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.) 

[Willy]

Aquaman

They will not give the answers right away. They will want to make sure they can explain what has occured. Then you will see 1 of 2 things at the next meeting. 1. A complete history of what occured in regards to the water towers including complete disclosure. Or 2. Vague, deceptive answers and half truths that do not explain the water tower situation. What will happen if # 2 occurs is that a conflict will be created between the honest folks in the Gov. and those that may be trying to hide something. The pot will be sufficiently stirred to arouse attention to anyone trying to cover up wrong doing.

[XLFD]

Not a bad idea, RJE, Aquaman.  Now we just need someone to 'bell the cat'.

I can't make the next meeting, but if nobody takes the challenge up, I just may do this the meeting after.

[Willy]

XLFD

It would be better if someone other than yourself presents the questions. If the Council sees that other folks are interested in answers to the water tower questions then they might pay more attention and treat this situation with more respect and concern as to the consequences' of their reply.

[XLFD]

I agree RJE, since I am already on record for this ad nauseum.  But among my everyday associates, almost all have gripes against the city, but few are ready to do anything about it for fear of reprisals from City Hall against them, their business/job, and their families.  This fear is justified from what I have seen and experienced.