HEARTWELL YIELDS TO TORMALA ON SECRECY AGREEMENTS

After yesterday morning's dust-up, Grand Rapids Mayor George Heartwell asked City Commissioner Rick Tormala, along with fellow Commissioner Roy Schmidt, to develop a policy regulating confidentiality agreements that private parties ask city officials to sign.

Having yielded to Tormala on the issue of controlling confidentiality agreements, Heartwell continued to defend his signing of such an agreement with "Mystery Developer" Duane Faust to keep Faust's proposed project secret from the City Commission and the public.  He argued that it was better to know what Faust wanted to do than to be kept out of the loop, and so he had no choice but to sign a confidentiality agreement.  (Did Heartwell seriously think that Faust thought he could make any headway on project that was premised upon purchasing an important municipal property without bringing any city officials into the loop?  Maybe the mayor was as soft-headed as to think so, but developers in the past have been able to work with Grand Rapids city officials without formal confidentiality agreements.)

Whatever Heartwell's rationalizations for signing the confidentiality agreement, he was careful to make sure that he did so in such a manner as to leave no trace of an official record that would have been subject to disclosure under Michigan's Freedom of Information Act.  There is in fact need on occasion for a government body to keep information secret on behalf of private businesses.  For example, a contractor might have a proprietary process for a service a government body needs.  If the government wants that service it will have to agree to keep that process a secret.  Therefore, any documentation of the process that enters into official records cannot be disclosed to the public.  The FOIA law anticipates that there will be instances in which the benefit to a government body (hence the public) outweighs the need for public disclosure and set forth a procedure for exempting such records from release:

"Trade secrets or commercial or financial information voluntarily provided to an agency for use in developing governmental policy if:
(i) The information is submitted upon a promise of confidentiality by the public body.
(ii) The promise of confidentiality is authorized by the chief administrative officer of the public body or by an elected official at the time the promise is made.
(iii) A description of the information is recorded by the public body within a reasonable time after it has been submitted, maintained in a central place within the public body, and made available to a person upon request. This subdivision does not apply to information submitted as required by law or as a condition of receiving a governmental contract, license, or other benefit."

Notably, this provision of the FOIA law protecting private business information from public disclosure still requires that certain records be made available to the public.  While FOIA allows a government body to keep a secret from the public, it cannot keep from the public that the secret exists.  In fact, it must disclose to the public upon request the promise of confidentiality, the authorization to make the promise, and a description of the nature of the secret.  Heartwell acted in just such a way that precluded any of these records from being developed and entered into the public record.  Therefore, Heartwell as the mayor obligated himself to a secret agreement with private parties about a transaction involving a major city-owned property without disclosing that fact to the City Commission or the public until he felt it served his political interest to do so.

To prevent such abuses of public office in the future, Tormala is right to demand a policy that will dictate how city officials will enter into confidentiality agreements with private parties.  That policy will be a good one if it complies with the existing FOIA law to ensure that its record-keeping provisions kick in so that if the city is keeping a secret, the public can know that it is.  However, even in the absence of a set policy, Heartwell had no excuse for acting as he did.  Both precedent and commonsense argued against signing a confidentiality agreement, but imbued with that sanctimonious sense that he knows better than the rest of us, Heartwell ignored those informal restraints.