Court Denies Records Request For Controversial Activist’s Texts With Mayor

The Michigan Court of Appeals has rejected a request by a Jackson area community activist to compel the city’s mayor to produce his text message exchanges with a local LGBT leader under the Freedom of Information Act.

A unanimous, three-judge panel of the court affirmed a lower court ruling that activist Peter Bormuth had failed to establish that records of the alleged exchanges between Mayor Derek Dobies and Nikki Joly existed.

The court did not address the question of whether the records would be subject to FOIA if they existed, or how public officials in Michigan should handle records generated electronically on personal devices.

That is unfortunate, said Derk Wilcox, senior attorney at the Mackinac Center Legal Foundation.

“Text and electronic records are clearly something that are discoverable through the FOIA process,” Wilcox said. “What has not been established yet in Michigan, is the extent to which a public official using his or her own private (device) to send messages is something that can be obtained through FOIA when the texts or emails involve public business.”

That lack of clarity exists throughout the country, according to a survey of state policy conducted in 2017 for Communications Lawyer, a publication of the American Bar Association. There appears to be a “clear legal consensus,” the publication said, that electronic communications about government business are public records, regardless of how and where they are generated. But the survey found that the complicated and often transitory nature of SMS (text) messages presented practical problems of retention and preservation.

In the Jackson case, Mayor Dobies had testified that he was unable to locate any messages to or from Joly pertaining to city affairs in response to Bormuth’s February 2018 FOIA request. Dobies said that was, in part, because his truck and phone had been stolen in November the previous year and the phone’s data was irretrievable.

He also said he had “conducted a thorough and diligent search of my saved text messages,” an apparent reference to a replacement phone obtained after the theft, and he “did not locate any texts from Nikki Joly.”

Bormuth said he believes Dobies and Joly had frequent contact in the period leading up to Dobies’ election in Nov. 2017, when both were active in a campaign for a nondiscrimination ordinance that included gay and transgender persons. The campaign helped propel Dobies’ victory, Bormuth said, by generating financial donations from supporters of the ordinance.

It was also boosted by publicity that attended a report that Joly’s home had been struck by an arson fire hate crime in August 2017, Bormuth said. A year later, however, Joly was charged with setting the fire, a felony that reportedly could bring life in prison, according to the Jackson Citizen Patriot. The case is still pending.

Bormuth said he doesn’t know what, if any, text messages Dobies and Joly exchanged about the ordinance, election or arson fire. But he said he is certain there was contact between the two, and that Dobies lied when he testified otherwise.

Bormuth said that after he filed a lawsuit to obtain the records, he obtained text messages between Dobies and Joly from Joly’s phone, which had been retrieved by state police investigating the arson. The messages came to him too late to include in his lawsuit.

Several exchanges clearly addressed official city business (though not the election, arson or rights campaign), he said. Dobies, contacted by email, said in a brief statement, “Public records that exist on private emails or phones are subject to FOIA.”

He did not respond to a question about Bormuth’s claim that the recovered text messages from Joly’s phone suggest he misled the court.