Watertowergate: The Cover-up

[Eve Alone]

I was drafted!  I am personally very close to the creator of this site and serve as the sounding board to some of his ideas.  Thanks for your condolences! 

 

He made some findings in the thread called "Watertowergate" this summer which questioned the recent contract the city made with a company to paint our two water towers for a cool $1.51 million.  In October, he sent a FOIA request to City Hall to check out the competitive bids and the prevailing bid for this action.  This simple request for info was met with a price tag of $228 to just inspect those bids and a conflicted bit of paperwork. 

 

He appealed John Shay's decision to do so, and was publicly attacked by him at the next city council meeting, as unveiled in the thread Freedom from Information, et. al., where the city council upheld the Manager's denial.  Immediately after this ruling which incorporated nine wholly different FOIA requests into one, he sent each one individually, giving each request an identification number, to City Hall, so as there not to be any confusion as to their separateness.  Once again, contrary to law, he received one denial that combined all nine into one.  That weekend, XLFD (Tom Rotta) organized three other people, including me, to send out our own FOIA request just containing one request, so that we would get the information without the prohibitive, unlawful costs. 

 

I found his watertowergate request the most interesting of the bunch, and made my request via the e-mail.  This is what happened (so far) when I tried to inspect these should-have-been-easy-to-find public documents.  I have edited my name (and others) out to maintain our privacy and had XLFD edit my story (I am a bad speller and grammarer).  My comments are in italics.

 +++++++++++++++++++

Sent: Saturday, November 20, 2010 12:51 AM
To: John Shay
Subject: FOIA Request to FOIA Coordinator

My FOIA request is to inspect public records showing competitive bids for the painting of the two Ludington water towers dated during 2009, inclusive of the successful bid of Utility Service Co. Please, use this E-Mail of mine if they are on electronic records. Thank you, Sir, and please keep my E-Mail address confidential, and note that I do not intend to use the information for commercial purposes.

 
(The request is specific, and asks for records that should be very limited in number and located in one area. This is/was my first request and I used my personal E-mail with my own name thereon. I live in the city, and pay my taxes.  Reply:)

RE: FOIA Request to FOIA Coordinator
From: John Shay <[e-mail]>View Contact
To: ---------

Dear Ms. :

Under these circumstances, the Freedom of Information Act (FOIA) requires the City of Ludington to issue a written notice to you. Please provide me with your mailing address, so that the City can comply with the FOIA.

John Shay
City Manager
City of Ludington
400 South Harrison Street 

(This frightened me. I had read in the paper how Mr. Shay brought up not only Tom Rotta's name, but other bits of his private life that had nothing to do with his FOIA Request. I am not w/o skeletons in my closet so I went to Mr. Rotta and he helped me write a reply based on his knowledge of the FOIA law.) 

Mon, November 29, 2010 11:17:37 PMRe: FOIA Request to FOIA Coordinator
From: --------
To: John Shay <[e-mail]>

In section 2 of the FOIA, an E-mail is an accepted form of an FOIA "written request", lending one to believe an accepted "written notice" in reply can be an E-Mail too. If I am in error, or if it is a written policy of this city to send such replies via regular mail only, please reply in haste with documentation showing this in an E-mail. If you cannot show this, please send me the 'written notice' by E-Mail. It saves us some tax money in postage. If you really feel the need to send me something via the mail, you can find my address in the residents list-- but I have heard what little respect you have for the privacy of others.

(Within a day of my request, three other individuals and an organization (The Ludington Torch) had all sent out requests for some of the information that Mr. Rotta had originally sought, beginning in mid-October. The FOIA Coordinator John Shay grouped each of our individual requests into one. One letter fits all. Here is his reply to each of us:) 

 
From: John Shay <[e-mail]>
To: (four individuals)
Sent: Tue, November 30, 2010 11:32:59 AM
Subject: FOIA Requests Received Via E-Mail on 11-22-2010

Dear Mr. , Ms. , Ms. , & Mr. Rotta:

Please see the City of Ludington ’s attached response to your FOIA requests. The total cost of $199.36 is broken down as follows:

· The request for information on the Municipal Marina is the same as contained in Mr. Rotta’s request dated October 25, 2010. The total cost to provide the information in those 5 requests was $138.35 or $27.67 per request. Thus, the City will charge $27.67 to reimburse its costs to provide this information.

· The request for information on the Stearns and Cartier park deeds is the same as contained in Mr. Rotta’s request dated October 18, 2010. The total cost to provide the information in those 4 requests was $228.90 or $57.23 per request. Thus, the City will charge $57.23 to reimburse its costs to provide this information.

· The request for information on the water towers is the same as contained in Mr. Rotta’s request dated October 18, 2010. The total cost to provide the information in those 4 requests was $228.90 or $57.23 per request. Thus, the City will charge $57.23 to reimburse its costs to provide this information.

· The request for information on the dog park is the same as contained in Mr. Rotta’s request dated October 18, 2010. The total cost to provide the information in those 4 requests was $228.90 or $57.23 per request. Thus, the City will charge $57.23 to reimburse its costs to provide this information.

Upon receipt of your payment in the amount of $199.36 to cover the City’s costs, the City will make the records available for inspection. 

(The attachment was identical across the board. It said that our request was granted but we each owed $199.36 to cover costs, and that 50% was needed before processing. Each also said the records were denied, because a public record does not exist under the name given or another known by the FOIA Coordinator. I was confused. We each had our own separate request but he lumped it into one. He said my request cost $57.23 in the e-mail, but said I owed $199.36 in the attachment. He said my documents existed in the letter, he said they did not exist in the attachment. He stated Mr. Rotta made 5 requests and 4 requests in 2 different letters but treated each as one request each for him, and now I had to pay either $57 or $199 to look at documents that may not even exist. I consulted with the others and sent this back to him.)

Sent: Tuesday, November 30, 2010 6:37 PM
To: John Shay
Subject: Re: FOIA Requests Received Via E-Mail on 11-22-2010

Dear sir,

You are charging me $199 for inspecting the bids for water tower painting (as per your attachment) ? Or is it $57.23 as per the E-mail? You must be totally fooling either way. I am not asking for any of those other things that Mr. Rotta has asked for, just to view the water tower bids. How in the world can you group my requests with three other people's requests is totally contrary to the FOIA. How can you charge $200 for seeing competitive bids that are about a year old, and probably limited to just one? I do not know whether the other people are appealing, but consider this an appeal of my request. I would appreciate it if you do not slander me or slander Mr. Rotta again or misrepresent my request when you bring it out in your public meeting.

He then sent me his reply on 12-2-10. He avoided any of my questions, but saw the word 'appeal'. 

 
RE: FOIA Requests Received Via E-Mail on 11-22-2010
From: John Shay <[e-mail]>View Contact
To: ------
Dear Ms. :

This will acknowledge the filing of your appeal of the City of Ludington ’s response to your request for information under the Freedom of Information Act received via e-mail on November 22, 2010. In accordance with that Act, your appeal will be placed on the agenda of the Ludington City Council at its next regularly scheduled meeting on December 6, 2010 at 6:30 p.m.

John Shay
City Manager
City of Ludington 

(Later that day I had a powwow with our info seeking group, I was the only one to decide to appeal at this time. We drafted this letter and sent it later that day to Mr. Shay and the councilors who have e-mail.) 

 
Re: FOIA Requests Received Via E-Mail on 11-22-2010
To: John Shay <[e-mail]>
Cc: gary castonia <[e-mail]>; k holman <[e-mail]>; paul peterson <[e-mail]>; wally taranko <[e-mail]>; wanda marrison <[e-mail]>; tom rotta

Section 10, subsection 3 of the FOIA: "A board or commission that is the head of a public body is not considered to have received a written appeal under subsection (2) until the first regularly scheduled meeting of that board or commission following submission of the written appeal under subsection (1)(a). If the head of the public body fails to respond to a written appeal pursuant to subsection (2), or if the head of the public body upholds all or a portion of the disclosure denial that is the subject of the written appeal, the requesting person may seek judicial review of the nondisclosure by commencing an action in circuit court under subsection (1)(b)."

I expect them to deliberate over this matter not make a hasty decision on Dec. 6; I expect any public discourse over this issue not to violate my right to privacy, and so discuss what you need to at the meeting, and have them deliberate over it and have one of their representatives contact me after the Dec. 20 meeting, or before if they wish to hold a special meeting. Our prior correspondences have been given to those councilors with E-Mail, as has this. 

(The city council rubber stamped Mr. Shay's decision at the Dec. 6 meeting and I got a reply from him the next morning:)
 

From: John Shay <[e-mail]>View Contact
To: -------
Dear Ms. :

At its meeting last night, the Ludington City Council upheld the FOIA Coordinator’s decision to require you to reimburse the City $57.23 for the cost to provide the information related to your FOIA request received by the City via e-mail on November 22, 2010.

John Shay
City Manager
City of Ludington

(There has never been any rationale for this amount othen than it was 1/4 of a request made earlier by another person. How hard is it to look up a competitive bid (if it even exists) for a project that costs roughly a third of the city's annual budget. Why is he asking an amount which is totally unreasonable, and against the FOIA laws? I talked with the others and sent this back.  And why was he the council's mouthpiece?)

 

FOIA Request Denial
From: ----
To: wanda marrison <[e-mail]>
Cc: wally taranko <[e-mail]>; paul peterson <[e-mail]>; k holman <[e-mail]>; gary castonia a href="mailto:[e-mail]%3E;%C2%A0">[e-mail]>;  [e-mail]

I received a denial from John Shay, Ludington's FOIA Coordinator in my e-mail today, on my request to see the public records concerning inspecting the competitive bids for the water tower painting project. According to state FOIA law, section 10, the head of the public body (the city's FOIA policy has the City Council in that capacity) is compelled to do the following, NOT the FOIA Coordinator (a conflict of interest that is obvious):

(2) Within 10 days after receiving a written appeal pursuant to subsection (1)(a), the head of a public body shall do 1 of the following:

(a) Reverse the disclosure denial.
(b) Issue a written notice to the requesting person upholding the disclosure denial.
(c) Reverse the disclosure denial in part and issue a written notice to the requesting person upholding the disclosure denial in part.
(d) Under unusual circumstances, issue a notice extending for not more than 10 business days the period during which the head of the public body shall respond to the written appeal. The head of a public body shall not issue more than 1 notice of extension for a particular written appeal.

The reply from Mr. Shay means nothing to me, or to the law. I need a reply from one of your representatives and the clock is ticking. Please address why the $57 charge is appropriate to the request to inspect these defined documents. The public is getting sick of waiting for this, and for having their chief executive officer behave in such a manner. This is concerning the probable misuse of $1,510,000 of the Ludington taxpayer's money, and it really deserved to be addressed before Mr. Shay snuck another boondoggle into the mix in this year's budget.

(As the clock ticks and the new budget seems to put aside even more money for painting the other water tower, the taxpayers of Ludington still have no clue as to why it cost our city so much to paint these water towers and why did they paint them so close to when they painted them previously, ten years ago.) 

[Sweater Cows!]

Good Job Guys(or Gals). I would do a little editing on those letters you wrote though. If you write more, I would suggest leaving out things like opinions and comments, at the begining. Perhaps when dealing with the council, but not shay. follow the book.

 

So, if I send in a request for the same same document will the cost then be divided into fifths instead of fourths.

 

And , the lowest paid persona finding of the documents the first time, being paid by one person, then another requesting the docs a month or so later would make the second and 3rd,4th and so on persons request cheaper each time-in my book anyway.

 

The first time a document has to be found it would be a pain in the 4$$. I have had to pull stuff from a couple years ago to do with parts warranties for example. BUT once I replace the file to its original location the second time I need to get it(say within a week or month or two) only takes a couple seconds to open a drawer and grab it as I know where it is.

 

They are ripping off the public so as not to have to do a crappy job.

 

[XLFD]

You are right about the opinions and comments in letters/e-mails to FOIA Coordinator Shay.  All the FOIA letters/e-mails I have sent have almost all had to be re-sent again and again for clarifications of charges and appeals, that I have grown to resent the hassle involved in getting clearly defined public records.  Eve Alone is a bit outspoken at times herself, and you can imagine our compromised composition was a bit more acerbic than the e-mails that were eventually sent.

[Willy]

I may be wrong about this but I don't think the City can charge you a fee for "inspecting" documents. The only fees that can be charged are for copies of documents as well as for an employees time to process those documents.

[Sweater Cows!]

ya, if he said a "fee for inspecting" then you may have a case against him for extortion or something. which is pretty much what he is up to anyway.

 

The city could hire a minimum wage, english as a second language secretary from gutamala who could read the rulebooks(laws) and do the job as well if not better than him.

[XLFD]

Unfortunately, I think John Shay has reasons to stonewall and deny certain requests through whatever means possible, Lando.  The Ludington Torch was denied point blank on our request, and so is going to look at circuit court for disclosure of the records sought.  The request and our fight is to be disclosed by the LT in short order.

[XLFD]

The city must provide you a space for reviewing the documents and cannot charge you for inspecting records.  If they could justify a need for protecting the records from tampering/destruction/theft a security camera trained on the inspector should be appropriate, or a part-paid LFD firefighter (who earns about $10 a day for always being on call [$.40/hour]) could be used.

 

As you are not getting copies or having it mailed to you, the only other fees would be an employee's time to process the documents for viewing.  In this case, there likely is no exempt information, so all they'd have to do is find it.  If it costs the lowest paid clerk capable of looking this file up $57 of their time, (over half a day's work) you must assume this is why Ludington's City Hall is run so badly-- no organization. 

This is the same guy (Shay) who said it would take a week's pay of the Building Inspector for me to inspect the annual building permit reports since 1984 (about $800).  If we presume 2-3 pages per year for these reports that are presented at the beginning of each year to the city council by the BI.  That is around $12 per page, even though there is no exempt material on them, and they should be in one place.

[XLFD]

I also failed to mention that section 4 of the FOIA states, the very important point:  "Fees shall be uniform and not dependent upon the identity of the requesting person. A public body shall utilize the most economical means available for making copies of public records. A fee shall not be charged for the cost of search, examination, review, and the deletion and separation of exempt from nonexempt information as provided in section 14 unless failure to charge a fee would result in unreasonably high costs to the public body because of the nature of the request in the particular instance, and the public body specifically identifies the nature of these unreasonably high costs."

 

During my first appeal, John Shay stated the Ludington policy of what constitutes an unreasonably high cost in a letter, anything that would cost over $100 of labor costs meets that definition.  Eve's request purportedly cost $57 to process, as did all other singular requests except for one that was only $27.  Which by stated city policy should require no fee for search, etc.  I will publish Shay's letter shortly.  I need to get to my friend's scanner.

[charlemagnetism]

that spotty twit shay has wasted a lot more time trying to keep the water twoer bids secret than what it would take to find it and show his shame to the govner or coconspirators looking for ludington secrets.  whats the fear of that nabob for showing us this info.

[XLFD]

Earlier today, I have informed FOIAC Shay that I am going to City Hall and purchasing these records tomorrow.  Expect some new revelations from these, and more chatter from beyond.

[AQUAMAN]

Good luck, and be sure to bring CASH, they won't accept checks anymore, unless certified, last I heard. Same with Courthouse, can't be too easy with us checkered taxpayers ya know.

[XLFD]

Well yesterday I was forced to spend $57.23 to inspect 25 pages of documents concerning the competitive bidding of the contract over painting these two towers.  More to come.

[Willy]

Did you question why you had to pay to "look" at paperwork? It doesn't  seem right that  a governmental agency is allowed to charge money for someone to "view" documents which were created, filed and paid for by tax payers dollars. I can understand a fee for procuring copies of documents but not simply to look at them. This type of behavior [charging to view documents] could put citizens involvment in government affairs out of reach for most folks if it were carried to extremes. Imagine having to pay to look at at any documentation produced by governmental agencies. Not only is the cost of the water towers in question but the process of obtaining information about the towers is suspect.