Fake Fees for FOIA Folly: The Latest City of Ludington Lawsuit

[XLFD]

At the October 23, 2017 Ludington City Council, I had the council served another FOIA lawsuit.  Unlike previous FOIA lawsuits I've filed with the City of Ludington, this lawsuit is not seeking the disclosure of any public records, rather it is seeking solely to get back the money I have been charged unlawfully by the City, even after they were taken to court in part to reduce their unjustified fee of $2479 for separating privacy exemptions out of a police report and an interview transcript.

At the end of the council meeting, City Manager John Shay would mischaracterize what happened in a courtroom he wasn't even present at.  Suffice it to say, that the court surmised there were gaps in the definition of what is a 'police report' and what are 'addendums' between myself and the City.

Shay has committed to the false narrative that I narrowed the scope of the request, but I don't think I made it any clearer than when I used my public comment period on the day of the administrative appeal to the city council that I was looking for the police report, not over 2000 pages of mostly anonymous tips that were assigned different police report numbers, as I would finally learn when my first post-lawsuit attempt at clarification wasn't read thoroughly.

This lawsuit is not just a rehash of the original claim that was dismissed without prejudice pending a more reasonable response to my modest request.  It does amount to containing the first count, which seeks to have the court determine that I prevailed because of the decrease by 96% of the cost when the City decided to honor the terms of my request, and thus have them pay my court costs and disbursements for that lawsuit.  That would amount to under $300.  The court will likely be reluctant to award other punitive damages based on their probable perception that the city misinterpreted my request rather than constructively denied it, as their past actions over the years would suggest.  

The second count becomes more dramatic; the city finally gets the idea I only want the supplemented police report (which includes the LPDs part in the plant search and other things) and the transcripts requested.  They charge $99.07, which requires me to make a deposit.  They include charges for making paper copies and four hours of 'separation' work done equally by the detective and a clerical assistant.  I pay a deposit of $50, they compiled the records, asked for the rest of the money without any adjustment, and I get 152 pages of records on .pdf files on a CD.

Now they could properly charge me the cost of a blank CD (less than 20 cents), but they cannot charge for electronic copies.  Likewise, had the police report been written according to policy there wouldn't have been any exemptions beyond the first four pages, and acting Detective JB Wells should have known that from the get go when he tacked on two hours for himself and two other hours of a clerk's assistant's time that wasn't needed in the report.

Where they should have looked is the transcript where Ariel Courtland offers up several phone numbers and apartment numbers of family and friends-- but nobody bothered to edit that private information out of the transcript.  I reviewed in a fairly cursory manner the entire 152 pages in under 30 minutes, and found their errors.  Yet in the only place they edit out information other than two superfluously added apartment numbers, they take out the last name of Sean Phillips' mother:

Which is otherwise left in the report, such as:

You think you would get quality work from a police detective who not only gets paid his normal salary, but also the two hours he supposedly took doing the terrible censoring job he did.  If Detective Wells is this competent doing easy detection work of exempt material in a report he mostly wrote, just think how effective he is during the course of doing his normal investigatory job.  If the cases of Baby Kate, Lingyan Zhou, and Robert Ford aren't great examples of that already.  

But bad investigation work is one thing, bad FOIA coordination is another, and the City of Ludington excels at both.  John Shay laments that the city paid out over $6000 in attorney fees to defend the first part of this lawsuit, which suggests that their original ransom of public records attempt at $2500 hasn't worked out well economically for them.  This lawsuit, a bit stronger due to my reception of the public records and the unwarranted charges to be found in the amended response, should likely cost them more.  One has to wonder how they can justify these expenses when their two responses were so off-kilter to the city's and the state's FOIA fee policies, and just begging to be challenged in court by one who's not afraid to do just that.

Consider what could have been if the City had originally asked to clarify my request to find out what I meant by addendums, and sent me the records at little or no cost, rather than assume I requested a lot of things that were patently outside my request.  I would not have had to spend $175 twice on two lawsuits, and $100 on less than $5 of information, not including all the time and money associated with prosecuting the case.  The City would not have had to employ an attorney and spend more than $10,000 defending their unlawful actions in performance of their duty of providing non-exempt information to the public.

Instead they select an unreasonable amount to charge for an unreasonable use of a detective for 100 hours (for a task that even the city attorney admits is discretionary on behalf of the City) when they could be otherwise doing the job we supposedly pay them for:  investigating crimes.  When they get called out for it and are given a second chance by the court, they then decide to still charge for non-applicable copying fees and four hours of work that needn't ever have been done.

So when they lose part or all of this case, don't believe their lines that they spent tons of money defending against the barbarian at the gates of city hall, as they already have used at the Monday city council meeting.  Because they actually spent tons of money trying to keep public records out of the hands of the public by utilizing criminal public extortion methods.  I dare them to investigate that crime, because it's evident here and in several dozen other FOIA responses I have had over the years.

The lawsuit in full, prior to the last minute corrections follow.  Where possible, I include a link to the new exhibits (A-E) I utilized for the lawsuit for the reader's benefit.  Please feel free to comment or ask questions on any aspects of this case in the forum.  This party will be more than willing to be transparent to valid requests and concerns.

                                    STATE OF MICHIGAN

                   IN THE CIRCUIT COURT FOR COUNTY OF MASON

 

          File No. 17- 325 - CZ

 

TOM ROTTA,                              v.            CITY OF LUDINGTON

137 E  Dowland                                             400 S Harrison St

Ludington, MI 49431                                     Ludington, MI 49431

Plaintiff,                                                          Defendant

 

 

            COMPLAINT FOR FEE REDUCTION AND FURTHER FEE REDUCTION FOR FOIA RESPONSES 

 

Now comes Tom Rotta, pro se, and as his complaint states as follows:

 

                                                          INTRODUCTION

1. This is a civil action under the Freedom of Information Act, hereafter FOIA, MCL 15.231 et seq. for appropriate relief from excessive and outlandish fees that exceeded the amount permitted under the defendant's publicly available procedures and state law for public records requested by plaintiff from defendant CITY OF LUDINGTON.  It is a refiling of a broader scoped lawsuit dismissed without prejudice where the records originally requested (minus polygraph results) were eventually disclosed for a much lesser, but still inappropriate, fee after an amended request was made and the records originally sought were produced.

 

                                                                PARTIES

2.  Plaintiff TOM ROTTA is a resident of the city of Ludington in Mason County in the state of Michigan.

3.  Defendant CITY OF LUDINGTON is a municipal corporation formed under the laws of the State of Michigan and located in Mason County (Michigan).

4.  Defendant CITY OF LUDINGTON is a public body as that term is defined by Michigan's FOIA, specifically MCL 15.232(d)(iii).

 

                                    JURISDICTION, TIMELINESS AND VENUE

5.  This court has jurisdiction by statute pursuant to MCL 15.240a(1)(b).

6.  Venue is proper in this case pursuant to MCL 15.240a(4) as the CITY OF LUDINGTON public body is fully contained within Mason County.  As per MCL 15.240a(1)(b), this civil action is timely filed within 45 days of notification of the final determination of fees to the 'amended FOIA request that occurred on September 6, 2017.

7.  This court is instructed to advance this matter expeditiously as MCL 15,240a(5) requires that "an action commenced under this section... shall be assigned for hearing and trial or for argument at the earliest practicable date and expedited in every way."

  GENERAL ALLEGATIONS FROM INITIAL CASE DISMISSED WITHOUT PREJUDICE- (Exhibits #1-11 are found in original case 17-109 CZ, plaintiff incorporates those exhibits by reference, reprints that case's general allegations, paragraphs 8-21 for the court's convenience)

8.  The State of Michigan's FOIA directs that it is their public policy that 'all persons... are entitled to full and complete information regarding the affairs of government and the official acts of those who represent them as public officials and public employees, consistent with FOIA'.

9.  On February 16, 2017, plaintiff sent an e-mail [see EXHIBIT 1, FOIA request] with the subject line titled "FOIA Request:  Baby Kate Abduction, Ariel Courtland Records" asking to inspect or receive electronic records concerning: 

            "Interviews with Ariel Courtland ( any recordings and transcripts) taken in 2011 concerning the disappearance of her daughter 'Baby Kate'.  Include all such records in your possession from that year even if done by other agencies and include any polygraph test results (in full) that may have been administered to her. 

             Please include also the police report generated for the abduction by the LPD and the addendums added since (such as for the 2013 search)."

 

10.  Included with the request was several parameters regarding the request for information including:

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

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

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

     d) 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.

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

11. On February 24th, the CITY OF LUDINGTON FOIA Coordinator (FOIAC) sent an e-mail responsive to the request including a formal response sheet [EXHIBIT 2, FOIA response form], a FOIA Cost Estimate Worksheet [EXHIBIT 3, cost worksheet] and further explanation in the body of the e-mail [EXHIBIT 4, e-mail explaining response].

12. The four relevant parts of EXHIBIT 4 (listed 'a-d' for the court's convenience) said:

     a) Statutorily, the City is banned from disclosing information, report or results from a polygraph examiner (Forensic Polygraph Examiner's Act, (FPEA), MCL 338.1728(3)).

     b) Similarly, the record contains personal information, and its disclosure would constitute a clearly unwarranted invasion of privacy. This information would require redacting and segregating the record.

     c) Since the cost of responding to your request of the granted portion is estimated to exceed $50.00 (see attached Work Sheet), a deposit in the amount of $1,239.50 (1/2 estimated cost) will be required. Upon receipt of your deposit, the City will compile the requested record(s).

     d) Please be advised that the City's estimate does not include costs associated with copying. It is possible that when the process of redacting begins the number of copies that would be required to make would exceed a number for which the City normally does not charge.

13.  On March 2, plaintiff appealed via e-mail the partial denial and the costs to the head of the public body, the Ludington City Council, announcing it was a fee/process appeal [EXHIBIT 5, appeal e-mail].  Plaintiff affirmed the denial of some portions of the polygraph records, while asking formally whether they existed, and should have been denied on that basis, as per the parameter noted in the request, as seen in paragraph 9(c) of this action. 

14.  In the e-mail, plaintiff formally inquired whether there were any other exemptions the city claimed beyond the personal privacy exemption, and demanded detailed affidavits describing the matters withheld and why they fit the privacy exemption, as per Michigan Supreme Court directions found in Evening News v. City of Troy.   

15.  In the e-mail, plaintiff asked for justification of why it would take a police detective an estimated 100 hours to go through the police report, addendums and the Ariel Courtland custodial interview to separate the exempt from non-exempt information. 

16.  In the e-mail, plaintiff reminded various officials that the CITY OF LUDINGTON's concern for the personal privacy exemption in this particular case was directly opposite the concern and actions they took in releasing other personally private parts of records they released in another investigation their police department and the plaintiff, as a witness, were involved in.  This amounted to publicly revealing the plaintiff's personal information, and a skewed version of the encounters an associate of the plaintiff had with local law enforcement.

17.  Later on March 2nd, the city manager of the CITY OF LUDINGTON sent an e-mail notifying plaintiff that the appeal would be considered at the Ludington City Council meeting on March 6 [EXHIBIT 6, appeal notice].

18.  On March 6th, the city manager gave each councilor a memorandum and EXHIBITS 1-6.  The memo [EXHIBIT 7, city manager memo] acknowledged receipt of the appeal and announced the appeal would come before the council at the next meeting March 20th for their decision.

19.  In the city council packet for the March 20th meeting, published on March 17, the only documents presented for the councilors review was a memorandum from the CITY OF LUDINGTON’s city manager recommending that the council deny the plaintiff's FOIA appeal and a three page justification of the denial created by the defendant's FOIAC [EXHIBIT 8, FOIAC justification].  Exhibits 1-6 were not included for review at the appeal proceedings.

20.  At the March 20 meeting, plaintiff used his five minutes of public comment to lay out his case for disclosure at a different cost.  CITY OF LUDINGTON's city council members, mayor, city manager, and city attorney discussed the merits, before the administrative appeal was unanimously denied by roll call vote [EXHIBIT 9, transcript of 3-20 meeting].  Video of the March 20, 2017 meeting is available on the Ludington TV website as well.

21.  On March 21, 2017, CITY OF LUDINGTON’s City Manager John Shay sent plaintiff formal notification by e-mail that the FOIA appeal had been denied on all issues and the FOIAC's decision had been affirmed [EXHIBIT 10, appeal denial notification].

22.  Unsatisfied, Plaintiff brought forth the initial lawsuit seeking records through a legitimate fee structure.  In the initial lawsuit the plaintiff made the following assertions in claiming violations of the FOIA.  They are reincorporated in paragraphs #23-47 for the court's convenience and their continuing relevance to this lawsuit. 

23.  The initial FOIA response (Exhibits 2-4) fails to clarify why the fee of $2479 is being imposed for a police detective to be employed for 100 hours to separate exempt from non-exempt information from a single police report (plus supplements) and a single police interview recording/transcript.

24.  On 12-7-2014, Plaintiff requested from the CITY OF LUDINGTON police reports from 2007 to June 28, 2011 involving Ariel Courtland and/or Sean Phillips.  On 12-24-2014, defendant compiled 113 pages of reports from 28 different incidences involving defendant's police department.  Defendant charged plaintiff only $28.25 for 113 copies at $.25 each [EXHIBIT 11, defendant's 2014 FOIA response for police reports].

25.  Since that time, FOIA state law has changed to prevent public bodies from charging more than ten cents a copy for records.  It has not been amended to allow more charges for labor costs than what was allowed before.

26.  The only exemption being claimed by the defendant in this case, beyond the FPEA polygraph records exemption for part of the request they denied wholly, was the unwarranted invasion of privacy exemption (MCL 15.243(1)(a)).

27.  A public body has the power to charge fees allowable by FOIA, but has restrictions on using that power indiscriminately.  In relevant part, MCL 15.234(3) states clearly that:  "A fee... shall not be charged for the cost of... separation of exempt from nonexempt information 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."

28.  The nature of the granted portion of the request in the particular instance was for the police report and supplements of a long-closed investigation into the disappearance of a baby, and the custodial interview transcript/video of the mother.

29.  On June 12, 2013, plaintiff had asked for the custodial interview of Sean Phillips as regarding this baby disappearance case in a FOIA request to the CITY OF LUDINGTON.  On June 21, 2013, defendant released a CD of this interrogation and charged nothing for the response [EXHIBIT 12, defendant's 2013 FOIA response for custodial interview].

30.  The FOIA Coordinator in his response in the case now under review did not identify any unreasonably high costs to the public body because of the nature of the request in the current particular instance, noting that the public body had earlier released 28 different police reports and another custodial interview in reference to the same case and same characters without ANY cost for anything other than copies.

31.  The public body did not specifically identify why the release of one supplemental police report and one interview of a cold case would justify the employment of a police detective for 100 hours to search for exempt material that would fall under the invasion of personal privacy exemption. 

32.  Failure to specifically identify the nature of those unreasonably high costs in the CITY OF LUDINGTON's FOIA response and justify a $2479 cost is a violation of MCL 15.234(3). 

33.  In Exhibit 8, the FOIAC explains his justification of the fee to the city councilors as proper being that the records amounted to 2750 pages and involves many individuals, some being minors.  He claimed that numerous addresses, telephone numbers and identification documents were present throughout the records. 

34. On information and belief, the transcript of Courtland's interview would amount to about 30 pages per hour of custodial interview.  There is nothing suggesting her interview would have been over two hours long, indicating this record as being 60 pages or less. 

35.  On information and belief, the standard CITY OF LUDINGTON police report and supplements could not amount to 2700 pages of records.  Standard police reports and supplements I have received from plaintiffs and other police agencies of complex accident investigations and murder cases have never amounted to over 100 pages, often much smaller. 

36.  On information and belief, there has been no minors involved with the police investigation into the case as witnesses, suspects or persons of interest.  The four public court hearings and trials lasting more than a month involving the father confirm that belief.

37.  On information and belief, police training in report writing emphasizes that personal identifying information of witnesses and others is contained at the top of the report.  Reiteration of such information is not suggested throughout the rest of the report.

38.  On information and belief, if other material in the standard report and supplements "reveals intimate or embarrassing details of an individual's private life", the succinct test the MI Supreme Court used in Bradley v. Saranac Community Schools, 455 Mich. 285, 565 N.W. 2d 650 (1997) to determine what is properly redacted using the privacy exemption, they should have been limited in scope to what was relevant to the disappearance, and likely would have come forth at one of the hearings or trials, much less likely in a police report. 

39.  To the extent that some still were within the report, CITY OF LUDINGTON's City Attorney Richard Wilson stated at the March 20 meeting where the administrative appeal occurred, that:  "...the personal privacy exemption, like all the exemptions under FOIA for the most part, are discretionary on the part of the city. The FOIA statute says that the city may exempt certain information, it doesn't have to." 

As per MCL 15.243(1), "A public body may exempt from disclosure as a public record under this act any of the following", before it describes all discretionary exemptions.

40.  To illustrate the city previously using discretion in ignoring the 'personal privacy exemption', the CITY OF LUDINGTON voluntarily released video of an interview to three news agencies in September 2016 of plaintiff regarding the investigation of alleged threats made by other parties on plaintiff's website.  Despite not being an object of the investigation, the video contained plaintiff revealing his address and other intimate details of his life that may have fell within the personal privacy exemption. 

41.  CITY OF LUDINGTON's City Councilor Krauch serving as a judge at this administrative appeal, stated that for all 2750 pages:  "with regard to the estimation of charges based on this, that every page, and every line, and every word of every page, has to go through that sift. Yeah, you have to look at all of it. " 

42.  Krauch offered no explanation of why such a thorough screening was needed to look at the records when the exemption was declared discretionary by the city attorney prior, nor did he offer the rationale for the waste of resources in the utilization of a city police detective for two and a half weeks for an elective exercise in futility.

43.  Another judge of the CITY OF LUDINGTON at the administrative hearing, Ludington City Councilor Gary Castonia, ended the discussion with "the only thing I can say is what I seen on a show, on "Show Me the Money" and you'll get what you want."  This elicited chuckles from the other judges and had the CITY OF LUDINGTON's mayor punctuate the thought by saying "Well done."

44.  The broad expanse of the records and the arbitrary methods of review envisioned was not reasonably explained at the administrative hearing or with the FOIAC's memorandum to the councilors. 

45.  On information and belief, the CITY OF LUDINGTON's method of reviewing 2750 pages which may not all fall within the scope of plaintiff's FOIA request was explicitly or implicitly designed to block or otherwise prevent the disclosure of simple responsive documents that would fulfill plaintiff's request through the imposition of unlawful and unreasonable charges and costs.

46.  Plaintiff's request may be fulfilled by a simpler and more effective method than examining 'every word of every page' of five and a half reams of documents, many of which must fall outside of the request, just to look for exemptions that might exist of which their city attorney and the FOIA admit are discretionary on behalf of the city.   

47.  The actions of CITY OF LUDINGTON in assessing the unreasonably high rate run counter to section 3 of the FOIA and the unreasonable justifications of these rates and methods of separating exempt information offered by CITY OF LUDINGTON amount to arbitrary and capricious behavior designed to constructively deny these records to the plaintiff and the rest of the public.

48.  At the preliminary hearing/scheduling conference held on July 12, 2017, it was agreed between parties and approved by the court to have the plaintiff resubmit a 'modified' FOIA request in order to get the public records he originally sought, minus the polygraph results.  

49.  This court proposed to dismiss that part of the lawsuit without prejudice, to allow the defendant to better accommodate the plaintiff's request and reply with fees that followed the city's and state's rules for allowable fees.  

50.  The response to the 'modified' FOIA request and the ransom asked for and paid for to supply the plaintiff with 150 pages of nearly total exempt records that fully satisfied the plaintiff's original request show an incredible disregard for the FOIA and inspired this second lawsuit to seek relief for blatant violations of the fee structures of the FOIA.

                               GENERAL ALLEGATIONS UNIQUE TO THIS LAWSUIT

51.  Plaintiff incorporates by reference the previous allegations as if set forth word for word herein.

52.  Pursuant to getting the correct sought-for records at a legitimate price as suggested by this court, plaintiff sent a revised FOIA request the next day (July 13, 2017) with the following wording (see EXHIBIT A, amended for clarity FOIA request): 

"Interviews with Ariel Courtland ( any recordings and transcripts) taken in 2011 concerning the disappearance of her daughter 'Baby Kate'.  Include all such Ariel Courtland interview records in your possession from that year even if done by other agencies (since the record shows a MCSO detective conducted the main interview at the LPD station).  Please include also the police report generated for the abduction by the LPD and the supplements and addendums added since (such as for the 2013 search).  If addendums/supplements are not attached to and otherwise part of the report, they fall outside this request."

53.  Defendant had difficulty still gauging the extent of the FOIA request for some reason, ultimately sending EXHIBIT B, July 25 E-mail for clarification, to the plaintiff which in relevant part said:

"... When the original request was submitted. The City, based on the wording of your request, excluded from the response, thus from the accounting of pages to be copied and possibly redacted, more than 2,000 pages containing anonymous (on its great majority) of tips.  Since every tip was processed through the LPD all those tips were assigned an LPD report number.  Under your current clarification, those 2,000 plus pages would also have to be considered as part of your request."

54.  Being that the last sentence of my amended-for-clarification request totally excluded those 2000+ pages of documents, I submitted a fourth clarification of what I originally asked for as 'the police report generated for the abduction by the LPD and the addendums added since' (see EXHIBIT C, July 25 simplest terms E-mail).  

55.  On July 28, plaintiff received a response with a FOIA cost estimation worksheet that said it would take $99.07 to compile (EXHIBIT D, FOIA 326-A response), which included 2 hours of work by a clerical asst., 2 hours of work by a detective, and $7.65 for copying 153 pages.  

56.  On September 6, plaintiff received notification [EXHIBIT E, 9-6-17 notice] that the records had been compiled and were available.  Plaintiff paid the full $99.07 and received the records he had originally sought, minus the polygraph records.  

57.  Still confident that the defendants had violated their own fee structure for this response and for the previous response, plaintiff filed this second action to seek relief for both of the defendant's transgressions, and monetary reimbursement for the overcharging.

COUNT 1:  FAILURE TO FOLLOW ALLOWABLE FEE GUIDELINES OF FOIA- MCL 15.234(3) IN ORIGINAL RESPONSE

58. Plaintiff incorporates by reference the previous allegations as if set forth word for word herein.

59. As noted in paragraphs 23-47, at the time of the first filing, and before the ultimate reception of the records being sought, the $2479 was a figure arrived at by the defendant without any sort of justification for that fee, as mandated by the FOIA.

60.  The 100 hours of detective work to sort through a simple 98 page police report and what amounted to under 60 pages of transcribed interview turned out to be unjustified after receipt of the records sought.

61.  The interpretation of the defendant to broaden the scope of my original request to include over 2500 pages more, was contrary to what I told them I requested before the administrative hearing and during the administrative hearing, and contrary to the clear meaning of my original request.

62.  The 'addendums added since' in my original request seems to be the point of confusion to the defendants.  Merriam-Webster Dictionary defines addendum as 'an item of additional material added at the end of a book or other publication', it includes listing synonyms as supplements and attachments.

63.  Narrowly construed, 'addendums' would be the 112 supplements attached to the 96 p. police report plaintiff eventually received.  

64.  Broadly and erroneously construed so as not to limit it to 'additional material added at the end' of a police report, it could contain quite a lot of other material plaintiff never asked for.  

65.  A quantifier plaintiff put on his original FOIA request (see EXHIBIT 1) is the sentence:  "If you need any clarifications of this request, please reply expediently to this E-mail address."

67.  Despite the potentially ambiguous meaning of the term 'addendums' and the vast difference in the fees associated, the defendant never once asked during all contacts with them what the plaintiff meant with that term. 

66.  Despite the prohibitive cost designed by defendant in their original response, and despite the plaintiff's own admissions to the scope of the 'addendums' sought in his two communication with the administrative appeal, the defendant still maintained they needed 100 hours of a detective looking through what turned out to be less than 160 pages.  

67.  The 'amended for clarity' FOIA request found in EXHIBIT A does not change the original request other than defining the proper use of the word 'addendums' for defendant's benefit to suggest that anything not attached to the original report would be out of the scope for the request.

68.  Nevertheless, the defendant, having been sued over violating the state's allowable FOIA fees in the interim, lowered the fees by over a factor of 25 ($2497 down to $99.07) with their only explanation in EXHIBIT B being that they were poised to give plaintiff over 2000 pages of records that did not fall within his original request even with 'addendums' being broadly defined.

69.  The fact that defendant's reduced their fees by 96% for the same material requested after their administrative appeal found the fees justified and after the plaintiff's initial lawsuit was filed in this court, shows a causative result between the lawsuit and the corrective actions taken to reduce the spurious fees by $2400.  

70.  MCL 15.240a(6) says that "If the requesting person prevails in an action commenced under this section by receiving a reduction of 50% or more of the total fee, the court may, in its discretion, award all or an appropriate portion of reasonable attorneys' fees, costs, and disbursements."

71.  Because this issue was indeterminate at the time of this count's dismissal without prejudice, the subsequent 25-fold reduction suggests the plaintiff's prevailing after filing the initial appeal of fees.

72.  As the reduced price still is still not justified and should be much less, forcing the plaintiff to file a second count on this case, this court should award all of the plaintiff's court costs and disbursements for the original lawsuit, as it sought reparations for the violation of FOIA fees due to the plaintiff's actions up to that point.  

73.  Similarly, as the defendant has, and continued to act arbitrarily and capriciously throughout the process and in seemingly bad faith, the defendant should be entitled to punitive fees and the state should be entitled to a civil fine to assert the importance of following the FOIA to the defendant, as per MCL 15.240a(7) and MCL 15.240b. 

COUNT 2:  FAILURE TO FOLLOW ALLOWABLE FEE GUIDELINES OF FOIA- MCL 15.234(3) IN AMENDED FOR CLARITY RESPONSE

74.  Plaintiff incorporates by reference the previous allegations as if set forth word for word herein.

75.  MCL 15.240a(1) states:  "If a public body requires a fee that exceeds the amount permitted under its publicly available procedures and guidelines or section 4, the requesting person may commence a civil action in the circuit court... for a fee reduction."

76.  Although this action seeks relief from the original filing, it also seeks additional relief for this filing since the greatly-reduced price of $99.07 paid to the defendant was still not fully permitted by the FOIA or the city's guidelines.

77.  In the defendant's "FOIA Cost Estimate Worksheet", whose estimate of $99.07 became their total amount of fees requested and paid, they ask for $7.65 for 153 copies at 5 cents each.

78.  No copies were ever made, the 153, actually 152, pages of documents were issued on a CD as computer files.

79.  Section 4 of FOIA does not allow a public body to charge for making electronic copies of records, only for the media in which they are transferred.  Neither is there a fee noted for such in the defendant's published guidelines, nor has there been such fees assessed in multiple prior conveyances of electronic copies of records by defendant to plaintiff.

80.  Charging $7.65 for paper copies that were never made and never requested is a violation of section four and the defendant's published FOIA policies.

81.  Likewise, defendant's charging two hours for use of a clerical assistant is not fully explained or understood.  Even in the 25 times more costly estimation, no clerical time is budgeted.  This time is found under the separation of exempt information bracket, which plaintiff was told throughout would be done solely by a detective.

82.  Had the city decided to make paper copies in defiance of the request, it is unclear how it would take 2 hours to make 160 copies.  It is even more unclear why it would take two hours to copy an electronic file for a clerical assistant engaged in such task.

83.  When public officials ask for undeserved compensation in the performance of their duties it  is a criminal violation, extortion by public officials MCL 750.214:  "Any person who shall wilfully and corruptly demand and receive from another for performing any service, or any official duty, for which the fee or compensation is established by law, any greater fee or compensation than is allowed or provided for the same, and any public officer, for whom a salary is provided by law in full compensation for all services required to be performed by him, or by his clerks or deputies, who shall wilfully and corruptly demand and receive from any person any sum of money as a fee or compensation for any services required by law to be performed by him in his said office, or by his clerks or deputies, shall be guilty of a misdemeanor."

84.  Multiple public officials requesting unlawful payments for tasks that were never performed shows not only conspiratorial bad faith, but arbitrary and capricious behavior by the public body.  

85.  The defendant charges for 2 hours of a detective's time to separate exempt from non-exempt information.  Beyond the first four pages where complainant's, witnesses, etc. had their personal information automatically redacted there were only three redactions noted in the 152 pages.  These amounted to the removal of 'Kim Phillips' last name in one place that was unwarranted, and the deletion of two apartment numbers of people who were contacted but knew nothing of what happened.

86.  In the transcripts there were four places where people's phone numbers were divulged by Ms. Courtland; these were not edited out, but should have been.

87.  The detective working the case took two hours to cross out a last name of somebody whose name was found throughout the report, and crossed out two apartment numbers that shouldn't have been in the report in the first place, while neglecting to cross out legitimate redactions in the transcripts.  Plaintiff scanned the documents for under a half hour and found these problems and more.

88.  As noted in EXHIBIT 11 and other case, the defendant has supplied plaintiff with multiple police reports in the past as big and bigger than the 96 page report disclosed here, and has never ever utilized a detective and/or a clerical assistant to separate exempt from non-exempt information.

89.  As noted before, if this police report was prepared properly, there shouldn't have been any redactions beyond the first few pages, with few exceptions depending on the nature of the incident that the detective should have been able to articulate.  There was no such articulations or exceptions in the FOIA responses or in the report received.  

90.  The three fees applied to the full cost of this amended for clarity FOIA request are all questionable; two seem not to be applicable at all, and the other seems greatly exaggerated.

91.  The defendant has failed to show why these costs were necessary and applicable, yet demanded tribute for no less than what they deemed appropriate under section 4 of the FOIA.

92.  The civil and criminal acts alleged in this complaint and the previous complaint should be compounded by this court into recompensing the plaintiff for the costs of getting this brought to the court's attention, recompensing the state for the actions of their home rule city blatantly violating their public policy, and exacting punitive damages to the defendant so as to encourage them to follow the law in the future.

RELIEF REQUESTED

93.  WHEREFORE, Plaintiff Tom Rotta respectfully requests this court to--

       a) Determine that defendant demanded an improper and illegal fee in regard to the FOIA in the first lawsuit, noting that they had not specifically identified in their response the unreasonably high cost of the release of one supplemented police report and one interview of a cold case and the need to justify the employment of a police detective for 100 hours to search for exempt material that would fall under the invasion of personal privacy exemption.

       b) Determine that defendant had improperly asserted costs purposefully and intentionally designed to constructively deny access to the records sought in their original response.

       c) Award costs and disbursements due to plaintiff pursuant to MCL 15.240a(6) for the improperly assessed and/or constructively denied request for the police report and interview from the initial complaint. 

       d) Award punitive damages pursuant to MCL 15.240a(7) for the improperly assessed and/or constructively denied request for the police report and interview, after finding the defendant acted in an arbitrary and capricious manner in the original response.

       e) Impose the applicable and appropriate fines pursuant to MCL 15.240b for the improperly assessed and/or constructively denied request for the police report and interview, after finding the defendant acted in bad faith in the original response.

       f) Determine that defendant demanded an improper and illegal fee in regard to the FOIA in this  lawsuit, noting that they had not specifically identified in their response the unreasonably high cost of the release of one supplemented police report and one interview of a cold case and the need to justify the employment of a police detective and clerical assistant for 2 hours each to search for exempt material that would fall under the invasion of personal privacy exemption.

       g) Award costs and disbursements due to plaintiff pursuant to MCL 15.240a(6) for the improperly assessed and/or constructively denied request for the police report and interviews from this complaint. 

       h) Award punitive damages pursuant to MCL 15.240a(7) for the improperly assessed and/or constructively denied request for the police report and interview, after finding the defendant acted in an arbitrary and capricious manner in the amended for clarity response.

       i) Impose the applicable and appropriate fines pursuant to MCL 15.240b for the improperly assessed and/or constructively denied request for the police report and interview, after finding the defendant acted in bad faith in the amended for clarity response.

       j) Award declarative relief by admonishing the defendant's civil and criminal practices in their overall FOIA scheme.

       k)  Grant all other relief that is warranted and just.

Date:  October 20, 2017                              Respectfully submitted,

                                                                _____________________________________________                                                                          Tom Rotta, Plaintiff 

[Willy]

X, I will be reading and commenting on this later. Right now all I can say is that if these  city officials worked for a private corporation they would have been  fired a long time ago. Their incompetence is staggering and as usual they blame you for their anti citizen actions.

[John Doe Jr]

The cost of corruption will swallow these deplorable's up. 

They will never change. They will always be corrupt.

They are the answer to their own demise.

Hit them in the pocket book every chance you get just like they have illegally done to everyone else, except their Pal's.

Bankrupt the City, take their jobs and Pensions!

[Willy]

Whew! I can't believe I read the whole thing and remembered almost nothing, however I commend you for your steadfast work in dealing with the corrupt City. May I suggest you add one more item under the "RELIEF REQUESTED". That would be  [l} Request that defendants be prosecuted for violating MCL 750.214 and be prevented from holding any public office for the next 100 years or 3650 days, which ever comes first.

Excellent work X. You managed to give me a strained brain from all that reading.