Ludington's Other Secret Police

[XLFD]

At the end of this week, the FOIA appeal I started in the 51st Circuit Court against the City of Ludington may be decided.  The defendant's are represented by Andrew Brege and Allan Vander Laan from their risk management team of attorneys-- those extra legal eagles the city's liability insurance use to protect their corporate assets when their agents err. 

From the beginning of this lawsuit, one of which I am so sure of prevailing that I have hired the county's most decrepit lawyer wannabe to represent me (i.e. myself), is really a no brainer.  I have seen the majority of the records already, something a plaintiff rarely gets to do during a FOIA action.  The major part of the records asked for are not investigative records, the city has labelled them so; they have to do with the arrest of Gene Foster on March 10, 2015. 

About a week after I filed the suit, I got the Kuster arrest report Page 1 and Page 2.  This is a typical police report which typically has only the addresses and phone numbers of the parties involved being redacted for privacy reasons-- by the way, they failed to do that.  I ask for anyone to objectively tell me what else could have been exempted here back in last March.  It says itself the incident was closed upon arrest. 

Still the City of Ludington wants their risk management attorneys to defend this action and describe why they left off the report of the other officer, maintaining that the records he made was not in their database, but in a special cache in care of the Michigan State Police. 

The kicker is that the officer is authoritatively a LPD officer, paid a generous salary with your tax dollars, roaming the streets of Ludington making arrests and investigating incidents, but totally unaccountable to you as far as records of those incidents are involved. 

This is what our prosecutor and police chief would like you to believe at least, but they would, because they are part of this unaccountable team too.  It's like Chief Barnett's reserve force of 14 cops with guns, uniforms, and no training-- but on steroids-- or, better yet, arresting you for possessing steroids. 

Instead of admitting their error, releasing the records and paying their dues, the city has doubled-down with your money to fight your access to these records.  During the waning days of discovery the COL attorneys did what was expected of them, by requesting a hearing for a motion of summary disposition to get the complaint dismissed.  Here are the supportive briefs for that:

COL Brief of SD pt.1.pdf

COL Brief of SD pt.2.pdf

Hopefully, you the reader can weave your way through some of the legalese to get the drift of their arguments.  Fortunately, I am getting some experience in these matters and found the contents rather supportive of my own complaint, except without the requests for dismissing the complaint laced throughout. 

In a summary disposition hearing you generally declare that the facts are undisputed and that there are only matters of law to be decided on.  Most of the facts are agreed upon, but some are not, and the lawful authorities the other side introduced assisted my side dramatically, particularly since they have the burden of proving they withheld all the records legally.  This summary disposition happens on this Friday, and I am confident that Judge Wadel will do the right thing and rule against the secret police, I can only hope he is courageous enough to establish guidelines for getting these inaccessible records via the FOIA.  My response brief follows:

PLAINTIFF’S RESPONSE IN OPPOSITION TO DEFENDANT’S MOTION FOR   SUMMARY JUDGMENT

 

                                         I.  INTRODUCTION

On March 10, 2015, two Ludington residents got married around noon in a small ceremony at the bride's apartment.  Later that afternoon, their honeymoon was put on hold by the arrest of the groom stemming on alleged actions he committed back in 2014.  I, plaintiff, attended that wedding as the informally adopted father of the bride, and the happiness she displayed that noon, was contrasted by the sadness over the arrest of her husband and the anger over the way the police had acted when she later contacted me that evening looking for answers. 

Her version of events bespoke of several protocols by the police being violated in violating the Constitutional rights of her and others.  Her provocative testimony, followed later by some input of others at and near the scene, led me to file a FOIA request the next day with the agency where both police worked for, the City of Ludington, defendant in this case. 

In about a week, the defendant did not release any part of the records, or any specificity as to why they were not forthcoming other than the generalities of the 'investigation exemption'.  I appealed immediately to the head of the public body, where it was denied in full.  The main part of my request was for non-investigative records, so I was positive they were in error.

At around this same time, the husband had gotten back records that were responsive to my request through the discovery process in his case (Exhibit 11: Gene Foster Affidavit) .  In timely manner, plaintiff filed a complaint in this court for a FOIA violation.  After this circuit court filing in September, defendant sent an arrest report authored by LPD officer Tony Kuster about the incident and claimed this was the extent of the records responsive to my request. 

Subsequently to this, the warrant and warrant affidavit were finally made available to Foster  after multiple requests and about eight months and several court meetings with the prosecutor (Id.); eight months after Foster requested these records through discovery.  Kuster's arrest report and other relevant records have still not been furnished to Foster nearly a year afterwards (Id.) in violation of discovery rules and impeding his right to defend himself.

Plaintiff reminds the court for the first time, that in a FOIA appeal, the burden of proof is not on the plaintiff, but on the public body to show their exemption was valid and according to statute.  At several times in the defendant's brief, the defendant conveniently tries to give that burden to plaintiff, where it does not rightly belong. 

Plaintiff maintains that the Kuster arrest report record was unlawfully withheld for six months, that the arrest report of LPD officer Krause is still being unlawfully withheld, and that the warrant, warrant affidavit, and perhaps other records qualify as supplements and addenda to the arrest, and part of the original request.  These records on their own face value should be proof enough against defendant's claims of total exemption using general and generic recitations of statute as if they needn't prove more than that. 

Plaintiff further maintains that prosecutorial misconduct has taken place involving Paul Spaniola, for not furnishing records to Foster that he lawfully requested through the discovery process in order to defend against serious felony charges (Id.).  Even though this is beyond the scope of the original claim, this should be addressed by the court, as should the prosecutor failing to disclose in his affidavit for the defendant, that he is an annually-contracted employee of the defendant, City of Ludington, and a member of the SSCENT Command Board.  His part in denying these records acting as counsel for defendant is not minor.

Although the claim's reference to the Kuster arrest report is now rendered moot by their disclosure after and because of this lawsuit being filed, such a disclosure means the plaintiff has prevailed in this legal action and is entitled to costs and disbursements.  However, the lawfulness of the nondisclosure of the Krause report, supplements, and addenda remains contested, as does the award of punitive fees and their amount, if applicable, since the State of Michigan amended award amounts between the time the FOIA request was made and when it was appealed.   

 Plaintiff further maintains that the discussion of retroactive or prospective application of the law has been rendered moot by the defendant's reluctance to release the Krause-generated records even after it was clarified fully in this lawsuit's claim and that their FOIA Coordinator treating it as a 'new request' after the law took effect (Defense Exhitbit 11).  This was an admission that they still classified those records as exempt, regardless of what the SSCENT Agreement makes clear: that its task force members remain an agent of their original police force, with no implications or explicit language that their records belong to any other agency.

This brief will assert that these disputes can either be best adjudged at the scheduled trial or resolved at this summary judgment hearing in favor of the plaintiff, as law and precedent do not support the defendant's conclusions and arguments.

                                       

                                               II.  STATEMENT OF FACTS

It is beyond the scope of this responsive brief to recant the facts as portrayed in the defendant's motion, since the chronology and actions from plaintiffs perspective is already in the original  complaint and doesn't readily contradict each other except in section II(B) of defendant's brief on SSCENT.  The public has little information on what SSCENT is and the defendant supplies only the original SSCENT agreement in its defense, which does not support their facts, and often proves the opposite of what they claim.

Defendant asserts that "Under the (SSCENT) agreement... the activities of a City officer assigned to the SSCENT task force are not documented on the City of Ludington Police Department document management system, and the City does not have access or control over that officer's reports and documents maintained as part of his or her SSCENT duties."   

But the SSCENT agreement included as Defense Exhibit 9 has no provisions for record keeping, and what it says counters Chief Barnett's and defendants contentions that the records their SSCENT officer makes are not public records belonging to defendant.  Namely it denotes that:

1) The SSCENT task force is not a public or administrative entity (preamble)

2) "Each law enforcement officer assigned to SSCENT by his/her participating entity's police
shall remain an agent of that participating entity's police agency [the defendant] (emphasis added, Sec. IV)

3) "Personnel costs for sworn law enforcement officers assigned to SSCENT, including wages,
overtime, insurance, and other fringe benefits shall be provided for and paid by entity supplying such personnel [the defendant]." (section V)

4) The Commander of SSCENT is described as a coordinator of operations, accounting, and training, who completes "a monthly report of SSCENT activity to each Command Board member" (sec V). 

5)  By it's construction in section II, Chief Barnett is a Command Board member of SSCENT, and should be receiving a monthly report (at least) from the SSCENT Commander, which in turn becomes a public record in the possession of the defendant.

Furthermore, the Ludington Police Department's organizational chart available at the city's website(Plaintiff's exhibit 12, LPD Organization Chart) shows that the LPD's SSCENT officer falls within their organization and under the purview of the chief.

But even though Chief Barnett swears that "the activities of an officers [sic] assigned to the SSCENT task force are not documented in the Ludington Police Department document management system", he does not address the bigger concept of whether they should be, by law, and whether there may be dereliction of duty in not doing so. 

There is clear indication that they need to be, by FOIA's definition of "public record as "a writing prepared, owned, used, in the possession of, or retained by a public body in the performance of an official function, from the time it is created."  The FOIA then describes  the public body’s duty to provide non-exempt public records to the public on request. 

The defendant is well within their power to share the public records created by their SSCENT officer with the task force and the MSP, but those are, without doubt, "public records" created by the defendant's employee in the performance of an official function and subject to disclosure to the person who submits a FOIA request to the defendant.  Exempted content notwithstanding. 

Defendant has not come close to proving otherwise, as is their burden, and have tried to establish facts based primarily on the reliability of Chief Barnett's affidavit commenting on his own policy and not based on any lawful authority.  The status quo is not equivalent to proven facts.

                                              

                                               III.  STANDARD OF REVIEW

A motion for summary disposition must necessarily fail if the defendants, as the moving party, do not establish the absence of any genuine issue of material fact or if the plaintiff, as the opposing party, establishes that there is a genuine triable issue. Lyons v. New Mass Media, Inc., 390 Mass. 51, 453 N.E.2d 451 (1983). In other words, if any material fact is disputed, summary judgment must be denied for the movant. 

In applying this standard, courts view “the inferences from the factual record … in the light most favorable to the party opposing the motion.” Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986)

As noted in section II of this brief, the facts involving SSCENT and their records is under dispute.  Defendants need to show incontrovertibility of the facts.  The FOIA statutes and the SSCENT agreement appear to suggest that the responsive records to the FOIA request that LPD officer Krause made were subject to disclosure, contrary to the defendant's assertion primarily supported by an affidavit which in itself is unsupported by any lawful, controlling authority as of yet provided by the defendant. 

Furthermore, the defendant stating the grounds for this motion under MCR 2.116(C)(8)) is applicable is unfounded as plaintiff followed the guidelines of the state FOIA in pursuing relief under the Act, including seeking administrative review, before filing a claim in court seeking undisclosed records, and other remedies offered by the Act at the time of filing, which offers ways to grant relief. 

As previously noted, MCR 2.116(C)(10) grounds must also be suspect due to controvertible issues existing amidst the facts and over what was exempt and when due to inconsistent representations of SSCENT, and how those issues and facts favor the party which does not have the burden of proof.

This court should consider the facts presented herein and in the record already in a favorable light to plaintiff, and either decide to proceed to trial or rule summarily for the plaintiff.

                                         

                                          IV.  ARGUMENTS AND ANALYSIS

 

                 A.  The Tony Kuster Arrest Report was Improperly Withheld in March

In the Evening News Assn v City of Troy,417 Mich 481,486;339 NW2d 421 (1983) decision, the Michigan Supreme Court gave a nod to the difficulty that arises in FOIA litigation for plaintiffs: 

"The courts are challenged to find some way to compensate the inherent problems of (1) only the government knowing what is in the requested documents, (2) the natural reluctance of the government to reveal anything it does not have to, and (3) the fact that courts normally look to two equally situated adversarial parties to focus and illuminate the facts and the law." 

Ignorance is not a position of strength going into a lawsuit.  In this instance, plaintiff had one of the pieces of that puzzle supplied to him by a friendly source, the Krause report (Exhibit 8 in complaint) which pointed to other responsive documents, the warrant and Miranda waiver.  Krause's report had a wealth of material that seemingly was non-exempt in March when looked at with the Evening News guidance for investigatory records that defendant includes with his brief which says in part:

      5)  Justification of exemption must be more than conclusory, i.e., simple repetition of statutory language. A bill of particulars is in order.  Justification must indicate factually how a particular document, or category of documents, interferes with law enforcement proceedings.

Defendant's response to the original request (Exhibit 2) said the documents were 'protected' as stated in a form response.  This was conclusory and paraphrased statutory language of four subsections of MCL 15.243(1)(b), with no reason how they applied.   The proper time for justification is at the time of a FOIA response, for the requester has the right to appeal directly to court.

Plaintiff did seek further administrative cures with the defendant's head of the public body, but all they offered was the same statutory language at their meeting (Exhibit 7), which at the time was after I had reviewed the Krause report and presumed it was the only record since the arrestee did not have any report drafted by Kuster in his discovery materials (Exhibit 11). 

Since this case has been filed in this court, the defendant has tried to introduce new lines of justification in order to claim that their complete exemption of the Tony Kuster report was warranted in the three affidavits provided with their brief, well after they released that report.  This defies guideline four of Evening News, that "detailed affidavits describing the matters withheld must be supplied by the agency." before it reaches the trial stage.

The simplest refutation of the reasoning in the affidavits is in the record itself.  The burden of proof is on the defendant to show that the ENTIRE Kuster report is exempt, but they have not come close to adequately proving why any of the following material is exempted with their four subsections:

   a)  the incident number

   b)  the status (i.e. cleared by arrest)

   c)  the date reported and time period the incident occurred

   d)  the officer involved

   e)  the classification (i.e non-reportable)

   f)  the location of the incident

   g)  the action description (i.e. assist to SSCENT)

   h)  the arrested person's name

   i)   the synopsis in the narrative

   j)  the time & date in the narrative

   k)  the venue in the narrative

   l)  the 'contact Sherry Foster' in the narrative

   m)  the action taken in the narrative

   n)  the 'arrested' sentence in the narrative

The record effectively speaks for itself and it says that most, if not all, of these items should have been non-exempt immediately after it was created, in which case Evening News stresses that the public body has a duty to separate the exempt from non-exempt material. 

In trying to explain why this is not the case, defendant argues it would 'likely' hamper an ongoing investigation, and introduces a new exemption of MCL 15.243(s)(i) which applies only to informants of which the arrestee had declined to be even before the date of his arrest (Exhibit 11) and in the presence of plaintiff. 

The time to properly introduce exemptions and affidavits is at the time of the denial or partial denial to avoid litigation over impropriety.  "Defendant was required to review the case file and release any nonexempt information-any information whose release would not have interfered with the investigation" Krug v Ingham County Sheriff’s Office, 264 Mich. App.475; 691 NW2d
50(2004).

Fortunately, in a situation like the Evening News, the Michigan Supreme Court belabored over the scenario in 'which the Government need only carry its burden of proof against a party that is effectively helpless and a court system that is never designed to act in an adversary capacity', the plaintiff in this case isn't acting in total ignorance of what he is fighting for. 

The proof is in the police arrest report of Tony Kuster, which the defendant has not even explained to this court or the plaintiff as to why it was labelled as an investigatory report in the first place when it was denoted by Officer Kuster as being closed and cleared by arrest the day before plaintiff made his initial request.  Such subterfuge carried out for half of a year is precisely why punitive damages are called for as this was pure myth and duplicity.

 

B.  The Krause-generated arrest records should have been disclosed in March properly redacted.  Likewise, they should have been released with the Kuster report in September

Defendants claim that the Krause-generated records consisting of his 1) report on the arrest, 2) the arrest warrant affidavit, and 3) the arrest warrant, are off limits because Chief Barnett and Officer Krause say that it is not their agency’s protocol on their affidavits.

Namely, Barnett claims the defendant and its police department does "not have access to or control over a SSCENT task force officer's reports and other documents" and Krause claims:  "I do not prepare or record incident reports and other documents related to SSCENT investigations” on the defendant's document managing system. 

No reason or authority is offered for why they don't archive the records, when the SSCENT Agreement openly contradicts Barnett's assertion by assigning him a seat on the SSCENT Command Board, and the commander's duty of providing each Board member a monthly report on overall SSCENT activities (Def Exh. 9). 

The defendant then argues using Detroit Free Press, Inc v City of Southfield, 269 Mich App 275;713 NW2d 28 (2005) a case where the court found for the plaintiffs when they sought records created by a separate public body, but had been in the possession of the city.  They further argue that the defendant in this case does not have possession of the SSCENT records, but does not express why they do not other than using the two affidavits and pointing to the SSCENT agreement as if it helps explain why. 

As they note a "public record" is defined as "a writing prepared, owned, used, in the possession of, or retained by a public body in the performance of an official function, from the time it is created." MCL 15.232(e)).  Krause admits he is concurrently both a member of the defendant's police force and the SSCENT task force (Def Exh. 10), he is not a member of the Michigan State Police, nor does he claim to be. 

It is an uncontested point that he performed an official function when he created the writings sought in this case.  As noted previously, the SSCENT agreement does not change his status as an agent of the defendant, paid and supplied by the tax base of the defendant and nobody else.  Furthermore, as also noted, the SSCENT task force is not a public or administrative entity, meaning by MCL 124.507(1) that it is not a "public body" by its construction. 

To presume that the defendant should not be the steward of these public records is to get the absurd result that the records are possessed either by a legal non-entity (SSCENT) or the state police which does not employ or contract with SSCENT agents (who are not otherwise on the MSP) of other public bodies.

But this is what Barnett and Krause put forth, even though they claim no authority that says this is the case, particularly not in the SSCENT agreement they proffer.  Krause's writings were prepared in his performance as a police officer for the defendant and need to be retained by Krause's public body employer so that the people who pay for this activity would be "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." MCL 15.231 .  

A specious argument by defendant saying that Krause's records were not called for in the FOIA request fails to address why they would not be supplemental or addendas to Kuster's report, relying on their premise that defendant's agent Krause's report of the arrest was not in possession of the defendant, but the record of a non-existing public entity.  If public records could be concealed from the public by creating phantom entities so easily, the legislation's directives for transparent and accountable government found throughout Chapter 15 of MCL would mean nothing. 

The defendant's SSCENT officer can freely share their records with the MSP and the SSCENT Commander/Board, but they must be retained as "public records" made in official capacity for the defendant in proper duty to the people.

C.  Plaintiff's lawsuit was necessary for production of the records, some of which are still extant

In arguing the converse, defendant believes that the lawsuit was unnecessary to get the records, suggesting a resubmittal of the request at a later time, as suggested by one of the city attorney's for defendant was in order. 

In the aforementioned Krug case, they opined:  "Nothing in the plain language of the FOIA indicates that a party must continually resubmit his or her FOIA request to determine if a change of circumstances has occurred.   In fact, the FOIA specifically directs a requesting party to only one of two options following a denial:  appeal the denial to the head of the public body or commence an action in circuit court... The plain language of the FOIA does not impose a duty on the requesting party to also resubmit a request.   We must assume that the Legislature intentionally omitted such a requirement."

With due diligence, plaintiff did try an administrative appeal with defendant and received an undesired result, even though he had viewed the Krause arrest report and readily judged that it was full of non-exempt information (as noted in the item-by-item analysis for Kuster's report). 

The judicial panel (Ludington City Council) for the administrative appeal did not comment on why or even view the records in camera, rather they blindly took their attorney's advice.  One councilor said he upheld the FOIA Coordinator's response because it was based on the law.  Plaintiff had viewed part of the record and knew that statement was false.

Being that there was no clear reason for the defendant not to separate the exempt from the non-exempt in manner actually based on the law, any resubmittal would have to pass through those who had already denied mostly non-exempt records in the past.  Doing the same thing over and over again and expecting a different result is the definition of insanity.  Plaintiff pursued this lawsuit instead to get records unavailable, and achieved that with the Kuster arrest report.

"Defendant was not entitled to deny plaintiff's FOIA request without actually determining that the entire case file was exempt from disclosure." (Id. citing Evening News).  Furthermore, not releasing the report of Tony Kuster in March was an arbitrary and capricious act, as happened in the Krug case: 

"Defendant continued to conceal the requested records after the case file was closed and disclosure could no longer interfere with an ongoing investigation.   Most importantly, defendant falsely indicated in its answer that the records were exempt from disclosure under MCL 15.243(1)(b)(I).   Accordingly, the trial court properly determined that defendant had arbitrarily and capriciously violated the FOIA by delaying the disclosure of records and awarded punitive damages." (Id.)

The plaintiff's acquisition of the Krause arrest report from a source other than the defendant, does not absolve the defendant's duty to have produced it in March, or September 2015 along with the warrant and warrant affidavit; supplements and addenda to the arrest of Gene Foster that should have been in the possession of the defendant.

D.  The 'new' punitive penalties should be enforced for the defendant's refusal to disclose the Krause-generated records

As per the Krug findings three paragraphs above, plaintiff would be entitled to punitive damages for the unlawful withholding of the Kuster report presuming they prevail, yet agrees with defendant that Frank W Lynch & Co v Flex Technologies, lnc,463 Mich 578, 583; 624 NW2d 180, 182 (2001) and other precedents would make their award of damages consistent with the damage provisions in FOIA existing before the July 2015 amendments to the act (i.e. $500).  This is primarily because they were not actively denied after July, but given freely after this suit was initiated.

The Krause generated records were officially denied again after their coordinator considered the lawsuit a 'new request', and saying he was sending "a copy of the requested record" (Def. Exh. 11).  The problem was that even though the lawsuit clarifies beyond a reasonable doubt that the Krause records were part of the public records sought, it is ignored in the 'new response', a response which contains no reference to why these extra records were left out still when the plaintiff made that case in his complaint.  This effectively was a FOIA denial for those records, made after the July amendments.

If this court finds that the Krause records are properly the defendant's public records of which they have a duty to retain by law, and ergo a duty to release within the parameters of the FOIA, they are deserving of punitive penalties vis-a-vis Krug, noting the directives of MCL 15.240(7) and MCL 15.240b.  This will also absolve this court of any prospective/retrogressive rulings.

Namely, If the court determines, in an action commenced under this act, that a public body willfully and intentionally failed to comply with this act or otherwise acted in bad faith, the court shall order the public body to pay, in addition to any other award or sanction, a civil fine of not less than $2,500.00 or more than $7,500.00 for each occurrence. 

And, highlights added, if the court determines in an action commenced under this section that the public body has arbitrarily and capriciously violated this act by refusal or delay in disclosing or providing copies of a public record, the court shall order the public body to pay a civil fine of $1,000.00, which shall be deposited into the general fund of the state treasury. The court shall award, in addition to any actual or compensatory damages, punitive damages in the amount of $1,000.00 to the person seeking the right to inspect or receive a copy of a public record.

It should be noted that the actions of the defendant's FOIA Coordinator do not appear from the plaintiff's vantage point to be arbitrary and capricious, however, Prosecutor Spaniola's and Chief Barnett's counsel to the FOIAC were both arbitrary and capricious using Krug parameters, both of who were/are acting agents for defendant.

  

                                                          V.  CONCLUSION

In the plaintiff's administrative appeal request (Exhibit 3), he freely admitted that parts of the records requested would not be disclosable and gave the defendant the Evening News guidelines to assist with their separation of exempted material.  Instead of freely admitting that some parts of the records were indeed disclosable, defendant chose to maintain that all information on the Kuster and Krause generated records were fully exempt, even though they both primarily focused on the arrest of a man, and not based on investigations, investigatory procedures, or confidential informants. 

If the defendant's position is allowed to stand, there is nothing preventing agencies like SSCENT and even the defendant's own police department to arrest and imprison individuals without accountability to the public.  At one time in America, this would be inconceivable.

Plaintiff's FOIA request for the records concerning the arrest of Gene Foster were improperly withheld in March 2015 without any attempt by defendant to justify, explain, or support with meaningful affidavits the complete refusal at the time of denial.  The administrative appeal made by plaintiff with support of the Michigan Supreme Court's decisions over release of investigative records was denied without any considerations except to those attorneys who denied it originally.

The two arrest reports authored by LPD officer Kuster and Krause were demonstrably mostly non-exempt when considered in March 2015 by any in camera review, which the plaintiff has been fortunate enough to have had since.  Defendant claims the Kuster report somehow changed from being totally exempt in March 2015 to being totally non-exempt is not supported by arguments, and their claims that records made by defendant's employee Krause for the SSCENT task force, a non-entity, somehow become the records of the Michigan State Police totally defies the SSCENT agreement they place in their defense in trying to prove the public records Krause creates does not belong to the agency he works for and gets paid by.

The defendants have the burden of proof to show that non-disclosure of the full records was warranted when they denied them on March 18th.  They have not even come close to that burden, and have come closer to disproving that premise by their own admissions and exhibits. 

What this legal action should indicate, is that the defendants need to preserve the records of their officer who is assigned to the SSCENT task force, not put them in public-inaccessible limbo, and release those records in accordance to the law.  That they should not issue blanket and complete denials of all FOIA requests relating to open case files without applying the rules found in Evening News.

Plaintiff respectfully requests that any summary judgment made should be in favor of the plaintiff, providing him with the rest of the record, costs, disbursements, and any deserved punitive damages to him and the state.  Plaintiff respectfully requests that the court would weigh in declaratively on who is the ultimate steward of SSCENT-based records, and find that the proper steward is the agency of the corresponding SSCENT officer-- without interfering with them sharing those records among other members of the task force in a separate database.  Finally, plaintiff respectfully requests the lawsuit proceeds to trial if they cannot affirmatively decide on these matters without investigating the disputed facts about SSCENT.

[XLFD]

You are referring to your meme-news here from Facebook.  I haven't been following it because of my own efforts in Ludington until now. 

My first impression is that there probably is an open meetings act violation involved, and it looks like you may have stumbled onto it, however, the difficulty may be in proving it as you would have the burden of proof to show that there was a quorum of the DDA who met on February 8 and made deliberations and/or decisions. 

That seems to be present according to the MNA, since they (I'm assuming) hadn't publicly noticed the impromptu meeting where a decision was made-- or at least some deliberations if they wish to maintain that it wasn't a binding decision. 

If you want to press the issue, FOIA request for the public notice and the minutes for the meeting-- they should either tell you that they don't exist or they will give it to you.  If they're crooked they may even try to create a notice after the fact and say they posted it at city hall (as Ludington has before). 

Be sure to also notice whether the city website noticed the special meeting, they should have, if not they are also technically in violation.  If they say they don't exist, because they had no meeting, then you may have to rely on someone who was there coming clean about having a quorum present and discussing things with Mr. Kay at that point.

They may also counter that it was a truly 'chance' meeting, but if it wasn't a normal meeting night this becomes hard to believe.   

[XLFD]

Well, Real Talk, I guess if Judge Wadel was listening to your silly rant, he would have dismissed my lawsuit against the City of Ludington this morning.  That did not happen, however, in fact, the good judge was incensed that the COL would presume that Kuster's bland arrest report was not offered up immediately to me and I prevailed today in the summary disposition.  And though the city didn't get full punitive sanctions, I will get back my costs, fees and disbursements from the action as the winner.  In other words, the City got admonished for not supplying the records and all I got was the money I invested in the lawsuit and the records unlawfully withheld (like most FOIA actions), and the legal affirmation that the City of Ludington just wasted your hard-earned tax money defending their untenable actions.

Enjoy living in the knowledge that your City leaders willingly and arbitrarily violate the law which make actions like this necessary, spent $125 per hour rather than less than a tenth of that for a FOIA Coordinator who made this arbitrary decision to withhold non-exempt records, and then spend thousands in legal fees defending their neglect of the law.  Turn your animosity towards me, and your misconceptions about me, into knowing what you're actually talking about and seeking answers from the people that take money from you through threat of force, the City of Ludington. 

If you truly love Ludington, like I love Ludington, then you might figure out that the current leadership is a crock of defecation, leading us into a bad place where further high taxes/fees, loss of civil rights, and environmental unaccountability is awaiting us all.

[AQUAMAN]

Great job and congratulations to the victor, and local patriot fighting for ALL our RIghts in good stead. I must admit X, I am proud and quite amazed at your excellent legal work to make a brief like this and win, without any legal attorney at your side to do all the legwork. Excellent work. And to the losers: Shay, you just had your nose put in the $Shitt once more; Barnett, will you ever learn to give up your crusade against FOIA requests and be honest like an honorable Chief of Police should?; Alvarado, you are not looking very competent, but just as corrupt as your masters that pay you to subvert the law; and City Councilors, when do you plan to wake up and face the realities of FOIA? You again have shown your incompetence and redundant crusade to crush the FOIA laws and follow whatever the Shyster Shay asks of you. CA WIlson, your warped interpretation of law doesn't hold any water anymore, never did, and God willing, you should be fired! Just like your cohort Shay! Finally, Real Talk, you're all Talk and NO ACTION, just hollow reverb for the status-quo and corruption that promotes a fake ego. And one last tip of the hat to a great and honest Judge Wadel, for doing what is right, and legal, and not helping your fellow civil servants keep tearing down citizens rights when they are squashed by the outlanders invading Ludington's sacred soil. Bravo!!!

[XLFD]

Chief Barney, Mangler Shay and FOIAC Alvarado played their part in this deception, them both knowing full well that a police arrest report, assisting another agency, is disclosable and have done it before.  The ultimate stooge for the city's decision is the prosecuting attorney (who doubles as the city's prosecuting attorney) who has never made a 'clean' FOIA response to me yet.

While several public records were already available through the 79th District Court for the arrest of Foster, he advised Carlos to keep the Tony Kuster police report from me, while keeping the same from Foster for nearly a year now, even when it was requested through discovery on a filing dated March 16, 2015 and later ordered by the court in June 2015!  If we had law enforcement officers that actually enforced laws so as to protect the public, they should arrest this scofflaw.  

Spaniola is the most dangerous man in Mason County, and there is little we can do to contain his corruption because of his position.

[Willy]

Congratulations X. I hope the idiots running the City don't double down on their stupidity and  outrageous behavior. 

[Jasper]

Congratulations XLFD on your win. Judge Wadel appears to understand the law unlike Prosecutor Spaniola. Spaniola needs to vacate his Office. He botched the entire "Baby Kate" case. Spaniola is incompetent.

[jfc123]

Congrats on your victory X! Obviously your hard work and due diligence paid off. The COL would be such a sad place if it was not for you, our number one watchdog! Way to keep them on their toes and force them to do the right thing.

Any honest politician would welcome someone like you to keep them in check! Obviously there are not any in this city yet. Just thugs and cronies that are sent out to undermine the people that want the justice system to be fair. Whatever ones personal situation is, is just that, personal. The one that attacked you should be ashamed! Why does he post your name but too weak to post his own? Enough said on that! Weak!

The reason we have Jesse Jackson, Roger Moore, Al Sharpton, Erin Brockovich, and many more is because we need them! I applaud you for all you have done and will continue to do. This is how the people that built Ludington to what it is today with all of their effort and hard work would stand for. Not like this current council and Shay and their shenanigans and deceit, running this once beautiful city into the sewer! Eventually everything catches up and nips ya in the ass!

XLFD for office 2016!

[XLFD]

Jesse Jackson, Roger Moore, Al Sharpton, Erin Brockovich--- wait, what's Roger Moore doing in this group of malcontents, you probably mean his homelier relative Michael.  Unless you were listing suave James Bond types, in which case you left out Sean Connery, Daniel Craig, Pierce Brosnan, and the one I am constantly being mistaken for George Lazenby.

Whichever you meant, thanks for your support and kindly-meant words. 

[jfc123]

Ok my bad Michael Moore.  Guess I was taught a lesson!

[AQUAMAN]

At this stage of what most at city hall consider a "game", being that X has over 200 FOIA's requested, their attitude and reactions is to just insult and publicly mock X for ANY FOIA, irregardless of it's legality. All they do is stonewall the entire issue to hope X will give up and quit. You would think after the several years of going around on this, someone at the LDN/COL would see that it's more prudent to look at each FOIA individually, and make decisions based on their true merit. This just shows how immature and childish Shay and his cohorts are. Like a "cat and mouse game", is all they see. Strange reactions will result in their shame of losing this and more lawsuits into the future. Costs taxpayers shame and moneys too, which reflects on Shay's incompetence and reason to be fired!!!

[Willy]

You nailed it AQUAMAN. Childish is exactly how those that run the city are acting, only this type of child like behavior is costing the taxpayers thousands of wasted dollars. One has to wonder what is going in inside those thick skulls that sit on the City Council. Then we have the outrageous ignorance of the LDN who, along with the Council have decided to jump into the playpen together. Common sense and maturity is not a hallmark of Ludingtons leaders and news media. To bad for the hard working citizens of Ludington.

[XLFD]

When you consider that I've been running a website since 2009 that primarily deals with the excess and corruption of Ludington's elitista, the roughly 250 requests I've made over seven years equates to about one every ten days, or around three per month. 

A lot of these are to complete the incomplete record they furnish to the public, sometimes illegally so, as in this latest victory. 

For those who may think there's money in FOIA lawsuits guess again.  Even though I prevailed fully, I will only get back costs and disbursements (no reasonable attorney fees as I prosecuted it without a lawyer), that is, money I actually spent.  I did a total tally of my costs and it added up to less than $200 that I will receive from the City (prior to taxation), which was primarily $150 for the filing, $23 for the initial service. 

The feeling of beating the City of Ludington with their attorney squadron and having their violation of the law be officially recognized, however, is truly priceless.  That the COLDNews and the Mason Clown Depressed show indifference to such victories over non-transparency only illustrates their fall into becoming banal propaganda mouthpieces for our ruling clique.