2017-10-12 / News

FOIA lawsuit settled between Ostergren, Gerrish

A lawsuit filed in June by Eric Os­tergren against Gerrish Township was settled last month without a judge’s deci­sion being necessary.

Ostergren filed the lawsuit June 26 in 34th Circuit Court, Roscommon, for wrongful denial of a Freedom of Infor­mation Act (FOIA) request he made in May. He was seeking information as it related to work the township’s attor­ney, Scott Hess, performed for the town­ship regarding swimmer’s itch.

After receiving a set of redacted doc­uments from Hess, Ostergren had sought to compel the township to disclose the public records requested and granted via his FOIA request. He also wanted to give his attorney access to the contested document in camera (in private) under special agreement for the purposes of the litigation and sought attorney fees and costs, as well as any punitive damages and civil fines authorized by the Free­dom of Information Act.

In the lawsuit, Ostergren had argued that he made a proper request for public records under the act and that Gerrish Township had “wrongfully withheld, improperly redacted, and/or otherwise [failed] to produce respon­sive records” which he is entitled to under the act. He also stated in the lawsuit that “because there is no proper justifica­tion for refus­ing to timely produce the requested re­cords… defendant/respon­dent Township of Gerrish arbitrarily and capriciously violated this act by refusing to act.”

Ostergen provided supporting docu­ments, including a letter dated May 24 to him from Hess, advising Ostergren that certain records are exempt from disclosure “to the extent the contents of billings records may contain privi­leged information.” Also supporting his argu­ment were copies of redacted billing re­cords pro­vided by Hess showing billing dates and amounts only, as well as a let­ter dated May 30 from Ostergren to Hess in which Ostergren says he believes Hess “violated the intent and letter of the law with regards to your redaction.”

An order of dismissal with prejudice (permanent dismissal) was signed by Judge Richard E. Noble Sept. 27.

In a “release of all claims” executed Aug. 31, Ostergren was awarded the $2,500 and “full production of unredact­ed crisp copies of all responsive records” (all township attorney bills from Jan. 1, 2015 to present). Ostergren, as plaintiff, agreed that the settlement “shall not be, and shall not be construed to be, an ad­mission of any liability by defendant [Gerrish Township].”

Ostergren’s attorney, Philip L. Elli­son, Outside Legal Counsel, Hemlock, said the case was settled, effectively dis­missing the case.

“I never saw a government give up so fast,” he said. “We won the case because they gave up.”

Ostergren said in a written statement that he was able to determine that the township paid Hess $2,832.50 regard­ing swimmer’s itch, over 2015 and 2016 (plus whatever is owed for 2017).

Gerrish Township Supervisor David Udy told the Resorter the board took the advice of Hess, who advised the town­ship settle the case.

Gerrish funded its swimmer’s itch contract with Northpoint Fisheries Man­agement with grants and donations. It had obtained a three-year permit from the U.S Fish and Wild­life Service for the lethal taking and harassment of common mergansers, which is now expired.

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