Monday, September 2, 2019

Michigan agency online meeting with Aquila Resources held to avoid public records

By NFIC Editor - September 02, 2019 at 04:09PM

By Keith Matheny, 
 - Published by the Detroit Free Press -
The Michigan Department of Environmental Quality agreed last year to participate in a web meeting with an applicant for a controversial, open-pit mine in the Upper Peninsula, specifically to avoid creating a public record out of information the applicant wanted to show the agency.

That revelation comes from notes taken by Kristi Wilson, an Upper Peninsula analyst for DEQ’s Water Resources Division, of her phone conversations with representatives of Aquila Resources, the Canadian mining company proposing the Back Forty mine within 150 feet of the Menominee River, on the Michigan-Wisconsin border in the western U.P.

Wilson’s March 9, 2018, “Note to File” recaps a telephone conversation with Jeff King, an agent for Aquila Resources on the Back Forty mine project. The conversation involved how Aquila would respond to a “clarification letter” DEQ had sent the mining company that January, pointing out deficiencies in how it was calculating groundwater withdrawals and wetlands impacts in its permit request for the proposed, 83-acre mine.

“Jeff called back in the afternoon and told me that Aquila does not want to have the document submitted to DEQ because they do not want the public to see it prior to the submittal of the final version because they may react to stuff,” she wrote.

Later, Wilson adds: “Jeff then told me that Dennis Donahue, counsel for Aquila, has been in contact with Teresa Seidel” — director of DEQ’s Water Resources Division — “and that they decided that the information could be hosted by the applicant in a GoToMeeting format so the applicant does not have to officially submit the document for the public record.

“I spoke with Teresa and we discussed options for review of the document prior to Monday’s meeting.”

Wilson goes on to state that Donahue sent DEQ officials an invitation for a web meeting on March 8, and that the Aquila response document was accessed during the meeting.

That troubles an attorney for a nonprofit organization advocating government transparency and First Amendment freedoms.

“It’s disturbing that a public official, based on this record, would seem to have agreed to an arrangement whereby it would make it more difficult for the public to understand what’s going on,” said Adam Marshall, a staff attorney with the Reporters Committee for Freedom of the Press, based in Washington.

“Aquila does not want to share information that may be incriminating or that may end up in the public domain and result in additional negative public pressure.”

“Public officials are public servants, and have a duty to ensure that all laws are complied with — including public records laws, which really form the basis of informed government in Michigan and around the country.”

Scott Dean, a spokesman for DEQ, now known as the Michigan Department of Environment, Great Lakes and Energy, or EGLE, in an emailed statement, said the agency and its Water Resources Division “go beyond the requirements of FOIA,” the Michigan Freedom of Information Act, in “an effort to enhance transparency.” Documents submitted to the agency for permit requests are maintained “on the public-facing, web-based, MiWaters system for all interested parties,” he said.  Because of this, for various reasons, applicants are sometimes reluctant to submit information that will become public.

“That does not, and should not, prevent staff from engaging with our customers,” Dean said.

“In this case, Aquila was seeking feedback before submitting a formal response to a January 19, 2018, letter from the WRD (Water Resources Division). WRD staff acknowledged that having multiple, public-facing versions of the same document could have the opposite effect from helping citizens to have accurate information about the project.”

But according to Wilson’s notes from another call with Aquila Resources officials, it wasn’t the first time they wanted to keep information from the public regarding the controversial Back Forty mine proposal, to avoid negative reactions.

 In a Jan. 31, 2018, “Note to File” recapping a telephone conversation with Andrew Boushy, Aquila’s senior vice president of projects, Wilson stated: “He reminded me that they have to maintain public relations and keep things looking positive for the public and for their investors.”

The memo later adds: “He stated that they (Aquila) do not trust the DEQ and need to understand what information we are asking for and what we are doing with it. Aquila believes (or perhaps Andrew believes) that the DEQ may have an ulterior motive for the information that we request and he further insinuated that the DEQ requests information to place into the public domain to get the public worked up about the project.

“Aquila does not want to share information that may be incriminating or that may end up in the public domain and result in additional negative public pressure.”

Wilson’s notes are among DEQ documents in evidence in an appeal of Aquila’s wetlands and surface waters permit, ongoing before an administrative law judge in Lansing. The permit is being appealed by the Menominee Indian Tribe of Wisconsin, a community group and neighbor to the proposed zinc, gold and copper sulfide mine.

The prospect of an open pit mining operation in the heart of the ancient homelands and burial grounds of the Menominee Nation have incensed citizens of the tribe. Numerous mounds, village sites and miles of raised garden beds are found within the footprint of the proposed operation.  Photo by D.Kakkak

Aquila Resources did not respond to specific questions from the Free Press regarding the telephone conversations with Wilson, instead providing an emailed statement from spokeswoman Chantae Lessard.

“Aquila believes in the value of public input and participation, and strongly supports processes that encourage engagement with stakeholders,” she said. “Each of these permitting processes allowed for extensive public comment and participation, which we actively engaged in, listening to and learning from our stakeholders.”

DEQ/EGLE have taken public comments during at least four public informational meetings and formal hearings in the Upper Peninsula on the Back Forty Mine’s various permits going back to 2016, the most recent being June 25 on Aquila Resources’ dam safety permit, an air quality permit, and an amendment to the mining permit granted to Aquila in December 2016. Comments also have been received by the agency via mail and email throughout the permit process.

Is messaging tech fouling up FOIA?

Use of web meeting software and other messaging technology by government agencies could potentially blur clear understandings of what constitutes public records, Marshall said. But courts have been consistently supportive of the public’s right to information, whether from officials using private email for government business, or WhatsApp or other messenger services, he said.

“The definition of a public record in Michigan’s FOIA law is a record prepared, owned or in the possession of the public body, but also writings that are used by the public body,” he said.

“I agree there’s a potential problem here. If a record is being shown to the public body, and is being used in the public body’s work, then I believe it is a public record. But the obvious problem is they don’t have a copy of the record” if they didn’t download it or take a screenshot from the web meeting application.

That leaves a reporter or member of the public requesting public records to rely on the diligence of a government employee responding to the request to check everywhere those records might exist, and “records custodians don’t often search their boss’ text messages, or the relevant official’s private email accounts,” Marshall said.

For the record, DEQ’s attempt to review Aquila Resource’s submission via GoToMeeting was a failure, Wilson stated in her March 9 note. State officials had to scroll through 80 pages of a document to see supporting tables and figures at the end, and they couldn’t bookmark where they were in the document, she stated.

Aquila Resources, at DEQ’s request, then submitted a draft response in traditional fashion, which was posted to the MiWaters site.

Marshall said this leaves him wondering whether other public agencies and local governments are using web meeting technology to skirt creation of public records.

“The crux of the problem is we don’t know what we don’t know,” he said. “I don’t know of this exact type of thing happening somewhere else off the top of my head. But it may very well be happening all over the place, and we just don’t know.”

Contact Keith Matheny: 313-222-5021 or Follow on Twitter @keithmatheny.

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