I Sought the Sheriff, But I Did Not Sue No Deputy

[XLFD]

After being repeatedly rebuffed through the years by our current sheriff in seeking non-exempt public records, I reached a critical point this summer. During a three week period, I filed four FOIA requests with the Mason County Sheriff and received no valid responses. The closest thing to a non-denial was the granting of a severely redacted police report from 16 years ago.

They were not even giving out the incident report for a motorcycle accident, claiming it was still under investigation. There is not any kind of exemption in the FOIA that comes close to covering such a denial.

                Notice the Redactions of the Badges, Patches and Car Identifications in this Picture on Sheriff Cole's Facebook page

I vowed to address this umbrage at a later date, and was recently able to do so before it would be too late to do so being that the law says any appeal action in the court needs to be started within 180 days of the denial. Unfortunately, one of those requests fell outside of the time limit, so the complaint in the lawsuit that was filed earlier today does not ask for redress for that occurrence, even though I do ask the court to consider it in an amended complaint if the sheriff fails to sufficiently respond to a refreshed request.

From my understanding, the sheriff is receiving his legal advice from Prosecutor Paul Spaniola, someone who I had previously taken to court in 2011 for lack of a response to a FOIA request, and who received a reprimand from Judge Cooper for his unprofessional actions. Paul Spaniola has a unique view of FOIA, even when he runs for judicial office.

Of the three counts, I am seeking normal relief, which includes the defendant paying for my costs (filing fees, duplication, service process, etc.) and punitive damages amounting up to $1000 paid to the State coffers and myself. For two of the counts, I am seeking between $2500 and $7500 more for the willful and intentional violation of FOIA-- all of which would be collected by the State of Michigan if successful.

This afternoon I sent a press release to the local media, and whereas I doubt they will include it as their story (as they would if it was a press release from the sheriff), I hope they will at least appear to balance the story both ways rather than get and report just the defendant's viewpoints.

"On January 13, 2016, a Ludington citizen has filed a multiple count lawsuit with the Mason County Sheriff claiming that they have not been forthright in allowing lawful access to public records. The plaintiff, Tom Rotta, contends that the sheriff has not divulged public records regarding two incident reports, an accident report, and records of an investigation concluded in the year 2000.

Plaintiff further claims the refusals to provide the document were arbitrary and capricious decisions made by the sheriff's office. According to Rotta, "The FOIA statute ensures timely and full access to records belonging to the taxpayers, with few exceptions. Not allowing that access is improper--both as a matter of public policy and as a matter of law."

"One of the true hallmarks of good government is openness and transparency. Yet, openness and transparency are easy to preach but difficult to adhere, especially when government officials decide to keep public information private, confided Rotta, adding, "The current overriding culture by officials in Mason County is to subvert the FOIA through unethical practices of claiming exemptions or unlawful fees, preventing the sharing of the public record with the people affected by those documents. We look forward to receiving a modicum of cooperation with the sheriff in concluding this case without a further drain on the taxpaying public, who will be the one's paying for them to fight disclosure should they decide to."

Here is a link to the lawsuit (the file was too big to include here:  MCSO FOIA 2016 SUIT

And here is the supporting exhibits from 1-13 supplementing the complaint:  MCSO FOIA 2016 .pdf

[Willy]

I can understand that a law enforcement agency would not want to release information on an active investigation, however, I can see how this exemption could be used for almost every incident and denials of FOIA requests could be extended for years. The State should refine this portion of the FOIA so that citizens could receive some information which would be helpful to determine, at the least,  if law enforcement agencies are actually doing their jobs. As it stands, what if any oversight does the public have regarding their local policing agency. None that I can determine. Well done X.

[stump]

I also can see not releasing information that might interfere with a ongoing case, but a case from the year 2000? If they haven't closed it yet they should release the information so someone could solve it for them. It's all bull $hit, they don't want anyone looking over their shoulder, plus it takes away from their donut time.

[XLFD]

You will get no arguments that sometimes giving out information on investigations may interfere with that investigation, but in general, over 90% of a police report's contents are not exempt in terms of the law, and the Michigan Supreme Court has determined that the law mandates a public body to release those contents.

That percentage rises to nearly 100% when you're dealing with a traffic accident and their investigations on that.  Sure, they may not have all the forensic tests back a week after the accident and the report may not be finalized, but there is nothing among the 'investigation exemptions' of FOIA that would keep the state-mandated traffic crash report, open or closed, from the public's eyes in the law or precedent that I know of. 

I am convinced by what he has relayed to me in attempts to get non-exempt documents that our anal-retentive prosecutor thinks his records are sacrosanct unless they are otherwise part of the court records.  It's not a viewpoint I want as a prosecutor, who influences the legal ideas of the rest of the county officials; he needs to follow the law.

[XLFD]

What I thought was going to be a scheduling conference today turned into a hearing on the defendant's motion to have an in-camera review of the records that I have requested.  I believe the MCSO and their attorney believe that the in-camera will work in their favor, but as I explained to the judge today that if there is any part of the records, be it as mundane as the incident number or the location of the incident or something more substantial for the public's understanding of what happened, that such a review and judicial order to disclose would automatically mean that I will have prevailed and that claims for punitive damages under the new MCL 15.240b would be stronger than if the MCSO willingly gave me those records without a judicial ruling. 

With such concerns put into the record, I otherwise concurred with the motion, Judge Sniegowski indicated she would be looking over the records within the next week and decide what to do with scheduling then.

[Jasper]

What is an in-camera review?

[XLFD]

The in-camera review is often utilized when a party is seeking access to sensitive material (such as in FOIA, discovery, or inter-governmental agency sharing) and another party claims that it is material that should be protected from disclosure.  The judge (or other neutral arbiter) looks at the material and decides whether it is or not.  Previous times that I have went to court for FOIA lawsuits with the COL and Mason County they disclose the records before the judge orders them to, and try to weasel out of paying my costs and disbursements. 

I think they are trying a new tact to try and avoid that with a potentially sheriff-sympathetic judge.

[XLFD]

A year and a half ago, I filed this three count lawsuit for disclosure of public records as per FOIA, yesterday Judge Susan Sniegowski held one final motion hearing and made a final ruling on the case.  I find it hard to relate the total disregard of the facts of this case, the total disregard of FOIA law in this case, the total disregard of FOIA court precedent in this case and, the total disregard of providing me any hearing or trial over the facts in this case in those 18 months by 51st Circuit Court Judge Susan Sniegowski acting as a powerful advocate for her fellow county-funded agency, the Mason County Sheriff's Office. 

As a public service, I will be shortly showcasing the total lack of integrity that she maintained throughout the course of this lawsuit as I prepare for an appeal in the MI Court of Appeals and for oversight by the Judicial Tenure Commission.  Do not read anything more into my words than what I can illustrate, for I still believe the two other local judges (Nellis and Wadel) are honorable, fair and judicious.