Why Have an FOIA Policy When You Don't Even Follow It?

[Eve Alone]

I made a FOIA request recently in which I went down to the City Hall to inspect the W-2 Forms of all city employees in 2008, finding a few interesting things in the process.  I sent the following request last Tuesday in an effort to get to the bottom of how the City Council's salary went from $50 per year in the 1990's to its current rate of $3600, yes that is a 72-fold increase.

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Sent: Tuesday, January 11, 2011 3:20 PM
To: John Shay
Subject: FOIA Request

When the current charter was adopted on August 4, 1992 the City Clerk at that time noted in section 17.10: "The Mayor shall continue to receive an annual salary in the amount of Three Hundred Dollars ($300), and each Council Member shall continue to receive an annual salary of Fifty Dollars ($50), until such amounts are changed by the Council in accordance with the provisions of this Charter." Those provisions noted that this shall be done by ordinance and shall not be increased during their terms of office.

Under provisions of the Michigan Freedom of Information Act (MCLA 15.231 et seq; MSA 4.1801 (1) et seq) I am requesting, preferably in electronic records sent to this E-Mail address, public records detailing all ordinances passed since that time (August 4, 1992- present) wherein the mayor's or city council's salaries were raised, and the minutes from the meeting wherein it was passed.

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.

If fees to comply with this request exceed $20, please contact me at this E-Mail address with those fees enumerated.

As provided under FOIA, I would anticipate my request being filled within five working days of receipt of this letter.

 

I received this reply early this Monday:

 

From: John Shay <[e-mail]>
Cc: Richard Wilson <[e-mail]>
Sent: Mon, January 17, 2011 8:24:39 AM
Subject: RE: FOIA Request

Dear Ms.  

I have attached the City of Ludington ’s response to your FOIA request.  The itemization of the $114.51 fee is as follows: 

It took City Clerk Deborah Luskin 3 hours to search through all of the public records since 1992 to locate the public records you requested.  At $38.17 per hour (wages and benefits combined), this amounts to $114.51. 

Upon receipt of your payment in full, the City will release the records that you have requested. 

John Shay

City Manager

City of Ludington

The attached response said the request was granted, and to remit $114.51 to cover costs; it also said it was denied, requested records exempt from disclosure because a public record does not exist under the name given or by another reasonably known by the FOIA Coordinator.  Is he saying no such ordinance(s) were discovered?  Review by me and XLFD noted other disturbing things.  I replied Monday afternoon and gave some of our newspaper friends a copy:  

 

	John Shay <[e-mail]>; Richard Wilson <[e-mail]>
	k holman <[e-mail]>; tom rotta [e-mail]; [e-mail] FOIA%2520Policy-Revised%25202010%5B1%5D.pdf

I am confused.  I have attached a copy of the City's amended FOIA policy sent to me on December 22, 2011.  Section 5c of that policy says that a 'good faith deposit' is required for requests that the FOIA Coordinator determines to be over $50 that is to be no more than one-half of the total fee determined.  You can only request that the amount be paid in full if I failed to pay that deposit once requested.  You demand payment in full immediately.

 

You have also claimed a partial denial of this request, yet you have not included in your reply an explanation of the partial denial or a brief description of public records not provided, etc. as the new policy demands that you provide (section 7 a-e). 

 

You have also claimed I owe this money because it would take the City Clerk, Ms. Luskin, three hours to compile my request.  For this type of request, I find it difficult to believe that Ms. Luskin is the lowest paid employee/clerk capable of retrieving such material, although this again is what you are required to charge me for under the current FOIA policy, section 5b. 

 

The three hours seems also like a lot of time for a professional of Ms. Luskin's caliber, since a quick review of the city ordinances (which I would presume are on computer files) should turn the applicable ordinances quickly with a 'search' of key words.  And then just sending the associated  minutes through e-mail.

 

I have told you in the past that I qualify to be indigent and can provide an affidavit for that fact.  I am just a private citizen of this town who wonders, along with a growing amount of others, how the salary for City Councilors climbed from $50 per year a few years ago, to the current level of $3600, a 7200 percent increase.  The fact that you wish to charge me over $100 for this information speaks volumes.

 

Please clarify your positions on my above confusions, and consider this an appeal of your decision if you cannot.  Attorney Wilson, I request this to be brought before the Ludington Board of Ethics for the above misuse of the FOIA Policy by the City Manager.

 

 

 

[XLFD]

The Building Inspector created a summary of Building Permits issued the prior year that he would present at the beginning of the year at a CC meeting, back when we had a Building Inspector (before 2010).  One would then think these summaries would then be filed, electronically and otherwise, in a common folder/area. 

According to the story I eventually got, the summaries weren't available for three years (they were lost) so Shay got the idea that instead of just allowing me to inspect the summaries of the years he had (which would have been acceptable to me, and within my request) he figured the BI would have to get out each individual address file so that I could get the info for those missing years (I did not need that, and it was not really part of my request).  He presumed this would take us 40 hours to do.  I had to be 'babysat' by the BI because only he should be handling these files, and for security.  I was therefore being charged alot because somewhere down the road, the City lost 3 annual summaries.   I gave up on this, because most of the info I needed was eventually found by me on the Assessor's page of the City's site.

[Guidothesemipsuedocaptitalistpig]

Isee ..so you were going to be charged for doing something the city should have had to re-create to be legal, in the eventuality that a federal audit may have asked the same question then??

Well Gee ...where is a federal auditor when you need one ehhh???  :)

 

[AQUAMAN]

Eve, your request should have been an easy one for the city to answer. First of all, Deb Luskin, a very competent and high profile employee, DOES NOT have to do this simple task herself, there are plenty of others in lower secretarial capacities that can easily handle it. Besides, a keyboard entry into Wages and Payraise committee meetings and passages should be a totally separate matter unto itself, not related to all the other business of a city council meeting. To charge $38/hr. is ridiculous, and they know it. What do benefit packages included in salary have to do with this either? IF I remember correctly, the FOIA policies stated a minimal type paid employee should investigate whenever practical and upon availability. Lastly, why is CM Shay cc'ing the info. and letters to CA Wilson? Can't he handle such a routine and common request without his Watchdog overlooking at $250/hr.? This alone bespeaks of his incompetence and insecurities in his job duties too. Btw, if you want to talk to a couple of people about being out-numbered upon winning a council position, ask Fred Hackert for one. Another would be Pete, when he retires. I could go on with more names if you need other references, take Larry Tondu as another employee forced out of the Building Inspector position after many years in the position when he quit being a YES Man all the time, got fed up.

[Willy]

What would be interesting is a FOIA requesting information on how many FOIA's are recieved, processed, approved or denied and why. Also how much in fees have been charged and collected by the City over the last few years. And, how many FOIA request were granted but not picked up by the applicants due to the excessive amount of money being charged for the information.

[AQUAMAN]

The main key to avoiding fees would seem to be keep the request simple and not appear too time consuming. In other words, streamline the wording down. When you are including a broad amount of time, 1992-present, that in itself looks awkward and enormous. The wages and salaries committees only need to make changes when the budget is planned in Novembers, so it would make sense they discuss and propose them just prior, say Octobers, possibly some Septembers. Key in on those committee discussions, it should dovetail with the November budget changes coming for the next year. You also need to refer back to the recent changes Shay announced and passed recently for FOIA requests. They are targeting such broad requests as nuisances, and as such have changed the policy on those they feel are wasting their employees time. The crew I've witnessed at the COL's business office are very capable and pleasant people to deal with, it's just Shay that is the pain. Try to avoid going through his office as much as possible to simplify and clarify your goals. It's also hard to understand how an appointed CM official has authority over an elected official such as the City Clerk. She is probably just trying to keep the peace and keep business smooth, otherwise, any elected official surely would not be required to take orders from a non-elected official. Good luck. Good find too, $3600/yr. certainly is NOT what the City's predecessors ever imagined for compensation in such cushy and part-time jobs that are supposed to be public service oriented. It's supposed to be a time to give of yourself for the common good, not get big compensation for a labor of love. Perhaps the new current administration doesn't appreciate that view at all, instead, seeing it as a power base and way to make extra money after retiring from the City in other fields. That's a shame and not ethical conduct reflecting on good public servants that are supposed to be there for a higher purpose.

[XLFD]

The new policy is included in the thread head, though it is hard to make out.  The new things that Shay has added are definitely not in the spirit of the FOIA, and possibly contrary to it. 

FOIA%2520Policy-Revised%25202010%5B1%5D.pdf

 

Shay repeatedly violated the old policy and broke the law, and is going to be called on it eventually-- legal processes take time.  This is likely the main reason why the old policy was changed in December, so that he could (ineffectively) point to his current policy and avoid legal retribution for it. 

The Ludington Torch's purpose in all this is to create public awareness of the ongoing struggle between the folks that are for openness and honesty in the local government and the officials in the current regime that are putting their own self-interests ahead of their concerns for the public interest.  Much of what is going on behind the scenes are still face-down to all but a select few.   

[XLFD]

I invite you to make such a request to experience both humility and futility, RJE.

Another good question would be to ask where the $57.23 went that I paid to inspect the water tower competitive bids.  There was never no explanation of what the $57.23 was paid for-- no copying fees, no postage, and no calculation of employee fees needed to fulfill the request. 

What has been a big disappointment is that the local newspaper is OK with the FOIA changes and the fact we overspent so much money on water tower painting that was done many years before they were needed to be painted. 

[AQUAMAN]

We should all know the main course of navigation the LDN, Jackson and Klevorn, are on, is to keep the LDN local news based on what is reported back to them through their normal sources of information, that of the AP, courthouse, churches, etc., and a few classifieds to break up monotony. As for delving into local insider politics, good or bad, and the related consequences to the public and community, they seem indifferent and maybe more accurately, running scared. Being non-committing, will never invite critiquing nor further thought processes to be open. Bringing in the sheeple is more in line with their news watch team. Controversy, must and will be abandoned at all costs. Maybe the name should change to the Ludington Daily Snooze.

[Willy]

XLFD

Been there done that many times. Not with the city but with other Governmental agencies. The most  recent was with Mason County regarding a minor dispute I am having with the Road Commissioner.

I only presented that idea because I thought it would show a history of City abuse of the FOIA system and could be of some benefit to your situation.

[XLFD]

I agree with you, RJE.  And I wasn't necessarily being facetious when I said that you (or anyone else who wishes to disprove or prove your thesis) should do so with a FOIA Request.  My circle of friends who are up to fighting City Hall are about tapped out, and they would be treated about as bad as I would at this point. 

Eve's request is about as precise as you can get with the data available, so when Shay marks that 'the records can't be found' what does he mean:

 1)  That no such ordinances exist-- meaning that the wages have 72-tupled in an illegal manner contrary to local and state law.

2)  That the minutes to the meeting(s) where such ordinances were passed do not exist-- meaning that there is some critically poor record-keeping going on at City Hall.

[Guidothesemipsuedocaptitalistpig]

Basically the City is using the small fine print of its own FIOA policy to make life difficult. Whether it does this to anyone else isn't the point. Either way this stuff should be already available as a hard copy.

[Willy]

Guido

I have to disagree with you. If in fact the City is treating all FIOA requests the same way that X has been treated  then there really is trouble in River City, but if X is being singled out and treated differently then he could show prejudicial treatment and would have more ammunition for his cause. Just the fact that that a FOIA has been requested regarding the dispensation of FOIA requests would put a kink in Shays neck.