The Place Where Ludington Talks
Swiger-Rotta v. City of Ludington 2: FOIA Counterclaim and Reply
This is the second of a trilogy, the first part contained the Claim of two citizens of Ludington that information was unlawfully denied them by the defendant, the City Of Ludington who submitted answers to that claim, along with some affirmative defenses that are to be explored in the third part.
Almost unheard of in such cases was a counterclaim manufactured by the defendant that seeks to severely limit the FOIA, depose one of the plaintiffs, claim various lawbreaking on the plaintiffs' part has occurred, and seek to get costs not only of their defense to the plaintiffs' claim but also of all the FOIA requests the plaintiffs abandoned due to outrageous, unlawful and/or undefined costs quoted to them.
At first reading of this counterclaim and the nine affirmative defenses, I had to ask myself, "Why is a Manistee-based Ludington City Attorney who does contract work at $200/ hour spending all the time to make such a list of spurious suppositions and accusations against two poor Ludington citizens looking for public records deemed accessible by FOIA, who finally decided to appeal one of the many double denials we got from the City Manager and City Council-- particularly when the City has such a flimsy case?"
I will allow you to decide that wordy question, but here for your perusal is the City Hall's/City Attorney's Counterclaim to my original claim, and my formal reply to those counterclaims delivered to the Court and the City this Tuesday. The court date for this appeal is Tuesday, December 13, 2011 at 11:30 PM at the Mason County Courthouse. Come and see what happens; it should be good entertainment: two poor unattorneyed bloggers against one or more Ludington City Attorneys from Manistee.
1. Defendant is a home rule city organized and existing under the laws of the
State of Michigan.
1R. Plaintiffs concur that this is a fact.
2. Plaintiffs are individuals residing in the City of Ludington.
2R. Plaintiffs concur that this is a fact.
3. This case presents an actual controversy within the jurisdiction of this
Court and defendant seeks, inter alia, declaratory relief in this counter-claim
3R. Plaintiffs dispute that this civil court action is a 'controversy' as legally defined by
West's Encyclopedia of American Law, 2nd Ed. That text says a controversy is "an actual
dispute between individuals who seek judicial resolution of their grievances that have
arisen from a conflict of their alleged legal rights." The defendant is not an individual,
nor do they have rights of individuals; they are a government entity with statutory
powers.
That same text defines 'declaratory judgment', aka 'declaratory relief' as a "statutory
remedy for the determination of a justiciable controversy where the plaintiff is in doubt as
to his or her legal rights. A binding adjudication of the rights and status of litigants even
though no consequential relief is awarded." The City as a complainant in the
counterclaim with powers, not rights, defined and limited by statute, in a non-controversy
cannot have such relief granted by the court, in plaintiffs' opinion.
4. Since August 2009, plaintiffs, jointly and severally, and/or persons acting
in concert with plaintiffs, have submitted in excess of ninety (90) requests to defendant
under the Freedom of Information Act (FOIA). A list of such requests is attached to
Exhibit 1 and incorporated herein by reference.
4R. Plaintiffs dispute:
a) that there exists a "jointly and severally" relationship amongst themselves; we assert
we are not in any recognized partnership, and are two individuals who have never made a
joint FOIA request, as defendant's Exhibit 1 shows. Plaintiffs claim this is a moot point
anyway, as MCL 15.232(c) defines both individual and partnership as a "person" as
regards FOIA.
b) the accuracy and applicability of defendant's "exhibit 1", as will be developed, and
leaves defendant to their strict proofs to show otherwise.
5. In accordance with FOIA, defendant has timely responded to these
multiple, and frequently, duplicative requests; has assembled and copied voluminous
pages of documents and other public records; and has expended literally hundred of hours
of staff time in preparation for responding to plaintiffs' requests.
5R. Plaintiffs dispute the characterization of their requests as multiplicative and
duplicative. Plaintiffs have submitted amended requests or inquiries at times when the
corresponding replies have been indicated to have unexpectedly prohibitive costs,
oftentimes not fully explained and/or allowable by the FOIA.
The FOIA request being appealed in plaintiffs complaint, #83 on defendant's Exhibit 1, is
said to be the "same as request #s27,32,43 & 52", which denotes equivalence. Yet #21
(Plaintiffs' exhibit A, p1, and p 2) was included in one letter with three other requests that the
defendant decided to treat as one request back in October 2010 without explaining what
the costs charged ($228.90) referred to (Plaintiffs' Exhibit A, pt.2, p1 and p 2).
Yet now defendants wish to characterize that as four separate requests in their Exhibit 1, #18- #21. #21 was resubmitted as #32, a single request, in order to receive a response, yet
the fee was declared by defendant to be $367.25, again with no description of what the
f'ees being charged were for (Plaintiff s Exhibit A pt. 3 and pt.3 p.2).
Defendant claims #43 is the same as the other four request, yet the costs for that request
was $1.04, 4 copies and $.44 postage, which Plaintiff Rotta paid for (Plaintiffs Exhibit A pt.4) and defendant portrays as a reneged payment on request #44. Defendant claims
#52 (which they self-describe in Exhibit 1 as "similar to #27") is the same as the other
four requests, but Plaintiff Swiger paid the full amount of $2.75 for 11 copies, even
though she had an affidavit of indigency on file with the City which should have allowed
her the first $20 of a FOIA free (Plaintiff s Exhibit A pt 5 p.1 and p.2). This was pointed out at
the time to defendant and ignored; accepting the $2.75 was public extortion (MCL750.214) on behalf of the defendant, and this was not an isolated incident.
The plaintiffs initiated this FOIA Appeal in Circuit Court because of the defendant's
inability to either grant us request #83, or quote us a price to get the information. Saying
that the request is the same as four other requests that had four totally different costs and
four different types of public records being sought is not one of the four possible replies
the defendant had under MCL 15.235(2).
6. As authorized by FOIA and defendant's policies, defendant's FOIA
Coordinator, has requested a good faith deposit from plaintiffs for some of their FOIA
requests, as indicated on Exhibit 1.
6R. Plaintiffs concur that this is a fact, and requesting such deposits is an authorized
power the defendants possess, as per MCL 15.234(2).
7. When confronted with defendant's request for a deposit, plaintiffs' typical
response is either to abandon the request, by failing to retrieve the records or by failing to
arrive to inspect them.
7R. Plaintiffs dispute the defendant's premise. The plaintiffs' "typical response" has been
to question the amount being charged as unreasonably excessive or not being legitimate
fees allowed under MCL 15.234. The defendants "typical response" to our follow-up
inquiry is to ignore our dispute, just like they did for the FOIA request we are here to
appeal.
As just one example of this, plaintiffs offer (Exhibit B, p1,and p.2-4), a FOIA request
sent 9-15-2011 to the defendant. Plaintiff Swiger asked for contracts, bids, receipts,
invoices and correspondence for a three year period between the City and a local
contractor who allegedly was installing sidewalks without being licensed. Defendants
claimed it would cost her, $102.25: $44.50 in labor costs and $77.75 in copying charges.
In the defendant's current FOIA policy section 5b, it states clearly that the City cannot
charge for labor costs unless that amount is over $50 (Exhibit C), furthermore she asked
to inspect these clearly non-exempt records, not receive or look at copies. Despite what
the City's policy may say, if the requester asks to inspect original records, supplying
copies does not meet the FOIA requirements and the requester does not have to
demonstrate that copies are inadequate to inspect the originals (Hubka v. Pennfield Twp.,1993 (p.14,bottom)). In a "typical response" Plaintiff Swiger was totally rebuffed in defendants reply
to her inquiry on proper charges (Exhibit B, pt.2, and pt.3).
8. Of the $4,344.97 in estimated fees and expenses quoted or changed to
plaintiffs for responding to their FOIA requests, $3,460.74 remains unpaid or abandoned.
8R. Plaintiffs acknowledge a significant total of estimated fees quoted that have been
abandoned due to unreasonably excessive and/or illegitimate fees being presented to
them. Plaintiffs deny they have failed to pay for any records they have requested and was
subsequently supplied to them via the FOIA by the defendant.
9. On or about January 28,2011, plaintiff Swiger submitted an affidavit of
indigency to defendant pursuant to Section 4 (1) of the FOIA, MCL 15.234(1).
9R. Plaintiff Swiger concurs that this is factual, and would add that the affidavit was duly
notarized and submitted with the defendant's approval and their subsequent reduction of
$20 on most requests made between February and October 4, 2011. At this point,
defendant arbitrarily determined that Plaintiff Rotta was making FOIA requests through
Plaintiff Swiger, and she no longer deserved the credit due to her by MCL 15.234(1)
(Exhibit D).
10. Since January 28,2011, plaintiff Rotta has submitted FOIA requests under
the name of the plaintiff Swiger, and plaintiff Swiger has submitted FOIA requests on
behalf of plaintiff Rotta, in an effort to avoid the payment of fees and charges lawfully
imposed by defendant in responding to their FOIA requests.
10R. Plaintiffs reaffirm they are not acting jointly and severally in their FOIA requests.
Plaintiff Rotta freely admits using Plaintiff Swiger as a voluntary proxy since February,
when the defendant's FOIA Coordinator made it illegal for Plaintiff Rotta to step foot on
the properly at 400 S Harrison, namely Ludington City Hall by creating a Workplace
Safety Policy and personally placing a "Letter of Trespass" forbidding Rotta to enter that
facility without special approval by the FOIA Coordinator (Exhibit E, p.1, p.2, p.3, p.4, p.5, LT). This
prohibited Rotta from the ability to inspect records, and Swiger necessarily had to
voluntarily proxy from that point.
Plaintiffs also point out that even before the affidavit of indigency was accepted by the
defendant, Plaintiff Swiger had voluntarily proxied 4 FOIA requests in the six weeks
prior, due to reasons other than avoiding costs, contrary to defendant's boldly deducted
assertion.
11. Submitting FOIA requests through a straw man, in an effort to avoid the
defendant's legitimate fees and charges, constitutes a fraud on defendant and a deliberate
attempt to avoid plaintiffs' responsibilities under FOIA.
11R. Plaintiffs dispute the legal assertion that using a proxy for FOIA requests for any
purpose is a fraud by the requesting party. The FOIA definition of "person" (MCL15.232(c)) includes corporations, LLCs, partnerships, firms, organizations, etc., and it is
not unlawful for individuals to make requests for one of these larger organizations.
Plaintiff Swiger is "an individual who is entitled to information under this Act" who has
submitted an affidavitof indigency accepted by the defendant (MCL 15.234(1)) and has
voluntarily made the decision to make a FOIA request, and have the reply sent to her,
picked up by her, and/or inspected by her.
A public body that has such an affidavit on record for an individual has a responsibility
under the FOIA to vacate the first $20 of fees. To do otherwise, is fraud perpetrated by
the public body, and public extortion (MCL 750.214). Much like the fee assessed in
Exhibit B, which is not an exclusive incident, and every request since defendant has
capriciously withdrew Plaintiff Swiger's statutory privilege afforded by the affidavit on
October 4,2011.
12. Although plaintiff Swiger claims to be the recipient of "public assistance"
under MCL 15.234(1), the term "public assistance" is not defined by the statute and,
therefore, defendant has no basis on which to verify the accuracy or truthfulness of
plaintiff Swiger's claim of indigency.
12R. Plaintiff Swiger has submitted a notarized affidavit that she is receiving public
assistance to the defendant. Swiger stands by that oath, and invites the defendant to make
FOIA requests to agencies that offer public assistance to confirm that fact if they do not
accept her oath. Plaintiffs affirm the FOIA does not define "public assistance" but it is
used and defined throughout other Michigan law, and affirms she receives such as
defined in other laws.
13. Plaintiffs have appealed to the defendant's City Council not iess than five
(5) FOIA requests and, in each instance, plaintiffs have failed to appear at City Council to
present their case or to prosecute their appeal.
13R. Plaintiffs dispute that they have appealed any FOIA requests, as that is not allowable
by FOIA law. Plaintiffs assert they have appealed at least 5 FOIA responses by
administrative appeal to the head of the public body, the Ludington City Council. MCL15.240(1a) states that such an appeal is written and includes the word "appeal" and
identifies the reason or reasons for reversal of the denial. Plaintiffs assert they have done
this in all cases, and have presented proofs for doing so.
Subsections 2 and 3 of MCL 15.240, do not give any rights of the appellant to "present
their case or to prosecute their appeal" in front of the appellate individual or board in this
'administrative' appeal. Plaintiffs believe their written appeals describing what aspects of
FOIA law were violated made their positions clear, and these are included as Exhibit F, p.1, p.2, p.3.
14. By claiming to appeal a decision of the FOIA Coordinator, plaintiffs have
caused defendant to respond to such appeals in the manner required by FOIA, and devote
time and attention on the part of its staff and City Council to matters which plaintiffs
have apparently no interest in pursuing.
14R. Plaintiffs dispute all characterizations made by defendant about plaintiffs in this
claim. Plaintiffs assert Exhibit F shows a definite interest in pursuing appeals, and
defendant's City Council's ignoring and shelving Plaintiff Swiger's appeal on 9-26-2011
by doing nothing (as described in our original complaint), shows that they had no interest
in pursuing their appellate duties in this instance.
15. Based on the forgoing, the defendant verily believes that plaintiffs' intend
to excessively and unreasonably interfere with defendant's discharge of its municipal
functions, and, plaintiffs' repeated and duplicative FOIA requests, their refusal to pay
fees, their failure to retrieve or inspect public records made available to them, their
allowing persons who are not indigent to submit FOIA requests under another's affidavit
of indigency and their filing, and thereafter, abandoning numerous appeals has, in fact,
un-reasonably and excessively interfered with the discharge of the defendant's functions
as a municipal body.
15R. Plaintiffs dispute defendant's numerous claims:
a) Plaintiffs and their allies preparing content for a Ludington-based watch-blog have
made less than one FOIA request per week in the period defendant claims we have
"excessively and unreasonably interfered with defendant's discharge of its municipal
functions." Plaintiffs have made mostly simple requests and frequently use responses in
crafting articles for this blog. The use of this data primarily has been for benefitting the
general public.
b) Plaintiffs contend the rest of this claim is repeated and duplicative of arguments raised
by defendant in counterclaim #3, #7, #8, #10, #11and #14,and refer to our answers to
those as our rebuttal.
16. As the result of plaintiffs' actions as descended above, plaintiffs have
caused defendant damages in the form of wasted photocopies and other supplies, wages
and benefits, which could have otherwise been spent in the discharge of defendant's
regular functions.
Wherefore, defendant prays this Honorable Court grant to it the following
relief:
A. Find and determine plaintiff Swiger's status as an indigent person
and determine whether she receives "public assistance", as that term is utilized in
MCL 15.234(1).
B. Enter an order enjoining plaintiff Swiger and all persons with
knowledge of the Court's order and in active concert with her, from submitting or
permitting others to submit FOIA requests under plaintiff Swiger's name, in an
effort to avoid payment of the legitimate fees and charges imposed by defendant
for responding to FOIA requests.
C. Enter an order limiting plaintiffs to a reasonable number of FOIA
requests, per month, so as to prevent excessive and urreasonable interference with
the discharge on defendant's functioning as a municipal body.
D. Find and determine that defendant may refuse to respond to future
FOIA requests by plaintiffs unless and until such time as plaintiffs have paid for
all previous FOIA requests.
E. Enter judgment in favor of defendant and against plaintiffs, jointly
and/or severally, for all amounts found to be due to defendant by reason of
plaintiffs' prior FOIA requests that the defendant has responded to and for which
plaintiffs have failed or refused to pay.
F. Grant to defendant its costs and expenses in maintaining this
counter-claim, including a reasonable amount for attorneys fees.
G. Grant to defendant such other and further relief as this Honorable
Court deems just and reasonable.
16R. Plaintiffs must remind the defendant that part of the "defendant's regular functions"
is to supply public records to persons that request them. MCL 15.233(1) says "upon
providing a public body's FOIA coordinator with a written request that describes a public
record sufficiently to enable the public body to find the public record, a person has a
right to inspect, copy, or receive copies of the requested public record of the public
body." A person's right to do so, has a corresponding duty of the public body to furnish
those records as described in the FOIA. Otherwise:
A-C) Defendants ask this court to depose Plaintiff Swiger as to determine her status as
an indigent person, and to order arbitrary limitations on plaintiffs' rights under FOIA.
Plaintiffs would have the defendant and the court refer to Cashel v. Smith, 1982 (near the bottom) to gauge the appropriateness of those actions. This is developed more in our affirmative defenses.
D-E) Plaintiffs reaffirm that they have no outstanding monetary obligation to
defendants; if the court finds this claim relevant, plaintiffs leaves defendants to their strict
proofs to establish such obligation.
This ends plaintiffs' answers to defendant's counterclaim.
Views: 111
© 2024 Created by XLFD.
Powered by
