Why Have an FOIA Policy When You Don't Even Follow It?

[Eve Alone]

I made a FOIA request recently in which I went down to the City Hall to inspect the W-2 Forms of all city employees in 2008, finding a few interesting things in the process.  I sent the following request last Tuesday in an effort to get to the bottom of how the City Council's salary went from $50 per year in the 1990's to its current rate of $3600, yes that is a 72-fold increase.

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Sent: Tuesday, January 11, 2011 3:20 PM
To: John Shay
Subject: FOIA Request

When the current charter was adopted on August 4, 1992 the City Clerk at that time noted in section 17.10: "The Mayor shall continue to receive an annual salary in the amount of Three Hundred Dollars ($300), and each Council Member shall continue to receive an annual salary of Fifty Dollars ($50), until such amounts are changed by the Council in accordance with the provisions of this Charter." Those provisions noted that this shall be done by ordinance and shall not be increased during their terms of office.

Under provisions of the Michigan Freedom of Information Act (MCLA 15.231 et seq; MSA 4.1801 (1) et seq) I am requesting, preferably in electronic records sent to this E-Mail address, public records detailing all ordinances passed since that time (August 4, 1992- present) wherein the mayor's or city council's salaries were raised, and the minutes from the meeting wherein it was passed.

If you determine that some of the requested information is exempt from disclosure, please detail what is being withheld and cite the exemption under FOIA.

If fees to comply with this request exceed $20, please contact me at this E-Mail address with those fees enumerated.

As provided under FOIA, I would anticipate my request being filled within five working days of receipt of this letter.

 

I received this reply early this Monday:

 

From: John Shay <[e-mail]>
Cc: Richard Wilson <[e-mail]>
Sent: Mon, January 17, 2011 8:24:39 AM
Subject: RE: FOIA Request

Dear Ms.  

I have attached the City of Ludington ’s response to your FOIA request.  The itemization of the $114.51 fee is as follows: 

It took City Clerk Deborah Luskin 3 hours to search through all of the public records since 1992 to locate the public records you requested.  At $38.17 per hour (wages and benefits combined), this amounts to $114.51. 

Upon receipt of your payment in full, the City will release the records that you have requested. 

John Shay

City Manager

City of Ludington

The attached response said the request was granted, and to remit $114.51 to cover costs; it also said it was denied, requested records exempt from disclosure because a public record does not exist under the name given or by another reasonably known by the FOIA Coordinator.  Is he saying no such ordinance(s) were discovered?  Review by me and XLFD noted other disturbing things.  I replied Monday afternoon and gave some of our newspaper friends a copy:  

 

	John Shay <[e-mail]>; Richard Wilson <[e-mail]>
	k holman <[e-mail]>; tom rotta [e-mail]; [e-mail] FOIA%2520Policy-Revised%25202010%5B1%5D.pdf

I am confused.  I have attached a copy of the City's amended FOIA policy sent to me on December 22, 2011.  Section 5c of that policy says that a 'good faith deposit' is required for requests that the FOIA Coordinator determines to be over $50 that is to be no more than one-half of the total fee determined.  You can only request that the amount be paid in full if I failed to pay that deposit once requested.  You demand payment in full immediately.

 

You have also claimed a partial denial of this request, yet you have not included in your reply an explanation of the partial denial or a brief description of public records not provided, etc. as the new policy demands that you provide (section 7 a-e). 

 

You have also claimed I owe this money because it would take the City Clerk, Ms. Luskin, three hours to compile my request.  For this type of request, I find it difficult to believe that Ms. Luskin is the lowest paid employee/clerk capable of retrieving such material, although this again is what you are required to charge me for under the current FOIA policy, section 5b. 

 

The three hours seems also like a lot of time for a professional of Ms. Luskin's caliber, since a quick review of the city ordinances (which I would presume are on computer files) should turn the applicable ordinances quickly with a 'search' of key words.  And then just sending the associated  minutes through e-mail.

 

I have told you in the past that I qualify to be indigent and can provide an affidavit for that fact.  I am just a private citizen of this town who wonders, along with a growing amount of others, how the salary for City Councilors climbed from $50 per year a few years ago, to the current level of $3600, a 7200 percent increase.  The fact that you wish to charge me over $100 for this information speaks volumes.

 

Please clarify your positions on my above confusions, and consider this an appeal of your decision if you cannot.  Attorney Wilson, I request this to be brought before the Ludington Board of Ethics for the above misuse of the FOIA Policy by the City Manager.

 

 

 

[XLFD]

FOIA court rulings have always maintained that an FOIA request should not be treated any differently whether it is from a muckraking e-journalist or a friendly newspaper. 

Kevin Branisceski of the LDN had received from Shay my name, address, E-mail address and past bicycle-traffic violation records without an FOIA request.  I can't even get to inspect any record defining the City's anti-nepotism policy without spending over $120.  Fairness?  You make the call.

[Eve Alone]

Here's the E-Mail I received from my City's Attorney today.  Please comment on what it covers, and perhaps what it doesn't cover.

---

Dear Ms.

 

As you know I am the City Attorney for the City of Ludington and it is that capacity that I send you this email.  This email is in response to your email addressed to John Shay and me that was sent on Monday of this week. 

 

Under FOIA, the City may request a deposit from a person requesting records if the cost to respond to that request is estimated to be more than $50, and, in that case, the deposit can be no more than ½ the total estimated cost.  In this case, the estimated cost is $114.51 and the deposit would be one half of that amount.  Consistent with court and attorney general opinions on the matter, the City’s FOIA Policy also states that all fees must be paid before the City is required to deliver records or permit their inspection to occur.  Thus, before the City actually undertakes a search for the records, it is entitled to be paid the requested deposit; before the City is obligated to allow you to inspect the records (or provide copies, if that is what is requested), it is entitled to payment of the fee in full, whether or not it has requested a deposit.  Mr. Shay’s statement to you that “Upon receipt of your payment in full, the City will release the records that you have requested” is therefore a correct statement of the law and the policy. 

 

It will also be helpful, I believe, to explain to you why the City has partially “denied” your request.  Under FOIA, a requester must “describe a public record sufficiently to enable the public body to find the public record”.  MCL 15.233(1).  It is my ongoing advice to the City that whenever there is any doubt as to exactly what records a FOIA requester is asking for, that the request be partially denied on the basis that the request has not “described the public record sufficiently to enable” the City to find it.  In your case, you asked us to produce “public records detailing all ordinances passed since that time (August 4, 1992—present) wherein the mayor’s or city council’s salaries were raised, and the minutes from the meetings wherein it was passed.”  (emphasis added)  In our view, this request is both broad and ambiguous as to what “detailing” means, and whether “public records” is limited only by the modifiers “ordinances” and “minutes” or whether other “public records” were contemplated by you to be within the scope of your request.  Likewise, we do not know what you meant by “it”.  To the extent that your request seeks “public records” other than ordinances and minutes, we have denied your request because  you have not sufficiently described those other public records to enable us to find them.  In the future, it would be helpful if you would try to describe the category of record you seek to review with as much specificity as you can, so that we won’t have to partially deny your request on the basis I’ve just described.  Thus, if you were to request “ordinances” or “minutes” or “bank statements” or “correspondence” or other relevant categories, we would know what you are requesting and would respond accordingly.

 

In view of the foregoing, I would ask that  you please advise us whether you wish to pursue an appeal to City Council and, if so, on what basis.

 

Regarding the other matters you raised in  your email:

 

If you review the City Code that is online, and specifically the sections dealing with the Board of Ethics, I believe you will concur that the Board of Ethics has no jurisdiction in this matter and as the City Attorney, I have advised the City that it need not convene the Board of Ethics in these circumstances.  The Board of Ethics has a very circumscribed authority and it does not include a review of the practices of the FOIA coordinator.

 

Lastly, the City is cognizant of the fact that you claim indigency in this matter.  FOIA requires that we reduce the total fee by $20, but only if you file with the City an affidavit attesting to your indigency.  Because I am the City Attorney, I am unable to give you any legal advice on this topic beyond suggesting that you consult an attorney of your choosing or other authoritative source to assist you in drafting an affidavit.

 

Richard Wilson 

Richard M. Wilson, Jr.
Gockerman, Wilson, Saylor & Hesslin, P.C.
Attorneys at Law
414 Water Street
Manistee, MI  49660

231-723-8333
231-723-3888 fax
[e-mail]

THE INFORMATION CONTAINED IN THIS E-MAIL IS INTENDED ONLY FOR THE PERSONAL AND CONFIDENTIAL USE OF THE DESIGNATED RECIPIENTS ABOVE.   THIS E-MAIL IS AN ATTORNEY-CLIENT COMMUNICATION, AND AS SUCH IS PRIVILEGED AND CONFIDENTIAL.  IF THE READER OF THIS E-MAIL IS NOT THE INTENDED RECIPIENT, YOU ARE HEREBY NOTIFIED THAT YOU HAVE RECEIVED THIS COMMUNICATION IN ERROR AND THAT ANY REVIEW, DISSEMINATION, DISTRIBUTION OR COPYING OF THIS COMMUNICATION IS STRICTLY PROHIBITED, AND YOU SHOULD DELETE IT FROM YOUR SYSTEM IMMEDIATELY AFTER NOTIFYING ME BY TELEPHONE OR E-MAIL OF YOUR RECEIPT OF THIS COMMUNICATION.  THANK YOU.

To the extent that this written communication may address federal tax issues, federal regulations issued by the U.S. Treasury require that the recipient be informed that this written communication is not intended and cannot be used to (i) avoid any potential tax penalties that may be imposed under the U.S. Internal Revenue Code or (ii) promote, market, or recommend to another party any transaction or matter addressed in this communication.

 

[Willy]

This reply is absolutely incredible. I am astounded. I've dealt with many FOIA requests' but have never encountered such a display of arrogance on the part of a governing agency. A simple request that should not even require a FOIA has been turned into a political football by Shay and the City Attorney. Of course the Attorney is only acting under the direction of Shay. And to top it off, telling any and all who read this letter that they must  destroy it and notify the Attorney that they are aware of it's existance. This  is unheard off. I have come to the conclusion that something is very wrong with Ludingtons elected and appointed officials. Whatever you do, do not give up this fight. The people behind this letter are a danger to the Constitutional rights of the citizens of Ludington.

[Guidothesemipsuedocaptitalistpig]

That part is really quite standard, and is supposed to show legally that it is being kept confidential at least on the senders end.

In short she can duplicate it to be read by our forum but we would be in violation if one of us other than Eve redistributed it.

[Willy]

You could look at this 2 ways. The statement is put there to protect the privacy of the FOIA requester in the event that it was mistakingly sent to the wrong person or it is a way to stifle the dissemination of information because it doesn't differentiate between someone intercepting the message and the recipient distributing the information to interested persons. It's an ambiguous statement. I have never received and email from an attorney. I use the paper communication method so this is something new to me and in my opinon needs to be refined.

[Lisa O'Brien]

The disclaimer at the bottom of the e-mail is standard business practice. The lawyer is telling her, she has to define the scope of her FOIC request - which is also pretty standard.

[Guidothesemipsuedocaptitalistpig]

Yeah Lisa I see this printed on most anything that was transmitted through electronic method's or that someone thinks may ultimately be sent in such a fashion.

 

I don't think the intent was it intimidate.

If I read all of the rest of this discussion it looks as though we are already in the process of narrowing the scope of the request also yes?

[Lisa O'Brien]

Yes - he did provide tips to narrow the scope.

[Eve Alone]

I'm not Mr. Wilson's client, so the A-C privilege is not there.  As I see it, he is the counsel for those who would withhold information in violation of the FOIA, the attorney for ignominy and ignorance.  Pardon for the long posts, but here is the wording of the E-Mail we just got done drafting to the attorney, and a few others.

"Let me address your points that addressed some of the points I brought up, and then bring up the points you ignored.

1)  I am admittedly poor folk, that's in the record, I will swear to that before any notary public in an affidavit.  In the past the City has extended others, including Tom Rotta, the ability to pay 1/2 the costs up front to compile the records.  I was not extended this courtesy for this enormous fee.  Why the unfairness?  Isn't every FOIA request to be treated equally?  Is this not discrimination based on my indigency?

2)   If anyone is having difficulty figuring out the meaning of  "it" is in my request, consider how it is used:  "...it was passed."  when I used "ordinances passed" earlier in that same sentence as "it"s antecedent.  

3)  Similarly, when I use the term "public records" I use it as the Act defines it.  Do I need to define those "it"s, also?   I have tested little kids on this sentence and grown adults, I don't see what confusion with the word "detailing" is-- I'm just looking for the actual ordinance and the minutes of the meeting it was passed.  The City Manager, in the new FOIA rules, has given himself the power to ask for clarifications, why didn't he use it if there was such confusion?  If you want real confusion, just read any of the FOIA reply forms we get back that have large fees and partial refusals with no explanations.  This goes against the Act.

4)  The Board of Ethics was empowered to enforce the City's Article 3:  Conflict of Interest ordinances.  This has 3 divisions, the first is prohibited conduct, the second is financial disclosure, the third describes the Board's duties, etc.  

Sec. 2-93

the board of ethics shall have the following powers and duties: (1)  To initiate on its own motion, receive and investigate complaints, hold hearings, and make findings of fact and determinations with regard to alleged violations of the provisions of this article.

 

That includes all divisions of "this article".  Someone who quibbles with the meaning of the word "it" might not get this, but Division 1 has what some may call "Standards of Conduct" for public officers and employees.  Charging $114 for this, and all the other times that FOIAC Shay has charged over $100 (beyond a "de minimus" nature), without following the standard local or state fee structure for FOIA could well be considered prohibited conduct, and worthy of being reviewed by the Ludington Board of Ethics.  I really find it hard to believe why you wish to narrow the range of an agency that probes unethical behavior beyond what the law clearly allows?  But you don't live here, do you; and you just had an incredible raise this year?

 

5)  Why is Ms. Luskin, the well paid City Clerk, wasting her time with my "insufficiently defined" request when anyone with access to the City database or the Ordinance book could look up an appropriate ordinance?  The FOIA says that I am to be paying the rate of the lowest paid employee capable of fulfilling the request.  It is definitely not her.  Noticed you didn't touch that one.

 

6)  I could find this information on the computer within 15 minutes if the City had all of its ordinances, or all of its minutes back to 1992 on the web, available to all.  Many clerks have been with the city for that period and should likely know when those changes occured.  Or they could check the yearly wages of the city councilors for each year and narrow the search down considerably, if they for some odd reason, do not have the ordinances on computer files.  Three hours is not reasonable.

 

I clearly do not want any legal advice from you, ever; and if you give any, it will be promptly ignored.  You have no soul and no heart.  But please respond to my concerns and you have a nice day.

 

[Willy]

Eve alone

It's a good response but I would leave off anything that refers personally to him, such as the lack of a soul or heart even though it may be true. There's nothing worse than a tight cheeked attorney who wants to rough someone up using the legal system.

[Guidothesemipsuedocaptitalistpig]

Very good point RJE. Unless you have extra time and money on your hands keep the rhetorical stuff down...

Can I do it instead!!!????  :)

[AQUAMAN]

Nice reply Eve, and NOW maybe some on here may be seeing the True Light on injustices at the Core of our City of Ludington Politics, not only these days, but for a long undebated period of time into the past. It's called POWER! The POWER to do whatever in the  name of, hey, you little people are just a pawn in this game, you have no rights, no say-so, and as such, will be buried with dogma and cynicism till you GO AWAY! If you don't, we'll pester and shame you into the abyss till you do! With more attorney letters, and perhaps, even threats and civil suits to SHUT YOU UP! Who are YOU to tell us how to mind "Our Store"? I've just researched the archive of the COL's online council minutes, they do NOT go beyond year 2008, even if you click on 2005, 2003, or 2006, how come?