Can Mason County Afford Paul Spaniola as Circuit Court Judge?

[XLFD]

I have had no great success in getting help from our local prosecutor in getting information or in getting him to assist in investigating his fellow public officials that seem to be engaging in unethical, if not illegal, actions.  The one investigation into impropriety he initiated on my behalf was effectively spoiled by his mistaken beliefs as to why the Workplace Safety Policy was placed on me.

 

But his agency is considered a distinct part of the county government, so that I cannot petition the County Administrator Fabian Knizacky (probably the best FOIA Coordinator in the county) for information from the prosecutor's department.  CA Knizacky has admitted the county board has set no FOIA policy other than what the State law says, and they have not done so since that claim was made. 

 

Therefore, I have been perplexed by Prosecutor Paul Spaniola's responses to my FOIA requests to his office.  In about a half of a dozen tries, I have been sent back enigmatic replies quoting exempt statuses and incredibly expensive rates for attempts to inspect non-exempt records.  He also insists on sending the replies through the mail and printing out the records at my expense, claiming incredible amounts of time in compiling simple requests.

                                     Paul Spaniola instructing a witness about his ownership of public records 

After throwing my hands up in the air on most occasions over the last few years, I decided to start giving him a try again, now that he is slated to become the next 51st Circuit Court judge if he wins the November election versus former boss and prosecutor, Susan Kasley Sniegowski.  I figured that since he may ultimately be decided on to resolve FOIA appeals taken to court, he may reveal how he feels about transparency and fairness in his replies in the election season.  And maybe, just maybe, he would cut some slack on the costs and other rigmarole I was used to from him.  It didn't happen.

 

I asked for the MSP Police Report on the Bill Marble shooting.  If you remember Paul's 17 page opinion on the January 2014 shooting of Marble in his home by a Michigan State trooper, he used their report to come to his findings.  Unfortunately, his opinion seemed at odds with the CD I eventually got from the MSP which has the gunshot from the trigger-happy trooper firing before any warnings are issued, contrary to his observation. 

 

Later this year, the MSP said thank you to Paul for his excellent work on the 'Eric Knysz prosecution' giving him an Award for Professional Excellence.  Since even a trained monkey could have prosecuted the admitted cop-killer Knysz, this award may have been more to recognize Paul's overlooking the prosecution of the trooper involved with the shooting, James Luttrull. 

 

The FOIA Request:

 

Please respond via E-mail.

Under provisions of the Michigan Freedom of Information Act (MCL5.231 et seq; MSA 4.1801 (1) et seq) I am requesting the following records prepared electronically and sent to this E-mail address, or the right to inspect:

The full Michigan State Police Report 62-233-124 (regarding the William Marble shooting). This should be in your possession since MCP Paul Spaniola's February 6, 2014 Legal Opinion used this report to come to its conclusions.

This is to be used for the passing of such information to the general public (media purposes), and not for personal gain.

If you need any clarifications of this request, please reply expediently to this E-mail address.

If requested record(s) do not exist, please enumerate which ones do not, as per the Act.

If you determine that some of the requested information is exempt from disclosure, please detail what is being withheld and cite the exemption under FOIA.

If fees to comply with this request exceed $20, please contact me at this E-Mail address with those fees enumerated.

As provided under FOIA, I would anticipate my request being filled within five working days of receipt of this letter.

The Reply:

 

In my past correspondence with Prosecutor Paul, he has shown a reluctance to respond by E-mail, which is how every public agency I have dealt with responds to an E-mailed FOIA request (exception, the aforementioned Michigan State Police). But Paul has no problem with dictating a letter, getting it typed up on MCPA letterhead and sent to my address with three first class stamps on a simple reply, as if he has no care as to what my mailman must think about me by getting all these letters from the prosecutor. This is what came to my mailbox approximately a week later in response:

 

 

You will note that my request for an E-mail reply was ignored, which is fine if he wants to be seen as effectively ignoring the will of one of his bosses (me) and cost the company (the county treasury) more money to do so.  But more interesting is that he wants to ignore my request to inspect, and make hard copies and charge me $40 to do this of a police report already in his possession and already prepared for viewing, as he doesn't mention any exemption (one would expect the addresses, phone numbers and other private info struck out in his copy from the MSP).

 

So apparently pulling a file out and letting me look at it costs their office $40.  I don't think so.  I replied via E-mail:

 

 

Prosecutor Spaniola,

I have scanned and include the FOIA Response you sent me in response to the original FOIA request I have forwarded herein.  Please fulfill this request, but note the following for your future reference, it may serve you well if you do become circuit court judge in the future:

1)  My FOIA request asks for either electronically prepared records or the right to inspect.  You maintain that your office has only hard copy of the requested records, so that the first option would require you to scan the records and create a .pdf of which you could send to me.  Since you apparently want to charge top dollar for labor in doing this, I would suggest allowing me the right to inspect the records and scan them myself so that the cost of making copies I don't want and you insist on does not accrue to me.  MCL 15.234(3):  "A public body shall utilize the most economical means available for making copies of public records." mandates you providing this option for me. 

2)  If I inspect these records you cannot charge fees for making unnecessary copies, you cannot charge for mailing, and you have not made the case for charging for any of the labor involved because MCL 15.234(3) also 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.  Since your reply does not specifically identify any statutory reason for a $40 charge for labor for this simple-natured request, no fees apply.  Therefore, no charge is not only applicable for this request, but your insistence on receiving $40 indicates an attempt of public extortion (MCL 750.214) on your part.

3)  Lastly, you suggest in your last sentence:  "Please submit all further FOIA requests in writing."  If you read the statute (MCL 15.232(i)) "   “Written request” means a writing that asks for information, and includes a writing transmitted by facsimile, electronic mail, or other electronic means." 

 

So, all of my requests sent via E-mail have been in writing, as would your response if you had sent it via E-mail and saved the taxpayers the expense of postage, envelopes, letterhead, and ink that you continue to use against my expressed wishes.

Honestly, you really need to bone up on FOIA law if you want to come off as professional and impartial if you become a circuit court judge.  I will expect an E-mail from your office this week to this E-mail address telling me when would be a good time to come in and inspect the MSP report on the death of Bill Marble.  Thanks in advance for your expected cooperation!

Tom Rotta

The Ludington Torch 

Expecting the offensive and often infantile responses I have received from this so-called 'public servant' in the past, I expected him to either ignore the E-mail or stick to his own interpretations of the law.  I was somewhat surprised by his next reply, which again came timely in the mail:

 

The first thing that struck me was that the first three verbs he uses are all in different tenses [research (infinitive), retrieved (past tense), and collating (present participle)] which makes me concerned about his basic English skills.  He does mention a cost less than what I was originally quoted, but still rather steep for just getting a police report in front of me for inspecting.  This cost is explained to me on the next page which serves as his FOIA fee sheet for photocopying:

So according to 51st Circuit Court Judge candidate Paul Spaniola, it takes a clerical worker 90 minutes, an hour and a half, to get a police report out for my inspection.  Another FOIA response arriving in the same envelope tells me:  "No documents may be removed from the file, copied or photographed by you.  However, staff will make reasonable copies as you request at that time."

 

Thus if I dare bring my own scanner so that I can get the computer images I want, I will likely be denied by prosecutor staff members, and instead waste all of our time in asking them to sit with me and make hard copies of non-exempt records that I don't want.  What a waste of public resources!

          Has Prosecutor Paul been able to afford to go to baseball games because he charges unlawful fees for public records?

Should it surprise anyone then, that even though an experienced jurist like 79th District Court Judge Wadel issues a well thought out judicial opinion on why the evidence that Prosecutor Spaniola and the State Attorney General's Office presented did not indicate that Sean Phillips should be bound over for murder charges, that Paul wants to press forward and waste a whole lot more of our public resources trying to appeal for a murder charge in a more sympathetic court on someone who is already sitting 10-15 years for a charge that is actually most appropriate with the existing evidence?

 

Why not, when he can so easily justify charging a member of the public for an hour and a half of a high-paid prosecutorial secretary's wages just to look at an already redacted copy of a police report.

[AQUAMAN]

This MSP report must be buried in the archives already? It's 2014 business, therefore, it shouldn't, or can't be buried already! 90 minutes, really? I mean if it was my office, anyone could access that document in a matter of just a few, 2-4 minutes. If it took a whole 5 minutes, that cost would be $1.89, not $40 at all! How do these public officials get away with this crap? And this guy wants to be CC Judge? And why on earth can't you inspect for free, and then scan for free? Sounds like he now expects to get $34.13 when your appointment time is agreed to? After you expressly asked for a simple report, and asked for an estimate "beforehand" if it exceeded $20. Local officials are repeatedly and routinely making the FOIA system an extortion tool for their gain, and NOT obeying Michigan FOIA laws at all imho. This stinks, and is unacceptable behavior all the way around. 

[XLFD]

Obviously, if you or I were requested by the prosecutor's office for records that he was legally entitled to, you would produce them at your own expense of time, and not have the audacity to not produce them until the prosecutor pays you for a good deal of time because of your own poor clerical skills-- which makes you do a two minute task in ninety minutes. 

You would only get laughter and probably a threat or two against your liberty or possessions. 

[Willy]

I've always said that the FOIA has made it more difficult to obtain information and because it is worded in a specific way it allows local Government agencies to put up roadblocks which prevent citizens for accessing public information. Spaniola obviously is continuing with Phillips case because he wants to look good to the voters by not giving up. If he presents the same evidence to an appeals court I can't see why there would be a change in the courts opinion. It might be better to charge Phillips with involuntary manslaughter instead of an open murder charge because then it's possible that Phillips letter could be used. I sure wish the truth would come out about that poor baby. Then everyone could put this behind them. Spaniola included. Another fine job of reporting X.

[XLFD]

Thanks, Willy.  Government entities are exploiting loopholes in the FOIA law, and courts are tending away from devoutly defending public availability of records.  Back in the early days of FOIA in Michigan, a court precedent allowed a researcher two weeks to review records at a public facility without costs (as long as no copies were requested).  Only after that would 'unreasonably high costs' accrue to the public body.  Now, you have agencies like the prosecutor of Mason County that try to charge you by the minute and try to charge you for them babysitting you while you inspect.  Neither are allowable by the FOIA.

[Johnny]

XLFD, have you ever looked into what other courthouses charge in other counties in the state?  I highly doubt Prosecutor Spaniola makes a dime of the requests.  What did it cost when Susan was in there?  Was it free when she was in Office? Its a bold statement saying Spaniola makes money off "unlawful fees for public records."  Aquaman, im sure "your office" is a little different than courthouse documents and just handing them out to whoever for free.

[XLFD]

Who makes the dimes then, Johnny?  The prosecutor clerk makes their own salary and will fulfill this request on their usual time, even though she will be effectively just handing me a copy of the MSP report from this recent tragedy that left a man innocent of anything dead in his own home with a state police trooper's service pistol's acrid smell of gunpowder already in the air before he even uttered his first "Drop" order.

Also, I have demonstrated, and as usual you have no counter-demonstration, that the charge is illegal through the fee calculation of FOIA.  Asking for a fee for records that are not authorized by law is not only fraud, but if you are a public servant in charge of public records (owned by the people) it is public extortion.  Spaniola does his profession a disservice by trying to establish his own FOIA policy, independent of the state's law and Mason county's policy.

A judicial candidate must also observe an even higher standard of ethical conduct, rather than engage in petty thievery.

[XLFD]

I did not have the inclination to do a FOIA to the prosecutor's officer during Susan Sniegowski's term as prosecutor, but as you may know, she now is the acting FOIA Coordinator for the City of Ludington.  She has been a lot better than John Shay, who was terminated from that position last October, and has actually accommodated a couple of requests that Shay would likely have blocked. 

I currently have a problem with a FOIA in Susan's hands, and may bring that up out here or even in the local court if it does not get resolved.  But it isn't anywhere near as ridiculous as what Spaniola does with FOIA, and she is following the bizarre Ludington FOIA Policy, specially amended three times over the last few years to deter people from getting information.

[Willy]

Johnny

"Aquaman, im sure "your office" is a little different than courthouse documents and just handing them out to whoever for free."

You seem to have missed the point. Information held by Government offices does not belong to the "Government offices". It belongs to the people. The same people who paid for the information to be gathered, compiled and stored. Charging a fee for information is extortion and holding that information while making people jump thru hoops to get it is an abuse of power which has been clearly demonstrated by our own local agencies to thwart the free flow of information. 

[AQUAMAN]

Well said both Willy and X. I would also like to elaborate just a bit on what Willy said, about the point going over Johnny's head, missed again, as per the usual. "We the People", have hired and voted these public servants to account for every transaction done under their offices. More importantly and another basic factor, is that "We the People" are their benefactors, employers per se. Their existence to live and make money lies with "We the People", be grateful. We expect them to do their duties in a professional and courteous way, without a bunch of fees/forms associated with simple to get, and simple to get inspected materials requested. "Unreasonable costs to the public body" is being given a very liberal and unethical definition by some it appears. The FOIA laws of Michigan are what should trump any and every other revised versions in towns and cities alike across Michigan imho. To twist it, is to destroy it's very reason for being law. 

[XLFD]

I actually got an E-mail rely to my E-mail to the prosecutor the other day.  I sent the following on Tuesday night:

I include a link that includes our previous correspondence, just in case it takes you and your clerks an hour and a half to look up what has already been interchanged, you can read it in 5 minutes: Can Mason County Afford Paul Spaniola as Circuit Court Judge?

 

But be that you have said that it will take me $34.13 to get these records, I will pay off that ransom, even though for this very simple request for redacted records you already have in your possession you have failed to specifically identify the nature of the unreasonably high costs associated with inspecting them.

I will come in the afternoon on Thursday September 18, bringing my camera, my camcorder, a check for $34.13, and my scanner. I expect to have reasonable facilities to inspect these records, as per law, and I would appreciate it if you would train a camera on me while I am inspecting and scanning them, not only for my protection from any allegations from your office of wrongdoing, but also for your security of these copies of MSP records you have stewardship over.

I would also suggest you ready yourself legally to explain to Judge Wadel in the future as to why you need to charge such an amount, contrary to the fees allowable by FOIA, when I file a small claims court case for the money you are unlawfully requesting for this and other simple FOIA requests.

If you want to get a hold of me before then, you know my E-mail address, feel free to use it. See you Thursday.

 

He sent me this today: 

Dear Mr. Rotta:

Due to scheduling issues we are unable to have a staff member available to facilitate your request to review this report on September 18. We stand ready to honor your request on another date.  For your convenience, please call the prosecutors office at 845-7377 to schedule an appointment. Thank you.

Paul Spaniola

Of course Paul forgets section 3 of the act that says:  "A public body shall furnish a requesting person a reasonable opportunity for inspection and examination of its public records, and shall furnish reasonable facilities for making memoranda or abstracts from its public records during the usual business hours."  So for some reason, I can't view this copy of a police report during the usual business hours on Thursday and apparently after that without phoning him and making an appointment. 

[AQUAMAN]

Really, is that another "weasel"??? Let's just take this one step....anyone, okay, any "US Citizen with photo ID" should be able to look at any file on publicly paid for cameras, without any assistance and time from a public employee, except to give you the file, and seat you in a private room for that purpose, which that courthouse has plenty of. How long does that take, and can it be legally charged for? Secondly, "scheduling issues?", that is a lame excuse. It's the duty and responsibility of any public office/agency, to have a friendly receptionist/greeter for the public, to make intakes of any complaints and controversies that the Prosecutor's Office routinely receives daily! Thirdly, emails, which are now Routinely and OFTEN the common exchange of correspondence for any communications, is strictly being prohibited, or at least, discouraged! Phone calls are the NORM, and repeatedly requested. This way imho, anyone can say "he said, she said". To the contrary, emails cannot be! The evidence is there for the viewing, and cannot be altered. Methinks this is a weak and futile reply. But, the circus of reality must continue, and where it ends, I surely can't imagine! P.S. That sure is a BIG Weasel, I saw one the other day, alot smaller, dialing out my speed boat, so chased him away, and he just ran away in fear, and hid. That calamity doesn't resemble this, or does it? Keep the vigil X.