Sunshine Week Sunsetted by the Kent County Sheriff's Office

[XLFD]

This tragedy in transparency with the Kent County Sheriff's Office (KCSO) actually began back in the end of February with a fatal accident happening to an older Grand Rapids woman who was hit from behind while riding her bicycle on the side of the road (as recounted here in Blaming the Victim: The Anita Daugavietis Tragedy).  As is typical in such accidents, the media fails to report anything beyond what they initially receive from the investigators just after both parties have rushed to the scene for the business of either mitigating the emergency or scooping the competition. 

In checking for updates from either the KCSO or GR media, I was stifled so as I wanted to find out what actually happened that night, I sent a FOIA request for the accident report out to the investigating agency (the KCSO) exactly one week after the incident.  You will note I was making the request via my BUMPS affiliation, and asked for a waiver of fees.  Exactly one week after my request, I received the following response from Deputy Butts:

Past experience and this booklet informed me that a UD-10 report for two unit crashes involve one piece of paper (double-sided).  So I could get effectively a UD-10E report (an electronically prepared UD-10 report-- no copies needed) for $13, or pay $10 for one piece of paper after I waste money, materials, and time by going through snail mail.  Either deal seemed unacceptable to me.  Even worse, I went to the paypoliceticket.com site and found that even if I wanted to spend $13 for a look at a page of electronic records, I would still need the incident report number to have it processed, a number I wasn't given:

I asked for some clarifications in an E-mail that same day and pointed out some of the applicable laws she had to contend with.  Deputies should like to try and follow the law, right?

"I cannot access the paypoliceticket.com database without knowing the police report number of the Feb 24, 2015 accident, that is, if I wanted to spend $13 on the limited amount of information it contains, which may not be what I am seeking.

As stated, I am requesting this information via my non-profit group BUMPS to review the incident and potentially use it in an article on non-motorized traffic safety.  Also as stated, I am requesting the materials in the form of electronic files to be sent to this E-mail address or to inspect the files at the KCSD, if necessary. 

As such, even if you do not consider the waiver of fees for release of this information to primarily benefit the general public as allowed in the act, you cannot charge any fees that would be applicable under the FOIA to fulfill this request by the nature of your reply to this request.

To whit, you have sent me an E-mail, showing the KCSD Records Department has E-mail capacity and can send copies of public records through that medium.  Ergo, costs for copies and costs for postage are not in consideration. 

If you then assert that the $10 you request for processing is for the only other allowable fee for FOIA requests, 'labor', then you have failed in your reply to specifically identify those costs in your reply.  Section 4(3) of the FOIA says:  "A fee shall not be charged for the cost of search, examination, review, and the deletion and separation of exempt from nonexempt information as provided in section 14 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."

Requesting one accident report is a rather common request to your agency, which by its nature should not result in unreasonably high costs to fulfill.  Even if you disagree with that simple assessment, you cannot argue that you did not specifically identify what the $10 cost was for, therefore you assessed an illegitimate fee and are in violation of the FOIA's fee policy if you insist any money is owed. 

Since I have routinely gotten such information free from several other sheriff's departments in the state without such legal arguments needed, I would appreciate if you could transmit the electronic files fulfilling this request to this E-mail address, and if you could, please supplement them when the investigation is finished (consider this a 'subscription' to this FOIA request for materials). 

I expect a supplemental response in five business days of this E-mail containing either the accident reports and addenda or a requested extension.  I do not expect any request for fees, as that would be unlawful at this juncture. 

I would just like this information as the law allows; thank you very much for your expected cooperation."

          

Two days later I received this Amended FOIA response from Deputy Butts again, an eight page essay in itself, which retains the $10 charge for the one sheet UD-10 report, while apprising me of the various rights I had to appeal the response.  Nowhere in these eight pages was there any useful information.  I had to get intimate with the Kent County website to try and figure out where I could get a legitimate public records request response.

I sent an E-mail to County Administrator Darryl Delabbio (pictured below) and Conni Mutchler, executive assistant to the Kent County Board to explain my dilemma with getting at least the one sheet of paper that was available.

"I keep getting inadequate and unlawful FOIA responses from the FOIA Coordinator Kahleen Butts that fail to abide by the Kent County FOIA procedures.  I have forwarded herein the original reply I got back from Ms. Butts from a formal FOIA request to receive the accident report of a February car bicycle accident that was investigated by the KCSD.  The request referenced the bicyclist that was killed, the date, and the place.  As noted, I chair a non-profit group that studies and tries to remediate accidents that happen involving motorists and vulnerable users of the road, such as pedestrians, motorcyclists, and bicyclists. 

The response said I could access a site where I would need the number of the actual report and $13 to look at this public information.  She also noted I could send $10, without reference to what that $10 was for, to an address and receive the information.  That was it.

Kent County procedures and standards for FOIA (https://www.accesskent.com/Departments/BOC/pdfs/FOIA/Procedures.pdf) indicate her response was insufficient because it violated policies:

A.4/A.5/F Training/Form Packet/Respond to Request:  she did not use the response form, notice of right to appeal, etc.

G.1:  Response Format/Inspection:  I requested either inspection or electronic service of the records, she denied me the right to both of those options, giving me only an address to send $10, without any justification of fees.

H1:  Permissible Fees:  I requested no copies, nor mailing, she gave no reason for any unreasonably high costs, nor did she specifically say what the $10 was for.

When I sent my reply to her affirming that she had erred, she did try to correct her error by sending me a partial form packet, but it still did not explain the $10 charge once again, nor was that charge legitimate because she did not explain such charge the first reply, as established by FOIA precedent. 

I wish to formally appeal this reply, but your policy does not make it clear who exactly I need to appeal to, whether it is to the Board of Commissioners, the sheriff, or the County Commissioner.  Hopefully, I can be sent the records without such a formal appeal, if you can get Ms. Butts to follow her training, the rules you have set, and the laws of this state.  If I do not hear back from this complaint in two weeks, or receive the records by E-mail, I will regrettably take this issue to the circuit court of my county."

To this I received a response from Assistant County Counsel (pictured below) on March 13th telling me that my letter was acknowledged and intimated that it may not come under review for appeal because the information was not denied, but my request was denied as I further explained in a follow up E-mail ushering in Sunshine Week.

"This is not only just an appeal of the $10 fee that is unlawful under current city policy and state law, this is also an appeal of Ms. Butts insistence on not allowing me access to the records in the way I requested (i.e. by electronic records or by inspection), as such it is a true denial of my request, and a constructive denial by the illegal imposition of fees where none is warranted.

By MCL 750.492, you will note "Any officer having the custody of any county, city, or township records in this state who shall when requested fail or neglect to furnish proper and reasonable facilities for the inspection and examination of the records and files in his or her office and for making memoranda of transcripts therefrom during the usual business hours, which shall not be less than 4 hours per day, to any person having occasion to make examination of them for any lawful purpose is guilty of a misdemeanor punishable by imprisonment for not more than 1 year or a fine of not more than $1,000.00."

Disallowing myself to enter onto the premises and review the requested materials is thereby not only a civil wrong on the part of the FOIA Coordinator, but also a criminal wrong by Ms. Butts and accessories after the fact for all other public officials that have reviewed this FOIA request and not corrected Ms. Butts criminal actions, which also include MCL 750.214, extortion by public officers, namely by charging $10 in illegal fees:  "Any person who shall wilfully and corruptly demand and receive from another for performing any service, or any official duty, for which the fee or compensation is established by law, any greater fee or compensation than is allowed or provided for the same, and any public officer, for whom a salary is provided by law in full compensation for all services required to be performed by him, or by his clerks or deputies, who shall wilfully and corruptly demand and receive from any person any sum of money as a fee or compensation for any services required by law to be performed by him in his said office, or by his clerks or deputies, shall be guilty of a misdemeanor"

I want some explanations of this criminal mischief before this appeal reaches the appellate body, and will broadcast such derelictions of duty to the rest of the public.  Why is the Kent County Sheriff's Department engaging in such criminal behavior to release accident records to a non-profit group that only wishes to review safety issues of the incident?"

By the end of the day, I response from corporate counsel once again:

True to form for unaccountable public agencies like the KCSO seems to be, I heard absolutely nothing from any Kent County official or counsel over these particular FOIA legal matters through the whole of Sunshine Week.

Sunshine Week Request

The complacency Kent County showed in correcting the behavior of Ms. Butts in requesting $10 for a sheet of paper (which also comes in easy-to-send-and-comply electronic form-- for $13!) had me believing this was the status quo, so I sent another FOIA request to Ms. Butts on Wednesday, March 18th.  My request was straightforward, to inspect or receive in electronic form "All written requests for public records to the Kent County Sheriff's Department over the last year (since 3-17-2014), and their corresponding responses (not the records themselves, but the response forms) from the KCSD."

I further noted that MCL 15.233(2) mandated "A freedom of information act coordinator shall keep a copy of all written requests for public records on file for no less than 1 year.", hinting that these non-exempt records should be available for inspection or easy electronical transmission.

On Friday afternoon, as if to punctuate Sunshine Week heading into the sunset, I received from corporate counsel a two page response that was quite remarkable and totally beyond a reasonable reply.  In perhaps the most salient part:

 

So even though I asked to inspect or receive electronic files of what they should have readily available by law, they seem to expect me to pay $650 in copying fees even if I decide to inspect the records.  She indicates this $650 will have to be paid in full for just the inspection of the records, further she claims an alarming result:

The records are not retained in a .pdf format, Ms. Ghosh?  This is rather commonplace for E-mail requests, such as the response to my original request and her two-page response (both shown in the .pdf file format they were received in) were.  If the body corporate of the Kent County Sheriff's Office is not retaining these records sent by E-mail (of which I personally have two of) they are in violation of their own record retention policy, and state law.  MCL 750.491 declares all records created or received by any political subdivision belong to all people of the state.  Failure to retain and deliver such records up to anybody who requests them lawfully is guilty of a misdemeanor.

Sundown Showdown

The quest for an accident report for research means from the Kent County Sheriff's Office will continue, as will the quest to see how often they ripped the public off by charging unlawful fees for those 1500 FOA responses sent out in the last year.  Like the Michigan State Police, and the Mason County Sheriff, they will be challenged, and their corrupt, illegal practices of keeping information from the public must be stopped.  Or it will most certainly mark the beginning of the end of our American civilization by removing the accountability and transparency of our police forces. 

[Willy]

One piece of paper requested and look at all of the time and expense invested in keeping it away from you. Another mole hill turned mountain. I have a feeling this is the normal response to FOIA requests which they know makes most people shake their heads and just say "forget it". This of course is a tactic being used by FOIA coordinators all over the State and makes obtaining information such a pain in the a_s. One must ask themselves why in God's name is it so difficult to obtain mundane information from Government officials. There are no security issues here. I bet there are seminars that officials attend at which they learn how to discourage the public from using the FOIA system. That must be the answer. How else can all of this smoke and mirrors they use to keep people from information be explained.  Keep up the good fight.

[XLFD]

As always, thanks for your encouragement and commiseration, Willy.

I can guarantee you that any public institution that has attorneys (who serve at $125 to $250 per hour and do not necessarily have to swear an oath of office) serve as FOIA Coordinators are trying to withhold as much information they can from the public and trying to charge more fees than the FOIA permits.  I'm going to be doing my damnedest to get these records and justice for all those other people over the last year and more who have been dreadfully overcharged for one piece of paper by these supposedly upholders of the law, the Kent County Sheriff's Department. 

Furnishing public records should not be done as a revenue-generating enterprise.  Sheriff departments already have enough schemes for that.

[AQUAMAN]

As Dave pointed out in another thread, at least the Governor is doing something about this, at long last. I'll bet his office was flooded with complaints in recent years, thus the sorely needed changes. Yes, that's right, make the FOIA requester pay a great deal of money for any information these days, and watch 95% of them quit asking. It's the true American way these days in government for sure.

[shinblind]

X from the looks of the reply to your last request from the KCSO that they have established that the cost of a paper copy is 10 cents per page. And that the cost of retrieving that data is $30/hr. The slowest file clerk they have shouldn't use much more than 2 minutes to retrieve this information from their database. I guess it is a matter of in what increments of time that the that they bill to come up with the $10-$13. charge.

It is sad when government bodies in the USA operate  like some third world petty despots, extorting fees for doing their duty. Sadder still is when the supposedly free press is too busy polishing the buttons on these petty bureaucrats uniforms than to have the time to seek the truth.

[XLFD]

Great point, shinblind, one that I will have to bring up in future correspondence.

How can a public body charge $13 for an electronically provided public record (of just two page length) and follow the state FOIA at the same time?  UD-10E's do not have any special price assigned to them by the legislature, so they should have exactly no charge to them. 

Similarly, even if the KCSO wants to make a paper copy UD-10, they can access their own UD-10E system to print it out on one double-sided page, which would not be an unreasonably high cost to the public body under any standards, so the $10 they ask is for one sheet of paper, ergo 100 times what their policy says the charge should be, which is ten cents. 

If you go to Meijer's and buy something that's advertised as $1, worth $1, and yet get charged $100, they would suffer greatly if they maintained they were right in doing so.  These so-called public servants are cops and lawyers, that think they can do anything they please, apparently.  They could take some pointers from the Oceana County Sheriff's Office, whom I have dealt with twice for involved accident reports and had no problems.