Public safety transparency

February 1, 2016

Michigan is the worst. At least that was the finding of a 2015 national report card issued by the Center for Public Integrity grading states on governmental ethics, accountability and transparency. While there were only three states with grades higher than a D+, Michigan was ranked dead last out of the 11 that received failing grades.

Among the subjects that contributed to Michigan's dismal ranking on accountability and transparency is the state's failing grade on access to public records. Those who have done their homework know the various loopholes in the state's campaign finance laws, as well as the fact that the Michigan legislature and governor's office are exempt from the state Freedom of Information Act (FOIA).

The impact to the public is multi-fold, preventing them from learning what is going on in the state and in their own communities, as well as impacting the ability of news organizations to determine news content and oversee both state and local government as watchdogs.

While state agencies and local governments are subject to the state's FOIA laws, the process of obtaining public records through the FOIA requests may at times hamper efforts by news agencies to share information with the public in a timely manner, particularly in cases of public safety information.

First Amendment attorney Herschel Fink, who serves as legal counsel for the Detroit Free Press, said while he hasn't received many complaints regarding access to police records recently from the newspapers he represents, the issue of transparency has become more opaque. 

"When I worked for The (Detroit) News, you would call (police departments), and you would get pretty honest responses from agencies you were covering. Or, you would walk in and look at the records, which I view the law still requiring," said Fink, who worked as an editor and reporter for the paper years ago while working through law school. "If anything, the FOIA law that went into effect in 1976 made it more difficult. In places like Birmingham, which has been bad for years to get information, particularly if someone thought it was sensitive information, they would have you submit a FOIA, and then delay and make it less newsworthy by the delay.

"I haven't seen many problems. Maybe that's because news organizations are less able to cover them as they used to. They have bigger beats, and it's more difficult to get information. There's no specific instance, but I do know police agencies like Birmingham and Bloomfield Hills, if the news involves someone of prominence, it's hard to get, and it's hard to get in a timely way."

As breaking crime and public safety news often dominate headlines and lead television news broadcasts around the metro Detroit area, many law enforcement agencies have changed the way they grant the public access to information. Journalists who once relied on notepads, telephone calls and stacks of police reports to gather local crime news now rely on social media, e-mail and websites.

In Birmingham, the police department shares routine crime information on a weekly basis through Crimedar, one of a handful of websites that police departments use to share crime briefings with the public. Incidents are listed by location or in list form, and include dates, times, addresses and basic incident information. In addition to posting incidents on Crimedar, the department issues press releases via e-mail for more out of the ordinary crimes.

"There used to be a daily log, and reporters would ask questions, then check with the public information officer or whoever was available," said Birmingham Police Chief Don Studt. "It was time consuming. It used to be there was only one paper in town. Then everyone came in and we want to be fair and give the same information to everyone."

Crimedar allows departments to list incidents in 17 different categories, and is intended to allow the media and residents to track crime. Birmingham began utilizing Crimedar in late 2012, and has posted between 300 and 400 incidents each year. In 2014, the department posted 343 incidents. According to the department's 2014 annual report, the department received a total of 17,678 calls for service, generating 367 major crime calls and drunk-driving incidents.

Studt said the stacks of paper reports that reporters used to leaf through to gather their news doesn't exist in the same sense anymore because the system is now computerized. While a calls for service log can be examined, it would simply include a log of the hundreds of calls the department receives each day.

"It's everything," he said of the calls for service log. "It's every parking complaint, every barking dog and everything that could be a report or that's unfounded. They are often mislabeled because the initial call isn't what it ends up being. We went to Crimedar about three years ago. It was a matter of getting the information to everybody. As technology changes, we are probably a little slower than most industries in adapting, but we get there."

Bloomfield Township Police Chief Geof Gaudard said changes in technology and digitizing the department's system has increased the flow of information to the public.

"There was a time when reports were done in triplicate. There was a pink copy, and reporters would come in and leaf through those to see the crimes they wanted to report," he said. "Overall, our information is much more obtainable than it used to be. We are in the news much more than we used to be, and I know part of it is the technology."

Bloomfield Detective Sgt. James Gallagher, who serves as the department's public information officer, said the incident blotter consists of various cases assigned to the detective bureau from the patrol division.

"We issue things that are of interest or that are of concern to the public," he said. "Not everything that goes to the detective bureau is listed. We don't want to put things out if we have a suspect in a case – we don't want them to be aware."

In addition to the crime blotter that is e-mailed each week, the department posts incidents on Crimemapping.com. The website allows law enforcement agencies to post incidents in a map format, and includes the report number, date, time, location and nature of the call.

"Channel 4 calls every morning and asks about what is on the crime map," Gallagher said. "Just about everything goes out."

Rochester Police Chief Steven Schettenhelm said the department sends an e-mail each week to local media with a list of incidents believed to be newsworthy. For more serious or breaking crime, the department issues breaking news releases.

"They are things that the detectives think are newsworthy, based on their experience of what reporters ask. They want arrests and major incidents," Schettenhelm said of the weekly police blotter sent to local media.

Schettenhelm said the department has tried to share information different ways during his eight years as chief, with weekly e-mail and breaking releases being the most successful.

"We have tried bringing reporters in, but based on the type of activity that we have, it wasn't that productive to have them come in. (E-mail) saves them time and provides them information, and if they have questions based on what they receive, they can call back."

Oakland County Undersheriff Michael McCabe said commanders at each of the office's substations are instructed to send major incident reports to the command sergeant at the office's central command desk in Pontiac. Those reports are then formatted and sent to news media and various agencies on a daily basis. The sheriff's office also sends out multiple news releases each day, depending on the activity in the county.

"We don't put everything in the (major incident reports). If it's embarrassing to the victim or victim's family, we filter that," McCabe said.

For instance, he said a recent report of an alleged criminal sexual conduct incident that appeared be "hinkey," was left off the media report until it could be investigated, and ultimately turned out to be a false allegation. Others withheld may involve active investigations.

Less serious crimes, such as minor thefts, vandalism and other reports taken at the office's substations are reviewed by substation commanders and available to news media for review. For instance, public safety reports from Rochester Hills are compiled by physically looking at the reports at the sheriff's substation. Additionally, the Oakland County Sheriff's Office posts crime information at crimemapping.com.

"Ninety percent of what comes in, (the media) gets. We were one of the first in the county to do that, and now others are doing that. Troy has been doing it for years," McCabe said. "It's up to each agency as to what they want to release and what they don't want to release."

Sensitive information, such as that which might reveal the victim of a sex crime, is considered when determining whether to release a report to the media, McCabe said.

"We have a trust factor with the media, but that trust has to be earned," he said. "There are some that are more astute to sensitivity involving crime victims, not that we are trying to hide anything."

Don Wyatt, executive editor for the Oakland Press and vice president of content for Digital First Media, said the flow of information from law enforcement agencies often relies on the individual relationships between agencies and specific media outlets.

"We make a point of showing up, but it's kind of all relationship building in the end. Dealing with police agencies is about building relationships and trust, but they are as strapped for manpower and getting feet on the streets as we are at getting people over to the department to go through reports," Wyatt said. "It's not in their interest to withhold information because in the end it doesn't serve them very well."

Ferndale Police Lt. Wilson, who handles media requests and news releases for the department, said he prefers not to be inundated with requests on routine incidents.

"Basically, I ask them not to call and ask what is going on because nobody is going to tell them anything. It's always the same: I say nothing," Wilson said. "If we do have something significant, I put out a press release and put it out to every publication and media outlet that wants to be on the list. If people want more information, they can ask, or if it's a big story, they can come in and ask."

The Ferndale Police Department posts routine incidents on crimemapping.com, but Wilson said the department doesn't put out its own police blotter anymore.

"If people call for the smaller incidents, asking about drunks – frankly we are too busy to mess with that. If they want to look at radio logs and come in, they can," Wilson said. "I think we get along well with the media. When I put out press releases, it goes to all the agencies. It's amazing who wants to grab onto things. I think it's going to be a small thing, and the next thing you know, it's CNN that's calling."

Detroit Free Press metro editor Maryann Struman said the degree of transparency varies from department to department.

"Some of the suburban departments are very helpful," she said in an e-mail. "Detroit is among the least transparent. Everything requires a FOIA, and even then, it is like pulling teeth."

Detroit News Crime Reporter George Hunter said the city of Detroit routinely takes weeks to respond to FOIA requests, sometimes requiring legal assistance from the newspaper's attorney. However, he said, FOIA delays may be attributed to the city's legal department, rather than the police department.

"The current administration is much more open than they previously had been. They were very tight with information," Hunter said.

While the department issues daily crime reports, Hunter said they aren't very comprehensive and fail to touch on any of the main crime in the city. The best stories, he said, don't come from official channels, but rather through the cache of sources he has developed over the course of more than 15 years on the beat.

"A lot don't trust the media, so they don't say anything, and as we have seen in many cases, that's a mistake," Hunter said about law enforcement agencies. "If you say nothing, you are letting other people control the message."

Undersheriff McCabe said the Oakland County Sheriff's Office rarely requires the media to file a FOIA request for information. 

"Our FOIA coordinator gets about 1,600 request a year, and most are from attorneys. It's a full-time job. If I made the news media do it, we'd have to hire another staff," he said. "We are pretty open, and have been for a number of years. If it's really sensitive or something under investigation, but it's very rare that we tell anyone to file a FOIA request."

Under Michigan's Freedom of Information Act, records compiled for law enforcement purposes are exempt from disclosure if releasing the information would interfere with law enforcement proceedings; deprive a person of the right to a fair trial; constitute an unwarranted invasion of personal privacy; or disclose the identity of a confidential source.

Attorney James Stewart, a partner at Honigman Business Law Firm, said while active investigations are exempt from disclosure under FOIA, it isn't necessarily a blanket disclosure.

"That's hard to overcome," he said of potentially exempt documents. "That issue goes back to the Evening News Association v City of Troy, from about 1983. The city of Troy refused to turn over an incident report. The court found they have to give a very detailed account of why. It was quite a story."

The case involved the July 31, 1979 fatal shooting of David Prior, 24, of Troy, by two police officers who mistook him for a thief. Stewart said there had been a rash of thefts involving custom vans at the time, and Prior had decided to arm himself with a pellet gun and guard his van overnight. Concerned for his safety, Prior's older sister told the police department her brother planned to hide in the van to catch potential burglars, and asked for extra surveillance.

Believing they were responding to a report of a burglar, the officers checked the van.

"When they opened the back door of the van, Prior said something like, 'you're dead.' He had a BB gun. They had .357s," Stewart said, who represented the Evening News Association, former publisher of the Detroit News. "We wanted the incident report, and the police wanted a lockdown on it."

The paper attempted to obtain the incident reports filed by the two officers, and the identities of the two officers involved. The Troy Police Chief, the city of Troy and the Oakland County Prosecutor's Office refused the requests. That August, the paper filed a suit in Oakland County Circuit Court to compel disclosure under the FOIA. While the circuit court ruled against the paper, the Michigan Supreme Court in 1983 found the police department failed to separate exempt material in the case from that which was non-exempt from FOIA, thus reversing the decision of the circuit and appellate courts. 

Today, the Troy Police Department has three trained public information officers, all who perform other duties. The department issues a crime sheet two to three times per week that is e-mailed to about 106 organizations, said Capt. Robert Redmond. It's a process the department has used for about a decade.

"Many years ago, we had just a PIO (public information officer). Now I have about 44 jobs, so it takes three of us to put the word out," he said. “Anytime the press wants to do a story, we do it. We don't say no."

The department also issues community e-mail alerts with information about crime trends, safety issues, long-term traffic issues and other information, in addition to sharing information on Facebook and crimemapping.com. By utilizing social media, Redmond said the department tries to keep the public informed and retain their support. Still, for all the department's efforts to share information, he said he understands the concerns about transparency.

"There's literally no paperwork to look at if you come in. It either goes to the detective bureau or the records department. So, without a FOIA request, you don't see anything, but how do you know what to FOIA because there's nothing to go off until we issue the crime sheet," he said.

In order to speed the process, Redmond said the department typically forgoes any requirement to file a formal FOIA request.

"Usually, if a report is requested, I read it and redact what I can, and send them the report," Redmond said. "I didn't know it, but talking with the Oakland County Sheriff's Office, they send everything out. If they get a request, they just send it. They redact what they can, and then they send it. So, that's what we do."

Redmond said reports are redacted to ensure victim information isn't released, nor suspect information prior to arraignment.

"We are very good about being open to the public with information," he said. "We are always going to get some people that say we aren't, but we don't get that from reporters very often. We have been told other departments can get information faster, so we talk to other departments and find out what they are doing."

Royal Oak Police Lt. David Clemens, who serves as the department's public information officer, said the department posts information to crimemapping.com, in addition to issuing a weekly update of incidents briefs, which is posted to the department's website and e-mailed to local media. The list contains routine calls for service that generate reports, such as vandalism, thefts, and other items.

"Very mundane things," he said. "I just put something about Christmas tree lights. Just about everything."

Clemens said separate news releases are issued for major crimes or special information the department wants to share with the public. 

"We want the public to know what is happening," he said. "Someone might see something on the weekly update and recall seeing something in that area, and they may want to contact us. It's keeping the public informed and being transparent."

West Bloomfield Deputy Chief Curt Lawson said any member of the public is welcome to come into the department and look at a synopsis of the previous day's events, including crimes and traffic accidents, and ask to look at accompanying reports.

"It's not everything. It's alarms and actual crimes and traffic accidents. Basically, it's a summary of what has occurred on the previous day's shifts," he said. "Local papers come in and pull off there. They usually don't FOIA for the full report, but I walk them through it."

The department also utilizes crimemapping.com, which he said often generates questions from local television news outlets.

"We might not share an active investigation, but most of the time we share what we can. We also put out a lot of information on Facebook and social media," Lawson said. "We are pretty active in the media. We don't say, 'no comment.' We put information out to the public.”

Southfield Deputy Police Chief Nick Loussia, who also serves as the department's public information officer, said the department posts weekly crime briefs on its website, on Facebook and through crimemapping.com.

"If we are having a problem with a certain thing, we want people to know. Then they can take measures to protect themselves," he said. "We want them to know what is happening and where it happens."

Waterford Police Lt. Scott Good said the days of leafing through paperwork are gone.

"Officers no longer handwrite reports. They have systems in their car and everything is done as a computerized case management system, as well as photographs and bookings. We used to take physical Polaroids and ink fingerprints. Now it's all done electronically," he said. "We are taking advantage of those advances. With respect to media, it gives us the ability to push out photographs and other information electronically."

Eric Freedman, professor of journalism at Michigan State University, said while technology plays a part in the sharing of information, the trend of some local police departments taking a more proactive role in distributing information is also due in part to political pressure and legal mandates.

"In one way, they are being more transparent than they used to be," Freedman said. "Another point is that reporters are heavily taxed on time, and you don't have time to go to several police departments, unless you have a particular case in mind.

"I'm not sure there's anything different fundamentally than the way it always has been," Freedman said. "The police department is the original gatekeeper, and the media is the secondary gatekeeper. Overall, it's better that the police announce something, as one-sided as that may be, than not announce anything."

Free Press attorney Fink said while advances in technology should increase the sharing of information to the public, news agencies still bear the responsibility of serving as a watchdog.

"One would hope that electronic data keeping should make it easier to share information. Public records should be posted on public body websites, but you don't know what is being withheld unless something happens," Fink said. "It boils down to whether a public body wants to be forthcoming. If they want to be secret, they are going to be secret."

Referring to former Detroit mayor Kwame Kilpatrick, Fink said it was "good journalism and good digging" that brought issues to light.

"A public body either has a tradition of openness or it doesn't, and if it doesn't, then we are all in trouble," he said. "It's good journalism that is going to find it."

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