Byer's Remorse

[XLFD]

I have previously chronicled the reluctance of Ludington's Freedom of Information Act's (FOIA) Coordinator-- no other than City Manager John Shay-- to follow the law or its intent in providing information to the public.  I was quoted a figure near $900 just to peruse the Building Inspector's annual reports over a period of years (1st Attach). 

 

The high figure quoted was primarily for poor record keeping practices and security, which are ludicrous when one looks at the FOIA law.  A recent FOIA request by me concerned public records from the settled $250,000 lawsuit with former Ludington Building Inspector Jack Byers. 

 

For some reason, FOIAC Shay wishes to credit the attorney-client privilege in his effort to obstruct the request by asking for an outrageous figure.  Provided there is such material that falls under that umbrella of exempt information, proper recordkeeping, as per the FOIA, should make the time to retrieve the rest of the material negligible.  I hired a lawyer with the intent to take it to Circuit Court, but Shay passed it along to the City Council for my appeal.  I hold little hope from this bunch  and expect a court battle, but I wrote them a letter last week addressed to some of them:

 

"I am the appellant for a Freedom of Information Act (FOIA) request the city council will have on its agenda at the April 12, 2010 meeting.  As the rules of your city council meetings are unclear as to what my ability is to argue my point, or whether my lawyer can, I will argue my point and present my evidence here. 

 

 In my first letter dated 1-11-10 to the FOIA Coordinator (John Shay), I requested to peruse all non-exempt documents, E-Mails, etc. concerning the Jack Byers lawsuit and its eventual settlement.  My supposition was that the City had this info organized into a folder or two cognizant of section 14(2) of the FOIA which says “When designing a public record, a public body shall, to the extent practicable, facilitate a separation of exempt from nonexempt information.”  Thus, I believed that a clerk could find the info in a folder that was prepared to protect the exempt attorney-client privilege information that may have existed for that settled case in a negligible amount of time, and allow me the opportunity to peruse it at City Hall.

 

FOIAC Shay mailed back a form letter (first enclosure) that told me I would need $600 total, to fulfill my request.  The City’s FOIA policy 5(b), which reflects section 4(3) of the state FOIA, states:  “A fee shall not be charged for the cost of search, examination, review, and the deletion and separation of exempt from nonexempt information as provided in section 14 unless failure to charge a fee would result in unreasonably high costs to the public body because of the nature of the request in the particular instance, and the public body specifically identifies the nature of these unreasonably high costs.”

 

 When I questioned the nature of this unreasonably high cost in my follow-up letter dated 1-18-10, which did not change the parameters of my request, I was sent the same form (2nd enclosure), but instead of $600, Shay quoted me $120, a figure I still thought exorbitant, as once again I was given no clue as to what the $120 was for.  As I had not amended my FOIA request any different than before, I was at a loss for the figure quoted, which was five times less than the previous quote.  As he had violated the act (and city law) by not specifically identifying the nature of the unreasonably high costs (and this is not the first time he has done so), I sought redress.
 
 The city attorney has sent my attorney a letter that finally specifically identified the nature of the unreasonably high cost (i.e. 3 hrs. of  FOIA Shay’s time).  Does that mean he originally forecasted 15 hours of his time for the $600 figure?  And let’s not forget that section 4(3) of the FOIA (and section 5(b) of the city policy) also says: “a public body may not charge more than the hourly wage of the lowest paid public body employee capable of retrieving the information necessary to comply with a request under this act.”  Being that Mr. Shay is the highest paid employee of the city, am I to understand that only he is capable of grabbing a folder or two and figuring what is exempt-- as apparently the city does not adhere to following section 14(2) in the keeping of their records?  

 

 The city attorney also seems to feel that AGO #7083 has  an influence on why my position is flawed, but here’s what it says verbatim:

 

“In section 4(3), the Legislature has expressly directed a public body to specifically identify the nature of its costs attendant to a particular request before the public body may be reimbursed. Therefore, whether a particular charge reflects reimbursement of an unreasonably high cost to the public body must be identified and determined on a case-by-case basis” 
 
 FOIA Coordinator Shay has not done this even though he was given the opportunity to do so twice.  If you review this case, you should be troubled as to why he didn’t-- as I am."
 

 John Shay proudly boasted once a settlement was reached that the city would have easily won the Byer's lawsuit if it had gone to court.  If so, what does he have to hide?  Why was the city afraid to take this to court, as attorney fees would have been much less than $250,000?  Why is there a continued reluctance by the city to obey laws created to have open governments transparent to the people?

[XLFD]

Here's the discussion of my FOIA appeal at the Ludington City Council, according to the official minutes entered by Clerk Luskin. No discussion about the $480 difference in charges with no explanation either time, or many of my other concerns besides the reason why it takes three hours for the CM and CA to separate exempt from non-exempt data, data that should already be separate-- saparated back in 2008 for that matter: