Ludington as Defendant: Facts and Standard of Review for Swiger/Rotta v. Ludington

[XLFD]

DEFENDANT/COUNTER-PLAINTIFF'S BRIEF IN SUPPORT OF
MOTION FOR SUMMARY DISPOSITION AND IN RESPONSE TO
PLAINTIFF/COUNTER-DEFENDANT'S MOTION FOR SUMMARY
DISPOSITION

Now Comes Defendant/Counter-Plaintiff, City of Ludington, by and through its
attorneys Gockerman, Wilson, Saylor & Hesslin, P.C., and states as follows:

FACTS

On September 7, 2011, Plaintiff/Counter-Defendant Toni Swiger ("Swiger")
submitted a request to Defendant/Counter-Plaintiff City of Ludington ("Ludington")
under the Michigan Freedom of Information Act (MCL 15.231 et. seq.)("FOIA").
Swiger's FOIA request in its subject line requested "business records between City and Tye's

Inc." The e-mail FOIA request went on to request "all bids, contracts, agreements,
receipts, and invoices since January 1,2008 - September 6,2011 between the City of
Ludington (including all public bodies within that entity, such as the DLB, the MMB, et.
al.) and either Tye's Signs, Tye's Inc., or Nick Tykoski (the individual)". A copy of the
email FOIA request is attached as Exhibit "A".  Ludington responded to the request of
Swiger on September 13, 2011, indicating that the request was similar to the FOIA
requests submitted by Rotta and/or Swiger on October 18, 2010, November 15, 2010,
November 29, 2010 and January 24,2011, and that the response of Ludington to the

previous FOIA requests should be considered as its response to the current FOIA request.
[This is paraphrased.  Here is the response.] A copy of Ludington's September 13,2011 response is attached as Exhibit (B).
Additional communication on the request between the parties is attached as Exhibit "C"
(Swiger to Ludington), Exhibit ('D" (Ludington to Swiger) and Exhibit '(E" (Swiger to
Ludington).[ As seen here]
Ludington's September 13, 2011 response went on to indicate that the request
was deemed a multiple or duplicative request for essentially the same information
previously requested and was an effort to evade the cost reimbursement provisions of
Ludington's Freedom of Information Act Policy ("FOIA Policy"). A copy of
Ludington's FOIA Policy is attached as Exhibit F.pdf.

The FOIA Policy authorizes the FOIA coordinator, which is designated as the
City Manager [City Attorney's Saylor and Wilson have also acted in that capacity with no such designation conferred.  They are not even employees of the public body, being independent contractors], to communicate with the requesting party in order to seek clarification of
ambiguous, obscure or doubtful requests. The FOIA Policy further authorizes the FOIA
coordinator when, in his reasonable opinion, the request is a multiple or duplicative
request from one or more persons that appear to be acting in concert in an effort to evade

the cost reimbursement or other material provisions of the FOIA Policy or the FOIA, to
then treat the request, in combination with the other requests, as a single request [this part of the City's FOIA policy has not been legally tested against the State's FOIA law.  In state law and precedent, the FOIAC is not given such discretionary power to make such determination, and any such application may be challenged as an arbitrary and/or capricious denial.]

Ludington has taken the position that, consistent with its FOIA Policy, its response to the
September 7,2011 FOIA request of Swiger was a proper response. Rotta and Swiger did
not request further information after the response, but instead pointed to the "indigent
status" of Swiger and the entitlement to a $20 waiver of fees, and further indicating that
the request was a "bit different" from the January 24, 2011 FOIA request. 'Rotta
was questioned as to whether he or anyone on his behalf made an effort to obtain further clarification and he declared he had not (Rotta trans, p. 46) [Swiger claimed the illegal imposition of fees in the 1-24-2011 request, a Affidavit of Indigency gives a $20 waiver (MCL 15.234(1)) and stated there were more records that needed to be released, confirmed by what the release of about 20 more records this February after this brief was filed.]

The September 13, 2011 response of Ludington incorporated the responses to four
separate FOIA requests of Rotta and Swiger, and those responses are attached as Exhibit
"G" (October 18, 2010), Exhibit "H" (November 15, 2010), Exhibit "I" (November 29,
2010) referred to also as November 30, 2010) and Exhibit "J" (January 24,2011). The
September 7,2011 FOIA request of Swiger was not denied as is evident from the above
responses [MCL 15.235(2) gives the four possible ways to respond, the response did not fulfill either.
],

The FOIA request of September 7,2011 by Swiger, is one of over 100 FOIA
requests made by Rotta/Swiger since August 24,2009 [less than one/week, in order to create blog posts for Lakeshore Soup and then the Ludington Torch]. A copy of the timeline of the Requests of Rotta and Swiger, acknowiedged by Rotta in pleadings and at deposition as
being essentially accurate (Rotta trans, p 70) [a 'sound bite', I said it was essentially accurate as to the times and the nature of the requests, I then went on to say how it wasn't accurate in about six different ways, until I was stopped], are attached hereto as Exhibit "K".  As is
evident, the FOIA requests of Rotta/Swiger have become extremely taxing on the
financial resources of Ludington. The costs for the FOIA requests (ignoring the requests
of Rotta through Swiger where Swiger's Affidavit of Indigency was used to avoid fees [Swiger made four requests for the Torch before her affidavit was applied for, the next month I was banned from City Hall and began using her exclusively, as I couldn't pick up or inspect the records, the record shows she has never repeated any request of mine since getting the affidavit.]) total over $5,500. Rotta and Swiger, however, have only paid $89.73 for the records they have requested (See Receipts for Payrnent attached as Exhibit "L"), causing Ludington to incur financial losses of over $5,000 [the amounts include many absurdly high estimates of what a request would cost; those records were never requested, and we owe nothing for these estimates, as per the allowable FOIA Fees.].

Under Ludington's FOIA Policy, where individuals, or someone on their behalf,
make a request for documents already supplied, or decline to pay the cost for records
requested, and then make a subsequent request for the same records, Ludington may
consider all the requests as a single request. That is exactly what took place in this case [This statement is negated by their recent admission of records they never admitted to in this brief].
Ludington, faced with a request made for records that were disclosed with previous
responses and with respect to some records, where Rotta and Swiger abandoned the
request because they didn't want to pay for the cost of production referred to its previous responses as its response to the September 7,2011 FOIA request. The request was not
denied.
On October 12,2012 [should be 2011] Rotta and Swiger filed their Complaint against Ludington
claiming:
1. Ludington did not properly respond to the September 7 ,2011 FOIA
request;
2. Ludington did not advise Rotta/Swiger of their rights under FOIA;
3. Ludington did not provide the requested documents or fees required for
Rotta/Swiger to have access to the requested records.

Ludington filed an answer to Rotta and Swiger's Complaint asserting that a
proper response was given and filed a counter-claim alleging violation of the FOIA
Policy and requesting that Rotta and Swiger, and all persons acting on their behalf, be
enjoined from submitting FOIA requests in Swiger's name [she makes the request in her name and takes the heat for it, she is a 'person' and 'indigent' and is allowed to make FOIA requests for herself and any others who get banned from City Hall] to avoid payment of legitimate
fees/costs [no such example of this is used or exists], limit their requests to a reasonable monthly amount [definitely against the FOIA], find that Ludington is authorized to deny further requests until the unpaid fees are paid [we have paid all fees allowable under the FOIA, and more that weren't-- the City owes us] and also for entry of a money judgment against Rotta and Swiger, jointly and severally, in the amount of the unpaid fees. Rotta and Swiger have filed a Motion for Summary Disposition of their complaint, and Ludington has filed a Motion for Summary Disposition as to the claim of
Rotta on the basis of his lack of legal standing and for summary disposition of the claim
of Rotta and Swiger, as the claim is moot [until they were reminded of what their own records said existed!] and Ludington's FOIA response was proper.

 

STANDARD OF REVIEW
A party bringing a motion for summary disposition pursuant to MCR
2.116(C)(10) [ that is, Except as to the amount of damages, there is no genuine issue as to any material fact, and the moving party is entitled to judgment or partial judgment as a matter of law.]

should specifically identify in its motion the issues to which the moving
party believes there is no genuine issue of material fact, and Rotta and Swiger have not
done this. ln reviewing the motion, the court is required to consider pleadings, affidavits,
and other documentary evidence filed by the parties in the light most favorable to the
nonmoving pafty [as they did here in their own motion, LOL]. The motion is only properly granted if the documentary evidence presented shows that there is no genuine issue with respect to any material fact. Veenstra v Washtenaw Country Club,466 Mich 155,164,645 NW2d 643 (2002) [this case said the movant must specifically identify issues to which it believes no genuine issue as to any material fact exists.  We did, we used strictly exhibits showing no adequate reply].

Under MCR 2.116(C)(9) [The opposing party has failed to state a valid defense to the claim asserted against him or her.] a court may grant summary disposition if a party fails to
state a valid defense to a claim. A motion under this sub rule tests the sufficiency of the
pleadings, and all well-pleaded allegations must be accepted as true. Slater v Ann Arbor
Pub Schools Bd of Ed, 250 Mich App 419, 425, 648 NW2d 205 (2002) [ruled that the trial court must accept as true all well-pleaded allegations and properly grants summary disposition where a defendant fails to plead a valid defense to a claim.][We believe that has occurred].

.
Whether a party has standing to sue is a question of law the court reviews de
novo. Rohde v Ann Arbor Pub Schools, 265 Mich App 7A2, 705;698 NW2d 402 (2005).
When reviewing whether a party has standing to sue, the court will consider pleadings,
depositions, admissions, affidavits, and other documentary evidence submitted by the

parties. Id. [the Rohde case concerned a class action suit based on a statutory law which limited standing.  The FOIA's definition of "person" includes individuals, groups, etc. we claim in our motion that we are both reporters for the Ludington Torch, a group with legal standing] An issue of standing may be raised at any time, even sua sponte [latin for 'of their own accord'] by an
appellate court. Kallman v. Sunseekers Prop Owners Ass'n, LLC, 480 ll4:ich 1099, 745
NW2d 122 (2008); Michigan Chiropractic Council v. Comm'r of the Office of Financial
& Ins. Services, 475 Miclt 363, 370-374, 776 NW2d 561 (2006) (opinion by Young, J.),
rev'd on other grounds, 487 Mich 349, 792 NW2d 686, (2010) [they can raise it; we can refute it].

 

ISSUES
Under MCR 2.116(C)(10) is there a genuine issue of material fact as to Rotta and
Swiger's claim whether there was a violation of the Freedom of Information Act
when Ludington's agents reviewed the request and indicated the cost [no cost was indicated] for
processing the request pursuant to the Act and took no further action once
plaintiffs abandon [never abandoned by plaintiffs] their appeal of costs?

Rotta and Swiger say: No (claiming violation).
Ludington says: No (claiming no violation).

Under MCR 2.116(C)(9) does Ludington state a valid defense to the complaint
when it timely filed an answer [not a valid response as per MCL 235(2)], affirmative defenses and counter complaint including the defense that plaintiff, Tom Rotta, lacks standing to bring suit?

Rotta and Swiger say: No.
Ludington says: Yes.

Under the Michigan Constitution and the Lansing Schools standard, does Rotta
lack standing to bring this suit because he has failed to allege or prove that he has
suffered a specific injury in fact, has or substantial interest that will be
detrimentally affected or qualifies to bring suit as a requesting person under the
Act [both plaintiffs devised the FOIA request and had submitted prior requests working as reporters for the Torch which the defendant referenced in his reply, we both suffer injury from the lack of a legal, proper response] ?

Rotta and Swiger presumably say: No.
Ludington says: Yes.

 

Is the response of Ludington as to the Freedom of lnformation Act request of
Swiger of September 7, 2011 a proper response?

Rotta and Swiger presumably say: No. [no presumably about it]
Ludington says: Yes.

Is the substantive request of Rotta and Swiger for an order compelling disclosure
of records related to the September 7, 2011 FOIA request rendered moot by the
submission of said records?

Rotta and Swiger presumably say: No. 
Ludington says: Yes.  [yet they include records not asked for, and leave out about 20 records of business dealings between Tykoski and the City of Ludington.  Oops!]

 

End of part 1 of the Brief.