Attorneys Squeezing Money from Michigan Cities Through the FOIA

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Since fiscal year 2011, the city of Cadillac with a population of 10,000 people (just 2000 more than Ludington) has spent almost $90,000 in attorney fees responding to Freedom of Information Act requests.  Here is their famous city hall, a Michigan historic site:

Wait, did you say attorney fees for FOIA requests?  With the exception of the attorney-client privilege for exemptions, lawyers are not even mentioned in the state FOIA laws.  These laws designate the chief administrative officer as the default FOIA Coordinator, but apparently Cadillac's FOIA Coordinator, who is their city manager, uses attorneys to interpret broadly the exemptions they can claim. 

This may allow the government unit to more easily restrict public records from the people who have a right to inspect or receive copies of them, but as Cadillac and Ludington is finding out, attorneys have a high cost and are very inefficient coordinators when compared to City Clerks and other administrative officers, who handle the records and normally do it 'free' as part of their job's duties.

One may think that the high costs to Cadillac may be related to handling litigation of FOIA appeals, but the $86,500 total includes the $34,500 spent so far during the current 2014 fiscal year (with a few more months left in the current fiscal year, it is possible that bill will grow), with a similar sum of $30,800 for the entire fiscal year of 2013.  During fiscal years 2012 and 2011, $10,700 and $10,500 was spent by the city on such services, respectively, with no FOIA appeals in the circuit court noted.

From March 26, 2013, to March 26, 2014, the city received about 54 FOIA requests from 22 different individuals or organizations.  This number doesn't include appeals, of which the city has received roughly a half dozen, said Cadillac City Manager Marcus Peccia.

For the calendar year 2013, 167 FOIA requests were taken through the Cadillac Police Department. The total does not include documents for crash reports but does include FOIA requests of investigation reports. As a rule, Detective Lt. Todd Golnick said, FOIA requests usually come from a variety of individuals rather than numerous requests coming from a small number of people. 

Cadillac Mayor Carla Filkins said she is very concerned about the increased legal costs. She said she has taken some time to study the numbers and believes the council needs to sit down together and try to find ways to reduce them.  At this time, Filkins is not sure exactly what that will mean, but she said she wants to understand exactly why the city is paying its law firm for so much for FOIAs. She said she plans for the council to have that discussion soon

“There are several places that I think we could look,” Filkins said. “We are, perhaps, having the legal counsel doing things we should be doing internally, and that is what (the council) needs to discuss.  I want to work with the council and (City Manager Marcus Peccia) to understand how we are going to dramatically change that,” she said of the increased FOIA and legal fees. 

Peccia said when a person files a FOIA request, there is a negative connotation or that it is a shot against the city. Peccia said he doesn't think it is a negative thing. Regardless of who files it or the issue it is addressing, FOIA is the framework for obtaining public documents. 

Peccia said FOIA is beneficial because it creates accountability by municipalities. It also gives explicit guidelines for what is and isn't for public consumption. That is when attorneys may become involved, but Peccia also said they are not consulted on every FOIA request. While the FOIA is a mechanism for the public to gain knowledge, it also allows for sensitive information to be protected.

From a city official perspective, particularly one assigned the task of FOIA Coordinator, FOIA requests are often seen as an inconvenience and often as an intrusion on the inner workings of the municipality that they do not want out as public knowledge.  This is why clerks, managers and mayors are okay with handing that duty over to attorneys to figure and decide what to do with requests.  The problem is that they are up to ten times more expensive per hour for doing the task, and a lot of their billed time can be used to 'research' how they can exempt documents from the public, or otherwise get around the sunshine law. 

As most exemptions are discretionary, most of this expensive time billed is effectively wasted public funds being used to keep information from the public, contrary to the directives of the FOIA and the sworn duties of those officials.  When government agencies try to block releasing material that should be released, that is when the attorneys try to finesse an exemption, and will wind up costing everyone a lot of money if the FOIA requester stands his ground and appeals to higher authorities.

And that is what has happened here in Ludington, it's modern city hall pictured above.  City Manager John Shay (the former FOIA Coordinator) routinely blocked many requests or assigned outrageous prices for them, on advice of the City's attorneys, in answering requests.  When they were granted, or paid for, they frequently have shown a wide range of government corruption or fiscal mismanagement-- in particular the only FOIA appeal I took to the local circuit court. 

Public records showed Nick Tykoski had done over $15,000 of sign work, and had an itemized bid in well over a week before other companies were notified for what amounted to non-competitive bidding.  I asked effectively for all of the business records between the City and Nick's sign business, and was told a lie by the City Manager that I had seen all the records.  Other documents I had shown there were plenty more dealings between the two, but the City Manager swore under oath on an affidavit that his lie was the ....  He was disproved shortly thereafter. 

The four months of paper-pushing the City's law firm that serves as the City Attorney did, followed by the two years since of paper-pushing in the appeals court has cost the taxpayers dearly.  Records show that the City spent over $15,000 in both 2012 and 2013 and were active in 2011 and 2014 on this same case for probably another $10,000 at least. 

All of this $40,000 plus money spent, the perjury by the city manager, was done to keep the public from knowing that unethical, unlawful business dealings were being done by a city official who was not only on the DDA Signage Committee but profiting greatly from that association, and his personal association with the Community Development Director, his wife, Heather Venzke Tykoski.  Twenty four records, like this one, which the City eventually spun as saving the taxpayer $100,000 by spending over $50,000 on stylish but useless golden signs.

Vext by further FOIA requests by myself and others, and claiming that the City Manager was devoting too much of his time to replying to FOIA requests, John Shay had the city council designate a new FOIA Coordinator last fall, one of the seven City Attorneys, Susan Sniegowski (who is now running for 51st Circuit Court judge).  Sister of our assistant City Manager, Sniegowski now commands an attorney's pay rate for researching how to avoid responding to FOIA requests and to make phone calls/E-mails to people that work for the city who may have the proper information.

I have been getting her billing invoices to the city (through the FOIA naturally), and can guarantee you that she is getting more money from the City of Ludington for FOIA Coordinating in some months than some of our full time workers in this city.  These will be shown in a future thread.  It will make a nice supplement to her wages if she becomes our new circuit court judge, who ironically will decide the issue on any FOIA appeal to be made in court.  That could be very lucrative when she represents the City of Ludington at court.

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Bankrupting the city is not a good or desirable outcome.  Unfortunately, modern news agencies treasure access to public officials more than doing their job of informing the public of why a public body is spending so much money on attorneys on a process (FOIA requests) that should be fairly easy to understand for any city manager or city clerk, and should not take a lot of time out of their normal schedule they are already being paid for. 

The focus of the Cadillac News article provided as a link and the source for all things involving Cadillac, shows that in the fiscal year of 2013 alone, each of the 54 FOIA responses took on average of nearly $700 in attorney fees to fulfill.  To me that's inconceivable; I don't have to be the mayor of Cadillac or a member of the city council to say "WTF?".  But in Ludington's fiscal year for 2013, I am betting the numbers are similar, and it will probably go up in FY 2014 because of the crazy switch over to a private attorney handling FOIA requests as the city's coordinator. 

However, MCP and the COLDNews don't even bat an eye at the change or worry whether that would waste tens of thousands of dollars each year if what the city manager says about one individual's FOIA requests is true.  After all, he has said tens of thousands of taxpayer dollars has been spent fulfilling these requests (though (as per a FOIA request) he has no proof of it costing the city a penny in extra time used-- until they hired Attorney Sniegowski), now those tens of thousands should blossom into hundreds of thousands with her per hour wage being ten times the assistant clerk's.  And Ms. Sniegowski charges for small increments of her time.

[Willy]

Here's a relating story. A large family owns some hunting land together. Cousin  Eddy manages it for the family and is paid a fee, by the family, to take care of paying bills, doing maintenance, keeping records, deer management and other duties pertaining to land management. Uncle Bill asked his nephew Eddy for some information about how the deer are doing. Instead of just telling Bill what he knows about the deer, Eddy tell his uncle to put his request for information in writing. Amazed, Uncle Bill asked why. Eddy tells him that it's easier to keep track of what he requested. So Bill gives Eddy a note asking for the information he needs. Eddy then gets the information for his Uncle and before he hands it over he tells Uncle Bill that he wants $50 for the info. Bill says, are you crazy, that information belongs to the family and you've already been paid to gather that information. Eddy says he's responsible for gathering and storing the information so he feels he has a right to charge for it and he won't give it to Uncle Bill or any other member of the family  unless they pay him more money. Bills upset but gives Eddy the money and takes the information. After reading it Bill see's that the information is incomplete and much of the info. has been crossed off. Bill of course is upset and confronts Eddy and demands the complete information he asked for. In the mean time Eddy, because of his Uncle's persistence in requesting information, has hired an attorney to handle information requests from Uncle Bill and the family and tells the attorney to send their invoice for services to the family.
Now isn't that a ridiculous story.  But that's exactly what is going on with all of these FOIA requests  in Ludington, Cadillac and all over Michigan.

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Nice analogy, Willy, it pretty much explains the gist of things.  Uncle Bill could at least fire his nephew and be done with him; the people of Michigan do not have such an easy mechanism for the well-paid people who are screwing up their city, township, county, or state by not living up to their duties.  And as public body corporate lawyers gain carte blanche of public dollars, even more and more money will trickle their way as they game the system in their favor using the law in a perverse way.