The Mystery of the Pigweed Predicament

[XLFD]

I had originally prepped my camera for a brief photo essay on the City of Ludington being a bit neglectful of minding their lawn on the property of 428 E Dowland, a property they acquired in November of 2007 with the intention of making this four lot property the next Ludington Fire Station.  As I went there with my camera and my ruler, I started taking pictures with my 12 inch ruler showing that the pigweeds, that had somehow inundated themselves on Dowland following the streetwork done there this summer, were quite a bit taller than weeds are supposed to be until the City of Ludington considers a nuisance, whuch happens to be 10".  The city may serve written notice that the condition shall be abate...

As the City of Ludington's code enforcement team love to serve these on the people of Ludington (amazingly, I have been spared this indignity) I figured they could use a dose of their own medicine.  These lazy deadbeats let their pigweeds grow over two feet (that's over 24" for those who work at City Hall).  Here's some of the stuff in the right-of-way:

Tall Weed    Tall Weeds    One Really Big Weed

But then I noticed that the lot had a lot more bigger weeds in its interior, partially blocked by some sumac bushes, earth mounds, and vines.  Right near the "For Sale" sign the goldenrod is as big as the pigweed, and other weeds surpass the four feet mark (48"+  for those who work at 400 S. Harrison)

More Gigantic Internal Weeds     Even more Megaweeds

But it was when I took this picture of an oversized pigweed field further in this lot that something dawned on me.

Almost the whole lot in back of the sumacs and mounds was completely denuded of vegetation, as if someone had come and took out the topsoil of this lot and took it somewhere recently.  And it was rather recent, because the pictures of the lot in the realtors guide shows a regular lawn just earlier this year:

Which then turned into this:

And the sleuth in me said, 1) missing topsoil at 428 E Dowland  2) pigweed is prevalent on that lot  3)  a bit of topsoil was used in front of many E Dowland properties (like where I live) that lost sections of sidewalk or had some soil removed.  4)  pigweed is growing in front of all those properties.

I could be wrong without further proof either way, but I have to presume that the new topsoil in front of our houses/businesses on Dowland has been transplanted from this property, 428 E Dowland.  Usually, that shouldn't be a problem, but the history of this property was that it used to belong to Padnos and Brody and used as a place where scrap metal was salvaged (metal with various chemicals/paints on them), was considered as a Brownfield property in 2005, had an underground 500 gallon diesel tank until recent, and went directly from these private hands to public hands.   DEED 428 E Dowland.pdf    428 E Dowland (Future Fire Station) description

Were the environmental factors mitigated?  Is the possibly tainted soil from that lot replacing the topsoil of several Dowland properties going to present a hazard to the people who live at those properties?   If any of the people who worked at City Hall lived on Dowland Street, would they be happy with getting a bunch of soil definitely filled with pigweed seeds and possibly contaminated with metal residue, hydrocarbon residues, lead paints, and various other hazardous materials dumped in their front yard?

[Eye On Ludington]

You can charge me as much as you want to post here. That doesn't mean I have to pay it. Besides, this is a private website and you can pretty much do whatever you please.

 

I hope you get the full gist of what you just said. It pretty much explains why some FOIA's might cost nothing while other FOIA's might cost something.

 

Please do not flatter yourself into thinking that I meant to convey a connection between civics and civility.

 

You have been known more times than not to be wrong about your legal interpretations of the law. Listing them might be a future project for discussion on a different venue.

With that said, my responses do speak for themselves. Just pay the $26 and get your 500 pages of copies that you requested. And stop burdening the taxpayers of hundreds of dollars by appealing a &26 request that they claim to have fulfilled if only you would act upon it.

 

And Thank You once again for your interest in my posts.

[XLFD]

EyE, I requested no copies of these records, just as there is no reason to make copies since the material on these records are not exempt in any way.  Nor does FOIA Coordinator Shay have the power to say I cannot inspect the original copies without him being responsible for violating penal law, MCL 750.492.

A public servant charging a fee where no fee should be charged is also guilty of public extortion.  Those are both serious misdemeanors by a public servant, and should be extra suspicious that he takes that tact after his actions have led the City of Ludington into a legal quagmire.  Retaliation measures can make a jury less sympathetic to a defendant.

[Jane]

FOIAC Shay says "Using the lowest paid employee, the labor to scan the documents and send the oversized records to a printer will cost $23.07 per hour (including benefits) x 2 hours = $46.14 less the $20 credit = $26.07 plus the cost of the oversized copies."

Nowhere does he say that anyone may inspect the records, only that they cannot be reviewed unsupervised and then that to scan them will cost whatever. shay missed a sentence in there that says if you wish to inspect the records it will cost abc dollars, he only offers scanning. If he had offered inspecting(as per the request) he would have stated a fee for it, but he jumped right to saying no inspection, here are your copies...basically. Nowhere did he mention an inspection fee.

[XLFD]

I could nitpick the City FOIA policy all day and say how it flies into the face of court precedent and State FOIA law, but nowhere does it give the FOIAC the power to bar inspection of public records unless copies are made. 

If copies/scans are needed because they have exempt material on them, that's another case, but it is uncommon that the records I receive have exempt data on them, and these wouldn't by their nature. 

[Eye On Ludington]

XLFD, That is not correct! The State FOIA law does too give the local FOIAC the power to bar inspection of originals except under direct supervision. Do I need to cite the provisions for you?

 

[XLFD]

You are probably referring to section  4(1) of the FOIA  "A public body may charge a fee for... the necessary copying of a public record for inspection,".

 

The operative word is necessary, which is what FOIA court precedent keys in on.  Hubka v Pennfield Township, 197 Mich App 117 (1992), rev in part, 443 Mich 864 (1993)
If the requester asks to inspect original records, supplying copies does not meet the Freedom of Information Act’s requirements. The requester does not have to demonstrate that copies are inadequate to inspect the originals.

The FOIAC can adopt whatever else he wants to do to maintain the security of the records, but there is no allowance for me to pay for unnecessary security measures.

[Eye On Ludington]

XLFD, I am referring to the legal right of a public body to protect public records from loss, unauthorized alteration, multilation, or destruction.

 

On my Eye On Ludington website, I have cited the Michigan FOIA clauses that allow charging a fee for supervising the inspection of original public documents.

 

After your FOIA request is granted, it is up to you to make an appointment with the FOIAC to view the public records.

 

See pages 7 & 8 of this document:

http://www.michigan.gov/documents/dleg/DLEG_FOIA_302190_7.pdf

[XLFD]

EyE, I read those pages, seeking what you wanted me to find, but couldn't. 

If you asked to borrow the newspaper to take a look at, would you be upset if I thought you might clip a section off it, so I  sent it out to a printer to copy it so that you could see it, then charge for the cost of the oversized copies and the labor for doing so?  That's similar to what the City Manager has been doing with me.  

Or let's look at it another way, EyE, if you go to the library, and request to see an old volume that is very delicate, they may let you look at a copy to preserve the elder volume, or some other security measure such as to look at it under glass. 

The FOIA is for disseminating information to the public, not for ginning up revenue for the public body.  I don't just make random requests, each has had a purpose.  Some are to try and find exculpatory material for the officials involved.

[Eye On Ludington]

XLFD, Look in the "Jane - or Cheeta" discussion.

 

1. Shay has not charged you anything for the oversized copy because he is waiting to hear from you whether or not you want him to proceed.

 

2. The City has a legal right to protect the originals by either one of two procedures. (a) The City can charge you labor for having a city employee supervise the viewing of the original copies, or (b) the city can make copies of the originals for you.

 

The fee is justified and legal under the written rules of the Michigan FOIA. Why don't you just  pay the $26 and save the taxpayer from having to foot the additional expense of dragging this out?

[XLFD]

EyE,

I have asked for records pursuant to the FOIA, Shay has responded in a manner not recognized by the FOIA, as I have explained ad nauseum. 

Ergo, Shay is dragging the process out and costing the taxpayers money, I am just standing my ground by insisting on my original FOIA request be fulfilled, without Shay committing public extortion by not fulfilling it.  Why don't you pay Shay the $26 and save the taxpayers some money?

[Eye On Ludington]

XLFD, I can see that you just don't get it. Shay says that City policy will not permit him to allow you to view the original documents without supervision. He can charge you for 2 hours of copying documents or he can charge you for supervised viewing. There are 500 pages, and unless you intend to sift through all 500 pages at about 4 pages per minute then the better value would be for you to get the 500 copies.

You are arguing semantics against reality. The taxpayer loses when you refuse to look at the situation subjectively with an honest intent to obtain your information at the least cost to the taxpayer.

You insisted that they could not charge you a fee for viewing public records and I proved you wrong. Then you insisted they had no authority to make copies of orginal records and I proved you wrong.

Do the taxpayers of Ludington a favor and just pay the $26 fee, because it is justified and it is legal. Just please stop wasting taxpayer money on yourself.

[XLFD]

Sorry, EyE, you don't get it.  I am not saying Mr. Shay can't position all 15 members of the LPD in the same room as me to make sure I don't bend over a corner of one of these records.  I am saying he can't charge me for such security measures. 

Please re-read section 4(1):  "the fee shall be limited to 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" 

So Shay can adopt whatever means he wants to protect the records, but he can't charge the reviewer for doing so.  Anything else, EyE?