Many of you may be wondering about the redacted FOIA file issue I wrote about a few weeks ago, both here and in a letter to the editor. Well, wonder no more! I have an update for you, but it is neither exciting nor satisfying.
In a nutshell: I decided to file what’s called a Petition for Mandamus with the General District Court, asking a judge to compel the city to let him/her review the unredacted version of the file and determine which portions, if any, should be provided to me. This petition packet was delivered, along with a court summons, to city hall. A court hearing was scheduled for Friday, September 26th. However, a few days before the hearing, an assistant city attorney contacted me and said I could have the file and asked if I’d be willing to cancel the hearing, which I did.
The file I received was an email from the former City Manager Al Moor to Fire Chief Barakey and Fire Marshal Cornwell that included the final draft version of the fire code with last minute changes. (The email was sent one hour prior to the work session at which the draft was being discussed.) There was no attorney on the distribution list.
It appears that the file was 100% redacted for attorney/client privilege for no reason! All I was told was that it was a “mistake.”
Some of what happened to get me to this point, wasn’t something that seemed necessary to share earlier, but I think in the whole scope of how this email got redacted and what I had to do to get it unredacted is very important to this story.
I watched a City Council Work Session that felt off to me. City Council Member Ebony Wright was asking for clarification about some of the fire code changes and the Fire Chief and Fire Marshal disagreed. It sounded like the Fire Marshal, the city’s fire code expert, thought certain changes were a bad decision because they lowered standards. On the surface, it sounded bad to me too, and I don’t know anything about fire code.
After that meeting, I started to look into this more. I put in several FOIA requests trying to understand what code changes were made and why. In the first series of FOIA responses, I was able to piece together through a series of internal emails and emails with a developer’s engineer that the “why” was because the Port 460 development was struggling with their engineering to meet basic fire code safety standards.
Clearly there were external pressures being put on the city to change the code so that Matan and Port 460 could proceed. My next question was “who” in the city thought that caving to that pressure and lowering the fire safety standards in Suffolk was a good idea. Why would paid or elected Suffolk officials risk the community’s safety by lowering certain standards?
I submitted FOIA requests to better understand the internal communication that occurred to arrive at this decision. There were two separate delays. The first was a typical extension that the city needed to have more time to prepare the FOIA response. This happens frequently and wasn’t a surprise. But on the last day of that extension, the FOIA office contacted me and said they were having ‘technical issues’ and they would need more time. Almost a week later, I received my FOIA response that included the fully redacted 17 page file with “City Attorney/Client” written across each page.
I didn’t jump into going to court. I just wanted to understand why it was fully redacted, so I spent about a month of emails, calls, texts, and an in-person meeting with the FOIA office to understand why an internal communication between departments and the city manager was fully redacted. I had NO WAY to VERIFY any of the following: that there were even attorneys on this communication, how many emails might be part of the file, what date they were sent, who was on them, or anything else. The city felt the need to redact it all.
The FOIA office told me several weeks into this process that the city attorney would have to review it and then decide if any or all could be released unredacted. I was never contacted by the city attorney and my follow-ups to that point went unacknowledged. That is the point at which I looked at other options to pursue redress. The city never even responded until I filed my petition with the court. Only then did they reach out, essentially just to say it was a mistake.
That ‘mistake’ by the city cost me $74 and weeks of my time. The city had multiple opportunities, over the course of several months, to correct their ‘mistake’ and they refused to do so until I filed to bring it before a judge.
The bottom line is that there was absolutely no reason for redaction of the file that the assistant city attorney provided to me. This means that there was no reason for anyone from the city to avoid my inquiries about narrowing the scope of redactions for months. I may have eventually gotten an unredacted file, but it does not un-do the violation of my FOIA rights.
There is definitely more to this story. When I look at the released file, I see a document that underwent a lot of changes before coming to the final draft. What wasn’t included with my FOIA response is who made which change and if there were relevant comments in the document. There are multiple options to track changes and share document suggestions, so maybe my FOIA request missed the mark. New FOIA requests are in order.