City of Ludington's Receives Latest FOIA Lawsuit

[XLFD]

At the March 7, 2016 meeting, I used the newly created 'open' public comment period at the end of the meeting to process serve my latest FOIA legal summons and complaint to the City of Ludington, hand delivered to the mayor by my partner from the first lawsuit back in 2011. 

This lawsuit could have easily been avoided by your city 'leaders' if they had followed the law; it could have been avoided if they heeded what the judge said in my previous lawsuit, decided in the middle of last month, and the immediate challenge I gave to the city council to correct their finding on an October 2015 FOIA request both at their last February meeting and posted here for ten days prior to this last meeting. 

Only if the judge in this case decides the city deserves punitive damages, an admittedly difficult task for someone without an attorney, will I actually make money for all the hours I put in for filing and prosecuting the case.  The city officials who unwisely withheld the records that are assuredly non-exempt, will not lose a cent of their own money, just yours for not doing their duty.  As usual, when government workers do not fulfill their obligations, everybody but them loses. 

Be sure to also thank your local media providers for letting you know what happened when the City of Ludington lost their second FOIA lawsuit to me.  Expect more of the same if that result once again comes to fruition here, and especially if those elusive punitive damages are awarded.  That's just the nature of how information is disseminated in Mason County, except for here at the small E-universe known as the Ludington Torch. 

The briefest summary is that I asked for information, they gave me some of it, I appealed to them for the rest, was denied, and filed this lawsuit to get the rest.  But that is insufficient to me for reporting the material, so I could just provide the lawsuit and let you read through it and provide the exhibits, which I have done (with the removal of the legalese regarding the basics at the beginning of the lawsuit). 

But this too would be too much, so let me flesh out the particulars of this legal action which makes it very likely to receive punitive damages against the public body who has already been found in violation of the act in my two previous actions.  In October 2015, I asked for one week of the Ludington Police Dept. payroll records of March 2015.  The city provided that record but redacted (blackened over) an officer's name and the amount of hours he worked that week. 

The LPD Chef provided an affidavit that said he lacked authority to release the information, because that officer served on the SSCENT team (a drug task force) and his number of hours worked could give away operating methods of SSCENT.  Nothing on the payroll record showed any sort of reference to an officers rank or duties, nor the period of hours in which they worked for any given day.

In an appeal to the Ludington City Council, they had no further discussion, believing their attorney-FOIA Coordinator and police chief in unanimously denying the public the record.  I had pointed out that a 2013 LPD payroll sheet for two weeks was asked for by me the week after the record was made, and the request was granted without exemptions; and that the SSCENT officer then was the same one they had in 2015. 

The city and the state had made no policy, ordinance or statute during that time period that would make such a record's contents available in 2013 but not in 2015.  In fact, the FOIA had been reformed towards the public's benefits in many regards during that period.  So why is the SSCENT officer's name and hours worked deemed to be off-limits to the public now, when John Shay AND Richard Wilson both said explicitly they were granted in 2013? 

Such whimsical, irrational behavior used to restrict disclosing records is exactly what needs to be shown for the City of Ludington to be found guilty of arbitrarily and capriciously violating the FOIA and acting in bad faith in their duties, which could net the state several thousand dollars.  Changing your local tax dollars to state tax dollars, all because of your city council's appointed officials were neglecting their responsibilities.  They won't lose a cent.

If you don't think that's right, use your common sense and choose your scapegoat properly.  The 15 exhibits are provided first, please open a separate window for them as you work your way down the lawsuit and check them out as you read.  Please, offer any constructive criticism or observations.

Exhibits 1-8

Exhibits 9-14A

9)  On Friday, October 9, 2015, Plaintiff sent a FOIA request to inspect or receive electronically the records described as "Ludington Police Department employee timesheets for the period between March 8-14, 2015 inclusive.  If this covers two different pay periods please include both."  See Exhibit 1 FOIA Request.

10) As per MCL 15.235(1), the defendant received the request on the following business day, Monday, October 12, 2015.

11) The payroll records sought detailed in the request are part of the "public record" under MCL 15.232(e) as they are "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."

12)  The requested records are "writings" as defined under MCL 15.232(h).

13) Plaintiff, pursuant to the Act is entitled to the release of all non-exempt records and writings requested within five business days from the date the defendant received the request, unless defendant needs to extend this period by up to ten more business days.

14) Defendant's FOIA Coordinator responded to this request via E-mail on October 16, 2015 with a partial denial of the records.  The payroll sheet was released with the name of officer #3533 and their hours worked redacted.  See EXHIBIT 2 Payroll Record.  There appears to be no special indication on the record identifying Officer #3533 as a SSCENT team member.

15) Defendant claimed that the public records are exempt from disclosure arguing that they fell somehow within ten mutually exclusive law enforcement provisions stated in a conclusory way but otherwise falling within the ten subsections of MCL 15.243(1)(s).  See EXHIBIT 3 FOIA Response.

16) Also provided was a sworn affidavit from Defendant's police chief Mark Barnett detailing why he believed the identity and hours worked of the Defendant's police officer were exempt from disclosure.  See EXHIBIT 4 Chief Barnett Affidavit. 

17) As part of his rationale, Barnett proffers that he lacks the sole authority to release the names of SSCENT team members.  No legitimate authority is mentioned, or any attempts to get approval of that unnamed additional authority. 

18) Earlier that month, in an October 5, 2015 article over a Ludington Police Department officer's promotion published in the Ludington Daily News, Chief Barnett released the fact that the officer was a former SSCENT team member.  See EXHIBIT 5 Newspaper SSCENT article.

19)  In the previous month, on September 18, 2015, Defendant's FOIA Coordinator provided a report authored by Tony Kuster with numerous references to Ludington's SSCENT officer being David Krause and having worked on March 10, 2015.  The references, Krause's name and the time period worked by Krause were all considered publicly available in that document.  See EXHIBIT 6 Krause Report.

20)  The City's rationale for releasing the Kuster report at that time without exempting anything regarding SSCENT Officer David Krause was that the Mason County Prosecuting Attorney's office had determined "the [investigation] exemption was no longer applicable".  No claim or attempt at specially exempting Krause's name, occupation, or time that he worked in the report was made.

21)  The remainder of the affidavit fails to address in legal terms why the amount of hours he worked six months prior should be exempt or how it would specifically compromise such operations when such has already been disclosed and is otherwise in the public record.

22) The FOIA denial and supplied affidavit fail to address any valid or legitimate reason for exempting the defendant's official's name and hours worked from the payroll records, pursuant to fulfilling the request. 

23) Upon receipt of the denial on October 16, 2015, plaintiff immediately sent an E-mail, stressing three points mirroring the previous paragraphs, to the head of the public body requesting them to take up an appeal of this response.    See EXHIBIT 7 Appeal Plea.

24)  On October 19, 2015, Defendant's City Manager John Shay sent plaintiff and a host of other city officials notice that the appeal would be placed on the October 26 city council meeting's agenda.  See EXHIBIT 8 Appeal Response.

25)  At the October 26, 2015 meeting,  The Ludington City Council had at least at their disposal Exhibits 1-4, 7 & 8 to review, and legal analysis from their FOIA Coordinator.  See EXHIBIT 9 FOIAC's Opinion.

26)  The Ludington City Council voted unanimously and without discussion to affirm their FOIA Coordinator's redactions.  See EXHIBIT 10 LCC Minutes 10-26-15 (relevant portion).

27)  The Defendant's city manager sent official notice to plaintiff of the council's decision on October 30, 2015.  See EXHIBIT 11 CM's E-mail.

28)  On September 22, 2013 (two years prior) plaintiff sent a request for "Time of work records (hours logs) for the Ludington Police Department for the period of Sept. 8 until the present.", a request identical to the request that is the object of this complaint except that it covers LPD payroll logs for two weeks very recent to the request.  See EXHIBIT 12 2013 LPD Payroll FOIA

29)  On September 25, 2013 the FOIA Coordinator for defendant ruled that all of the record was granted in full.  See EXHIBIT 12 2013 LPD Payroll Response.

30)  After plaintiff objected to the defendant's desire to charge $.50 to inspect these records and appealing that aspect, Defendant's City Attorney Richard Wilson wrote in an E-mail dated September 26, 2013:  "The City has not denied your FOIA request, but has, in fact, granted it in full."  See EXHIBIT 13 2013 City Attorney E-mail.

31)  According to an affidavit made by David Krause at the beginning of this year (2016), he had been serving as LPD's SSCENT team member for four years, which would include this time period in 2013.  See EXHIBIT 14 2016 Krause Affidavit.

32)  In 2013, it was the Defendant's FOIA Coordinator's opinion and their Primary City Attorney's opinion that Krause's name and hours of work were non-exempt, even when the records were covering a time period less than a week before they were granted.

33)  Plaintiff cannot locate, and defendant has not offered, any change in city policy that would have made police payroll records exempt now, but not in 2013.

34)  Defendant has changed this policy in two years time without any justification for that change.

35)  Defendant has not given any plausible reason to change that policy in their current FOIA Coordinator's opinion or their police chief's affidavit.

36)  Defendant's decision to redact their SSCENT officer's name and number of hours worked in a pay period one half year from the past was done without adequate determining principle, without consideration or adjustment with reference to principles, circumstances or significance.  Decisive, but unreasoned.

37)  By definition, Defendant's decision to redact this data was arbitrary.

38)  Defendant's actions in October 2015 was unpredictable considering their earlier decision from 2013 to release what could only be called 'more sensitive' records.  Accordingly it was subject to the whim of the same police chief who claimed not to have the 'sole authority' to release that part of the record in 2015, but was silent about other authorities in 2013 when the request was granted.

39)  In the FOIA Coordinator's opinion EXHIBIT 9, he made clear in paragraph 6 that the prior decisions of the defendant in the past concerning payroll records were irrelevant, further claiming that "The analysis made to determine whether the information should be disclosed or not is based strictly on the FOIA request made and the circumstances surrounding the information the disclosure of which was being sought."  For the rest of the opinion, he wrongly opines on my motives for the request.

40)   Such reasoning without adherence to past policy of the defendant or reasonable interpretation of FOIA law applicable to defendant, but instead on the basis of a whimsically motivated affidavit is a capricious act of denying non-exempt information.

41)  At the February 22, 2016 Ludington City Council meeting, I offered a challenge to the city council to fulfill this October 2015 request after notifying them of my prevailing in our previous FOIA lawsuit, settled the prior Friday.  I was cut off due to time before I could finish my challenge.  EXHIBIT 15 MCDL LCC Recording 2-22-2016 Video, available at Ludington TV on web.

42)  This challenge was offered in full, published as an article on my website, published on February 26, 2016 and open to anyone since that time.  It said: " I offer a challenge to this council.  On October 25th, 2015 this council rejected a FOIA appeal dealing with the redaction of LPD's SSCENT officer's name, David Krause, from payroll records of last March.  I still cannot fathom why the city would think taking SSCENT Officer David Krause's name from a payroll record would be legal, or the hours that he worked.  The affidavit supplied by Chief Barnett is the very definition of arbitrary and capricious reasoning and behavior, as is the FOIA Coordinator's opinion. 

Here's your challenge: review that decision tonight and move to hold a new vote on whether to uphold the FOIA Coordinator's decision or decide to release the name of SSCENT officer David Krause and his work hours from last March's payroll records.  If your vote remains the same or if you decide not to revisit the issue, be prepared to be served court process at the beginning of the next meeting seeking the name of SSCENT Officer David Krause and his work hours last March." See  EXHIBIT 16 Ludington Torch Challenge, available at The Ludington Torch website.

43)  In the intervening period, this was not addressed by the defendant, leading to this legal action from their blatant, arbitrary, and capricious non-compliance with FOIA law.

44)  Defendant has the burden of proving exemptions in a FOIA appeal, as per Swickard v. Wayne County Medical Examiner 438 Mich 536 (1991) and MCL 15.240(4).

45) Plaintiff is entitled to disclosure of the requested public records pursuant to the FOIA.

46) Plaintiff is entitled to, and requests all costs and disbursements incurred in this action pursuant to MCL 15.240(6), along with any necessary and reasonable attorney fees that may accrue.

57) Should this court determine that the defendant has arbitrarily and capriciously violated this act by refusal or delay in disclosing  a public record, this 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, as per MCL 15.240(7). 

58) Should this court determine that the public body has arbitrarily and capriciously violated this act by refusal or delay in disclosing a public record, this court shall award, in addition to any actual or compensatory damages, punitive damages in the amount of $1,000.00 to the Plaintiff, as per MCL 15.240(7).

58) The refusal and delay was not prompted by an honest mistake as to one's duties, but by some interested or sinister motive.  It was a design to mislead or deceive the plaintiff, at the least, and a refusal to fulfill their duty as per Hiigenberg v. Northup, 134 Ind. 92, 33 N. E. 780, in describing an act of 'bad faith'.

59)  Should the court determine, in an action commenced under this act, that the defendant 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. In determining the amount of the civil fine, the court shall consider the budget of the public body and whether the public body has previously been assessed penalties for violations of this act, as per MCL 15.240b.

WHEREFORE, Plaintiff TOM ROTTA, requests that this court enter judgment against Defendant, CITY OF LUDINGTON, ordering that:

A. The Defendant be compelled to provide Plaintiff with the requested information and allow plaintiff to inspect or receive computer files of all non-exempt portions of the requested records.

B.  The Defendant has arbitrarily and capriciously violated the FOIA by refusing and delaying the release of non-exempt records despite the clear Michigan Supreme Court precedent provided by Plaintiff, and be ordered to pay a civil fine of $1000 to the state treasury, and $1000 to the Plaintiff.

C. The Defendant has acted in bad faith throughout this process in refusing and delaying the release of the relevant portion of these records, and should in addition pay at least $2500, but no more than $7500 to the state treasury.

C. The matter be assigned for hearing and trial or for argument at the earliest practicable date and expedited in every way.

D. Such additional relief that may be deemed as just and proper be granted to plaintiff, in particular the recovery of costs and disbursements and any reasonable attorney fees, as applicable.

[Willy]

It's a shame that X is forced to file lawsuits to get information. The idiots running Ludington are just plain sh_t heads. Thanks X for doing the dirty work for all of Ludingtons citizens.

[AQUAMAN]

I'll second that thanks too Willy, X is on cue and doing what noone else has the time and guts to do. Alvarado was dieing on the vine in his practice, until the city decided to pick him up for FOIA blockages. Good luck on the new endeavor, too bad these people don't learn and change from past errors.

[XLFD]

I must add that Mr. Alvarado has been a better FOIA Coordinator than John Shay had ever been, and that the majority of problems I have had with Carlos has been when Chief Barnett or John Shay has claimed some special privilege that the law does not give in order to deny a piece of the grand puzzle.  Unfortunately, the beleaguered attorney has had to defend some rather egregious decisions made by those two.

[Willy]

Sounds like Alvarado is caught in the middle but it was his decision to take on the job and he is accepting tax dollars to defend a City who's trying to keep pubic records private. In my opinion any case that you win just shows how incompetent Alvarado is, either that or he is selling out to his bosses and writing the opinions that he is told to write. Not that your not an excellent amateur attorney X, but, if Carlos had interpreted the FIOA laws correctly then the judge would have agreed with him. He just didn't expect such an excellent legal defense from someone whose expertise lies outside of the law. 

[XLFD]

Alvarado and (now 51st Circuit Court Judge, previous Ludington FOIA Coordinator) Susan Sniegowski were sharing a law office on James Street just a couple of years ago, so I am in the belief that I wouldn't have got the same type of positive judgment I received in this last case until it went to appeals court.  Alvarado is a hired, contracted attorney, who in reality only has loyalty to his client, those who appointed him on the council. 

Even our city manager and 57 city attorneys have some duty to the people of Ludington by their job title and the city charter's description of their duties, but this position is just a true independent contractor.  They can make aberrant decisions and not have any form of accounting onto themselves.  With a new city council in 2017, this could be fixed, and $13,000 and more can be saved each year.

[shinblind]

Hey X, maybe you should explore the legalities of claiming Barrister Alvarado as a dependent for tax purposes. 

[XLFD]

Unfortunately, I hear that seven councilors have already claimed him on their own returns.  If I remember right, in the amended budget for 2015 FOIA Coordinator Alvarado received about $13,000 for his efforts last year, but a significant number of FOIA work was not just for me, but for others.

This is working at $125 per hour.  In comparison, someone working full time at minimum wage in Michigan would get about the same income for the year of 2015.