Manistee City Council Unanimously Refuses to Release Non-Exempt Public Records on Advice of the County Prosecutor

City Agent's Identity, Incident Report, and Use-of-Force Report Remains a Mystery Despite Having Killed a Manistee Citizen While Unlawfully Trespassing on That Citizen's Property

Ian Fleming's dashing British secret agent 007, also known as James Bond, had no problem dispatching bad guys during his movies, a common motif was for him to do so and utter a memorable epitaph.  This started in the first movie, Dr. No, where he sends a hearse tumbling down the mountainside, and explains later that he thought they were on their way to a funeral.

As of his first 23 films, Bond killed 362 people single-handedly and since these were primarily bad guys and gals and he was acting as a secret agent, he would not see criminal or even civil repercussions for any of these killings.  If any were investigated, his part in them were always covered up by his fellow authorities.

Movies imitate life, but in reality, if you kill someone other than during wartime it generally has consequences.  Unless your acting under authority of some government entity, then over and over again we find that you often have what James Bond had, even if it isn't a bad guy or gal you offed:  a license to kill. 

Lee Pat Milks was retired and enjoying it in Manistee.  Living in his small town house, he probably had little idea of what was to happen the evening of March 28, 2017.  He can't retell his story, he has been shot dead by a Manistee city official, but the officials who chronicled what happened that night tell us he asked a public safety officer to remove himself off Milks' property. 

The officer failed to do so, Milks reportedly went to fetch a gun to reinforce his property right, and when he came back he was shot dead.  The official story and its analysis was covered here in  Points to Ponder About the Manistee Police Shooting of Lee Milks.  Since the initial words from the Manistee police chief, nothing has been released, including the name of the city agent.

This despite the Ludington Torch and other news agencies requesting that information from the City of Manistee.  Among the records I was able to get was the code enforcement records, which shown two things:  1)  that the city's secret agent wrote up no contact report for that night, nor did the city have any orders for that agent to be there that day and 2)  that a previous contact had Milks refusing to allow the code enforcer on his property 10 months prior. 

This was no big deal to the city at that point.  It would become a big deal on March 28th when the secret agent stayed on the property after being asked to leave, and shot Milks dead, and then followed up by leaving a lot of questions the public had about the incident unanswered.  This led to the denial of our FOIA request for mostly non-exempt records, a partial denial when they reconsidered that code enforcement records were not exemptible, and then this appeal when the city's secret agent's incident report and use-of-force reports were withheld despite any viable reason to make them so.

In such situations where such discretion is allowed to the public body, the Michigan Supreme Court has set up a six point process from their landmark FOIA ruling in Evening News Ass’n v. City of Troy

(1) The burden of proof is on the public body claiming exemption from disclosure;
(2) Exemptions must be interpreted narrowly;
(3) The public body must separate the exempt and nonexempt material and make the nonexempt material available for inspection and copying;
(4) Detailed affidavits describing the matter withheld must be supplied by the public body;
(5) Justification for a claimed exemption must be more than conclusory, i.e., more than a simple repetition of statutory language. A bill of particulars is in order. Justification must indicate factually how a particular document, or category of documents, interferes with law enforcement proceedings; and
(6) The mere showing of a direct relationship between records sought and an investigation is inadequate.

If you review my FOIA request and the city's response in this Manistee city council packet beginning on p. 41, you should find that the Manistee response fails dramatically.  Keep these six points in mind when you hear City Attorney George Saylor's justification later. 

It was a very long meeting because they not only had a work session for the year's budget but they also had a public hearing on the budget; they were making some cuts due to a decrease of city revenue.  Multiple people from multiple agencies funded in part by the city's treasury came to plead their case as to why they deserved their share.  Perhaps the most telling part of the night came 46 minutes into the meeting where a guy who had come up earlier to suggest gradual cuts to his agency, went up once again to suggest another agency who had three representatives bow and caper earlier didn't deserve their stipend. 

I approached the podium just after him when the regular public comments began.  My comments came up at the 49 minute mark and are transcribed below the video:

"I have a freedom of information act (FOIA) appeal before this public body which I hope they can resolve fairly and according to the law.  Let me first acknowledge that I am a big fan of Mayor Smith and his commitment to transparency and efforts at involving the community since he was first elected as a councilor; I hope that the seven judges who will decide this appeal's fate will weigh all factors of law in favor of disclosure more so than they might the opinions of the city's and county's attorneys who somehow believe this public body has the power to keep these records from the public.

Lee Pat Milks was shot on or near his front porch on March 28th, three weeks ago.  The killing received national, even international recognition, on many media sources.  The amount of information given out was limited to what Chief Bachman was willing to say at the time.  This third party source was not able to tell the public much about what happened other than what he reportedly heard from the unidentified code enforcement officer who shot the long-term Manistee citizen. 

This hearsay amounted to Milks telling the officer to get off his property.  For whatever reason, that officer remained and escalated the situation.  In the few records the city has released in an effort to avoid this appeal today, it was noted that on May 20, 2016, Officer Dave Shands also visited Milks and was told to get off his property.  Shands recognized the property rights of Milks and left the property.  No deaths, no potential lawsuits, no dishonor.

On March 28th, 2017, what Lee Pat Milks saw in his last few seconds of life was an armed intruder on his property.  That's what this officer was at this point, and being that there are no records of code enforcement activity at the Milks residence that day, the protected officer of the city was there on his own. 

An armed intruder without any reason or legal authority to be on Lee Milks property shot this old man, a Manistee citizen with a rather distinguished career dead at or near the front porch of his house, shot after Milks had told him he had to leave. 

The City FOIA Coordinator and attorney believe that not only should this killer's identity be hidden from the public, but his incident report, the supplements to that report, and his use of force report too.  They are under the belief that these are investigating records that could reveal the direction of the investigation, alert potential witnesses or disclose facts before all witnesses are interviewed.

The city is not even investigating the incident, however; these are public records in possession of the city and must be disclosed to their rightful owners, the people of the State of Michigan, and especially the people of this town.  The kinds of reasons stated are patently ridiculous and will not hold up in a fair court to the rigid standards imposed by FOIA if this council decides to follow this misguided advice, rather than the law.  This is a republic after all.  Thank you."

I was rewarded with them figuring out the appeal shortly after this comment.  After Mayor James Smith opened the discussion it was turned over to the city attorney to explain the legal aspects for the officials.  It's a terrible inconvenience to justice when city officials acting as judges decide their verdict by trusting the city's hired attorney.  As will be noted, Attorney Saylor has his own reasons for denying the records which has nothing to do with law. 

Speaking of having nothing to do with law, listen how devoid of law his opinion has, instead he effectively claims the opinions of himself and the county prosecutor hold ultimate authority over law and court precedent:

City Attorney George Saylor III:  (55:45 in) " I can give you a little background.  The city actually received three FOIA requests, two from newspapers regarding this incident and denied all three requests. 

When we received the first request, I checked with the Manistee County Prosecuting Attorney's Office, talked to the chief assistant prosecutor at that time and he indicated the investigation was not completed, they did not even have records in their office at that point, and supported the decision to deny the FOIA requests that were made.  [Editor's Note:  I asked the city for records not the county.  The records I requested are public records needed to be made by the appropriate city agent, that is, they are in possession of the city, and the city must come up with their own legitimate exemptions]

When this third request came in from Mr. Rotta, it was a little bit different than the other requests because he had asked for, among other things, the code enforcement records, and while initially denying that, consistent with the other FOIA requests we had, I did check with the county prosecutor on that occasion, he aired the same opinion that the investigation was not complete and supported the denial of the records that were requested, but also in our discussion we talked about the code enforcement records, and he agreed that those records weren't something essential to his decision and did not have an issue with the City providing those records to Mr. Rotta, and so we prepared an amended FOIA response to his request that disclosed those records, but then still kept the same position on the remaining records.
FOIA is, I believe council is aware, does exempt from disclosure law enforcement investigation records when it would impact the investigation or potentially deny someone a fair trial.  Based upon the fact that this investigation is not completed, and the appeal of Mr. Rotta today mentions, 'the city is done with its investigation, it's now the state police investigation'. 

Well that's true, but the city records are still part of that investigation, and until the full investigation is completed and the records are turned over to the prosecutor where he can then make a decision on whether to proceed with any further with his investigation or his case.  Until that occurs, the impact would be a negative impact on that proceeding, and I believe, as I believe the county prosecutor does, that denying the FOIA request, at least at this time, is appropriate."

Recall that the Michigan Supreme Court has ruled that the mere showing of a direct relationship between records sought and an investigation is inadequate, the city has a duty of separating exempt and non-exempt parts of the record (numerous parts of the police record has been released publicly), detailed affidavits must be supplied to explain why something is exempted, etc.  The circus of secrets continued as all seven councilors voted to suppress release of any part of the records, without any discussion amongst themselves.

The feelings of the county and city attorney notwithstanding, the response is inadequate and large portions of the records requested need to be released. including the use-of-force report that is required to be made when such shootings take place.  You may recall even Wexford County officials knew they had to release this even when their investigation into Leonard Davis' arrest was still underway.

I had a comment ready for the councilors whatever their decision, including a quick commendation if they had bucked the city attorney's bad advice.  I was fairly sure I wouldn't need to use it, but when I looked over my prepared 'disappointment' comment I had to make a last minute change, and afterwards I realized I had forgotten to add that the FOIA lawsuit I filed in 2011 was eventually found in my favor in the Michigan Court of Appeals. 

XLFD:  (1:50:00 in) "I'm disappointed that the city followed the advice and direction of the lawyer and not the advice and direction of the law.  There is little recourse for the public other than having the local circuit court take this up and apply the letter and spirit of the law, unlike this tribunal tonight did.  This will cost the city a lot of money and resources they could otherwise use in the training of their officers to avoid situations which wind up with innocent citizens lying dead and unidentified officers getting away with dried blood on their hands. 

It should be noted that your city attorney George Saylor represented the City of Ludington in a FOIA lawsuit I initiated against that public body six years ago.  This cost the city $20,000 to $30,000 in legal costs.  Saylor and his law firm unethically had their partner of the time, Craig Cooper come forth and represent the defendant for four months while his father, the honorable Judge Richard I Cooper presided over the case. 

Your city attorney allowed our city manager to swear to affidavits which he knew were false, and built his case around those provable lies.  His partner misdirected an E-mail to me that joked about making my co-plaintiff cry in a deposition that Judge Cooper allowed. Letting this severely unethical person serve as the city attorney is a bad reflection on this city government, and I just wanted to let my brethren in Manistee know the facts about this weasel in their midst.  Thank you."

The subtle change I made was to use the word 'weasel' at the end.  I had originally selected the term 'sewer rat', but the city had their sewer superintendent give his annual report just before the public comment, and I didn't want to offend him.  As you might be able to tell, I am not a fan of the crooked George Saylor III, and some of it is personal.

The fallout wasn't big, when Attorney Saylor was asked for any comment from him at the end, he made a comment about democracy being a great thing.  I left before the work session began, since I had my co-plaintiff with me and she had been bored long enough.

In Tuesdays page 3 of the Manistee News Advocate, in an article written by Michelle Graves, who had the unenviable task of attending the full meeting she included:  "Also during Tuesday's meeting council took the following actions:  Denied a FOIA appeal 7-0 for Tom Rotta of Ludington, who submitted a request for records pertaining to an incident currently being investigated by the Michigan State Police.  The Prosecuting Attorney's Office has objected to the disclosure until they completed their review."

Notice how she tap dances around naming what records were requested and any valid legal reasons for the city to withhold those records, referencing the County prosecutor who has no real authority over the city's records anyhow, and fails to mention what FOIA law dictates.  A respectable newspaper reporter would not only have stated these were records concerning the recent shooting death of a Manistee citizen by a city agent, but also take some umbrage at the city and county's attack on what should be her bread and butter, the FOIA.  She shows she's less a journalist, and more a stooge.  The paper should be considered the City of Manistee Advocate (COMA) to reflect the reality of their coverage and what it induces in their readership.

The mostly non-exempt records are still being held hostage by the agency who controls the unidentified secret agent who shot Lee Pat Milks.  It is an incredibly bold and reckless move by the city considering that the story was so widespread and their response to this incident makes Manistee appear to be a tourist city that you might want to avoid, particularly if you park your bus in someone's backyard.

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Good job X! You are the last voice of Mr.Milks.

Hopefully not the last or the best. 

It's sad when a person dies at the hands of an official acting against protocol when you've been a law abiding citizen for your whole long life, and then those who killed you project a picture of you as a bad guy when you are actually the victim of poor training and ineptitude.  And then of poor police and news reporting.

People all over are scared to stand up to these people, even when they should.  So people like Lee Milks and Bill Marble who lead exemplary lives aren't even able to get a proper obituary or an honorable burial because of the cloud created by a justice system that defends its own questionable acts rather than justice.

It is heart wrenching the way those whose lives were lost, as if they were merely dispensable.

When I was shopping around for images from the two films in the title of this article to adapt to the story within, I noticed another image from the Bond films that was applicable.  Mayor James Smith was wearing an eye-patch for whatever reason (perhaps one of Manistee's code enforcer's clipped his ocular orb with a rubber band at city hall), and I was asked by one of my tagalongs why he was wearing it. 

Of course, I told them that he took a clue from Mayor Holman and was going to make a proclamation in recognition of pirates.  They actually believed it until they couldn't find it in the agenda.  But then I saw the classic Bond villain Emilio Largo from Thunderball in my image research and because Mayor Smith took the villainous path of blocking transparency unlawfully, I see a strong resemblance:

That's funny X. I might add the title of this topic is very creative. Mayor Smith looks like he could scare the Sh-t out of baby's diapers.

This is another excellent article X. What happens to reasoning when people get into a position of power. The way Manistee's council and Ludington's council act is to similar to be a coincidence. Where are the individuals who truly represent the people, or any jurisdiction, who actually think and act as if they represent those who put them in power. Where are the representatives who act and legislate as if they really believe in liberty, freedom and the openness that  our Republic is supposed to represent.

Something I have learned over the years is that there is a lot of peer pressure among local officials, and it takes a rather strong personality to buck that.  Along with this pressure, it becomes a very dangerous political move for a councilor/mayor to go against a long-term city manager's or city attorney's recommendation, even if it's wrong.  Thanks very much for your compliment, Willy.

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