Swiger-Rotta v. City of Ludington 1: FOIA Appeal Claim and Answers

[XLFD]

This is a thread for those who are interested in FOIA, the law, the ongoing quest for answers to public concerns in Ludington, or the efforts the City of Ludington will go through to protect their records from being shown to the unwashed public. 

Back on October 12, 2011 we began the process of a FOIA appeal in Circuit Court, after Toni's original FOIA request was denied a legitimate response, and her administrative appeal to the Ludington City Council was ignored. 

It really should not matter, but the request was for the business dealings between the City and a businessman/City Official who was then running for City Council, and successfully did so.  The Ludington Torch has previously published public records that show he had done $15,001 of signage work for the City in 2009, and had put in a bid in 2010 well before any other sign companies were even invited to bid and made to decide a complex order in three business days.

Out of the public's interest, we had conferred and decided to see what other business his company had gotten from the City since he became a city official back in 2008.  The FOIA Coordinator refused to even consider granting or setting a fee for this request. 

I have compiled here the original complaint I made to the court, coupled with the corresponding answers the City Attorney Richard Wilson provided in his amended answer.  The original answer was sent prior to the 11-14-2011 City Council meeting where they held a closed session between 7:30 and 8:00 at the end of the meeting to discuss this letter.  These actually were unchanged from the original, but his attached affirmative defenses differed and were increased by three. 

For the reader's convenience, I have supplied the complaint and corresponding answer one after the other in total, and provided links to the quoted laws and exhibits.  As this was copied from a .pdf file, I had to edit some of what was erroneously copied over at times (such as a  "1" coming in as a "l"), so bear with me if I missed something of the like.

 

1 . This is an action under the Freedom of lnformation Act, MCL 15.231 et. seq, to
order the production of agency records, concerning contracts and communications
between the defendant and a business/city official, which defendant has improperly
withheld from plaintiff.

1A. Defendant admits the Freedom of Information Act, MCL 15.231 et seq.
("FOIA"), but as to the remaining allegations, defendant is without knowledge or
information sufficient to form a belief as to the truth thereof and, therefore, leaves
plaintiffs to their strict proofs.

 

2. This court has jurisdiction over this action pursuant to MCL 15.240 (4).

2A. Admitted that this Court has general jurisdiction to hear civil disputes, but
denies as untrue that MCL 15.240(4) is applicable in this case as defendant has not
"den[ied] all or a portion of a request" under FOIA.

 

3. Plaintiffs, (Toni Swiger/Tom Rotta), are news reporter/editor for a blog, The
Ludington Torch, and is the requester of the records which defendant is now
withholding. Plaintiffs have requested this information for use in a news story and prompt
release of the information is important because of the immediate public interest in this
information.

3A. As to the allegations contained in paragraph 3, defendant admits that
plaintiffs have repeatedly requested records from defendant but as to the remaining
allegations contained in paragraph 3, defendant is without knowledge or information
sufficient to form a belief as to the truth thereof and, therefore, leaves plaintiffs to their
strict proofs, except that defendant denies, as untrue, that it has improperiy denied any
request for records.

 

4. Defendant (City of Ludington) is an agency of the State of Michigan and has
possession of the documents that plaintiff seeks.

4A. As to the allegations contained in paragraph 4, defendant admits that it is a
home rule city organized and existing under the laws of the State of Michigan but as to
the remaining allegations contained in paragraph 4, defendant is without knowledge or
information sufficient to form a belief as to the truth thereof and, therefore, leaves
plaintiffs to their strict proofs.

 

5. By E-mail dated (9-7-2011), plaintiff Toni swiger requested access to
communications between the defendant and a business/city official. A copy of this E-mail
is attached as Exhibit 1.

5A. As to the allegations contained in paragraph 5, defendant admits receiving
an e-mail dated September 7, 2071 from plaintiffs, admits that a copy of the e-mail is
attached as Exhibit 1, but as to the remaining allegations contained in paragraph 5,
defendant denies the same for the reason that the Septernber 7, 2011 e-mail, taken as a
whole and properly construed, speaks for itself.

 

6. By E-mail dated (9-13-201 1), plaintiff Toni Swiger was denied access to the
requested information on the grounds that it was similar to prior FOIA requests made by
plaintiff Tom Rotta and an effort to evade cost reimbursement. A copy of this E-mail, and
a further E-mail (and it's reply) to the FOIAC to start an appeal, which was denied is
attached as Exhibit 2 p.1, Exhibit 2 p.2.

6A. As to the allegations contained in paragraph 6, defendant admits that its
FOIA coordinator sent an e-mail to plaintiffs dated September 13,2011, admits that a
redacted and incomplete copy of this e-mail is attached as Exhibit 2, but as to the
remaining allegations contained in paragraph 6, defendant denies the same for the reason
that the FOIA coordinator's e-mail of September 13, 2011, taken as a whole and properly
construed, speaks for itself.  {Plaintiffs' Note: Here is a screen shot of the 9-13-2011 Reply as it appeared in her E-mail system.  In the string of E-mails depicted in Exhibit 2, it appears exactly as shown; defendant claiming this is redacted and incomplete is a gross misrepresentation.}

 

7. By E-mail dated (9-15-201 1), plaintiff appealed the denial of this request to the
appellate body, the Ludington City Council. A copy of this E-mail is attached as Exhibit 3.

7A. As to the allegations contained in paragraph 7, defendant admits that
plaintiffs sent an e-mail dated September 15,2011 and admits that a copy is attached as
Exhibit 3. As to the remaining allegations contained in paragraph 7, defendant denies the
same for the reason that the e-mail of September 15, 2011, taken as a whole and properly
construed, speaks for itself.

 

8. By letter dated (9-16-201 1), plaintiff was invited to the 9-26-2011 meeting of the
City Council to present the reasons for her appeal. A copy of this letter is attached as
Exhibit 4.

8A.  As to the allegations contained in paragraph 8, defendant admits that its
Mayor sent a letter to plaintiffs dated September 16,2011 and that a copy of this letter is
attached as Exhibit 4. As to the remaining allegations contained in paragraph 8,
defendant denies the same for the reason that the September 16,2011 letter, taken as a
whole and properly construed, speaks for itself.

 

9. Discussion on the FOIA appeal was on the agenda for that 9-26-2011 meeting,
but was stricken at the meeting's beginning from any discussion. A videotape of that
meeting is available at the Mason County Library website.

9A. As to the allegations contained in paragraph 9, defendant admits that
plaintiffs' FOIA appeal was originally docketed on the agenda for the regular City
Council meeting of September 26, 2011; defendant further admits that no action was
taken on this appeal due to plaintiffs' abandonment of it, by failure to appear and present
their position; denies as untrue that plaintiffs' dispute with defendant's fee calculations
for responding to their multiple and duplicative FOIA requests constitutes a legitimate
ground for appeal in any event; and, as to the remaining allegations contained in
paragraph 9, defendant is without knowledge or information sufficient to forrn a belief as
to the truth thereof and, therefore, leaves plaintiffs to their strict proofs.

 

10, Ten business days has passed since that meeting without a decision coming
from that appellate body in writing to either plaintiff.

10A.  As to the allegations contained in paragraph i0, defendant admits that
more than ten (10) days have lapsed since September 26,2011, admits that the Ludington City Council did not render a decision on plaintiffs' "appeal" for the reason that plaintiffs
abandoned their appeal prior to the hearing; and, in any event, plaintiffs' dispute over the
fees charged by defendant does not constitute a legitimate basis for an appeal under the
Freedom of Information Act. MCL 15.240(l).

 

11. Defendant in response to each request of 9-7-2011 and 9-13-2011 has not
replied in any manner consistent with the four possible replies accorded by the Act, MCL15.235 (2).

11A. As to the allegations contained in paragraph 11, defendant denies the same
for the reason that the same are untrue.

 

12. Defendant in response to each request has not provided plaintiffs with the rights
he must include with his reply as per MCL 15.235 (4d).

12A. As to the allegations contained in paragraph 12, defendant denies the same
for the reason that the same are untrue.

 

13. Defendant in response to each request has not provided the records or any fees
contingent for plaintiffs access to records in the proper timeline.

13A.  As to the allegations contained in paragraph 13, defendant admits that it
has not provided the records requested but in further response, states that its refusal to
supply the records is justified on the basis that plaintiffs have refused to pay the fees for
providing such records and under applicable law, defendant may withhold the records
pending payment in full of the fees and charges for producing the same. As to the
remaining allegations contained in paragraph 13, defendant is without knowledge or
information sufficient to form a belief as to the truth thereof and therefore leaves
plaintiffs to their strict proofs.

 

14. Plaintiffs have a right of access to the requested information under MCL 15.233(1),

and there is no legal basis for defendant's denial of such access.

WHEREFORE, plaintiff requests this Court:
(1) Order defendant to provide access to the requested documents.
(2) Expedite this proceeding as provided for in MCL 15.240 (5).

(3) Award plaintiff costs and reasonable attorneys fees in this action, as provided
MCL 15.241 (5); and
(4) Grant such other and further relief as may deem just and proper.

14A.  As to the allegations contained in paragraph 14, defendant is without
knowledge or information sufficient to form a belief as to the truth thereof and therefore
leaves plaintiffs to their strict proofs, except that defendant denies as untrue that there is
no legal basis for defendant's actions in this matter, such legal basis consisting inter alia
of plaintiffs' refusal to pay the fees for the records they seek.

WHEREFORE, defendant prays this Honorable Court dismiss plaintiffs'
complaint with prejudice, grant to defendant its costs and expenses in defending this
action, including a reasonable amount for attorneys' fees and grant to defendant such
other and further relief as this Honorable Court deems just and reasonable.

 

The next section of this pre-trial trilogy will discuss the City's counterclaim and our replies to that.

The third section will discuss the City's affirmative defenses, our answers to those, and our affirmative defenses to the counterclaim.