additional 10 business days. This means that 35 business days (or 7 weeks) after the first request, I should have a final reply from the city.
I'm waiting patiently; these are historic buildings we're talking about, so historic minutes are still of interest.