The Baby Kate FOIA Blockade

[XLFD]

The agenda for the meeting of the Ludington City Council on March 20, 2017 showed very little of critical importance.  The three local news agencies chose to report only on aspects of the 2016 Ludington Police Department (LPD) Annual Report, in that the number of police calls decreased and fewer applicants for LPD positions, even WMOM had it as their only big story of the night:

But what was left off of each media report was perhaps the reason why the LPD had a hard time attracting applicants or the reason they aren't receiving as many calls as they once did.  The city's bizarre response to a FOIA request asking for a single police report and it's peripheral records, and their even more bizarre defense they would offer up that night may be part of the cause of police applicants staying away and citizens wondering whether it's safe to call their peace officers.

In Detection of Lies Six Years Later, it was noted that I had made a FOIA request in order to see the police report concerning the disappearance of Baby Kate, including any interview or polygraph (lie-detector) test of the mother of Baby Kate, Ariel Courtland.  It was noted that Courtland had revealed her passing of a polygraph test on the night of her disappearance in several media sources, yet the polygraph test has never been confirmed by the police agency where she was detained or the detective who interrogated her that evening, despite two involved trials. 

The steward of those documents, if they exist, are still not willing to answer the question of whether such records exist, claiming they only have to tell the public that they would be unable to share them because of an obscure law.  Page 168 of the March 20, LCC Packet  has their FOIA Coordinator (FOIAC), Carlos Alvarado, offering up a defense that first tries to justify their refusal of the polygraph records; I accepted that and I said so in my appeal. 

What is never justified is the call for nearly $2500 for what amounts to two records:  a recording (and/or its transcript) of Ariel Courtland's police interview in August 2011, and the police report of Katherine (Baby Kate) Phillips disappearance.  What I include in this recap of the events of March 20, is my appeal to the council in full, their replies in full, and then an analysis of the folly of their position.  Recall, they wish to charge the public 100 hours of a police detectives time in order to separate out information that would violate somebody's personal privacy. 

March 20th, 2017 Ludington City Council meeting from Mason County District Library on Vimeo.

XLFD (8:40 in):  Last week, was Sunshine Week, a national initiative to educate the public about the importance of open government and the dangers of excessive and unnecessary secrecy.  In its twilight, I have before this council a FOIA appeal over a constructive denial of the records to the public. 

In your packets for this meeting you have the FOIA Coordinator's defense of his decision to charge $2500 just for labor for inspecting one police report.  You may not have noticed that my concerns have been left out, rather the FOIAC either misinterprets my claims or just plainly misstates them.

I asked for the police report of the Baby Kate disappearance, including addenda, video and/or transcripts of the police interview with Kate's mother, and any polygraph test results.  I was informed in the reply that it would take a police detective 100 hours, that is nearly 13 eight hour days, to separate out information that would violate a person's privacy. 

Such information on a police report is typically only found on the front of the police report where addresses. social security numbers, and phone numbers are located, and many departments have software that automatically cover these areas up when police reports are requested, I believe LPD has such. 

Inasmuch as this report has been alluded to numerous times at trial and given at least partially to 28 jurors and the local circuit court during the course of two two week trials, it is reasonable to presume that any kind of "intimate or embarrassing details of an individual's private life", part of the basis for this exemption, are either non-existent, or already edited out. 

Back in 2014, I asked for LPD reports of incidents involving either the mom or the dad of Baby Kate covering the four years prior to her disappearance.  I received well over a hundred pages of reports covering over two dozen incidents, many involving custody issues.  In all of those incidents, some only a couple of pages, some more than ten pages, the only field that was exempted were the addresses, phone numbers etc. at the front of the report.  I can send those to you if you want to review them free of charge. 

For these 100 plus pages of dozens of police reports I was charged only 25 cents for each page and nothing for labor.  Now, a six year old report, which should be available to the public anyway due to all the public interest in the case, is being constructively denied by a $2500 surcharge for a detective to look at mythical exemptions, a chimera created by the FOIAC to justify his preposterous response.

Mayor Holman interrupted me at that point as my three minutes were up.  You may have noticed that the adorable gentleman who spoke before me on the issue of beach parking talked between 4:10 on the recording until 7:55 before being thanked by Mayor Holman who also resides at Sherman Oaks Manor.  That's 3:45 minutes; remember, times are always extended for those who hold positions the mayor and councilors like.  Nevertheless, he had to leave and wasn't around for the second public comment, yet I was and continued my dissertation on the same topic:

XLFD:  (41:40 in) A continuation of my earlier comments on the FOIA appeal.

What is the justification for the LPD in trying to suppress these records to the public?  Is it to hide their incompetence as a police unit, as the record already shows they failed to issue a timely Amber Alert and highlights their inability to make any progress in finding what has happened to Baby Kate for the last six years.  Face it, we honestly are no closer to finding Baby Kate now than on the day she went missing.  Is it to hide their lack of rigor in exploring all options in the case, as court records seem to indicate?  Is it to hide what may have been exculpatory evidence of the father's guilt or protect provocative evidence pointing at other individuals who were not charged in this disappearance?

One can only speculate about the motives of our police in claiming such exemptions at this stage.  What we do know is that on June 29, 2011, a Ludington infant went missing, and many in this town and around the country believe our police have not been effective in tracking her down and have actually obstructed a full and fair investigation into the matter.  If you justify this constructive FOIA denial, based on a totally unreasonable and whimsical labor cost, you will not only justify their speculation, but justify further appeal at the state court level under section 10a of the FOIA statute. 

This is now in your court, will you keep the public in the dark about this case, or will you finally let the sun shine in. 

You may note that I didn't even bring up the polygraph records, as I knew they would not release them due to the polygrapher's law they mention, what I was hoping for was to find out whether they were using this law just so they wouldn't have to tell me that those records didn't exist.  Recall, Ariel Courtland in multiple media venues made a declaration that she took and passed a lie detector test given to her by LPD the night of the disappearance.  She may have believed she did, but I am firmly in the belief that the LPD did not have the capacity or inclination that night to do so. 

Although that point had been ceded in my appeal, the polygraph aspect arose quite a lot in their discussions, which began at 43:45 into the video.  I will offer some commentary throughout in green, but for fluidity I will let most items I take issue with be addressed at the end.

City Manager John Shay:  On February 16th, Tom Rotta submitted his 326th FOIA request in which he requested records related to the Baby Kate case. He specifically was asking for interviews with Ariel Courtland, and any recordings or 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 were administered to her please include also the police report generated by the LPD and addendums added since, such as for the 2013 search.

So we received that; the city back on February 24th issued a response in which we granted the response in part, denied the response in part. The portion that was denied had to do with his request for the polygraph results. Obviously I'm not an attorney but it's a state law, I believe it's the Forensic Polygraph Examiners' Act that prohibits us from releasing results of a polygraph exam. So I understand the comments about sunshine and being open about it, but there is a state statute that specifically prohibits the city from releasing those records. [Point ceded, but he does not address whether they exist or not, his terminology dances around it]
With respect to the other records, we estimated with the other records a total of over 2700 pages of records, and in order to go through those records to determine if there was any records that would be exempt from disclosure, you have to have someone go through and read all 2700 plus pages of records.
And we estimated that that would take about 100 hours of time to do. Mr. Rotta indicated that it should take a few minutes of a police clerk's time to do; we would differ on that in terms of going through 2700 pages of records-- it would take about a hundred hours to do. And when we sent the cost estimate worksheet out, it was approximately 24,25 hundred dollars to go through that. And so under FOIA we requested a deposit for 50% of that amount, or roughly $1200 or so, and Mr. Rotta then filed the appeal.

You have in your packet, a response from the FOIA Coordinator explaining in greater detail than I'm giving you, why he feels the response by the city is appropriate and complying with the FOIA statute, as well as with the polygraph statute. So the issue here is, in terms of the part that was denied, we have to deny that part based on the Polygraph Act, the part that was granted, we are willing to release those 2700+ pages of records after we first review them to make sure there's no information in there that is exempt from disclosure.

Due to the large volume of records, that would take time to do, which is why we sent out the estimated cost worksheet. The cost worksheet and the request for deposit. In response to that, Mr. Rotta filed his appeal and as was mentioned two weeks ago at the council meeting, the council does have to act on that request for appeal at this meeting.
The recommendation is to deny his appeal dated March 2nd, which would affirm the FOIA Coordinators response dated February 24th to Tom Rotta's 326th FOIA request.

Councilor Castonia: So moved. Councilor Rathsack: Support [Mayor Holman opened discussion]

Councilor Krauch: "I might be the only person, or maybe only one of two people up here, who has actually sat down and did a doc[ument] review project. It is tedious, it is cumbersome, it takes a lot of time. It's not as simple as going through and doing, you know, a running of a computer program and doing a find. You know, find a word, you just can't do it that way. So to do that kind of search is in fact very time intensive. Now, this is an estimated cost, this isn't the final cost, correct?

Shay: This is an estimated, and if we receive a deposit we would go through and the actual costs could be higher or it could be lower, but we're required to give a good faith estimate, and that's what this is.  [And if they make another arbitrary finding that they need another 100 hours of review, in good faith of course, I would have to get $2500 more]

Krauch: The other comment I want to make is that especially in this case, there's a tremendous public interest in as much information being out there as possible; I don't doubt or question the integrity or the professionalism or competency of the police officers that were involved in this investigation. I think Mr. Rotta's assertions in that are at best misplaced. And at worst, intended to disparage our police officers.  That's kind of neither here nor there.

So my default position on this is that we should put more information out than less, whenever possible. Ariel Courtland appeared a few years ago on "Dr. Phil", to talk about this case. I remember watching, it's long before I came on city council. And so, frankly, she made herself a bit of a public person when she did that, in many ways. And so when we talk about the questions and concerns of her privacy and how we need to go back and redact those pieces of information, I would have to contemplate that a little bit, because I think a lot of the funds, a lot of the estimate is based on the need to go back and redact for privacy concerns, and I question whether that's as big of an issue here as some others might opine.  [Krauch is mixing together defamation and FOIA laws, in making a point that's irrelevant]

The bottom line though for me is the statute clearly states that we cannot release the polygraph data correct? So ultimately, I've got to vote to affirm the FOIA Coordinator's position on this because of the polygraph data, but were this, and I want to say publicly, were this to have been submitted as a FOIA request without requesting the polygraph data, absent other factors, I might be inclined to go a different direction with it, because again she made herself a public person when she appeared on national television and discussed the case. That's my opinion [and it's a flawed opinion, even though it leans towards my favor].

City Attorney Wilson: I would also point out that one of the complexities involved in this case is 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-- now in the case of the polygraph, clearly there is a state law that says we have to not disclose that, and so if there's a specific state law that says that, then we can't disclose that [If it is discretionary on the city's part to look for exemptions that aren't likely in the report in the first place, then WHY ARE THEY ASKING THE REQUESTOR TO PAY A DETECTIVE 100 HOURS FOR POTENTIALLY ELIMINATING PORTIONS OF THAT PUBLIC RECORD!]

But to Councilor Krauch's point, there may be [may be] other minors and other individuals involved in these police reports other than Ms. Courtland who are not yet public figures or who may never become public figures, whose personal privacy should be respected-- and even with respect to Ms. Courtland, the call then falls back to the city manager and the FOIA Coordinator as you've indicated. If she has already disclosed on Dr. Phil, I don't know because I didn't see the program, I didn't know she was on there, but if she got up on national television and disclosed her social security number-- yeah, then we may redact [may redact] that but we certainly won't in this case if it's public information. But that's another layer of decision making that has to go on in this case. Not only, first of all identify what are the potentially private [potentially private] information that might be [might be] embarassing if released and second of all, should it nevertheless be released even though it may [may] otherwise be exempt.

Krauch: And I think it is an important clarification that I'm speaking specifically to that material that might be redacted due to, because of her privacy, as well to other minors, to other individuals whose privacy we do have an obligation to respect, I'm speaking specifically to that information and saying that "I don't know". Not needing to go back and do a hunt and peck for that, may result in a reduction of the 100 hours necessary.

Wilson: And one of the things that you have to keep in mind, and I know Mr. Rotta might see this differently, is that while you are going through the documents, there may be other exemptions that apply that we are not aware of at this point in time. For example, if there is attorney client privilege material in there that we are not currently aware of, but if it is disclosed in the review of that, the city may or may not want to assert that privilege. If there are records of an educational institution linked to one of the witnesses that are private under the Federal Educational Records Privacy Act, for example. We haven't declared that to be an exemption in this case, but if it pops out in the records, we're going to declare that as an exemption in the final response [When has a police report actually contained attorney-client privileged content or educational records?]

Krauch: And I think it's important to know that 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 [every word!?]. Yeah, you have to look at all of it, so I understand this in its current format, and I'm simply saying that if some of the other factors were different, they would be looked at differently in my eyes, but I'll be voting to affirm.

Mayor Holman: Is there anything else?

Castonia: Your honor, I don't think there's any one of us here that are voting against releasing the information. We just want to recoup what it costs us to send it out. So 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.

Holman: (following chuckles all around) Well done.  [A unanimous vote affirming the FOIAC followed]

This was effectively the Ludington council acting as a judicial body.  If you look through their arguments, throw in the 'defense' by the FOIA Coordinator they cannot point at any one exemption that is likely to be in the police report or transcripts beyond the first few pages, other than maybe a stray phone number (the phone numbers in this case that have been used in trial have been given out publicly in both trials) or address (which have also come out at the trials). 

In the custodial interview(s) of Ariel, there should be no intimate or embarrassing details of her or others private life meeting the threshold of that exemption.  One would not expect Ariel to reveal such info while being grilled on her baby's disappearance; you will note that Sean Phillips full interrogation sessions were recorded in full and disclosed in full. 

What the city is asking for is for me to fund somebody to try and justify his 100 or so hours of work by finding as much exemptions he can, even when there aren't any beyond the first few pages.  Even their city attorney suggests that the city is under no compulsion to do this, before suggesting that they should look closer for even more exemptions that assuredly are not part of the record. 

Lastly, they claim a police report and an interview(s) with Ariel Courtland would be 2750+ pages long, a number they kept to themselves until the FOIAC's opinion.  Presuming they interviewed Ariel for three hours straight (which I am sure they didn't), they would only get about 100 pages of transcript.  Police reports for complex murders, accidents, and disappearances rarely pass the 100 page mark themselves for all the addenda they may have.  This is all I asked for.

 

I have a hard time getting the number of records up to 275, let alone the 2750 they mention.  Would they tell me how they got this number or the nature of all of these thousands of records I cannot even fathom what they could consist of?  Of course not.  Hopefully, they'll tell me in court

[XLFD]

In today's City of Ludington Daily News (COLDNews), new reporter Mitch Galloway had a six column article on page A8 dealing with the release of the records disputed at the meeting.  You won't find this in the E-edition, and I am tempted to scan and post it here, but I'd hate to say it gave any more information than I have given here-- effectively, it has some inaccuracies and has a bit of confusing choppiness to it. 

That being said, it was more accurate than anything Kevin Braciszeski has ever written, actually getting the quotes correct, and getting the issue correct in the subtitle:  "At issue is how much time office [sic] would spend considering private info in "Baby Kate" case report."  I think I will post it in the near future just for further reference.