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Ferndale religious media group sues attorney general over open records request

Beth LeBlanc
The Detroit News

Lansing — A religious media organization in Ferndale is suing Michigan Attorney General Dana Nessel for allegedly failing to comply with a May public records request seeking records and communication in which the group is discussed.

Michigan Attorney General Dana Nessel.

The lawsuit, filed on behalf of Church Militant in the Michigan Court of Claims on Jan. 9, alleged Nessel charged Church Militant and its president Michael Voris more than $400 for the records, then denied most of the request and informed the group it was under investigation by a hate crimes unit she created in February, according to the lawsuit.

When the group appealed the denials, Nessel’s Freedom of Information Act coordinator released eight e-mails almost entirely redacted and stated the office had mistakenly indicated it had 73 other emails related to the group's request, the lawsuit said.

“The proper functioning and public control of government in a representative democracy require that the people have full and complete information regarding the affairs of government and the official acts of those who represent them as public officials,” the lawsuit said.

“Disregarding her responsibilities under FOIA, Nessel has deprived plaintiffs of their rights under it.”

Nessel's office said the organization was under investigation during the time period in which the FOIA was submitted and responded to. The investigation was completed Dec. 2, when the department determined there was "insufficient evidence of a hate crime."

"Now that the investigation is over, the file would be available under FOIA," said Nessel's spokeswoman Kelly Rossman-McKinney.

The investigative report has yet to be released to Church Militant, its lawyer said.

Even if it is, there are other items in the records request that have yet to be satisfied, the group's attorney added.

The suit asks the judge for an “in-camera review” of the documents, meaning the judge would review the withheld information to determine if it should be released.

It also asks the court to require Nessel to preserve all of the records and issue a detailed list describing each item withheld from release.The lawsuit asks the judge to award attorney fees and costs.  

The lawsuit stems from a joint February press release issued by Nessel and the Michigan Department of Civil Rights announcing the formation of a hate crime unit in Nessel’s office and a database to track bias and hate incidents that fell short of criminal conduct within the Department of Civil Rights.

In the statement, Nessel said her office would review any groups identified on a hate groups list by the liberal Southern Poverty Law Center, which included conservative Michigan-based groups American Freedom Law Center and Church Militant.

At the time, Rossman-McKinney told The News that the list was “a good place to start when investigating these issues,” but the department would “rely on our independent research.”

Ann Arbor-based American Freedom Law Center filed suit almost immediately after the announcement, alleging the unit was targeting the law center for its political views and violating its First and 14th Amendment rights.

A federal judge ruled Wednesday that the law center’s case could proceed and denied motions from Nessel and the civil rights department that sought the lawsuit’s dismissal.  

“Based on the record at this point in the litigation, the reason (American Freedom Law Center) has been swept up in this new initiative is because of its legal, constitutionally protected activities, activities with which (Southern Poverty Law Center) disagrees,” wrote U.S. District Judge Paul Maloney, who was appointed to the Western District of Michigan by former President George W. Bush.

When the Thomas More Law Center requested records pertaining to Church Militant in May, it was largely out of concern Nessel had “targeted Church Militant because of its stance on traditional marriage as she had done in the case involving St. Vincent,” according to the law center.

“Nessel has single-handedly turned the attorney general’s office into an instrument of thought control by intimidation, using its law enforcement powers to police the speech of Michigan residents,” Thomas More Law Center President Richard Thompson said in the Thursday statement.

“One of her primary goals is to suppress the religious definition of marriage that does not conform to her opinions on same-sex marriage,” said Thompson, a former Oakland County prosecutor.

The public records request submitted by the law center in May made 17 requests of Nessel’s office for records and communication related to Voris, St. Michael's Media or Church Militant and records related to the hate crimes unit, including documents that detailed the definition of “hate,” “bias” or “hate crimes.”

The Freedom of Information request asked for the criteria used to determine a group targeted by the unit or proposed database and policies regarding how the state intended to inform a group or individual it had been listed in the database.

The public records request also sought documentation related to policies that would ensure the protection of freedom of speech, religion and association.

The group also sought documentation of the attorney general’s relationship or cooperation with the Southern Poverty Law Center.

Church Militant paid a $394.27 deposit for the documents. The department later requested the group pay a remaining balance of $88.91, but informed Church Militant it would only receive emails, correspondence and documentation related to the announcement of the hate crimes unit, the definition of “hate crime” and copies of statutes Nessel relied on to form the Hate Crimes Unit.

In denying the other items, the department argued they weren’t in the department’s possession or were shielded by exemptions for investigatory material.

Among the items denied was a request for documentation involving Voris, St. Michael's Media and Church Militant. The denial noted the information sought involved “an open department investigation; specifically, the department possesses a complaint, an internal investigative report, and approximately 73 emails with a date range of February 2, 2019 through June 17, 2019.”

The Detroit News submitted Thursday an open records request for the information related to the investigation.

When the Thomas More Law Center appealed the denials in October, the department said it mistakenly said it had 73 emails related to Voris and Church Militant when it really had eight. The eight were supplied to the group, but were heavily redacted.

"The FOIA request being referred to was submitted and responded to during that investigative period and, because of that, none of the files related to the investigation were FOIAble," Rossman-McKinney said.

The group has a continuing public records request with Nessel's office and hopes to receive the investigative report still, Thompson said. 

But even if that report is released, segments of the open records request remain unsatisfied, such as requests for communication regarding the Civil Rights Department's database and the Southern Poverty Law Center, he said. 

"Our Freedom of Information Act request was a lot broader than merely looking at what file they had with Michael Voris and Church Militant," Thompson said. "...The FOIA case is still alive."