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]

Alas, I cannot make tonight's meeting to find out my fate firsthand. If anybody does go to or happens to see what transpires there tonight, please let me know.

[AQUAMAN]

Well Pilgrim, blinks nervously, rolls eyes, snickers,....... you shoulda gone, or your attorney at least, unless the absence was a matter of life or death, imho. Your request, if even mentioned and brought up at all, without you being there to see to it that it would come up on the agenda, will most likely & swiftly be swept under the proverbial rug. Confusius say: use can opener to open wormy canned dog food, not toothpick.

[XLFD]

If I coulda attended, I woulda, but Monday nights are not generally good for me.

Frankly, if they swept it under the rug, they are in a lot more trouble, legally, than if they openly brought it up and discussed it. This is one of those battles where I don't really care if I lose-- in this theatre.

[Sweater Cows!]

What exactly is it your looking for in the papers in regard to this FOIA, (reply privately if necessary). As I do not live in the city I never really paid attention to the case so I don't see what is interesting about it( for me anyway). I can see how a city resident would be interested. I just don't know the specifics of the case.

If their record keeping was done properly from the get go I would expect it to take only a few minutes to provide a person with the documents available under FOIA. Are we to assume that the record keeping is that poor? Or does this man feel he should get paid once by his paycheck and then again a second time by you to do the job he was assigned in the first place, hmm... shady sounding to me.

[AQUAMAN]

Why take all the time, research, painstaking effort, and money for an attorney, to get to this end, then not finish? Like writing a thesis for your senior year at college, oooodles of pages, all typed and ready for the professor, then put it in the dumpster on the way to the final class to turn in. Sometimes priorities must prevail, come hell or high water! You just floated Shay's unsinkable ship with more buoyancy.

[Edie Lindsey]

You need to do some more FOIA about the City Attorney's raise I just put up a thread about. I saw your comment on the LDN e-site about this when I was verifying it, and got motivated to place my latest thread here and at Ludington Talks.

Could you tell us non-lawyers more about the FOIA? I have to agree with Sheila that something seems fishy when they can charge you an exorbitant fee for searching through their disorganized files. I have about 10 more minutes on this borrowed computer, and still haven't checked my E-mail. E-gad!

[AQUAMAN]

Good work Edie, keep it up gal. We need more like you with gonads, no, nonads or something to challenge the midiocre and malfeasance more often. Sorry your computer is still sick, it may need a new hard drive or motherboard. If you keep it, upgrade the memory too so it stores alot more. I have totally rebuilt one of mine and it works better than a new one most of the time. If it didn't crash/die completely, you can go to help and support and roll back and restore to an earlier date before your most recent worm/virus alot of times. Good luck.

[XLFD]

There are more FOIA requests I have that are currently underway Edie. It would make an interesting FOIA request to find out the City Attorney billing records over the last few years. No Attorney-Client privilege should block that!

[AQUAMAN]

Go for it, this time just ask for records of the recent past 3-5 years or so, or if they balk, try for 1-2 years. That way you're not asking for extensive research way way back. If Shay still contends he needs money for that little work, you may have a big complaint pending with them in the legal system. Thanks and good luck.

[XLFD]

Thanks, Aq. By the way, I have been notified that the City Council has turned my appeal down. Gee Whiz, now I get to go to Circuit Court and have the city pay for my attorney fees when they actually apply the law. I see they already have paid their own attorney fees with interest.

[AQUAMAN]

Ok, you lost me now. Which appeal? The foia, bicycle incident, CA fees, sign placements, lfeguards? You do have several pokers in the torch fire right now lad. Thanks.

[XLFD]

The appeal is for the Byer's settlement FOIA, but you're right, I have as many pokers as a porcupine, exclusively in the Torch fire. A lot of these topics are inter-related and the threads can be Magooed into another topic real quick, so I apologize for any confusion.