Chief Mark Barnett: Hindering Public Investigations, pt. 1

[XLFD]

A little over a couple of weeks ago, I FOIA'ed the City of Ludington about camera footage in my own mini-investigation into the death of 24 year-old Ling Lang Zou down at the marina  Marina Cameras FOIA 

 

This request and another regarding records involving a murder non-suspect is being appealed at the Monday, 6-25-2012 Ludington City Council meeting, as disclosed in this  LDN Tax Rates-FOIA.  That night I will present a full refutal of the City's denials of the basic right to be able to view these public records.  I will have a couple of surprises that night, but here are the basic defenses of my position.

 

                          Are we getting too close to that Torch?

 

Marina

 

I was expressly prohibited from making any kind of copies of those video records, or from getting any sort of still pictures of those records.  The reason according to Chief Barnett:  "As set forth in your request for a copy of the recordings and your latest question "Will I be afforded the opportunity to copy portions of the viewed footage for my usage" , that request is denied.

To release the recordings for general dissemination on a website, or similar outlet, would undermine the effectiveness of the security system by showing the field of view and perspectives of the system. It would also reveal what is not monitored. The effectiveness of the system is enhanced by the notion that "everything is covered"."

 

Chief Barnett's denial, and the grounds behind it, is incompatible with the FOIA.  If a record is not exempt, and it wasn't due to my being able to view it in the Chief's presence, MCL 15.233 says "upon providing a public body's FOIA coordinator with a written request that describes a public record sufficiently to enable the public body to find the public record, a person has a right to inspect, copy, or receive copies of the requested public record of the public body."  The video footage is a 'public record', and anyone in the public-- me, you, and Daisy Sue-- has a right to copy or receive copies of that record.  It's that simple, and nothing, nowhere refutes that right to get copies of a public record, if it is not exempt from disclosure.

But there is an interesting twist on this FOIA appeal, which may have far-reaching implications beyond whether the Ludington City Council upholds it or not.  This will be divulged at the meeting.

 

Ariel Courtland Records Concerning the 'Baby Kate Investigation'

 

On June 5, LPD Chief Barnett issued this statement:  "

“Speculation during the first 10 months of the investigation that Baby Kate was given to someone else is not supported by the evidence,” Chief Mark Barnett said in a statement. “Previous speculation as to the involvement of the mother, Ariel Courtland, in the disappearance of Katherine Phillips is also not supported by the evidence.

“Extensive investigation into Ms. Courtland has been conducted by multiple law enforcement agencies. It has been concluded by investigators, and through judicial proceedings, that she did not have the time, means nor motive necessary; nor that she has any knowledge of Baby Kate’s whereabouts.

“It is our belief that the evidence considered by the 12 men and women during the unlawful imprisonment trial, along with new evidence and information being developed, will result in the issuance of additional charges.

“Investigators are convinced that one individual, Sean Michael Phillips, knows the location of Katherine's body,” Barnett said.

“Investigators remain focused and intent on providing justice for Baby Kate. Whether or not Sean Phillips participates in that effort remains his decision alone.

“No other information or comments related to this investigation will be released by any police agency prior to the arraignment of the responsible party on the appropriate charges.”

 

That last statement has no place in a free society, where a free press has access to free information.  Barnett has stated that the investigation now will focus solely on one person, Sean Phillips, and completely absolved Ariel Courtland from any part in this 'new investigation'.  As she is not being investigated for wrongdoing, and powered by the 'dare' in his last sentence, I sent a FOIA request on June 10th, and received a denial on the grounds that the records were parts of an ongoing investigation.  I dissented, later that day.

 

"

Jackie, et. al.,

You have denied the request for these records:

Since the date June 26, 2011 to the present:

1) All interviews (recordings or transcripts) conducted with Ariel Courtland, alone or with others, by any LPD operative.

2) All written records received by any LPD operative from Ariel Courtland or delivered to Ariel Courtland from any LPD operative.

3) Any lie detector test results administered to Ariel Courtland in the LPD's possession.

4) Any written record now in the possession of the LPD received from any other agency investigating the Baby Kate disappearance, specifically dealing with Ariel Courtland's possible involvement.

By using sec. 13, (1)(b) to deny it based on the records being:

Investigating records compiled for law enforcement purposes, but only to the extent that disclosure as a public record would do any of the following:

(i) Interfere with law enforcement proceedings.

(ii) Deprive a person of the right to a fair trial or impartial administrative adjudication.

(iii) Constitute an unwarranted invasion of personal privacy.

(iv) Disclose the identity of a confidential source, or if the record is compiled by a law enforcement agency in the course of a criminal investigation, disclose confidential information furnished only by a confidential source.

As noted in the request, the LPD stated in a recent press release that: ""Previous speculation as to the involvement of the mother, Ariel Courtland, in the disappearance of Katherine Phillips is also not supported by the evidence. Extensive investigation into Ms. Courtland has been conducted by multiple law enforcement agencies. It has been concluded by investigators, and through judicial proceedings, that she did not have the time, means, or motive necessary, or that she has any knowledge of Baby Kate’s whereabouts."

As such, she is officially not under investigation for any aspect of the present, ongoing investigation.

I dispute your blanket denial of the FOIA request. A publication by the Michigan Municipal League (http://www.mml.org/insurance/shared/publications/leaf_newsletter/fr...) says on the top right of page 2: "Most departments understand the exemptions found in

Section 13 of FOIA as they apply to active investigations. Once an investigation is complete, the

FOIA may compel the department to release information. However, the department may redact

(block out or remove) information that falls under the exemptions in (b).

Being that the investigation into Ms. Courtland's involvement has determined she will no longer be an object of investigation, the records concerning her that I am seeking should be available, with suitable redactions via sec. 13 (1)(b) where necessary. These redactions should be minimal as well since only (iii) should be applicable now-- now that she is no longer a person being investigated.

Let me also remind you that the FOIA requires that a public body shall separate the exempt and nonexempt material and make the nonexempt material available for examination and copying. No effort by the City of Ludington was made to do this here, just a generic refusal to receive the records. The FOIA is pro-disclosure, and exemptions should be minimized. Need I point out the precedent of Evening News Association v. City of Troy, 339 NW 2d 421.

Lastly, if you are still reluctant to release the records suitably redacted, consider 'the public interest balancing test'. If you are not aware, there is a sizable contingent of Facebook sites and others that continue to dwell on this case, and Ms. Courtland's involvement. If the evidence I ask for is withheld at this date, this only fuels the fire that the LEOs involved are withholding exculpatory evidence for Sean, and damaging evidence for Ariel. A release would make them able to decide for themselves whether the evidence is as you say.

Please re-evaluate your decision, and get back with me."

 

They then went quiet for the week, and so I sent another early on that Friday:

 

Jackie, et. al.,

I am aware that you still have until the end of Monday to finalize your response to this FOIA request, but if I don't get an amended response which includes these records, suitably redacted when necessary, I will formalize an administrative appeal to the City Council including the rationale below, plus other precedent and law.

Either way, I am also going to formalize an appeal to the denial of my being able to make or receive copies of non-exempt public records in my other request for viewing marina camera footage. While I do not expect favorable results from the City Council, based on prior abandonment of their public duties as regards FOIA, I do expect to view and/or copy these records eventually, within parameters set forth in the law. Please, review the FOIA, and allow the public access to these records, as the law dictates.

 

I finally got a response that afternoon, from one of Ludington's many City Attorneys, Richard Merlin Wilson: 

 

I, along with others, have reviewed once again your FOIA request referenced above, and the City’s response dated June 11th. At this time, the City does not intend to modify its response to your request as we believe it is correct as indicated.

Although not indicated on the City’s form of response, some of the materials you have requested are also exempt from disclosure under MCL 15.243(1)(d) and 1972 PA 295 and the City’s response to your request is hereby supplemented to include this exemption. I will have the acting FOIA Coordinator send you an amended response on the updated form on Monday.

Please let me know if you have any questions.

Richard Wilson

 

Great, another meaningless exemption on records that should be available to the public.  Over the intervening week, I have inquired about the process they intend to use to adjudicate these appeals in the City Council:

 

"...the FOIA of the state and of Ludington does not afford the appellant the right of a hearing in front of the head of the public body. In other words, the City Council can effectively make up the rules as they go along for any such appeal. I want to know what the ground rules will be if I show up in order to further back up my written appeal. Will I get an opportunity to make my case on the Council floor? Do I have to make any comments about this appeal only in the 'public comment' section of the meeting? Will the City Council conduct the appeal in a quasi-judicial setting?
Understand that for an administrative appeal, the law does not give me any explicit rights other than state my reason, label it an appeal, and then await a response, nor does it give the City Council the power to conduct a hearing, only to decide the issue, and get that decision back to me. So please, tell me what I am to expect if I go to this meeting with an idea of stating my cases?"

 

Again, I had to reinquire and was told the following process was to be used, by CA Wilson: 

"As the appellant, you will be permitted to address City Council on each appeal for 5 minutes when they are called. This will occur outside of the normal public comment period. You will confine your remarks/arguments to the issues raised in the appeals. If you have other matters not relating to the appeals you wish to bring to Council's attention, you may do so in the public comment period of the agenda.

After you have completed your remarks, members of the City Council will deliberate and may ask questions of you or others present before making a final decision. Only Council members will be permitted to join in this deliberation unless a member asks for input from someone not on the Council."

 

Fair enough, considering whose making the rules unilaterally.  He also finally named the statute that apparently prohibited me from seeing any polygraph results the LPD-CoL had, MCL 338.1728.  Or at least that's what he says.  He didn't further explain how that applied, so I did for him-- as it applied to the availablity of the records: 

 

"...Nothing in the Polygraph Examiner's Act or the FOIA says that polygraphic records in the possession of a public entity are not public records.

I saw that statute you mention, and noted its inapplicability. To whit, "(3) Any recipient of information, report or results from a polygraph examiner, except for the person tested, shall not provide, disclose or convey such information, report or results to a third party except as may be required by law and the rules promulgated by the board in accordance with section 7 of this act."

The LPD (CoL) would be the "recipient of the information", I am "a third party", the polygraph results would be a "public record" (there are no exemptions for polygraph results in the FOIA list of exemptions) and the FOIA "requires by law" for the LPD (CoL) to give up such records in its possession if called for in a FOIA request. If such records are in possession of the LPD, they need be made available to the public."

 

I have a bit of a surprise here, as well, which will be revealed at the meeting.  The City's tact is to label all of these as investigatory records, and block the release of all of them, even though the FOIA gives them a very limited ability to do so.  I predict the City Council, most of whose members have never even glanced at the FOIA law, will listen to their City Attorney, and force the City to defend itself in the Circuit Court, at large expense to the taxpayers, when the logical thing to do would just be to publicize the records that have been requested, in accordance with the law. 

Or are we hiding something, Chief Barnett?  Come join me and demand accountability.

[april]

OK OTHERS HAVE GOT BACK DENIALS TODAY ALSO

[XLFD]

And that was expected.  You must remember-- and you've been following this case and have got your own share of inglorious defeats-- that you are only truly defeated when you give up on what you know is right.

[april]

For sure!

[Willy]

X

That is a well stated truth. "The only time we are  defeated is when we give up" should be the motto for what I believe will be an awakening for all citizens concerned with our loss of freedom, liberty and rights. It's only going to get worse if we don't stand up and say enough is enough.

[april]

April,

Before your FOIA request can be considered please email your mailing address.

Janet Merriman
Mason County Prosecutor’s Office

[april]

Hello,
I am out of the office. I will return back to work on July 9th.
Janet

[XLFD]

I finally got an actual denial notice earlier today from Paul. 

Janet Merriman works for the Mason County Prosecutor's Office.  As you can see she does not fully understand FOIA law, like her boss.  The request asked to inspect electronic files sent to your E-mail address, or to inspect them personally.  You don't have to give them your mailing address as a contingent to get a response; that is illegal, Janet Merriman. 

If you give her your mailing address, you're going to have to wait a few days extra until you receive your response, as they send you a letter on the last day.  That's what Paul does for me generally, against my wishes.  You, April, can just have her ask JB Wells for your address, but for anyone else who gets this unlawfully phrased response, remind them that you prefer to get a response through E-mail to save the County money in mailing and printing expenses.  Tell them if you do not get a valid response via E-mail in the 5 working day period, that you will consider that a denial, as per the FOIA, and will appeal such a denial.

[XLFD]

E-mails are better than certified mail as regards to having a record of when you sent it and when you get a reply. 

 

[april]

I am sure she has my address as a complaint on me was sent to Spaniola, so I am sure he has that info.

[april]

She could have very well emailed me a response to my request, I did not ask for her to mail it to me.

[XLFD]

Prosecutor Spaniola, and his office apparently, do not like using E-mails.  Icould speculate on why that is the case, but I have asked him for E-mail responses to FOIA Requests for the benefit of both parties, but he goes against my wishes and sends it through the mail anyway.  That's OK, if he still follows the law and does not charge mailing and copying charges for his efforts, but a little rude on his part. 

If you ask for computer files or to inspect, they shouldn't need to waste public resources and time by printing/copying the info onto expensive paper, stuffing it in an envelope with a cover letter or two, placing a stamp on it, and delaying its getting to you for a day or so.  An E-mail is an instaneous certified letter that you don't need to use a scanner to present it to everyone later.

[april]

 Knizacky, Fabian

Thank you for your June 28, 2012 Freedom of Information Act request for the following public records:

 

Since the date June 26, 2011 to the present:

1)  All interviews (recordings or transcripts) conducted with Ariel Courtland, alone or with others, by any Prosecutor’s office operative. 

2)  All written records received by any Prosecutor’s office operative from Ariel Courtland or delivered to Ariel Courtland from any Prosecutor’s office operative. 

3)  Any lie detector test results administered to Ariel Courtland in the Prosecutor’s office possession.

4)  Any written record now in the possession of the Prosecutor’s office received from any other agency investigating the Baby Kate disappearance, specifically dealing with Ariel Courtland's possible involvement. 

 

As the Freedom of Information Act Coordinator for the County of Mason, I have searched the records of the agencies that I am coordinator for and determine that they do not exist.

 

I am not the Freedom of Information Act Coordinator for the Mason County Sheriff’s Office or the Prosecuting Attorney’s Office and thus those offices are not included in my response. 

 

There is no charge for this information.

 

In the event that you are not satisfied with this response, I want to advise you that you may seek judicial review of this denial pursuant to MCL 15.240.  If you seek judicial review and the Court determines that the public records are not exempt from disclosure, you have the right to receive attorney fees and damages in an amount not to exceed $500.00.

 

Very truly yours,

 

 

 

Fabian L. Knizacky 
Mason County Administrator 
304 E. Ludington Avenue 
Ludington, MI  49431 
(P) 231-843-7999 
(F) 231-843-1972

This e-mail system is the property of the County of Mason.  All data and other electronic messages within this system are the property of the County of Mason.  E-mail messages in this system may be considered County Records and therefore may be subject to Freedom of Information Act requests and other legal disclosure.