Hiding Behind Signs 3: FOIA Discovery!

[XLFD]

A FOIA request dealing with inspecting the contracts and receipts between the City of Ludington and the then City Official/City Councilor Candidate Nick Tykoski's company  between 2008 and 2011 which the City would not divulge or assign a fee cost for was related in the thread Hiding Behind Signs.  Read, or skim that if you remember it,to get a background. 

 

We at the Torch then appealed to the City Council, and was promptly denied any sort of administrative appeal process as illustrated in Hiding Behind Signs 2.  Again take a quick glance at that, for even more background.

 

We then began the second appeal process, in the Circuit Court to find out why we were not getting any documents or any sort of acceptable FOIA response from the City Manager in Going to Court.  Because we thought the FOIA law was clear, our complaint points were strong, and the City was in arrears by not following the FOIA, we decided to go without a lawyer and save the City (i.e the taxpayers) the costs of any  attorney fees on our part.  An original court date of November 2 was made, but due to a misunderstanding between us and the court where the defendant was never given a court date, this date had to be rescheduled for November 17.

 

But starting election day, the lead City Attorney of Ludington, Manistee's Richard Merlin Wilson, drafted a document that started the City's counter-offense.  This 11-8-11 letter had in it the following:

First off, I see nothing in the FOIA appeal process that claims it is a "civil action", but it does say in Section 10: "The court shall determine the matter de novo [afresh] and the burden is on the public body to sustain its denial." and "An action commenced under this section and an appeal from 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."

  

Allowing pre-trial answers to the complaint, discovery and counterclaims is not expedient, nor does the FOIA claim the FOIA appeal process is a civil action.  Besides with plaintiff discovery, should I not get to see what I originally requested-- the Tye Sign's FOIA?  And what would be up with a counterclaim?  Is the City now wanting to sue me and/or Toni for making FOIA requests? 

 

I hang my head in shame for the City I live in to announce it, but the answer to that is "Yes".  Here is their list of Affirmative Defenses:

 

I expect a line of defense from the City of Ludington, but this defense is ridiculous and fraudulent.  Here is a quick refutation of every one of the five defenses.

 

1) As in the original request Toni has asked to inspect certain records.  The City has not made available those records either by granting her those records or establishing any fee for those records.  The records differ from a request she made in January, which we paid for in full.  And even different than I, a totally different person, made last year.  That is a clear denial of allowing us to see these records.  The City Council then passed on their duty to judge it in the administrative appeal.  Which led us to this impasse.

 

2)  As stated the only FOIA request prior to this made by Toni that overlapped this request was on January 24, 2011, which she paid for.  This was a totally different request that involved competitive bidding on the DDA signage contract with no mention of Tye's Inc.  This assertion is slanderous as she has paid that charge.  Barrister Wilson, I am a different person, but this was not my request of last year and the charge then was illegally based.

 

3)  FOIA requests about a City Official's company and his possible benefitting from unfair contract awards is excessively and unreasonably interfering with the discharge of the City's functions... oh, please.  Take a minute to look in the file folder or computer file dealing with "Tye's Signs" and allow us to inspect it.  How's this appeal after appeal working for you?  It sure is a waste on my time, and trampling on the public's right to know about their new councilor-elect.

 

4)  The City Attorney boldly lies here: the records have yet to be offered for any price, and Toni has asked for them only on this FOIA and its appeal.  The chain of replies is in the "Hiding behind Signs" thread where FOIAC John Shay never offered these records nor stated any price.  By Section 5, FOIA, (2) and (3):  Failure to respond to a request pursuant to subsection (2) constitutes a public body's final determination to deny the request. In a circuit court action to compel a public body's disclosure of a public record under section 10, the circuit court shall assess damages against the public body. 

 

5)  More slander.  Toni does receive some public assistance and has a notorized affidavit of indigency filed at the Ludington City Hall.  John Shay arbitrarily allows her to have the $20 off it affords at times.  At other times, like for the January 24 request, he disallows it capriciously. 

 

Five out of five times, they make assertions without proof, just a tax-dodging lawyers word for it who hasn't even filed an Oath of Office with the City.  "Scheme to defraud" ?  Those are strong words, Dick.  Since Toni has got her affidavit approved, there has been absolutely no duplication of her requests to mine. 

 

At the bottom Richard prays that the honorable court dismiss plaintiff's complaint with prejudice [barring the plaintiff from filing another case on the same claim], grant to defendant its costs and expenses in defending this action, including a reasonable amount for attorney fees and other just and reasonable awards.

 

Here is how open, honest, and thrifty our City Hall is.  We will likely now have to get an attorney to handle all the extra bother the City has put in our way, and when we win, guess who's going to pay the court and the attorneys for the City's reluctance to show these documents?  We all are, and yet why doesn't the City Manager freely let Toni come in to inspect these documents?  Is he just hiding something, or is he just being an obstructionist who is upset for having an occasional extra duty of hunting down documents?  Someday we may find out.

 

But Saturday's LDN dutifully reported that the City Council is going to go into a closed session on November 14, Monday night, to discuss the City Attorney's letter in full.  If any of you in the Council have a soul, please help Toni and the public at large to get this information which the City Manager has claimed privileged. 

[Marty Redman]

Bullying tactics.  I re-read the requests and their answers by Shay.  He never grants, denies or extends this FOIA, and the Circuit Court should find in your favor by the section 5 you posted.   

But I find it odd that this request from an indigent woman about the records between the City and Tykoski's business is getting lumped by Attorney Wilson with all of yours and hers FOIA requests of the past.  This judgment should only be about this one FOIA and its denial, shouldn't it?

All the time John Shay saves by not giving you permission to vote or attend public meetings or attend public forums should be put into doing his FOIA job.  I hope someone can go to the next council meeting and announce their displeasure at seeing the City pay its attorney $200 or so an hour to make such claims against someone looking for information that should be available to anyone in the public for free.

[Marty Redman]

I went out to rake some leaves for a bit and ruminated on this.  The City Attorney with John Shay was writing the first letter on the same day that he did not have enough time to vacate the Letter of Trespass at least for a day to allow you to vote.  Because they could not give you a proper answer, they now want you to pay their fees for defending their right to withhold information.  They want a woman on public assistance to do this.  It is all so immoral and it makes me mad as heck.  That isn't any town I want to visit anytime soon.

[XLFD]

It is outrageous, but I agree with Aquaman; the word will eventually get out as will the worms infesting City Hall.  We need good hearted, patriotic visitors like you appear to be Marty, to help in increasing and invigorating the 30 percenters who want morality back in our town's City Hall.   Your spirited posts help show me that this is not just a Ludington problem, it is a corruption problem. 

[Sweater Cows!]

I find this a bit confusing. I went back to the two "hiding" threads and they way they are written(the initial posts) is confusing. Can you please  list individual attachments of each foia request that is being accused of being duplicative so i can review them(or if they are already here which threads are they in)? I know in the one 'hiding' thread there is parts of them there, but I don't think they are all there and because of they way I read and comprehend it would be much easier for me to understand with the actual documents or even just the date listed and then a copy and paste of the wording of each of the requests. Thanks.

[AQUAMAN]

Marty, try not to hold the dirty politics around Ludington against all of us. The townspeople/locals are mostly pretty nice and hard working, with a good heart for helping one another. The local scenery and things to do are also very worthy of a beautiful port on Lk. Michigan. The select few that decide to be anti-Ludington types, aren't worth the bother, they usually leave here once they find all this out. Just avoid the noids, and go about having fun on your own. With any luck and persistence, the dirt will start to clear in time. 

[XLFD]

WWAS,

The initial request (which had been repeated three times late last year in order to get a legit cost) was made "to inspect the competitive bids for the DDA’s signage project that was eventually awarded to Tye Signs (Tye’s Inc.)this year.  I would like to see a list of the other sign companies that were contacted or the actual correspondence sent to them for bids on the project.  Also, I would like to inspect any document/file that explains how Tye Signs (Tye’s Inc.) and Fisher Fence were contracted for the dog park, including the competitive bidding process."

 

Toni's January request was different, but similar to this one that was first given a $208 price tag, then a more reasonable $57 fee to me (Tom) as the recipient.  She never mentioned Tye Sign's, she just mentioned the competitive bids for the signage project, no mention of the dog park or any other sign contract, and was charged $2.75 for 11 pages of photocopying.   

 

Toni was not even aware of my previous attempts at the similar information when she made the most recent FOIA request, she was just aware of her January request, which in reality is far from being duplicative to the latest, which I have included in the threads.  The City's Letter of Trespass for City Hall has made me use her as a proxy since that time for FOIA requests, as I can't even get in to inspect documents without a hassle. 

 

[Willy]

X

The common denominator in this whole affair is Shay. There are 2 possible scenarios at work here. 1. Shay has duped the Councilors and CIty attorney with misleading information and as such is getting their cooperation in his battle against you. 2. The City Councilors know full well what is happening and either choose to ignore it or are accomplices  in this battle.  The meeting on the 14th will be telling because it will finally reveal which scenario you are dealing with. Because it's a closed meeting I would assume that a FOIA request would be forthcoming.

 

Marty

This situation is the work of renegade City officials and could almost be Anywhere U.S.A. Ludingtons a great place with wonderful people so it wouldn't be fair to lump the whole community into the same dung pile that the corrupt politicians are spawned from. Shay is an outsider who, in my opinion, is nothing more than a smooth talking  slickster who, I am hoping, has only bandboozled all the folks he works for and has not totally converted them to the dark side.

[Sohn Jhay]

There is no doubt that somebody is going to be paying attorney and court fees.  But what involvement did Shay have in the awarding of the sign contracts?

I would think that permission to inspect the records could be made within the FOIA request. 

[Sohn Jhay]

I think the true intent of the Letter of Trespass is to make sure the alleged trespasser is not stalking the supposed victim.  That would explain why a second Letter of Trespass lists the victim's residence.

[AQUAMAN]

Sohn, we don't know that Shay had any direct part in the contracts awarded, although, the main person that did, Heather Venzke, surely has strong personal ties with Shay in the letter of trespass order, WSP policy, and as the DDA coordinator that works weekly with Shay. Cozy relationships usually mean information passes from one to the next. That's a no-brainer. What he does have a strong involvement in, is the repeated denial of releases of the signage contract information thru FOIA's to the public to see what's happened. If the judge hearing this suit has any self-respect and honor, he will know a ruse when he sees one like Wilson's, and the proper damages and attorney fees will have to be paid to the victim, not the assailants.

[Sohn Jhay]

I do not see where the FOIA information has been withheld if the requestor pays the fair cost of gathering the data.  The stipulation of fees is in the language of the FOIA law.  I have a feeling if the judge rules in favor of your side that you will consider him a great judge, and if he rules against he will be accused as a disgrace to his judgeship.  What do you think?

[XLFD]

The requestor was not given any information, nor was she asked for any fees, the closest thing to a reference was a fee she paid in January 2011 of $2.75 for 11 pages of documents for a not-so-similar request.  John Shay says that she needs to refer back to that and other requests that weren't hers.  Can you find anywhere in FOIA law or precedent where that is an allowable way to charge fees?  I can't either.

Michigan Attorney General Opinion 6977 however says:  "a public body may not refuse to process a subsequent FOIA request on the ground that the requestor failed to pay fees charged for a prior FOIA request."  

Since the 'similar' request was paid for, Toni should have gotten the benefit of being given an actual amount to pay in fees for this unique request as delineated in the Act and Ludington FOIA policy.  No records and no proper FOIA reply stating any costs, amount to no proper response, which by section 5, subsections 2 and 3 of the FOIA (linked above) amount to an outright denial.  That this was not remedied by the administrative appeal shows the lack of real oversight the Council has over the City Manager.

If the judge rules within the letter and intention of the FOIA law, I will consider him a sound judge.  If he does or doesn't, there may be an appeal.  Definitely, I would say, if the City loses.  Either way, the City has deep pockets, and a desire for winning at all costs.