June 19, 2018

LaSusa v. Antrim County

A Miami journalist sues for the reports of a decade-old murder-suicide case.
By Patrick Sullivan | March 31, 2018

Mike LaSusa was visiting family last summer when conversation turned to a decade-old murder and suicide in Elk Rapids.

LaSusa vaguely recalled the sordid details, so he searched online and read news accounts, first of 16-year-old Sam Avery’s death and the suicide, two years later, of his mother, Anne Avery-Miller, in the Antrim County jail.

The case stunned LaSusa, who thought the details made available to the public raised more questions than answers. As an independent journalist whose worked for national news organizations, he wanted to look into it. LaSusa filed Freedom of Information Act requests with the Antrim County Sheriff and the state police looking for the investigation reports.

LaSusa, though, was dismayed to learn it would cost hundreds of dollars to process his requests, which he considered to be in the public interest.

LaSusa and his father, Lawrence LaSusa, a Traverse City attorney, decided to take a stand. They’ve sued Antrim County and the state police in an effort to get the courts to agree with their interpretation of Michigan’s FOI Act — which mandates that police agencies can’t charge for police reports when those reports are released for the common good.

A MULTIFACETED MYSTERY
LaSusa, a 27-year-old journalist who grew up in Traverse City and now lives in Miami, is a senior editor for InSight Crime, a website that covers organized crime in Latin America. He’s also written for Truthout, Jacobin, Alternet, VICE News, and the Huffington Post.

“The more I read about the [Avery-Miller] case, the more fascinating it was to me,” he said. “To me, when I read the coverage as an editor and a journalist, what was missing was the official story.”

Sam Avery died Nov. 7, 2007 of a single gunshot to the back of his head. The incident happened in the Elk Rapids home where he lived with his mother. Avery-Miller told investigators that her son had taken his own life, but her behavior was erratic following Sam’s death, prompting investigators to suspect her.

In their lawsuit, LaSusa and his father argue that police “relentlessly pursued a murder case” against Avery-Miller. They claim she was charged after “rare legal proceedings” that involved a grand jury consisting of a circuit court judge who reviewed the evidence and handed down an indictment.

Avery-Miller was arrested on open murder charges in November 2009, two years after her son’s death. The following May, she was found hanging from a bedsheet in her cell in the Antrim County Jail. She had been placed on suicide watch when she was first jailed, but she’d since been cleared to live among the general population

“There’s a pretty strong possibility that perhaps there was some negligence involved in taking care of Anne when she was in custody, or some negligence when they went about the prosecution,” Mike LaSusa said. “But I’m open-minded. Maybe there’s nothing wrong, and maybe that’s the story.”

DISCOURAGING FEES
In his work as a journalist, LaSusa said he frequently files FOIA requests with federal government agencies and has never been charged for those reports. He expected a waiver of fees from Antrim County and the state police when he filed his requests for the Avery-Miller files in July.

That’s not what he got.

Antrim County’s FOIA coordinator, Prosecuting Attorney Jim Rossiter, informed LaSusa by email that the request amounted to 700 to 800 pages. If LaSusa wanted the documents sent electronically, he could expect to be charged $287 to cover the labor that would go into processing the documents; if LaSusa wanted paper copies, Rossiter said, it would cost more.

LaSusa said he believes that kind of dollar amount is meant to discourage people from digging into the documents that describe how investigations have been conducted.

His lawsuit argues that a public body may not charge a fee unless providing the information would constitute “an unreasonably high cost” and that, in weighing whether to charge a fee, the body must consider whether the request is in the public interest, according to the Michigan FOI Act.

LaSusa said Rossiter never specified how failure to charge a fee would lead to an unreasonable cost for the county, and he never balanced the cost of the request against the public interest in the release of the information. LaSusa said Rossiter failed to seriously consider his request.

“They didn’t engage in that. Right off the bat, they told me they were unable to waive the fees,” he said. “Our argument is really that they should never have assessed these fees in the first place.”

The lawsuit seeks the release of the documents, attorney fees, damages, and a declaration that the county violated FOIA.

LaSusa said he believes that since the purpose of the FOIA law is to give citizens the ability to investigate their own government, when an agency charges something like $287 for documents, that’s meant to make the requester go away. That may not sound like much to some people, he said, but to a freelance journalist, it is a lot.

LaSusa said he called editors around northern Michigan who agreed the fees charged would deter them from going ahead with an examination of the documents.

Lawrence LaSusa agreed that the fees discourage people from filing records requests.

“Do you think the average independent journalist, like Mike, would be able to undertake this kind of litigation?” he said. “They have a chilling effect that was never intended by the legislature.”

PROMOTION AND AGGRANDIZEMENT
Rossiter and the county’s attorney, Haider Kazim, did not respond to messages seeking comment.

In their response filed with the circuit court in Bellaire, Kazim argued that Rossiter did explain why the fee was necessary: The request required employees from three departments to search for records and redact them, work that took 10 hours. The FOIA cost was calculated by using the hourly wage of the lowest-paid employee involved in the search.

Kazim argued that the FOI Act does not entitle citizens to receive public records free of charge and that a fee waiver in this case would have constituted an unreasonably high cost to the county.

Kazim also wrote that the LaSusas’ lawsuit is frivolous and intended to harass and embarrass Antrim County. On top of that, Kazim attacked LaSusa, arguing that the lawsuit is “a thinly veiled attempt at self-promotion and self-aggrandizement.”

“Plaintiff’s sensationalization of a tragedy in the context of a Freedom of Information Act (FOIA) case is regrettable,” Kazim wrote.

In a motion for summary disposition, Kazim argued that the lawsuit is improper because LaSusa’s FOIA request was granted, and he could have received the information if he would have paid the fee. (Lawrence LaSusa countered that there was no way to determine how heavily redacted the documents would be prior to paying the fee.)

Kazin argued that Rossiter, as the FOIA coordinator, made a determination that a fee waiver was not in the public interest; Kazim essentially argued that Rossiter determined LaSusa stumbled upon a tabloid-like story and was after a quick buck.

“The County FOIA Coordinator did not consider Plaintiff’s proclamation of exposing the sordid details behind the suicide of Anne Avery-Miller as ‘primarily benefiting the general public,’” Kazim wrote.

To back up his claim, Kazim cited Mike LaSusa’s own words: In his appeal of Rossiter’s initial refusal to waive the fees, LaSusa argued that there is public interest in delving into a “dark and mysterious, death-filled tale playing out in a part of Michigan famed for its tranquility and natural beauty.”

Kazim argued that Rossiter determined that LaSusa’s work would not serve the public interest but rather, “the person benefiting most would be Plaintiff.”

LaSusa denied that he’s grandstanding in search of personal attention or that he is seeking to sensationalize a traumatic story in the tradition of tabloid journalism

“That’s clearly ridiculous. I don’t know how else to respond to it,” he said.

He said he’s got no interest in sensationalizing the story, and his record as a journalist should back him up. He said his work is thoughtful and analytical. (LaSusa maintains links to his work at mikelasusa.com.)

“You can go and look at every article I’ve ever written. They’re all on the website, because none of them fall into that category,” he said.

LaSusa noted that Rossiter was an assistant prosecutor serving under Charles Koop at the time Koop filed charges against Avery-Miller and when Avery-Miller died, so Rossiter is essentially weighing the newsworthiness of an investigation into his own work.

LaSusa said he believes the public interest of the Avery-Miller case is obvious.

“It’s a situation where something clearly went wrong. This woman killed herself while she was in custody of the county,” he said. “Whether it’s their fault or not, I guess is a question that could be answered by these documents.” 

JOURNALISTS’ FACT OF LIFE
The LaSusas also filed suit against the state police in Ingham County. The state police wanted to charge even more than Antrim County to process the request. Lawrence LaSusa said the state wanted around $1,600 to process the order, but he has no idea how many pages make up the reports or how redacted the documents would be.

“The bottom line is that neither one of them should be charging a fee,” Lawrence LaSusa said. “It’s simply not permitted under the FOIA.”

Yet, across the state, journalists every day pay police agencies to process FOIA requests, not because they want to contribute to the coffers of law enforcement but because that’s what is required to get the requests processed.

In the lawsuit response, Kazim also argued that local journalists routinely pay fees for documents they request that are deemed to be in the public interest.

“It’s noteworthy that Plaintiff has not cited indigency or inability to pay,” Kazim wrote. “Instead, Plaintiff has stubbornly refused to pay based only on public interest grounds.”

Lawrence LaSusa said he understands that journalists routinely pay for reports, but he said he doesn’t believe they should have to.

“That may be something that you capitulate to, but I can tell you that they are not permitted to charge a fee unless it results in an unreasonably high cost to the public body,” LaSusa said.

In the case of the Antrim County request, he said he doesn’t understand how waiving a $287 fee could pose an unreasonable cost to a sheriff’s department with a budget of $3.2 million in fiscal year 2016.

“It’s less than one-one thousandth of one percent of their budget,” he said.

But if FOIA requests were free, wouldn’t there be more of them filed, burdening small agencies? LaSusa said he doesn’t think there would be too many more requests for documents in the public interest; the purpose of FOIA, he said, was to open up access to government.

“The legislature intended that we’re supposed to have open access to the public documents,” he said.

It would seem that LaSusa’s FOIA request could have been filed for reports from a murder case in any county in the state, and the result would have left him wanting to file a lawsuit, but Lawrence LaSusa would not concede that point.

“I don’t know that,” he said. “I’m not going to paint and taint every governmental agency with that brush,” he said.

Anyway, in the Avery-Miller case in Antrim County, the newsworthiness and public interest is clear, he said.

“This is an unsolved mystery of a murder-suicide occurring in our own backyard,” he said. “There were so many irregularities and uncommon occurrences from the inception of that case that I can’t believe that there wasn’t more investigation.”

MEANWHILE, A PROTECTIVE ORDER
A hearing over the motion for summary disposition is scheduled before 13th Circuit Court Judge Thomas Power on April 9.

Meanwhile, Antrim County is also seeking a protective order. Officials there don’t want Lawrence LaSusa to be able to take a deposition from Rossiter; they argue that he is a busy official and, anyway, he’s already answered everything he could answer in writing.

The County is also seeking relief from Lawrence LaSusa’s discovery request, which would amount to fulfilling the original FOIA request without the payment of the $287 fee.

Lawrence LaSusa said he planned to file his response to Antrim County’s motions in late March or early April.

As the litigation has unfolded, Lawrence LaSusa said it’s become clear that Antrim County is unwilling to give an inch. The County, it seems, absolutely doesn’t want any questions over whether it is entitled to charge for responses to FOIA requests, even those in the public interest.

“The stonewalling and the level of aggression with their litigation had been unparalleled in my experience,” Lawrence LaSusa said.

He said no matter what happens in Antrim County, he is prepared to take his arguments to higher courts.

Lisa McGraw, public affairs manager with the Michigan Press Association, agreed with the premise of LaSusa’s argument that documents released in the public interest should be free. But she said that, in practice, reporters are routinely charged fees for documents, even when their release serves the common good.

“It will be interesting to see of this goes anywhere,” McGraw said.

 

 

 

 

 

 

 

 

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