On Friday May 5th, 2017, Cinquo de Mayo became Sinkhole de FOIA in Ludington as I filed a Freedom of Information Act (FOIA) appeal to the 51st Circuit Court based on the facts behind the denial of my public records request for the police report regarding the disappearance of Baby Katherine Shelby Elizabeth Phillips (aka Baby Kate), its supplements, and the polygraph (lie detector) records that may exist for the baby's mother.
This two month odyssey (for now) was first relayed via my post in Detection of Lies Six Years Later when it was revealed that a request for the above records would cost me nearly $2500, in order to pay a police detective spend 100 hours looking over the records to separate information out that may be invasive of personal privacy.
At the city council, I presented my administrative appeal to the Ludington city councilors (see Baby Kate FOIA Blockade for a recap, but they were adamant that every word of every 2750 pages of these records (yes, 2750 pages for one supplemented police report) would need to be sifted through and weighed to find whether the city would opt to use that exemption-- even when there has been no compelling reason to believe any such information exists after the first few pages. Even City Attorney Wilson admitted this labor was not needed, for the exemptions are totally optional.
If Ariel Courtland, Baby Kate's mother, wishes to release the lie detector results (if they exist), then these should be out there. The full police report of a cold case with a convicted murderer behind bars for it should be publicly available. And even though this is not at issue, it is delusional and excessive to believe a detective would have to work nearly three weeks to separate the material and get paid twice for the project.
The lawsuit looks to significantly reduce the cost of the FOIA and to gauge whether the polygraph was ever administered on the night of Baby Kate's disappearance. If it was not, as I presume through the actions and responses of those officials involved, it begs the question of why these very officials allowed Courtland to project this lie across the media to further her ends at the expense of the truth.
It should be noted that Courtland's testimony and version of events furthered the prosecution of the father, so her credibility was needed for the ultimate objective of convicting somebody. Correcting her at the time would have made her story less believable at the hearings and trials that would follow, and may have led to the acquittal of the baby's father due to the reasonable doubts created.
The various exhibits referenced in the body of the following complaint (and the summons) are found at the end.
STATE OF MICHIGAN
IN THE CIRCUIT COURT FOR COUNTY OF MASON
File No. 17- - CZ
TOM ROTTA, v. CITY OF LUDINGTON
137 E Dowland 400 S Harrison St
Ludington, MI 49431 Ludington, MI 49431
COMPLAINT FOR DISCLOSURE OF RECORDS PURSUANT TO THE FOIA
Now comes Tom Rotta, pro se, and as his complaint states as follows:
This is a civil action under the Freedom of Information Act, hereafter FOIA, MCL 15.231 et seq. for appropriate relief in the release of public records requested by plaintiff from defendant CITY OF LUDINGTON without the unlawful and unreasonable costs for production of records appropriate to the request or the denial of certain polygraph records otherwise publicly available, if they exist.
2. Plaintiff TOM ROTTA is a resident of the city of Ludington in Mason County in the state of Michigan.
3. Defendant CITY OF LUDINGTON is a municipal corporation formed under the laws of the State of Michigan and located in Mason County (Michigan).
4. Defendant CITY OF LUDINGTON is a public body as that term is defined by Michigan's FOIA, specifically MCL 15.232(d)(iii).
JURISDICTION, TIMELINESS AND VENUE
5. This court has jurisdiction by statute pursuant to MCL 15.240(1)(b) and MCL 15.240a(1)(b).
6. Venue is proper in this case pursuant to MCL 15.240(4) and MCL 15.240a(4) as the CITY OF LUDINGTON public body is fully contained within Mason County. As per MCL 15.240a(1)(b), this civil action is timely filed within 45 days of notification of the determination of the administrative appeal on fees that occurred on March 21, 2017, and within 180 days of that date as per MCL 15.240(1)(b) for the appeal of non-disclosure of certain records.
7. This court is instructed to advance this matter expeditiously as MCL 15.240(5) and MCL 15,240a(5) requires that "an action commenced under this section... shall be assigned for hearing and trial or for argument at the earliest practicable date and expedited in every way."
8. The State of Michigan's FOIA directs that it is their public policy that 'all persons... are entitled to full and complete information regarding the affairs of government and the official acts of those who represent them as public officials and public employees, consistent with FOIA'.
9. On February 16, 2017, plaintiff sent an e-mail [see EXHIBIT 1, FOIA request] with the subject line titled "FOIA Request: Baby Kate Abduction, Ariel Courtland Records" asking to inspect or receive electronic records concerning:
"Interviews with Ariel Courtland ( any recordings and transcripts) taken in 2011 concerning the disappearance of her daughter 'Baby Kate'. Include all such records in your possession from that year even if done by other agencies and include any polygraph test results (in full) that may have been administered to her.
Please include also the police report generated for the abduction by the LPD and the addendums added since (such as for the 2013 search)."
10. Included with the request was several parameters regarding the request for information including:
a) This is to be used for the passing of such information to the general public (media purposes) or corroborative research, and not for personal gain.
b) If you need any clarifications of this request, please reply expediently to this E-mail address.
c) If requested record(s) do not exist, please enumerate which ones do not, as per the Act.
d) 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.
e) If fees to comply with this request exceed $20, please contact me at this E-Mail address with those fees enumerated.
11. On February 24th, the CITY OF LUDINGTON FOIA Coordinator (FOIAC) sent an e-mail responsive to the request including a formal response sheet [EXHIBIT 2, FOIA response form], a FOIA Cost Estimate Worksheet [EXHIBIT 3, cost worksheet] and further explanation in the body of the e-mail [EXHIBIT 4, e-mail explaining response].
12. The four relevant parts of EXHIBIT 4 (listed 'a-d' for the court's convenience) said:
a) Statutorily, the City is banned from disclosing information, report or results from a polygraph examiner (Forensic Polygraph Examiner's Act, (FPEA), MCL 338.1728(3)).
b) Similarly, the record contains personal information, and its disclosure would constitute a clearly unwarranted invasion of privacy. This information would require redacting and segregating the record.
c) Since the cost of responding to your request of the granted portion is estimated to exceed $50.00 (see attached Work Sheet), a deposit in the amount of $1,239.50 (1/2 estimated cost) will be required. Upon receipt of your deposit, the City will compile the requested record(s).
d) Please be advised that the City's estimate does not include costs associated with copying. It is possible that when the process of redacting begins the number of copies that would be required to make would exceed a number for which the City normally does not charge.
13. On March 2, plaintiff appealed via e-mail the partial denial and the costs to the head of the public body, the Ludington City Council, announcing it was a fee/process appeal [EXHIBIT 5, appeal e-mail]. Plaintiff affirmed the denial of some portions of the polygraph records, while asking formally whether they existed, and should have been denied on that basis, as per the parameter noted in the request, as seen in paragraph 9(c) of this action.
14. In the e-mail, plaintiff formally inquired whether there were any other exemptions the city claimed beyond the personal privacy exemption, and demanded detailed affidavits describing the matters withheld and why they fit the privacy exemption, as per Michigan Supreme Court directions found in Evening News v. City of Troy.
15. In the e-mail, plaintiff asked for justification of why it would take a police detective an estimated 100 hours to go through the police report, addendums and the Ariel Courtland custodial interview to separate the exempt from non-exempt information.
16. In the e-mail, plaintiff reminded various officials that the CITY OF LUDINGTON's concern for the personal privacy exemption in this particular case was directly opposite the concern and actions they took in releasing other personally private parts of records they released in another investigation their police department and the plaintiff, as a witness, were involved in. This amounted to publicly revealing the plaintiff's personal information, and a skewed version of the encounters an associate of the plaintiff had with local law enforcement.
17. Later on March 2nd, the city manager of the CITY OF LUDINGTON sent an e-mail notifying plaintiff that the appeal would be considered at the Ludington City Council meeting on March 6 [EXHIBIT 6, appeal notice].
18. On March 6th, the city manager gave each councilor a memorandum and EXHIBITS 1-6. The memo [EXHIBIT 7, city manager memo] acknowledged receipt of the appeal and announced the appeal would come before the council at the next meeting March 20th for their decision.
19. In the city council packet for the March 20th meeting, published on March 17, the only documents presented for the councilors review was a memorandum from the CITY OF LUDINGTON’s city manager recommending that the council deny the plaintiff's FOIA appeal and a three page justification of the denial created by the defendant's FOIAC [EXHIBIT 8, FOIAC justification]. Exhibits 1-6 were not included for review at the appeal proceedings.
20. At the March 20 meeting, plaintiff used his five minutes of public comment to lay out his case for disclosure at a different cost. CITY OF LUDINGTON's city council members, mayor, city manager, and city attorney discussed the merits, before the administrative appeal was unanimously denied by roll call vote [EXHIBIT 9, transcript of 3-20 meeting]. Video of the March 20, 2017 meeting is available on the Ludington TV website as well.
21. On March 21, 2017, CITY OF LUDINGTON’s City Manager John Shay sent plaintiff formal notification by e-mail that the FOIA appeal had been denied on all issues and the FOIAC's decision had been affirmed [EXHIBIT 10, appeal denial notification].
22. Unsatisfied, Plaintiff brought forth this instant action against the defendant.
COUNT I: FAILURE TO GRANT ANY POLYGRAPH RECORDS OR AFFIRM NON-EXISTENCE OF RECORDS AS REQUIRED BY FOIA
23. Plaintiff incorporates by reference the previous allegations as if set forth word for word herein
24. On June 30, 2011, one day after her infant daughter disappeared, media service Mlive reported that Ariel Courtland said she had already taken a polygraph test and passed. She is reported to have said: "I don't want people to ever, for one second, think that I would harm my child."
25. Courtland claimed to have taken a polygraph the night after the disappearance as reported in the Ludington Daily News on July 2, 2011, on Mlive on July 29,2011. It was claimed as factual on the Nancy Grace Show in August 2011.
26. The investigating unit, the Ludington Police Department, part of the CITY OF LUDINGTON, has never affirmed or denied that Courtland had taken any polygraph test. The Nancy Grace correspondent Natisha Lance saying more than a month after the disappearance that "Police, however, are not confirming or denying that."
27. During the preliminary hearing for Sean Phillips in 2011 in front of Judge Peter Wadel, his secret confinement trial of 2012 before Judge Richard Cooper, his open murder preliminary hearing, and open murder trial both held before Judge Wadel, Courtland was interrogated for hours by both parties' attorneys and yet no mention of a polygraph was ever mentioned. Nor did any law enforcement officer testify as to whether she had ever been administered such a test, including the one who interviewed Courtland.
28. In the June 26, 2012 Ludington Daily News, it was reported that Ariel Courtland had attended the Ludington City Council meeting the previous night when plaintiff had earlier asked for these records, among others and was appealing the denial based on being an open investigation.
29. Ludington Daily News Reporter Kevin Braciszeski alleged that after the meeting that Courtland had wanted her polygraph records released to show her innocence, but she was advised by Chief Barnett that it would not be released at that time.
30. In that appeal, and this appeal, at no time have officials of the CITY OF LUDINGTON ever claimed that the record 'does not exist' preferring the ambiguous 'investigation record' exemption in 2012 or that the records were protected by the FPEA now, even when directly asked to clarify in the actual request itself and before the administrative appeal in Exhibit 5.
31. Semantically, CITY OF LUDINGTON's claim of exemption by either investigation or FPEA presumes that such records exist. For if there is no polygraph records, it is not precise or logical to claim any other exemption other than they do not exist. It would also go against plaintiff's request parameters.
32. If there are no records concerning a licensed polygrapher conducting a polygraph test on Ariel Courtland in the 24 hours immediately after her baby's disappearance, then the only appropriate exemption to be used for that instance is to say those records do not exist, not that they would be exempt by FPEA statute or even would be exempt as it would interfere with an investigation.
33. If such records exist, the controlling FPEA statute states "any recipient of information, report or results from a polygraph examiner, except for the person tested, shall not provide, disclose or convey such information, report or results to a third party except as may be required by law."
34. On information and belief, CITY OF LUDINGTON's police department does not employ a licensed polygrapher on their staff and would have to employ a licensed polygrapher or utilize a licensed polygrapher from another agency.
35. The invoice, payment records, and possibly other 'business' records dealing with defendant employing the licensed polygrapher that evening, if they exist and are presumably held by the defendant, would be available through FOIA as by definition they would be considered public records and not otherwise exemptible by the FPEA or by the FOIA.
36. The actual 'information, report, or results' could likewise be available through the FOIA if the person tested agreed to that public release, which on information and belief has been done back on June 26, 2012; the tested party has used social media and made claims on the media (see paragraphs 24,25,29) to promote that she had "passed" the test and wanted people to know that information.
37. If CITY OF LUDINGTON has obfuscated the fact that no licensed polygrapher ever administered a polygraph to Ariel Courtland by claiming records exist and are protected by FPEA, they have effectively lied by omission and violated the core function of FOIA as stated in MCL 15.231(2) i.e. "all persons are entitled to full and complete information regarding the affairs of government and the official acts of those who represent them as public officials and public employees".
38. If defendant's agent had administered a polygraph test to Courtland and was urged by Courtland to release the results, defendant in possession had no power to withhold these 'public records', as per MCL 15.232(e), from the plaintiff utilizing the FPEA as a FOIA exemption, and is in violation of the FOIA.
39. If CITY OF LUDINGTON’s agent had administered a polygraph test to Courtland, and some agreement was made between Courtland and the defendant to not disclose the 'information, report or results' of the test, then all records regarding this test that fell outside those parameters (invoices, bills, payments, etc. with the polygraph testing agent) should be available as those are not exempt via FPEA, and ergo, FOIA.
40. In either case of paragraphs 37-39, the CITY OF LUDINGTON is in violation of the FOIA for either not disclosing that records didn't exist or not making available all or some of the polygraph records concerning Ariel Courtland in June 2011.
41. Pending the results of a proposed in camera review by the court of the relevant polygraph records, if they exist, plaintiff would request that punitive damages be considered for defendant for the needless confusion and ambiguity of their responses if they seem to reach the plateau of being arbitrary and capricious in nature.
COUNT II: FAILURE TO FOLLOW ALLOWABLE FEE GUIDELINES OF FOIA- MCL 15.234(3)
42. Plaintiff incorporates by reference the previous allegations as if set forth word for word herein.
43. The initial FOIA response (Exhibits 2-4) fails to clarify why the fee of $2479 is being imposed for a police detective to be employed for 100 hours to separate exempt from non-exempt information from a single police report (plus supplements) and a single police interview recording/transcript.
44. On 12-7-2014, Plaintiff requested from the CITY OF LUDINGTON police reports from 2007 to June 28, 2011 involving Ariel Courtland and/or Sean Phillips. On 12-24-2014, defendant compiled 113 pages of reports from 28 different incidences involving defendant's police department. Defendant charged plaintiff only $28.25 for 113 copies at $.25 each [EXHIBIT 11, defendant's 2014 FOIA response for police reports].
45. Since that time, FOIA state law has changed to prevent public bodies from charging more than ten cents a copy for records. It has not been amended to allow more charges for labor costs than what was allowed before.
46. The only exemption being claimed by the defendant in this case, beyond the FPEA polygraph records exemption for part of the request they denied wholly, was the unwarranted invasion of privacy exemption (MCL 15.243(1)(a)).
47. A public body has the power to charge fees allowable by FOIA, but has restrictions on using that power indiscriminately. In relevant part, MCL 15.234(3) states clearly that: "A fee... shall not be charged for the cost of... separation of exempt from nonexempt information unless failure to charge a fee would result in unreasonably high costs to the public body because of the nature of the request in the particular instance, and the public body specifically identifies the nature of these unreasonably high costs."
48. The nature of the granted portion of the request in the particular instance was for the police report and supplements of a long-closed investigation into the disappearance of a baby, and the custodial interview transcript/video of the mother.
49. On June 12, 2013, plaintiff had asked for the custodial interview of Sean Phillips as regarding this baby disappearance case in a FOIA request to the CITY OF LUDINGTON. On June 21, 2013, defendant released a CD of this interrogation and charged nothing for the response [EXHIBIT 12, defendant's 2013 FOIA response for custodial interview].
50. The FOIA Coordinator in his response in the case now under review did not identify any unreasonably high costs to the public body because of the nature of the request in the current particular instance, noting that the public body had earlier released 28 different police reports and another custodial interview in reference to the same case and same characters without ANY cost for anything other than copies.
51. The public body did not specifically identify why the release of one supplemental police report and one interview of a cold case would justify the employment of a police detective for 100 hours to search for exempt material that would fall under the invasion of personal privacy exemption.
52. Failure to specifically identify the nature of those unreasonably high costs in the CITY OF LUDINGTON's FOIA response and justify a $2479 cost is a violation of MCL 15.234(3).
53. In Exhibit 8, the FOIAC explains his justification of the fee to the city councilors as proper being that the records amounted to 2750 pages and involves many individuals, some being minors. He claimed that numerous addresses, telephone numbers and identification documents were present throughout the records.
54. On information and belief, the transcript of Courtland's interview would amount to about 30 pages per hour of custodial interview. There is nothing suggesting her interview would have been over two hours long, indicating this record as being 60 pages or less.
55. On information and belief, the standard CITY OF LUDINGTON police report and supplements could not amount to 2700 pages of records. Standard police reports and supplements I have received from plaintiffs and other police agencies of complex accident investigations and murder cases have never amounted to over 100 pages, often much smaller.
56. On information and belief, there has been no minors involved with the police investigation into the case as witnesses, suspects or persons of interest. The four public court hearings and trials lasting more than a month involving the father confirm that belief.
57. On information and belief, police training in report writing emphasizes that personal identifying information of witnesses and others is contained at the top of the report. Reiteration of such information is not suggested throughout the rest of the report.
58. On information and belief, if other material in the standard report and supplements "reveals intimate or embarrassing details of an individual's private life", the succinct test the MI Supreme Court used in Bradley v. Saranac Community Schools, 455 Mich. 285, 565 N.W. 2d 650 (1997) to determine what is properly redacted using the privacy exemption, they should have been limited in scope to what was relevant to the disappearance, and likely would have come forth at one of the hearings or trials, much less likely in a police report.
59. To the extent that some still were within the report, CITY OF LUDINGTON's City Attorney Richard Wilson stated at the March 20 meeting where the administrative appeal occurred, that: "...the personal privacy exemption, like all the exemptions under FOIA for the most part, are discretionary on the part of the city. The FOIA statute says that the city may exempt certain information, it doesn't have to."
As per MCL 15.243(1), "A public body may exempt from disclosure as a public record under this act any of the following", before it describes all discretionary exemptions.
60. To illustrate the city previously using discretion in ignoring the 'personal privacy exemption', the CITY OF LUDINGTON voluntarily released video of an interview to three news agencies in September 2016 of plaintiff regarding the investigation of alleged threats made by other parties on plaintiff's website. Despite not being an object of the investigation, the video contained plaintiff revealing his address and other intimate details of his life that may have fell within the personal privacy exemption.
61. CITY OF LUDINGTON's City Councilor Krauch serving as a judge at this administrative appeal, stated that for all 2750 pages: "with regard to the estimation of charges based on this, that every page, and every line, and every word of every page, has to go through that sift. Yeah, you have to look at all of it. "
62. Krauch offered no explanation of why such a thorough screening was needed to look at the records when the exemption was declared discretionary by the city attorney prior, nor did he offer the rationale for the waste of resources in the utilization of a city police detective for two and a half weeks for an elective exercise in futility.
63. Another judge of the CITY OF LUDINGTON at the administrative hearing, Ludington City Councilor Gary Castonia, ended the discussion with "the only thing I can say is what I seen on a show, on "Show Me the Money" and you'll get what you want." This elicited chuckles from the other judges and had the CITY OF LUDINGTON's mayor punctuate the thought by saying "Well done."
64. The broad expanse of the records and the arbitrary methods of review envisioned was not reasonably explained at the administrative hearing or with the FOIAC's memorandum to the councilors.
65. On information and belief, the CITY OF LUDINGTON's method of reviewing 2750 pages which may not all fall within the scope of plaintiff's FOIA request was explicitly or implicitly designed to block or otherwise prevent the disclosure of simple responsive documents that would fulfill plaintiff's request through the imposition of unlawful and unreasonable charges and costs.
66. Plaintiff's request may be fulfilled by a simpler and more effective method than examining 'every word of every page' of five and a half reams of documents, many of which must fall outside of the request, just to look for exemptions that might exist of which their city attorney and the FOIA admit are discretionary on behalf of the city.
67. The actions of CITY OF LUDINGTON in assessing the unreasonably high rate run counter to section 3 of the FOIA and the unreasonable justifications of these rates and methods of separating exempt information offered by CITY OF LUDINGTON amount to arbitrary and capricious behavior designed to constructively deny these records to the plaintiff and the rest of the public.
68. WHEREFORE, Plaintiff Tom Rotta respectfully requests this court to--
a) Conduct an in-camera review of the 2011 Ariel Courtland polygraph records, if they exist, and determine whether all the records are exemptible by FPEA.
b) Order the immediate release of any records not exempt by FPEA statute after that review, declare the plaintiff as the prevailing party under MCL 15.240(6), and award appropriate costs and disbursements for this civil action.
c) Give declaratory relief to plaintiff if the polygraph records do not exist, in the form of chastising the defendant for effectively obstructing the truth throughout the process and necessitating this legal action by not following the request's parameters.
d) Determine whether there exists arbitrary and capricious elements in the defendant's use of the exemption, if such is found in the in-camera review.
e) Conduct an in-camera review of the supplemented police report and Courtland custodial interview to determine whether the defendant truthfully stated the size of the compliant records, and whether they were likely to have any significant degree of material (after the initial pages) that would fall under the personal privacy exemption.
f) Determine that defendant demanded an improper and illegal fee in regard to the FOIA, noting that they had not specifically identified in their response the unreasonably high cost of the release of one supplemented police report and one interview of a cold case and the need to justify the employment of a police detective for 100 hours to search for exempt material that would fall under the invasion of personal privacy exemption.
g) Determine that defendant has improperly asserted costs purposefully and intentionally designed to constructively deny access to the records sought.
h) Determine the correct costs, if any, that defendant may actually charge and enjoin the defendant from acting in non-accordance with the court's determination.
i) Award costs and disbursements due to plaintiff pursuant to MCL 15.240a(6) for the improperly assessed and/or constructively denied request for the police report and interview.
j) Award all punitive damages pursuant to MCL 15.240a(7) for the improperly assessed and/or constructively denied request for the police report and interview, after finding the defendant acted in an arbitrary and capricious manner.
k) Impose the applicable and appropriate fines pursuant to MCL 15.240b for the improperly assessed and/or constructively denied request for the police report and interview, after finding the defendant acted in bad faith.
l) Grant all other relief that is warranted and just.
Date: May 5, 2017 Respectfully submitted,
Tom Rotta, Plaintiff
Tom Rotta, Plaintiff
Mayor Holman should be getting her hands on this lawsuit on Monday night. Well done.
She will just hand it to Shyster & Co. Too much for her to even grasp.
..........the only thing I can say is what I seen on a show, on "Show Me the Money" and you'll get what you want. How about, show you the lawsuit and get what I want, plus the money!
Story with COL never changes: deny, cheat, delay, refuse, overcharge, and lie, then deny appeal too. Never fails, until Shay is removed, fired, or moves away. Then, pass it on to city attorney for civil matters per usual, and charge the attorney fees to taxpayers. Oh, and if they lose, oh well, charge loss off to insurance company too.
I would report their wrongdoings to their insurance company. Let them know they will be liable for the City's continued incompetence and, to expect more of the same costly claims in future expectations. If the People start suing the City and it's Officials for damages after damages the insurance company will either raise their risk or, drop them and make them un-insurable. That will close them all down quickly. I won't be missing Chief Barnett's prayers to himself and his buddies, that's for sure. This level of corruption warrants disbandment.