On December 4, 2014, I sent a FOIA request to the Honorable 51st Circuit Court Judge Susan Sniegowski, then a contracted FOIA Coordinator, wishing to inspect or receive electronically scanned copies of: "All legal documents including 'written' exhibits sent and received by the City of Ludington in the federal civil lawsuit of Travis Malone v. City of Ludington (York, Sailor) 2013"
The Malone case had just been settled for undisclosed amounts and conditions after discussion in a closed session by the Ludington City Council with its legal counsel, they included an incomplete copy of the City's main brief in the packet which pointed to some interesting materials. I received a few things including the original summons and complaint.pdf, Rule 26 Disclosures.pdf, full defendant's brief.pdf without exhibits, and a few other general litigation materials. This was provided without charge or exemption.
But the exhibits used by the City's liability insurance attorneys were the part that I was most interested in, so I sent a supplemental request with the usual niceties: "Thank you very much for the legal pleadings you sent me, but they do not in and of themselves fulfill the FOIA request as I specifically asked for 'written' exhibits accompanying (and inclusive of) what I called 'legal documents'.
Looking through just Mr. Vander Laan's brief, he references 11 exhibits to accompany the pleading, namely exhibit #:
1: Malone's Deposition
2: Sailor's Police Report
3: Sailor's Deposition
4: York's Deposition
5: Malone's mother's complaint and internal investigation thereof
6: Schultz's Deposition
7: LPD Use of force policy
8: LPD Search and seizure policy
9: Sailor's training records
10: York's training records
11: Chief Grant's report and CV
Since the City of Ludington (through the citizens of Ludington) paid for these depositions and other records, they should have retention of them per their policies, I would hope they would be accessible for either me to inspect and scan them in their entirety if they have not been made into computer files, or for electronic transmission to me to fulfill the entire request.
So please allow the exhibits attached to the above legal pleading to be transmitted, and if the depositions and police reports are not in their entirety in the exhibits, please amend this request to include the complete depositions, complaints, policies, and reports mentioned in #1-11. Thanks in advance."
Shortly thereafter, I surprisingly received the majority of the exhibits, but two of these were left off: the LPD Use of Force Police and the LPD Search and Seizure Policy. I was given a rather incomplete reason that was not further elaborated on by FOIAC Sniegowski
in her amended response:
Holiday business and entertainment made me put off the usual appeal of such a vague and unjustified denial, I instead pursued another appeal that came in from the new FOIA Coordinator Carlos Alvarez on the two citizen initiated complaints leveled at former LPD Officer Matt York found in York's deposition, which was
appealed at the last Ludington council meeting, albeit unsuccessfully. Effectively, the City of Ludington said that citizen complaints made by the public against the LPD go into a file 13, never to be heard of again by the public.
But in this instance, two policies involving the use of force and search and seizures by the LPD were declared restricted from the public, which is incredible since the two policies directly affect the Constitutional rights of the public and no special tactics or protocols of the police would be disclosed in a way that might give lawbreakers the upper hand on them. So I finally wrote an appeal up to the council (and other associated officials) much like I have before which stressed a common-sense approach:
"Honorable City Councilors,
On December 14, 2014 I sent a follow-up FOIA request to then FOIA Coordinator Susan Sniegowski (#254), and got most of the material but were refused the following two items with the usual parameters I use in my requests:
7: LPD Use of force policy
8: LPD Search and seizure policy
I was denied them using the exemption noted in the attachment traditionally used for investigative records by police agencies (which doesn't require a public interest in disclosure test) but actually more depended on a reliance to an exemption in section 13 (1)(s)(v or vi), which requires a specific and reasonable reason to deny the records.
Disclosure of either of the two policies requested are not operational instructions per se, nor does it reveal the contents of staff manuals or anything else that can be reasonably referred for exemption, by law in section 13 of the FOIA, and as touched upon by the then-FOIAC, who provided no explanation as to why disclosure was not in the public interest.
With the new and very expensive website coming soon, it would be a great service to the public if the citizens of Ludington actually knew what authority their authorities believe they have, by posting these.
As it is, I am formally appealing the non-disclosure of these two policies. Thanks for taking it up at your next meeting."
With about ten officials contacted, I received no response to the appeal over the next four days so I sent a reminder:
"After four days I have yet to hear a confirmation of this FOIA appeal directed to the six members of the Ludington City Council (the administrative appellant body) and the mayor, and copied to the city manager and FOIA Coordinator, and assurances that it would be reviewed at the next city council meeting.
May I please remind this public body that under MCL 15.240(3) you are under no duty to actually make any decision as to the propriety of a FOIA appeal-- you may ignore any such appeal and have the appellant go directly to the circuit court instead. There is no penalty for you ignoring an administrative appeal. In fact, I have come to expect a unanimous decision against disclosure when you do, without any discussion or justification by the judicial panel. I find the administrative appeal with the current council a useless exercise that I utilize only to assure the potential circuit court appeal that I have tried all options before choosing to go to court.
So if you want to save us both some trouble in the future, at your next meeting you could vote on a resolution to make the COL have no part in an administrative appeal, or give that responsibility to another official or board, or declare all future FOIA appeals be automatically rejected. It would look better in court than just having you ignore outright appeals sent your way when public records are being unethically withheld from the public.
Or you can confirm and acknowledge this and future FOIA appeals I make to you, and eventually give yourself satisfaction in denying the public non-exempt public records when you vote to affirm the FOIA Coordinator's decision. Your choice, as always."
I finally got the confirmation from the City Manager the next day.
Is there any reason why the police department of a city should be able to withhold their policies on the use of force and search and seizures, particularly when the Ludington Police Department's actual actions on the two topics keeps coming under review by the courts in Federal lawsuits (i.e. Malone, Burns, McAdam, etc.)? What are they actually hiding from the people?
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