If you read the 9-9-2017 COLDNews Article on the upcoming September 11th Ludington City Council meeting, you would have found out that City Manager John Shay was going to update the city council about the city having two counts against them in a FOIA lawsuit filed by myself dismissed in what seems to amount to a victory lap. Even after that meeting, the City of Ludington Daily News (COLDNews) effectively rewrote the article to explain what John Shay said at the meeting, so if you don't feel like opening the previous link just look at the story below:
In the city council packet for the 9-11-17 meeting (p. 110), John Shay laid out his case that he read to the councilors that night.
The highlighted portions will be discussed shortly. In the next two pages, he showed the court order of dismissal and wailed that it had cost the City of Ludington $5190 to defend the suit through July 31st [which definitely doesn't cover their attorney's last legal brief and his trip up to Ludington from Grand Rapids for an August court hearing, assuredly amounting to at least a couple thousand dollars more]. As his update took place just before the second public comment, I gave my own update, which reflected on some of the realities of the situation, without me ever mentioning that my legal fees amounted to only a little over $200.
XLFD: "Thanks for the update on that court case, John, but as the public knows though our local paper doesn't, there's two sides involved in court cases, and here is the other side's update. Due to the initial wording of my request for polygraph records, I failed in my quest to discover whether a legitimate polygraph test was administered by the LPD six years ago to a missing person suspect. I have resubmitted another FOIA request that will hopefully obviate that mystery as they still want to keep that a secret.
On the main count regarding fees, I have to declare victory, having gotten what I was originally seeking that the City priced at $2500 [$2479] knocked down to $100 [$99.04], that's a 96% markdown. As I had noted in my pleadings to this body, the only records I sought beyond polygraph records were custodial interviews with the suspect and the supplemented police report, and that's what I eventually got when I amended my request to leave out the polygraph records. In a cursory review of the 96 page police report and the interview I can see why the LPD was not eager to release them; It shows that the investigation was myopic and very flawed.
I also noticed that the two hours I paid to have a detective review the records for exemptions had him eliminating a couple of apartment numbers added unwisely in the middle of the report and Kim Phillips last name--- oops, Kim blank. I wish I could get paid twice at his rate for two hours to peruse a record without any exemptions beyond the already deleted addresses on the first couple of pages. I also was charged for hard copies of all of these records when I asked to inspect them or receive electronic copies, which I received, and was charged for two hours of a clerk's time for some unknown reason. Perhaps the City will spend $5000 more defending their own violations of their own fee policy."
I barely got out my last sentence before the maddened stalwarts were about ready to climb over their elevated benches to get me away from the microphone at the two minute mark. The main point in my update is that the City of Ludington attempted to commit fraud by charging me $2479 for the same records I received by spending $99, and that $99 itself is definitely against the city's FOIA fee policy.
On the above highlighted original request, disregarding the polygraph records, I ask for 2011 interviews with Ariel Courtland regarding her daughter's disappearance, and the police report on that disappearance and addendums added to it since. Addendums (or addenda, if you'd rather) may be a somewhat unfamiliar term so here's the definition of the word and synonyms:
Material added at the end of a publication, a supplement, an attachment. It seems a rather clear limitation to me of what I wanted, the police reported created for the Baby Kate abduction, and supplementary material attached to it. It just so happens that LPD reports usually call these addenda supplements, as they did back in 2011 for this report.
So when the City claimed the interview (there turned out to be only one) and the incident report were 2750 pages in total in their council packet (there would turn out to be only 153 pages), I claimed foul, and said so during my administrative appeal at the March 20th 2017 meeting:
"I asked for the police report of the Baby Kate disappearance, including addenda, video and/or transcripts of the police interview with Kate's mother, and any polygraph test results. I was informed in the reply that it would take a police detective 100 hours, that is nearly 13 eight hour days, to separate out information that would violate a person's privacy."
Shay's eventual reply was: "we estimated with the other records a total of over 2700 pages of records, and in order to go through those records to determine if there was any records that would be exempt from disclosure, you have to have someone go through and read all 2700 plus pages of records.
And we estimated that that would take about 100 hours of time to do. Mr. Rotta indicated that it should take a few minutes of a police clerk's time to do; we would differ on that in terms of going through 2700 pages of records-- it would take about a hundred hours to do. And when we sent the cost estimate worksheet out, it was approximately 24,25 hundred dollars to go through that. And so under FOIA we requested a deposit for 50% of that amount, or roughly $1200 or so, and Mr. Rotta then filed the appeal."
And those ridiculous and absurd numbers, 2700 pages and $2500 for a supplemented police report of 96 pages and 57 pages of interview transcripts led to my filing the lawsuit. The polygraph addition was an added feint to try and get the City to come clean about something they should have admitted to doing, or not doing, long ago.
I came to an agreement with the court to resubmit my FOIA request with clarifications since I explained to the court my understanding of the word "addendum" and how the City must have decided to throw in a lot of other records I wasn't meaning to request. This is perhaps why John Shay says I 'narrowed' the request, but that's not what I did. I clarified it. My amended request with the same emphasis I used:
"Interviews with Ariel Courtland ( any recordings and transcripts) taken in 2011 concerning the disappearance of her daughter 'Baby Kate'. Include all such Ariel Courtland interview records in your possession from that year even if done by other agencies (since the record shows a MCSO detective conducted the main interview at the LPD station).
Please include also the police report generated for the abduction by the LPD and the supplements and addendums added since (such as for the 2013 search). If addendums/supplements are not attached to and otherwise part of the report, they fall outside this request."
Even with this request, which as you can see is asking for exactly the same thing as before while including the 'addendum' synonym 'supplement' so that even the police chief and English-as-a second-language FOIA Coordinator could understand it, I had to explain it to both Vander Laan and the FOIAC to avoid getting thousands of documents that were not applicable to my request, as FOIAC Alvarado replied:
"When the original request was submitted. The City, based on the wording of your request, excluded from the response, thus from the accounting of pages to be copied and possibly redacted, more than 2,000 pages containing anonymous (on its great majority) of tips. Since every tip was processed through the LPD all those tips were assigned an LPD report number. Under your current clarification, those 2,000 plus pages would also have to be considered as part of your request."
If you can wend your way through that torturous wording, Alvarado tries to claim tips that never made it as part of this report [they were even assigned other LPD report numbers] were somehow part of my request for the one report and its addendums.
As I state at the bottom of every one of my FOIA requests: "If you need any clarifications of this request, please reply expediently to this E-mail address." I was never given any justifications in my response why a detective would need to spend 100 hours to look over what I estimated to be a 100 page police report and 50-100 pages of transcripts without any likely exemptions other than the addresses and phone number deletions their software takes care of. If the city wants to fault me for $7000 to $8000 of legal bills, they only have themselves to blame for their lack of communication skills in botching my simple request.
But even with the $99.04 payment I was forced to pay to see the 153 pages of records there arises even more problems where the City violates their own fee policies and the state's FOIA fee mandates. Here is my cost estimation worksheet, done before they begin compiling records:
By policy and law, I had to pay for at least half of the estimated cost, I paid $50 at city hall, and in a few days, I received the E-mail from Alvarado that I was ready to pick up a CD at city hall with two interviews by MCSO Detective Kenney (both taken the night of the disappearance) and a police report with 112 supplements (i.e addendums) on .pdf files. I paid the remaining $49.04.
As noted, only three items were removed, two apartment numbers of people that weren't witnesses, the last name of Kim Phillips in one place (it was available other places), and a reiterated apartment # of one of the witnesses in the body of the report (a no-no in report writing) whose address was given in court on at least two occasions. They did leave the address of the Phillips' at 280 Millerton Road in the report in numerous places. You would think that when you pay $91.42 for four hours of separating exempt information, you would get a better job.
Perhaps I should consider myself lucky that they didn't charge me the $0.50 for the blank CD they used, but since I had asked to either inspect or get electronic copies, they cannot charge me for getting hard copies unless it was necessarily done for separating exempt material, in this case, they could have legally charged me for the one page with the apartment numbers of non-witnesses.
In similar vein, I cannot fathom how anybody could take four hours to complete the task of effectively editing out phone numbers and addresses that were just not likely to be anywhere if the police officers adding supplements followed report writing protocol. Why was I being charged for the LPD's professional incompetence? I looked through the report and the 56 pages of interview [which wasn't redacted at all even with plenty of phone numbers within] in what I thought was a thorough manner in under a half hour.
This information was what I sought, and was asked to pay nearly $2500 for, then they asked for 25 times less than that when they were took to court, when they probably shouldn't have asked for anything more than 25 times less than even that. The FOIA has remedies for public bodies that try to constructively deny requests by arbitrarily and capriciously overcharging the public, and I guarantee that I will seek redress for this massive fraud perpetrated by city management in spite of their best attempts to cover it up at any expense.
Allan Vander Laan (correct spelling) thought it was winnable when he went before council, if we believe Shay's statements (this is usually unwise). At the August 25th meeting, the minutes note:
"Moved by Councilor Scott, seconded by Councilor Holman, to follow the strategy of Attorney Allan Vanderlaan in regards to the settlement of the Jack Byers lawsuit. Motion Carried."
This meaningless vote (due to lack of context) effectively was the council's agreement to settle the lawsuit for $250,000, as the topic never came up again before the announcement of settlement was made.
What citizen in their right mind would ever trust this council to be open, honest and accountable ever again after this debacle where their only goal was to save face?