Ludington's John Shay: Fee-dumb of Infantile Acts Coordinator

[XLFD]

On the morning of August 15, 2013 I sent out a simple request to the Ludington Freedom of Information Act (FOIA) Coordinator, John Shay (also the City Manager) that said: 

"Under provisions of the Michigan Freedom of Information Act (MCL5.231 et seq; MSA 4.1801 (1) et seq) I am requesting records prepared electronically in .pdf format sent to this E-mail address concerning:

Communications received or sent by the Ludington City Council members dealing with any of the issues involved with dredging the PM Bayou." 

 

Along with the usual legal parameters that followed.  The reason I wanted that information shall be revealed over the next few months, but suffice it to say, I was very interested in these records if they existed.  I received from FOIAC John Shay a reply almost exactly one week later that said: 

 

"I have attached the City of Ludington’s response to the 202nd FOIA request that you have submitted. Upon receipt of your payment in the amount of $4.00 for the 16 pages of records ($0.25 per page), the City will release the records to you."  Attachment 8-15-2013 FOIA R

The form itself shows that none of the 16 pages of records had exempt material on them, but I was given a copying fee for these records that I wanted electronically scanned and sent to me, as has happened dozens of times before between the City Manager and I at no cost.  This is as it should be because the FOIA does not allow for charging for electronically sent images of public records.  The FOIA only allows a fee to be charged if copies are necessary to fulfill the request.  Lately, he has presumed the latest of FOIA policies allows him to do whatever he pleases.  I replied:

 

John,

Upon transmission of the records in the manner I requested them (electronically, in .pdf format), you will receive any lawfully assessed fees you have determined. Be reminded, I currently am paid in full with the City of Ludington for any outstanding FOIA fees, even under the City's logically-skewed fee-reckoning methods.

A couple of days passed without any reply, so I asked again while making another FOIA request:

John,

I am still waiting for those communications sent electronically regarding the marina dredging, thank you for sending those immediately, or I will appeal your decision to deny me these records at the next CC meeting. I did not request copies, and scans work just like copying machines, but cost us all a lot less money, now don't they?...

But John Shay, our City Manager, wouldn't think about measures that would save us money, just measures to try and charge an admittedly indigent individual (barring the liberties I can afford with a few thousand dollars won in a court settlement against John Shay and the City of Ludington.) unlawfully assessed fees.  After two more work days ended with no reply, I sent an E-mail back to him, the city council, mayor, and City Attorney 1-of-8 Richard Wilson.

 

John, Others,

Let me explain the Freedom of Information Act here. State law says: "A public body shall utilize the most economical means available for making copies of public records." (sec. 4(3)). I have not only requested images scanned electronically of these non-exempt records explicitly, I have reiterated that fact when the FOIA Coordinator has refused to follow that law. The State says I can be charged for only "actual mailing costs, and to the actual incremental cost of duplication or publication including labor, the cost of search, examination, review, and the deletion and separation of exempt from nonexempt information." (sec 4(1))

Scanning and sending electronically does not incur duplication/publication costs associated with upkeep of printers (ink, paper, most maintenance problems), and takes less labor costs than copying and sending out or holding, since once they're finished it can be sent to my E-mail address at the press of a button. Likewise, it saves City Hall a visit by me, or my representatives if you once again decide to bar me from the facilities. My "threatening and intimidating" presence remains in the comfort of my own home.

Let me be clear here, I am not arguing fees, I am arguing process here, and the City is in violation of the law if it forces me to come in and purchase copies when it can more efficiently and at less cost to the taxpayers, scan and send me the items I have requested as per my right to do so, as you have the capability to do so. Please, send this electronically tomorrow or put my APPEAL on the agenda for our next meeting, and allow me to defend my position, like the City Attorney has told me I could do in the past.

You can't change the rules midstream, neither can you choose which rules to follow. Do your duties for the public, not carry on your petty vendettas against the public.

Four days passed, though two were weekend days, and still no response from anyone, so again I had to pester the same suspects on this well-overdue response:

 

John, Others,

I have not yet received a confirmation that this would be placed as an appeal on the next city council agenda, or whether the City Council has decided to abrogate their statutory responsibilities under the FOIA by once again neglecting to engage in quasi-judicial duties of weighing the facts behind my appeal. Please send me confirmation either way, so that I can at least testify truthfully in my next piece of FOIA litigation that you either went against statute in ruling against my appeal or ignored statute by denying me the right to an administrative appeal.

The next day I finally got a response from City Attorney Richard Wilson, giving his usual response that's long on blather and short on facts:

 

Mr. Rotta,

The City of Ludington determines the most cost effective way to process FOIA requests based on its record keeping methods and the other policy objectives of the City, including preserving the integrity of its records. You are free to disagree with this, but this issue has already been litigated in court by you and the City and you lost.

The City has granted your FOIA request for the dredging records you requested, in full. Upon receipt of the $4.00 charge for these records, they will be provided. We do not intend to let you establish an open account for the fees with the City, as such a courtesy is not required. Op.Atty.Gen.1998, No. 6977.

Since the City has granted this FOIA request in full, there is no appeal provided by the FOIA. MCL 15.240(1). Consequently, none will be docketed on the agenda of the next meeting of the City Council.

Richard Wilson

So Attorney Wilson defends:

1)   making copies over scanning images as being more cost effective, even when no ink, paper is used, and the device utilizes a lot less power to scan images.

2)   scanning images into .pdf files does not preserve the integrity of the records as good as copying would, even though in both instances the clerk is doing the same thing with the original records.

3)   saying the request has been granted, even though it hasn't in the form stated, providing copies of records when inspection has been requested violate court precedent in FOIA cases (such as in Hubka v Pennfield Township, 197 Mich App 117 (1992).

 

Further he claims the law is on his side: 

4)   the AG opinion quoted loosely says what he intimates but that same Attorney General, Frank Kelley, said in AGO # 6923 that "It is clear that a public body must abide by the fee provisions of the FOIA in calculating fees. A public body may not establish an arbitrary fee that is calculated in a manner that is inconsistent with the FOIA. The FOIA does not preclude a public body from establishing a fee in advance of compiling the records responsive to a request so long as the fee represents the actual cost of responding to the request based on prior experience and it is calculated in accordance with section 4 of the act."

5)  the FOIA law quoted says that:  "If a public body makes a final determination to deny all or a portion of a request, the requesting person may (appeal the decision)"   In this case, the request for scanned images has been denied, a portion of my request that's relevant.

 

So once again, my right to administratively appeal a denial of my request has been denied in an arbitrary and capricious manner by the City Manager and Attorney.  Simply because they cannot respond to a request as the law dictates.  Ten days later, I caved in to the inevitable:

 

John,

Please put aside the 16 pages of records you have printed out against my wishes for tomorrow, I will come in and pay City Hall $4.00, thereby making the once proud City of Ludington guilty once more of public extortion. The new Ludington FOIA policy does not override FOIA state law.

And those records were provided the following day after I trudged to City Hall and paid four bucks, the place that I was once barred from entry under the threat of imprisonment because some employees felt threatened and intimidated by me going there to inspect records under FOIA.  Banned, even though I have exhibited none of the traits of being either all of the times I have went there.  It must be an aura I project only to public officials that are acting against the public interest.  And then I took a look at the records...

 

And all sixteen pages that I was forced to pay twenty-five cents each to print out did not apply to my request.  FOIA pp 1-8, p 9, p 10, p 11, p 12, p 13, p 14, p 15, and p 16 all fall outside the range of my request.  I explained this to the city councilors in a follow-up E-mail, and my desire to get reimbursed for paying for something that their City Manager certified was the fulfillment of my FOIA request.

 

Councilors,

On August 15, I sent out a FOIA request to FOIA Coordinator John Shay asking for "records prepared electronically in .pdf format sent to this E-mail address concerning:

"Communications received or sent by the Ludington City Council members dealing with any of the issues involved with dredging the PM Bayou."

I was told that there were 16 records (none exempt) and was requested to pay $4.00 by Shay. Now the state FOIA statute which needs to be followed, says that if fees are charged for public records, they must be for 1) copying fees 2) mailing fees 3) 'labor' fees-- if the request results in unreasonably high costs to the public body because of the nature of the request. Shay said that copies needed to be made, perhaps referring to a new policy that gives him the option to make copies if he does so to 'protect the public records and to prevent excessive and unreasonable interference with the conduct of the affairs of the City or employee functions.' (Ludington FOIA Policy section 4, Jan. 18, 2013).

John Shay's actions in this regard violates even this policy. The action of copying or scanning involve the same process, one is put on paper, the other in .pdf form in computer memory. Only a clerk touches the records either way, so making copies does not protect the records any more than scanning records. Furthermore, scanning records actually prevents any kind of interference with the conduct of affairs of the City or employee functions, since I remain at the comfort of my own home and receive the .pdf in my inbox. I do not need to set up a time with staff for pick-up of records, interrupt an employee or two by coming in and asking for the records, and create some sort of imagined 'threatening or intimidating' behavior by that process, which in the past, has cost the citizens of Ludington dearly by the actions of their officials (i.e. the Workplace Safety Policy).

Would it be a shocker to you that I feel threatened and intimidated by public officials that seem to have no inclination to follow laws, their own policies, and their oaths of office-- if they actually decided that they need to take an oath? But not only is John Shay's copy-making against your own recently revised policy, but it actually defies the wording of my request and is not the most economical way to fulfill the request-- again violating two state sections of the FOIA act. Effectively, my request has been denied, and I have been denied any recourse but to proceed by litigation.

But perhaps, worst of all, the response I received was not what I requested. In the two .pdfs I made above containing eight pages each, none of the records are what I requested. The first two pages would be, but they were a memo sent on August 21, 2013-- after my request-- and I made no request for future communications. The next seven are letters from Shay to property owners which do not apply, then a couple of maps and proposals for costs (not sent to or from councilors), and the last three are committee meeting notes (not communications). A more appropriate response by Shay would have been to say there was no communications (which in previous FOIAs I have defined as E-mails, letters, memos, etc.) that fit the request.

Therefore, I am asking for a refund of the $4.00 I paid this Friday to get these records I never asked for and if this money is not refunded, it will eventually be tried (with other extortive actions by the City of Ludington) in the local court and probably beyond.

Will they take the least costly alternative and refund the money they improperly took in the first place through their agent John Shay?   Will they opt for transparency, and insist Shay follows the law in the future, even though they have let him operate without an oath of office for over ten years and perjure himself in court over his FOIA responsibilities, making the Ludington City Council look incredibly complicit in the process? 

 

I will bet you $4 that they don't.

[Willy]

Wouldn't it be nice to wake up one morning and have a cooperative governing body in Ludington. No more filing for information. Just walk into City Hall and get the information you are seeking. Shay and the other co-conspirators have created this monster of suspicion and distrust and they will be doing everything in their power to see that everyone knows "who's the boss". All of these silly and stupid roadblocks put up to harass a citizen and citizens who seek only the truth and facts as to what Ludington's  officials are up to. Dealing with Ludington's ruling class is like living in "Bizzarro" world.

[AQUAMAN]

"Bizzarro" indeed. The "no more filing for info." scenario might exist here if we hadn't let the down-state hoodlums from Oakland County take over everything of importance around Ludville to start with. They couldn't stand staying home and being a small fish in a big pond, so instead, are now big fish in a small pond. With the aloof egotistic and gestapo-like methodology of governing to keep all of us under their thumb now.

[Willy]

Aquaman. You make an interesting point about "down staters". I would be interested to know the origins of our local leaders to see if your theory is correct. That would also include the local media. It's quite possible that the majority of those in charge may have migrated here from places unlike Ludington.

[easymoney]

Most of the time, the city big wigs, will stall, bully, throw their weight around to wear a person down, to the point that they will finally just give up.

Now XLFD, in your case, I would think they know better. If nothing else, you are persistent. And, I highly doubt they are going to scare you off.

 

Like my mother used to tell me," you are stubborn to the point of stupidity"

[XLFD]

Agreed, I'm too stupid to figure that out, and too dense to listen to common sense. 

[XLFD]

And whether it's charging the public for searching for hours for records that may not exist, or having you pay up front for records that do not apply to your request, and then refusing to refund the money, the City Manager of Ludington is very tight with records concerning the City Marina and the local public marinas. 

I've heard tell that a group of interested people had to spend $200 to do their own FOIA inspection of charter boat operations at the marina, and that Municipal Marina Board members got upset over that at their next meeting.  You think there would be a clear public accounting of private businessmen (charter boat captains) operating their businesses on publicly owned facilities.

[AQUAMAN]

The point I'm trying to make here is that "down-staters", i.e., are mostly "big city types". That mentality doesn't fit nor ring true with Ludington-types that live and were born/raised here. If you've been in a big city, or lived there for any length of time, you know where I'm coming from. It's a whole different ball game of constant stress, crime, people stepping on one another, push-shove everywhere, hostility, the fast lane mentality vs. Ludington's quiet laid back types.

[easymoney]

Are you suggesting that they are going to ride rough shod over the Lud. Hicks?

[AQUAMAN]

They have been for years already easy. I see where Jeff Evans, LDN publisher, is retiring soon. He'd moved here to be closer to his Chicago family, another outsider. The guy taking his place is from Ind., and has worked in Colorado, Oregon, Washington, and Wis., another outsider. John Shay and Barnett also from Oakland County, outsiders. Same with Henderson, Midland? I know Benoche was outside, from San Antonio? Same with all the reporters, except maybe Patti. More big fish in the small pond I say. Don't expect the LDN's new publisher to have any loyalties to the locals in the future, just the status quo of another outsiders loyalty.

[XLFD]

Aquaman, Your comment five hours occurred a little before the announcement of Jeff Evans 'retirement' from the COLDNews, you must have a little bit of fortune-teller in you. 

Indications are that there may be some trouble in paradise over at the corner of Rath and Court Streets and that more of our COLDNews friends may 'retire' soon, but more gradually than the initial New Years Massacre of 2012 that allowed a few of their better, more experienced, and more locally based talents to broaden their horizons elsewhere.  They are likely to be replaced by more out-of-towners fresh out of college and expecting less remuneration for their product.