We Won Our FOIA Lawsuit Against the City, pt. 3 The First Hearing pt. A

[XLFD]

If you are interested in two common people's search for information in competition against a corrupted public body's effort to suppress release of that information, then by all means read or re-read the first two threads on this topic:  We won 1 and We Won 2, and the wealth of information we have put out on this battle in other threads since late 2011.

Reduced from the complexity that it has become to the simiplicity it should be regarded:  The Ludington City Manager made it impossible for us to get several sensitive but non-exempt records in a FOIA request last year; the Ludington Mayor, with implicit approval of the Ludington City Council, ignored its duty to consider our first appeal, when it docketed our appeal then took it off their agenda.

Disregarding our pleas, we were forced to go to court for the records, but were stymied for months, after which we were given a false set of records, with certification by the City that they were the actual records, but they weren't.

Shortly thereafter we finally received the 30 pages of records and learned one of the attorneys representing the City was the son of the judge.  Talk about lacking information!  We were forced to disqualify the judge over this, and his fellow 51st Circuit judge took over.  This that follows was the first part of the hearing that came directly after that on May 21, 2012, over 250 days after we asked for this information.   With page-by-page commentary by myself, using links and other data for my points.  I welcome similar disclosure by my opponents.   This hearing was considered to weigh both parties motions for summary dispositions, and was the only precursor before our September 10 hearing.

This is the cover page, George Saylor, representing his firm and the City; Myself and Toni being the plaintiffs, and Judge Wickens were the only ones in this courtroom, beyond the court reporter.

Here, Judge Wickens says he has looked over the complete file (line 21), and that he was assigned the case by the State Court Administrative Office (line 17), doesn't reveal the reason why that was done, however.  

The judge lays out his understanding of the case to that point, and addresses the matter of standing, that is, whether I was a proper party in this action (line 23).

The judge goes down the list of what the defendants asked for in their counterclaim and motion for SD, after effectively stating that plaintiffs have seen the records they originally filed suit to see, after the process had begun.  None of our additional requests in our SD were considered worth commentary.  To note, the arbitrary and capricious actions of the FOIA Coordinator and the complicit City Council in withholding records, then giving a false set of records with a sworn affidavit.

The awarding of court costs to the plaintiffs for filing suit to finally get these records is not even addressed by the court, even though it was asked for in the claim and motion for SD, nor is the award of punitive damages considered here or any other time by the judge.  Each aspect of the counter claim filed with their associate's father sitting as judge is discussed, however.  Technically, every decision made by Judge Cooper during the four months he was acting against rules of propriety should have been considered de novo (fresh) by this judge, including whether the counterclaim was proper, and whether it should have been considered at the same hearing if it was.

Saylor starts his patter, and he talks for John Shay, who filed an affidavit saying 11 documents we had already seen in prior requests, only a couple of which actually would have been applicable to our request in dispute, were the records we sought.  Shay, who had signed a lot of the records not given out, knew those records were not what we requested, and tried to support his previous position that he had already given us the records we requested.

Saylor stated in his brief:  "The request for records at issue in this cause constitutes a duplicate request... The documents associated with the September 7,2011 FOIA request are attached as Exhibit "M"."   Both statements untrue, because he either naively believed Shay's affidavit that they were, or helped the cover-up of the real records we sought.

The records we had received were not from the county, but from the DDA's financial records.  John Shay was perfectly aware that the 11 records supplied were not the records that applied to our request.  Just ones that were safe, and that we'd seen, eighty percent of which did not apply to our request.  The over two dozen we eventually got were-- and most had his signature on them.  He was well aware the City had those records, and had not provided them with this plainly-worded request.

He used the same assurance that Shay made a diligent search and certified the original false records were complete in his first brief, and the same precedent to claim our point was moot now that they had supplied the records.  The MI Supreme Court case referred to is misapplied, the release of some records in that case rendered only part of that issue moot.  Grease overgeneralizes.

Only the naive could think that the documents which were overlooked as business records between the City and Tye's were done so inadvertently, it actually defines the words arbitrary and capricious (a point which is not moot at this point!).  Avoiding the release of records that would show candidate Tykoski's lack of ethics before the election in 2011 by avoiding a proper answer and an administrative appeal is just that.  Saylor goes on...

The counterclaim was initially allowed under Judge Cooper, and likely would not have been added onto our original complaint by a judge not conflicted by having his son on the defense's legal team.  The three forms of relief the City was looking for were unprecedented.  Claiming fees for unfulfilled requests, requests that were worded in ways that preclude such charges made me take the counterclaim as a joke.

As a review of the nearly three hour deposition I had that involved some minutiae involving content on the Torch, Saylor had reviewed quite a bit of my blog, and would know the answer to his last paragraph, even though his own records shown that the only time I used the Torch as a requester, I was denied.

The dispute that still exists (and an additional record or two was still under question for 'complete' disclosure) was the prevailing issue (so we could recoup our court costs by having to file suit in order to get the records) and whether the acts of the FOIAC were arbitrary and capricious, which would allow an additional $500 to be awarded to the plaintiffs for being lied to throughout the process by not only the City but by the court.

Toni shows herself as my silent partner in this.  She can thank the City's obstructionism followed by the Workplace Safety Policy and the Letter of Trespass for her being involved in the first place.

I was in the middle of a bout of the flu I had got from my girl the previous weekend.  It really made it difficult to think clearly that day.

This page shows how hard it was for me to coalesce all my thoughts, and coalesce the basic ideas.  I give a brief history.

The "FOIA things" (requests) were all put out in a table where the FOIA Coordinator John Shay put forth many erroneous 'facts' and stated fees as if they were outstanding debts.  On my own behalf, I erroneously mentioned section 3 instead of section 4 which explains allowable fees, but this was not further commented on.  The first page of that table with the nearly $1000 for the first request is here.  You will note in the second reply where his original figure is explained, he charges me not only for the Building Inspector's failure to keep their annual summaries readily available, but also for a full forty hour week to look through the several years the City of Ludington 'misplaced' their summaries.  I backed away from this simple request for the annual reports the Building Inspector presents to the council each year in their January meeting, because it was in no way reasonable.

At the very end, I make the factual point that every fulfilled request that was delivered to or inspected by me were paid for, a point which Attorney Saylor concurs with.  So, if I had paid for every FOIA response I had agreed to or seen, where does the several thousand dollar figure come into play that was originally submitted here as $4172.30 in the power point presentation originally prepared during September 2011, $4334.97 in the original counterclaim in November 2011, $5524.63 in March 2012, up to $6500 according to Councilor Holman and her presentation at the City Hall in August 2012.

And why did the City only seek a little over $700 on September 10, 2012, if the amount they publicly said we owed was many times more than that-- not to mention that their counsel says that I have paid for every fulfilled request?  Why didn't the City and the judge bat an eye when the amount they said was owed owed went down by a factor of ten?  The figure is arbitrarily arrived at, capriciously determined and capriciously placed upon responses I have never seen and most of which have never been compiled.  A fact which was repeatedly displayed at the September 10 hearing by the testimony of John Shay himself (as will be seen), and ignored in the deliberation to that judgment.How much more arbitrary and capricious can you get than by the FOIA Coordinator (besides the obvious delays) actually perjuring themself in front of the court as to delivering this FOIA reply in earnest, and having your attorney reiterate that fact in the brief as a reason why the plaintiffs' several points should be rendered moot?  That determination should get the plaintiffs $500 and some declaration by the judge as to why the public should be intolerant of their leaders lying to the court over such matters.  It didn't even phase Judge Wickens to ever comment on it in either hearing.

The court reporter did not record what the judge's facial expressions were when I made the comment about his colleague and the long-term appearance of impropriety he was part of, nor Judge Cooper's co-conspirators to this disqualifying cover-up, namely the six plus attorneys in the City's lawfirm, and the administrators of the 51st Circuit Court.  This would be one more thing he would never touch upon, and illustrates how messed up this Circuit Court of ours is.

Here, Attorney Saylor misrepresents the facts, probably due to his own ignorance of what happened for that first FOIA.  When I asked to inspect these records the FOIAC reduced the amount down a little bit to $736, and this was reflected here at the bottom as the cost to have the Building Inspector work with me for a full week (which never happened).  So the $1600-1700 projected for the first and fourth FOIA in this table given to the court represented 80 hours of Building Inspector time that was never sought by frugal ol' me.

There should be electronic records of the annual summaries of building permits, and a database containing all this data-- shouldn't there be?  Otherwise, I can see why we had to have a full time BI before to handle the poor information management procedures.  I subsequently and independently found the City Assessor site which gave me the better part of the info I was looking for.  Any way you see it, Saylor's assertion is in error.

His other statements run contrary to FOIA practice and precedent, and to the parameters that Toni and I state in every request at the bottom, which is to have the City inform us if the price of the response is estimated to be over $20, that we shall be notified of the predicted cost before the City compiles those records.  If the City actually did compile those records knowing this limitation we placed, they did not follow our request.

Sorry for the length of the material and the analysis, but this was just half of the actual initial hearing, and I won't receive the September's hearing's transcript until next year.  I hope you begin to see the problem, if you haven't before, that we had here in getting this 'simple' information from the City of Ludington.

[masonco]

Wow thanks for posting

[XLFD]

Thanks for reading. 

Unlike the City of Ludington who will say they won this suit at a public meeting before the final judgment is even made, I will put out all the facts up to this point and let the suit run its course, and declare what we have won up to this point.  Which isn't justice, yet.