Ludington's Other Secret Police

[XLFD]

At the end of this week, the FOIA appeal I started in the 51st Circuit Court against the City of Ludington may be decided.  The defendant's are represented by Andrew Brege and Allan Vander Laan from their risk management team of attorneys-- those extra legal eagles the city's liability insurance use to protect their corporate assets when their agents err. 

From the beginning of this lawsuit, one of which I am so sure of prevailing that I have hired the county's most decrepit lawyer wannabe to represent me (i.e. myself), is really a no brainer.  I have seen the majority of the records already, something a plaintiff rarely gets to do during a FOIA action.  The major part of the records asked for are not investigative records, the city has labelled them so; they have to do with the arrest of Gene Foster on March 10, 2015. 

About a week after I filed the suit, I got the Kuster arrest report Page 1 and Page 2.  This is a typical police report which typically has only the addresses and phone numbers of the parties involved being redacted for privacy reasons-- by the way, they failed to do that.  I ask for anyone to objectively tell me what else could have been exempted here back in last March.  It says itself the incident was closed upon arrest. 

Still the City of Ludington wants their risk management attorneys to defend this action and describe why they left off the report of the other officer, maintaining that the records he made was not in their database, but in a special cache in care of the Michigan State Police. 

The kicker is that the officer is authoritatively a LPD officer, paid a generous salary with your tax dollars, roaming the streets of Ludington making arrests and investigating incidents, but totally unaccountable to you as far as records of those incidents are involved. 

This is what our prosecutor and police chief would like you to believe at least, but they would, because they are part of this unaccountable team too.  It's like Chief Barnett's reserve force of 14 cops with guns, uniforms, and no training-- but on steroids-- or, better yet, arresting you for possessing steroids. 

Instead of admitting their error, releasing the records and paying their dues, the city has doubled-down with your money to fight your access to these records.  During the waning days of discovery the COL attorneys did what was expected of them, by requesting a hearing for a motion of summary disposition to get the complaint dismissed.  Here are the supportive briefs for that:

COL Brief of SD pt.1.pdf

COL Brief of SD pt.2.pdf

Hopefully, you the reader can weave your way through some of the legalese to get the drift of their arguments.  Fortunately, I am getting some experience in these matters and found the contents rather supportive of my own complaint, except without the requests for dismissing the complaint laced throughout. 

In a summary disposition hearing you generally declare that the facts are undisputed and that there are only matters of law to be decided on.  Most of the facts are agreed upon, but some are not, and the lawful authorities the other side introduced assisted my side dramatically, particularly since they have the burden of proving they withheld all the records legally.  This summary disposition happens on this Friday, and I am confident that Judge Wadel will do the right thing and rule against the secret police, I can only hope he is courageous enough to establish guidelines for getting these inaccessible records via the FOIA.  My response brief follows:

PLAINTIFF’S RESPONSE IN OPPOSITION TO DEFENDANT’S MOTION FOR   SUMMARY JUDGMENT

 

                                         I.  INTRODUCTION

On March 10, 2015, two Ludington residents got married around noon in a small ceremony at the bride's apartment.  Later that afternoon, their honeymoon was put on hold by the arrest of the groom stemming on alleged actions he committed back in 2014.  I, plaintiff, attended that wedding as the informally adopted father of the bride, and the happiness she displayed that noon, was contrasted by the sadness over the arrest of her husband and the anger over the way the police had acted when she later contacted me that evening looking for answers. 

Her version of events bespoke of several protocols by the police being violated in violating the Constitutional rights of her and others.  Her provocative testimony, followed later by some input of others at and near the scene, led me to file a FOIA request the next day with the agency where both police worked for, the City of Ludington, defendant in this case. 

In about a week, the defendant did not release any part of the records, or any specificity as to why they were not forthcoming other than the generalities of the 'investigation exemption'.  I appealed immediately to the head of the public body, where it was denied in full.  The main part of my request was for non-investigative records, so I was positive they were in error.

At around this same time, the husband had gotten back records that were responsive to my request through the discovery process in his case (Exhibit 11: Gene Foster Affidavit) .  In timely manner, plaintiff filed a complaint in this court for a FOIA violation.  After this circuit court filing in September, defendant sent an arrest report authored by LPD officer Tony Kuster about the incident and claimed this was the extent of the records responsive to my request. 

Subsequently to this, the warrant and warrant affidavit were finally made available to Foster  after multiple requests and about eight months and several court meetings with the prosecutor (Id.); eight months after Foster requested these records through discovery.  Kuster's arrest report and other relevant records have still not been furnished to Foster nearly a year afterwards (Id.) in violation of discovery rules and impeding his right to defend himself.

Plaintiff reminds the court for the first time, that in a FOIA appeal, the burden of proof is not on the plaintiff, but on the public body to show their exemption was valid and according to statute.  At several times in the defendant's brief, the defendant conveniently tries to give that burden to plaintiff, where it does not rightly belong. 

Plaintiff maintains that the Kuster arrest report record was unlawfully withheld for six months, that the arrest report of LPD officer Krause is still being unlawfully withheld, and that the warrant, warrant affidavit, and perhaps other records qualify as supplements and addenda to the arrest, and part of the original request.  These records on their own face value should be proof enough against defendant's claims of total exemption using general and generic recitations of statute as if they needn't prove more than that. 

Plaintiff further maintains that prosecutorial misconduct has taken place involving Paul Spaniola, for not furnishing records to Foster that he lawfully requested through the discovery process in order to defend against serious felony charges (Id.).  Even though this is beyond the scope of the original claim, this should be addressed by the court, as should the prosecutor failing to disclose in his affidavit for the defendant, that he is an annually-contracted employee of the defendant, City of Ludington, and a member of the SSCENT Command Board.  His part in denying these records acting as counsel for defendant is not minor.

Although the claim's reference to the Kuster arrest report is now rendered moot by their disclosure after and because of this lawsuit being filed, such a disclosure means the plaintiff has prevailed in this legal action and is entitled to costs and disbursements.  However, the lawfulness of the nondisclosure of the Krause report, supplements, and addenda remains contested, as does the award of punitive fees and their amount, if applicable, since the State of Michigan amended award amounts between the time the FOIA request was made and when it was appealed.   

 Plaintiff further maintains that the discussion of retroactive or prospective application of the law has been rendered moot by the defendant's reluctance to release the Krause-generated records even after it was clarified fully in this lawsuit's claim and that their FOIA Coordinator treating it as a 'new request' after the law took effect (Defense Exhitbit 11).  This was an admission that they still classified those records as exempt, regardless of what the SSCENT Agreement makes clear: that its task force members remain an agent of their original police force, with no implications or explicit language that their records belong to any other agency.

This brief will assert that these disputes can either be best adjudged at the scheduled trial or resolved at this summary judgment hearing in favor of the plaintiff, as law and precedent do not support the defendant's conclusions and arguments.

                                       

                                               II.  STATEMENT OF FACTS

It is beyond the scope of this responsive brief to recant the facts as portrayed in the defendant's motion, since the chronology and actions from plaintiffs perspective is already in the original  complaint and doesn't readily contradict each other except in section II(B) of defendant's brief on SSCENT.  The public has little information on what SSCENT is and the defendant supplies only the original SSCENT agreement in its defense, which does not support their facts, and often proves the opposite of what they claim.

Defendant asserts that "Under the (SSCENT) agreement... the activities of a City officer assigned to the SSCENT task force are not documented on the City of Ludington Police Department document management system, and the City does not have access or control over that officer's reports and documents maintained as part of his or her SSCENT duties."   

But the SSCENT agreement included as Defense Exhibit 9 has no provisions for record keeping, and what it says counters Chief Barnett's and defendants contentions that the records their SSCENT officer makes are not public records belonging to defendant.  Namely it denotes that:

1) The SSCENT task force is not a public or administrative entity (preamble)

2) "Each law enforcement officer assigned to SSCENT by his/her participating entity's police
shall remain an agent of that participating entity's police agency [the defendant] (emphasis added, Sec. IV)

3) "Personnel costs for sworn law enforcement officers assigned to SSCENT, including wages,
overtime, insurance, and other fringe benefits shall be provided for and paid by entity supplying such personnel [the defendant]." (section V)

4) The Commander of SSCENT is described as a coordinator of operations, accounting, and training, who completes "a monthly report of SSCENT activity to each Command Board member" (sec V). 

5)  By it's construction in section II, Chief Barnett is a Command Board member of SSCENT, and should be receiving a monthly report (at least) from the SSCENT Commander, which in turn becomes a public record in the possession of the defendant.

Furthermore, the Ludington Police Department's organizational chart available at the city's website(Plaintiff's exhibit 12, LPD Organization Chart) shows that the LPD's SSCENT officer falls within their organization and under the purview of the chief.

But even though Chief Barnett swears that "the activities of an officers [sic] assigned to the SSCENT task force are not documented in the Ludington Police Department document management system", he does not address the bigger concept of whether they should be, by law, and whether there may be dereliction of duty in not doing so. 

There is clear indication that they need to be, by FOIA's definition of "public record as "a writing prepared, owned, used, in the possession of, or retained by a public body in the performance of an official function, from the time it is created."  The FOIA then describes  the public body’s duty to provide non-exempt public records to the public on request. 

The defendant is well within their power to share the public records created by their SSCENT officer with the task force and the MSP, but those are, without doubt, "public records" created by the defendant's employee in the performance of an official function and subject to disclosure to the person who submits a FOIA request to the defendant.  Exempted content notwithstanding. 

Defendant has not come close to proving otherwise, as is their burden, and have tried to establish facts based primarily on the reliability of Chief Barnett's affidavit commenting on his own policy and not based on any lawful authority.  The status quo is not equivalent to proven facts.

                                              

                                               III.  STANDARD OF REVIEW

A motion for summary disposition must necessarily fail if the defendants, as the moving party, do not establish the absence of any genuine issue of material fact or if the plaintiff, as the opposing party, establishes that there is a genuine triable issue. Lyons v. New Mass Media, Inc., 390 Mass. 51, 453 N.E.2d 451 (1983). In other words, if any material fact is disputed, summary judgment must be denied for the movant. 

In applying this standard, courts view “the inferences from the factual record … in the light most favorable to the party opposing the motion.” Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986)

As noted in section II of this brief, the facts involving SSCENT and their records is under dispute.  Defendants need to show incontrovertibility of the facts.  The FOIA statutes and the SSCENT agreement appear to suggest that the responsive records to the FOIA request that LPD officer Krause made were subject to disclosure, contrary to the defendant's assertion primarily supported by an affidavit which in itself is unsupported by any lawful, controlling authority as of yet provided by the defendant. 

Furthermore, the defendant stating the grounds for this motion under MCR 2.116(C)(8)) is applicable is unfounded as plaintiff followed the guidelines of the state FOIA in pursuing relief under the Act, including seeking administrative review, before filing a claim in court seeking undisclosed records, and other remedies offered by the Act at the time of filing, which offers ways to grant relief. 

As previously noted, MCR 2.116(C)(10) grounds must also be suspect due to controvertible issues existing amidst the facts and over what was exempt and when due to inconsistent representations of SSCENT, and how those issues and facts favor the party which does not have the burden of proof.

This court should consider the facts presented herein and in the record already in a favorable light to plaintiff, and either decide to proceed to trial or rule summarily for the plaintiff.

                                         

                                          IV.  ARGUMENTS AND ANALYSIS

 

                 A.  The Tony Kuster Arrest Report was Improperly Withheld in March

In the Evening News Assn v City of Troy,417 Mich 481,486;339 NW2d 421 (1983) decision, the Michigan Supreme Court gave a nod to the difficulty that arises in FOIA litigation for plaintiffs: 

"The courts are challenged to find some way to compensate the inherent problems of (1) only the government knowing what is in the requested documents, (2) the natural reluctance of the government to reveal anything it does not have to, and (3) the fact that courts normally look to two equally situated adversarial parties to focus and illuminate the facts and the law." 

Ignorance is not a position of strength going into a lawsuit.  In this instance, plaintiff had one of the pieces of that puzzle supplied to him by a friendly source, the Krause report (Exhibit 8 in complaint) which pointed to other responsive documents, the warrant and Miranda waiver.  Krause's report had a wealth of material that seemingly was non-exempt in March when looked at with the Evening News guidance for investigatory records that defendant includes with his brief which says in part:

      5)  Justification of exemption must be more than conclusory, i.e., simple repetition of statutory language. A bill of particulars is in order.  Justification must indicate factually how a particular document, or category of documents, interferes with law enforcement proceedings.

Defendant's response to the original request (Exhibit 2) said the documents were 'protected' as stated in a form response.  This was conclusory and paraphrased statutory language of four subsections of MCL 15.243(1)(b), with no reason how they applied.   The proper time for justification is at the time of a FOIA response, for the requester has the right to appeal directly to court.

Plaintiff did seek further administrative cures with the defendant's head of the public body, but all they offered was the same statutory language at their meeting (Exhibit 7), which at the time was after I had reviewed the Krause report and presumed it was the only record since the arrestee did not have any report drafted by Kuster in his discovery materials (Exhibit 11). 

Since this case has been filed in this court, the defendant has tried to introduce new lines of justification in order to claim that their complete exemption of the Tony Kuster report was warranted in the three affidavits provided with their brief, well after they released that report.  This defies guideline four of Evening News, that "detailed affidavits describing the matters withheld must be supplied by the agency." before it reaches the trial stage.

The simplest refutation of the reasoning in the affidavits is in the record itself.  The burden of proof is on the defendant to show that the ENTIRE Kuster report is exempt, but they have not come close to adequately proving why any of the following material is exempted with their four subsections:

   a)  the incident number

   b)  the status (i.e. cleared by arrest)

   c)  the date reported and time period the incident occurred

   d)  the officer involved

   e)  the classification (i.e non-reportable)

   f)  the location of the incident

   g)  the action description (i.e. assist to SSCENT)

   h)  the arrested person's name

   i)   the synopsis in the narrative

   j)  the time & date in the narrative

   k)  the venue in the narrative

   l)  the 'contact Sherry Foster' in the narrative

   m)  the action taken in the narrative

   n)  the 'arrested' sentence in the narrative

The record effectively speaks for itself and it says that most, if not all, of these items should have been non-exempt immediately after it was created, in which case Evening News stresses that the public body has a duty to separate the exempt from non-exempt material. 

In trying to explain why this is not the case, defendant argues it would 'likely' hamper an ongoing investigation, and introduces a new exemption of MCL 15.243(s)(i) which applies only to informants of which the arrestee had declined to be even before the date of his arrest (Exhibit 11) and in the presence of plaintiff. 

The time to properly introduce exemptions and affidavits is at the time of the denial or partial denial to avoid litigation over impropriety.  "Defendant was required to review the case file and release any nonexempt information-any information whose release would not have interfered with the investigation" Krug v Ingham County Sheriff’s Office, 264 Mich. App.475; 691 NW2d
50(2004).

Fortunately, in a situation like the Evening News, the Michigan Supreme Court belabored over the scenario in 'which the Government need only carry its burden of proof against a party that is effectively helpless and a court system that is never designed to act in an adversary capacity', the plaintiff in this case isn't acting in total ignorance of what he is fighting for. 

The proof is in the police arrest report of Tony Kuster, which the defendant has not even explained to this court or the plaintiff as to why it was labelled as an investigatory report in the first place when it was denoted by Officer Kuster as being closed and cleared by arrest the day before plaintiff made his initial request.  Such subterfuge carried out for half of a year is precisely why punitive damages are called for as this was pure myth and duplicity.

 

B.  The Krause-generated arrest records should have been disclosed in March properly redacted.  Likewise, they should have been released with the Kuster report in September

Defendants claim that the Krause-generated records consisting of his 1) report on the arrest, 2) the arrest warrant affidavit, and 3) the arrest warrant, are off limits because Chief Barnett and Officer Krause say that it is not their agency’s protocol on their affidavits.

Namely, Barnett claims the defendant and its police department does "not have access to or control over a SSCENT task force officer's reports and other documents" and Krause claims:  "I do not prepare or record incident reports and other documents related to SSCENT investigations” on the defendant's document managing system. 

No reason or authority is offered for why they don't archive the records, when the SSCENT Agreement openly contradicts Barnett's assertion by assigning him a seat on the SSCENT Command Board, and the commander's duty of providing each Board member a monthly report on overall SSCENT activities (Def Exh. 9). 

The defendant then argues using Detroit Free Press, Inc v City of Southfield, 269 Mich App 275;713 NW2d 28 (2005) a case where the court found for the plaintiffs when they sought records created by a separate public body, but had been in the possession of the city.  They further argue that the defendant in this case does not have possession of the SSCENT records, but does not express why they do not other than using the two affidavits and pointing to the SSCENT agreement as if it helps explain why. 

As they note a "public record" is defined as "a writing prepared, owned, used, in the possession of, or retained by a public body in the performance of an official function, from the time it is created." MCL 15.232(e)).  Krause admits he is concurrently both a member of the defendant's police force and the SSCENT task force (Def Exh. 10), he is not a member of the Michigan State Police, nor does he claim to be. 

It is an uncontested point that he performed an official function when he created the writings sought in this case.  As noted previously, the SSCENT agreement does not change his status as an agent of the defendant, paid and supplied by the tax base of the defendant and nobody else.  Furthermore, as also noted, the SSCENT task force is not a public or administrative entity, meaning by MCL 124.507(1) that it is not a "public body" by its construction. 

To presume that the defendant should not be the steward of these public records is to get the absurd result that the records are possessed either by a legal non-entity (SSCENT) or the state police which does not employ or contract with SSCENT agents (who are not otherwise on the MSP) of other public bodies.

But this is what Barnett and Krause put forth, even though they claim no authority that says this is the case, particularly not in the SSCENT agreement they proffer.  Krause's writings were prepared in his performance as a police officer for the defendant and need to be retained by Krause's public body employer so that the people who pay for this activity would be "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." MCL 15.231 .  

A specious argument by defendant saying that Krause's records were not called for in the FOIA request fails to address why they would not be supplemental or addendas to Kuster's report, relying on their premise that defendant's agent Krause's report of the arrest was not in possession of the defendant, but the record of a non-existing public entity.  If public records could be concealed from the public by creating phantom entities so easily, the legislation's directives for transparent and accountable government found throughout Chapter 15 of MCL would mean nothing. 

The defendant's SSCENT officer can freely share their records with the MSP and the SSCENT Commander/Board, but they must be retained as "public records" made in official capacity for the defendant in proper duty to the people.

C.  Plaintiff's lawsuit was necessary for production of the records, some of which are still extant

In arguing the converse, defendant believes that the lawsuit was unnecessary to get the records, suggesting a resubmittal of the request at a later time, as suggested by one of the city attorney's for defendant was in order. 

In the aforementioned Krug case, they opined:  "Nothing in the plain language of the FOIA indicates that a party must continually resubmit his or her FOIA request to determine if a change of circumstances has occurred.   In fact, the FOIA specifically directs a requesting party to only one of two options following a denial:  appeal the denial to the head of the public body or commence an action in circuit court... The plain language of the FOIA does not impose a duty on the requesting party to also resubmit a request.   We must assume that the Legislature intentionally omitted such a requirement."

With due diligence, plaintiff did try an administrative appeal with defendant and received an undesired result, even though he had viewed the Krause arrest report and readily judged that it was full of non-exempt information (as noted in the item-by-item analysis for Kuster's report). 

The judicial panel (Ludington City Council) for the administrative appeal did not comment on why or even view the records in camera, rather they blindly took their attorney's advice.  One councilor said he upheld the FOIA Coordinator's response because it was based on the law.  Plaintiff had viewed part of the record and knew that statement was false.

Being that there was no clear reason for the defendant not to separate the exempt from the non-exempt in manner actually based on the law, any resubmittal would have to pass through those who had already denied mostly non-exempt records in the past.  Doing the same thing over and over again and expecting a different result is the definition of insanity.  Plaintiff pursued this lawsuit instead to get records unavailable, and achieved that with the Kuster arrest report.

"Defendant was not entitled to deny plaintiff's FOIA request without actually determining that the entire case file was exempt from disclosure." (Id. citing Evening News).  Furthermore, not releasing the report of Tony Kuster in March was an arbitrary and capricious act, as happened in the Krug case: 

"Defendant continued to conceal the requested records after the case file was closed and disclosure could no longer interfere with an ongoing investigation.   Most importantly, defendant falsely indicated in its answer that the records were exempt from disclosure under MCL 15.243(1)(b)(I).   Accordingly, the trial court properly determined that defendant had arbitrarily and capriciously violated the FOIA by delaying the disclosure of records and awarded punitive damages." (Id.)

The plaintiff's acquisition of the Krause arrest report from a source other than the defendant, does not absolve the defendant's duty to have produced it in March, or September 2015 along with the warrant and warrant affidavit; supplements and addenda to the arrest of Gene Foster that should have been in the possession of the defendant.

D.  The 'new' punitive penalties should be enforced for the defendant's refusal to disclose the Krause-generated records

As per the Krug findings three paragraphs above, plaintiff would be entitled to punitive damages for the unlawful withholding of the Kuster report presuming they prevail, yet agrees with defendant that Frank W Lynch & Co v Flex Technologies, lnc,463 Mich 578, 583; 624 NW2d 180, 182 (2001) and other precedents would make their award of damages consistent with the damage provisions in FOIA existing before the July 2015 amendments to the act (i.e. $500).  This is primarily because they were not actively denied after July, but given freely after this suit was initiated.

The Krause generated records were officially denied again after their coordinator considered the lawsuit a 'new request', and saying he was sending "a copy of the requested record" (Def. Exh. 11).  The problem was that even though the lawsuit clarifies beyond a reasonable doubt that the Krause records were part of the public records sought, it is ignored in the 'new response', a response which contains no reference to why these extra records were left out still when the plaintiff made that case in his complaint.  This effectively was a FOIA denial for those records, made after the July amendments.

If this court finds that the Krause records are properly the defendant's public records of which they have a duty to retain by law, and ergo a duty to release within the parameters of the FOIA, they are deserving of punitive penalties vis-a-vis Krug, noting the directives of MCL 15.240(7) and MCL 15.240b.  This will also absolve this court of any prospective/retrogressive rulings.

Namely, If the court determines, in an action commenced under this act, that a public body willfully and intentionally failed to comply with this act or otherwise acted in bad faith, the court shall order the public body to pay, in addition to any other award or sanction, a civil fine of not less than $2,500.00 or more than $7,500.00 for each occurrence. 

And, highlights added, if the court determines in an action commenced under this section that the public body has arbitrarily and capriciously violated this act by refusal or delay in disclosing or providing copies of a public record, the court shall order the public body to pay a civil fine of $1,000.00, which shall be deposited into the general fund of the state treasury. The court shall award, in addition to any actual or compensatory damages, punitive damages in the amount of $1,000.00 to the person seeking the right to inspect or receive a copy of a public record.

It should be noted that the actions of the defendant's FOIA Coordinator do not appear from the plaintiff's vantage point to be arbitrary and capricious, however, Prosecutor Spaniola's and Chief Barnett's counsel to the FOIAC were both arbitrary and capricious using Krug parameters, both of who were/are acting agents for defendant.

  

                                                          V.  CONCLUSION

In the plaintiff's administrative appeal request (Exhibit 3), he freely admitted that parts of the records requested would not be disclosable and gave the defendant the Evening News guidelines to assist with their separation of exempted material.  Instead of freely admitting that some parts of the records were indeed disclosable, defendant chose to maintain that all information on the Kuster and Krause generated records were fully exempt, even though they both primarily focused on the arrest of a man, and not based on investigations, investigatory procedures, or confidential informants. 

If the defendant's position is allowed to stand, there is nothing preventing agencies like SSCENT and even the defendant's own police department to arrest and imprison individuals without accountability to the public.  At one time in America, this would be inconceivable.

Plaintiff's FOIA request for the records concerning the arrest of Gene Foster were improperly withheld in March 2015 without any attempt by defendant to justify, explain, or support with meaningful affidavits the complete refusal at the time of denial.  The administrative appeal made by plaintiff with support of the Michigan Supreme Court's decisions over release of investigative records was denied without any considerations except to those attorneys who denied it originally.

The two arrest reports authored by LPD officer Kuster and Krause were demonstrably mostly non-exempt when considered in March 2015 by any in camera review, which the plaintiff has been fortunate enough to have had since.  Defendant claims the Kuster report somehow changed from being totally exempt in March 2015 to being totally non-exempt is not supported by arguments, and their claims that records made by defendant's employee Krause for the SSCENT task force, a non-entity, somehow become the records of the Michigan State Police totally defies the SSCENT agreement they place in their defense in trying to prove the public records Krause creates does not belong to the agency he works for and gets paid by.

The defendants have the burden of proof to show that non-disclosure of the full records was warranted when they denied them on March 18th.  They have not even come close to that burden, and have come closer to disproving that premise by their own admissions and exhibits. 

What this legal action should indicate, is that the defendants need to preserve the records of their officer who is assigned to the SSCENT task force, not put them in public-inaccessible limbo, and release those records in accordance to the law.  That they should not issue blanket and complete denials of all FOIA requests relating to open case files without applying the rules found in Evening News.

Plaintiff respectfully requests that any summary judgment made should be in favor of the plaintiff, providing him with the rest of the record, costs, disbursements, and any deserved punitive damages to him and the state.  Plaintiff respectfully requests that the court would weigh in declaratively on who is the ultimate steward of SSCENT-based records, and find that the proper steward is the agency of the corresponding SSCENT officer-- without interfering with them sharing those records among other members of the task force in a separate database.  Finally, plaintiff respectfully requests the lawsuit proceeds to trial if they cannot affirmatively decide on these matters without investigating the disputed facts about SSCENT.

[John Doe Jr]

Nice work' Hold them all to the unforgiving flames of, "The Torch".

[jfc123]

Here's to hoping all of your hard work pays off for a judgment that is right, not one that can be bought!

[XLFD]

May you also get some results from the inequitable situation down at the PM bayou.

[Willy]

I want to give a big shout out to the Fire Chief, Mayor's office, the City Manager, Police Chief, Prosecutor, Judges, the LDN and all the supporting cast that helped create the advocate XLFD. If it weren't for their oppressive, sneaky, conniving, Gestapo like, dictatorial and anti Constitutional style of Governing I wouldn't be writing this comment on a web site created by a true patriot. Many thanks to X for what he is doing. Even tho most of us are cowering behind anonymity we appreciate and applaud his efforts to straighten out a crooked system of Governing which is being practiced by the sleaziest kind of representatives and politicians. Hillary doesn't have anything over these people. They could probably teach her a few tricks.

[XLFD]

The sad thing is that none of the people currently serving as our elected representatives in the city are doing anything to address their shortcomings.  In the city council meeting of March 23, 2015 (as noted obliquely in the lawsuit), Councilor Michael Krauch famously said he was voting against disclosure because it was the law:  I had viewed the Krause report that afternoon via Mr. Foster's discovery, and knew conclusively what they were voting to do was against the law that the illegitimately-appointed councilor, Mr. Krauch, trumpeted his support for. 

[Jasper]

XLFD may you prevail in your endeavors. And cops wonder why these days why they are getting such negative publicity. Did you happen to read the case involving ESPN and their lawsuit against MSU, related to the same issues you are dealing with???

[XLFD]

Yes, I did, it was one of the decisions that I skimmed over while doing legal research for this case.  In the end, I didn't use it for this FOIA case because of two reasons.  First, it may still be reversed if the MI Supreme Court takes it up, though this is unlikely.  Second, the relevant points don't match for mine.  To whit, the COL withheld the complete record and claimed the open investigation exemption.  In the ESPN case, MSU used a new kind of interpretation for the invasion of personal privacy exemption. 

It pains me to say so as someone who went and got my master's degree from MSU, but the two times I have FOIAed them (for the plant investigation records of the MSU professors working on the Baby Kate case, and for the bathroom stall bomber Sydney Gort) they have been very unreasonable in their obstruction.  Thanks to the recent "reforms" of the FOIA, I can't appeal these to court except personally down in Ingham County.

Here is the most recent appeal's court decision in favor of ESPN:  http://www.michbar.org/file/opinions/appeals/2015/081815/60645.pdf

[Real Talk]

Great comparison Jasper. Tommy Rotta vs the City of Ludington and ESPN vs Michigan State University. Yes, I can post his name since its in the damn lawsuit this time.  Secondly, I don't see how a FOIA request has anything to do with cops these days getting negative publicity.  I guess we could look at them in a negative way with FOIA requested if we were uneducated with how it all works.

[Real Talk]

What confuses me is that you take shots at our local police and their, "generous salary", I wouldn't call their salary generous. Generous is living off the government and not working.... you are welcome by the way.  Also you talk about them wasting money fighting this against you.  Wouldn't the waste of money be YOU filing a law suit in a case that doesn't have anything to do with you?  I applaud the city using my tax money to fight you in this.  That way they aren't settling with you and giving you a "generous income."   It seems hypocritical to take shots at the city for wasting tax money, when you are doing this to people like me....an actual tax payer.  Someone who works, receives a pay check, has taxes taken out of that pay check.  Someone who owns their own house, actually pays city taxes on their land.    We have people who don't work, receive a government check, don't own any assets and then want to complain about the city wasting tax dollars?  Also, I wouldn't call our local law enforcement making $12 an hour or $18 an hour or even $22 an hour as generous compared to free money for sitting at home.  

Why live in a city you hate and all you got to say is negative things directed towards the council, the police, the courts, the managers, the fire dept, ect....?  You are upset that you didn't get all the information you wanted in a police report that has nothing to do with you.  Lets all act like we are 4 and stomp are foot and scream because we didn't get a piece of candy.  Isn't the SSCENT team run by the State Police?  So if they have a different protocol than the city, they would follow that.  I don't see how this has anything to do with the City Police Officers, I doubt they have anything to do with FOIA requests.

[Willy]

The tyranny minded people in Government love people like Real Talk. The Government can withhold public information, deny basic rights, spend tax dollars preventing citizens from accessing information, convince people like Real Talk  that someone wanting information is a public enemy then turn around and cry foul play because they are mandated to finally release information we all are entitled to have. Yes, Tyranny  loves the cooperative citizen who supports their oppressive behavior. 80+ years ago Germany was full of Real Talks.

[XLFD]

The people of Ludington won this lawsuit today against the City of Ludington being represented by one of their Grand Rapids lawyers. 

Being Friday, the start of the weekend, lift a stein full of your favorite beverage this evening and make a toast for accountability and the rule of law.  But lest we rest on our laurels, and I have sore laurels after all that sitting this morning, the fight is still far from over

[Real Manistee]

Good job. RM looks forward to more good news from The Torch!  XLFD, have you been following the DDA apparent Open Meeting Act violation in Manistee and how the News Advocate and the DDA are now trying to cover it up?  The News Advocate reported on Feb. 9 that a separation agreement was made with Patrick Kay, DDA director. After RM questioned if an Open Meeting Act violation had been made, today's newspaper shares that the separation was not official until the DDA Board meeting on Feb. 18th.