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Fall 2008 Bulletin
FOIA and Access
Detroit Newspapers Sue for Release of Text Messages in Mayoral Sex Scandal
Former Detroit Mayor Kwame Kilpatrick resigned on Sept. 4, 2008 and began a 4-month jail sentence on October 29 after the release of text messages exchanged between himself and a staffer led Kilpatrick to plead guilty to perjury and obstruction of justice charges.
Kilpatrick and his former chief of staff Christine Beatty testified they were not involved in a sexual relationship at a whistle-blower trial last year concerning the termination of seven Detroit law enforcement officers. Subsequently released text messages sent by the pair on city-issued pagers indicated otherwise.
An ongoing lawsuit brought by the Detroit Free Press and The Detroit News demands the release of all records related to the city’s $8.4 million settlement of the 2007 whistle-blower lawsuits, including additional text messages exchanged by Kilpatrick and Beatty.
Wayne County Circuit Judge Robert J. Colombo Jr. has set a November 21 settlement conference date in the case, according to an October 10 story in The Detroit News.
According to the story, Colombo said he did not believe there was significant new information to be gleaned as a result of the lawsuit. Colombo said his earlier rulings in the public records case limit further disclosures to text messages relating to an affair between Kilpatrick and Beatty and to the termination of former Deputy Police Chief Gary Brown.
“Most of that stuff has already come out,” Colombo said, according to the October 10 Detroit News story. “This lawsuit needs to be brought to an end. There is no public interest that is now being served, in my judgment.”
Colombo said he is concerned about a city with a projected $100 million deficit ringing up legal fees it cannot afford to pay.
Despite repeated efforts by Kilpatrick and other city officials to keep the text messages private, many were released, first to reporters for the Detroit Free Press from undisclosed sources in January and later to the public by the Wayne County Circuit Court on October 23.
Documents released in February by Wayne County Circuit Judge Robert Columbo show Kilpatrick and Beatty signed a secret deal to keep the text messages private as part of the city’s $8.4 million settlement of the whistle-blower lawsuits. The original order released to the public included only the amount of the settlement and did not mention the confidentiality agreement.
An interactive timeline of the entire Kilpatrick saga with court documents and video footage is available on The Detroit News’ Web site at http://tinyurl.com/2ygwfd.
The Detroit City Council did not support Kilpatrick’s fight to keep the messages secret and voted 8-1 to authorize the release of all the Kilpatrick and Beatty text messages sought, according to a March 28 story in The Detroit News.
“At the end of the day, it’s our citizens who are paying for this,” former Council President and current Detroit mayor Kenneth Cockrel Jr. said of the city-issued pagers used to send the text messages, according to the story.
Kilpatrick has argued that the messages were “personal and private” and should not be made available to the public.
Wayne State University law professor Peter Henning, a former Justice Department lawyer, questioned Kilpatrick’s logic. “It’s hard to see how they can make this argument with a straight face,” Henning said. “This was a lawsuit against the city. The city paid the judgment. The benefit of the [confidentiality] agreement went to Kilpatrick personally. He got his documentation back. Christine Beatty got her documents back so they could keep it secret. I don’t see how the city got any benefit from the confidentiality agreement,” said Henning in a February 10 Free Press story.
Some of the text messages were released as part of the ongoing felony case against Beatty by order of Wayne County Circuit Judge Timothy Kenny on October 23, with additional messages released on October 30. According to an October 23 story in The Detroit News, there are hundreds of thousands of additional messages that have not yet been released by the court.
Some of the information in the text message transcripts was blacked out by court officials, who cited potential attorney-client privilege, spousal privilege, or deliberative process privilege, which allows officials to discuss negotiation details without undermining the deal. Kenny will rule in December whether those privileges will apply to the additional messages, according to an October 21 Free Press story.
The Free Press and The Detroit News also blacked out any information they deemed too sexually explicit when they posted the full transcripts to their respective Web sites on October 23. The messages can be viewed at http://www.freep.com/article/20081023/NEWS01/81023053.
The Free Press published a story on October 27 in which investigative reporters Jim Schaefer and M.L. Elrick talked about the investigation. “Because we are a newspaper that seeks to inform rather than offend, some of the saltier language has been blacked out,” Elrick said of the posted messages.
The October 27 story also said that the Free Press would continue to seek the additional release of information on potential corruption. “We believe they are public records you are entitled to see. We will write stories about the messages as they become available,” Elrick said.
The Free Press initially requested the settlement documents in December 2007, and the city denied a settlement existed, but eventually produced nine pages involving the two suits, according to a Feb. 5, 2008 Free Press story. Suspecting that the city was holding back other settlement records, the Free Press filed a lawsuit under Michigan’s Freedom of Information Act, Mich. Comp. Laws Ann. 15.231 et seq. The Detroit News was joined as a party in the lawsuit in January.
Colombo ordered the release of all the secret documents after a hearing on February 5. He also said the city had essentially created the confidential side agreement and then tried to hide it by claiming it was not a public record and therefore exempt from Michigan’s Freedom of Information Act, according to the February 5 Free Press story.
Kilpatrick and other officials have continuously fought the release of the text messages. In February, Kilpatrick appealed to the Michigan Supreme Court in an attempt to seal the records, according to a February 15 Associated Press (AP) story.
After the Court unanimously rejected the appeal, Kilpatrick attempted to depose reporters from both papers to find out who leaked the initial batch of text messages this past January. His attempts were rejected by Columbo in July.
“Everyone would like to know how the Free Press got the text messages, but it’s not relevant to this case,” Wayne County Circuit Judge Robert Colombo Jr. said in his denial of Kilpatrick’s request to depose Schaefer and Elrick, according to a July 18 Free Press story.
In May, Kilpatrick implemented a new city policy to exempt the use of certain communication devices from FOIA requests. The policy states that the communications of city employees authorized to use the system could be subject to public disclosure, but that “[t]his policy does not include telephones, text messaging devices and pagers, which are given to employees for their personal and business use. State and federal laws protect communications made over telephone lines and through the use of messaging devices.”
According to a May 16 story in the Free Press, the policy drew an incredulous reaction from some city council members. They said any message sent on a city-funded device is city property and subject to disclosure. “If I want things to be private, I buy it myself,” Councilwoman Sheila Cockrel said.
Although Kilpatrick is currently in jail, there are still several ongoing court actions, including possible additional charges. Wayne County Prosecutor Kym Worthy said she is not done with thousands of text messages obtained by her office. “We have an ongoing investigation,” she told reporters, according to an October 28 AP story.
The AP also reported that there is a federal probe of corruption in city government during the Kilpatrick years and a civil lawsuit against Kilpatrick and Detroit police by the family of a stripper slain in 2003, in which the family believes Kilpatrick may have been involved. A federal magistrate approved a request to produce text messages from the pagers of 39 city employees as part of the suit filed by the family of the stripper, according to the October 28 AP story.
Kilpatrick could also be a witness in Beatty’s upcoming trial on charges of perjury and obstruction of justice. Beatty has rejected all plea bargains offered by the prosecutor and will go to trial in January. Her attorneys suggest that the text messages might not be authentic, according to an October 26 Free Press story.
– Jacob Parsley
Silha Research Assistant
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