Ludington Receives a Kick in the Briefs

[XLFD]

In the article, Ludington-leaders-poised-to-lose-third-foia-lawsuit, I shared the City of Ludington's brief for summary disposition in my third FOIA lawsuit with them, and my response brief.  I thank everyone for the strong positive 'response' this and previous efforts have received, and still hope for a favorable resolution as early as next week from the desk of the Honorable Judge Peter Wadel, acting in the 51st Circuit Court.

This week, as noted in the prior article, we met in court for the hearing.  Typically, if a court is too rule on a motion for summary disposition, there needs minimally to be no dispute of the facts in the case.  The court rules on their interpretation of the law, assisted by the briefs of both parties putting forth their legal arguments.  The judge may make a ruling that very day if both parties plea their case and he is very familiar with all the elements of the law.

On this Tuesday, due to a technical glitch in the recording equipment of the normal court room, the hearing reconvened in the basement courtroom, a courtroom which is usually reserved for probate cases.  When the defendant's attorney, Andrew Brege, started his oral arguments he introduced a 2008 Michigan Supreme Court case, State News v. Michigan State Univ.  Tried in 2008, the main precedent established by the court was to say that once a public body claims an exemption in a public record requested by the FOIA, subsequent events that may make the exemption no longer apply are irrelevant as to whether it was originally properly exempted. 

Barrister Brege applied it to the immediate case, where he claimed a new exemption in his brief, which quickly and irrefutably became irrelevant shortly thereafter.  The legally compelling argument he proposed, however, was that the State News precedent made it so that I, the plaintiff, would have to submit a new request for the same record.

In courtrooms, MI Supreme Court decisions are held in high regard, and often trump lower appeal court decisions used by the other parties, if contradictions exist.  Judge Wadel had not recently reviewed the nine-page decision, nor had I so after hearing our oral presentations, he proffered me a fair deal:  he would allow me to look at the decision and write a brief in response to the defendant's assertion that the new exemption would not be rendered moot by the refusal to release the records requested.   I did do that and returned a four page brief to the court on Thursday, which I feel adequately covers the issue (this 'brief' is included in full below, somewhat annotated).

The surprise of this hearing was that the defendant did not supply me with the records, that even they have to believe are now fully non-exempt.  This 'oversight' done on the gamble that the court would find their argument compelling enough to make me have to submit another FOIA request for records that should have been disclosed in October 2015 (when I made the request and appealed it to the city council), and when I filed suit. 

Time will tell whether that gamble will pay off, for they have left themselves liable for $1000 in punitive damages paid to me if Judge Wadel orders release of the records, and even more liable for $2500-$7500 in 'bad faith' money to the state coffers.  This gamble was done with your money, and one would have to believe John Shay, Ludington City Manager, an attendant of that hearing (during his work hours), made the decision to throw the dice.

                                   PLAINTIFF’S SUPPLEMENTAL RESPONSE BRIEF

 

                                                       I.  INTRODUCTION

This brief is responsive to the filing of the State News v. MSU, 753 N.W.2d 20 (2008) decision at the May 17, 2016 summary disposition hearing by the defendant.  This case was purported to show that the defendant's point regarding exemption MCL 15.243(1)(v) was relevant to the issues in the immediate case in front of Hon. Judge Wadel, and not moot, as plaintiff put forth in his response brief.  The judgment at the hearing was to allow the plaintiff to read and respond to this introduced defense by May 20, 2016, and allow for the court to review the State News case, read the plaintiff's response, and decide the merits of the case sometime thereafter. 

 

                                                II.  ARGUMENT AND ANALYSIS

To my understanding of the utilization by the defense of this precedent is that they offer the main point of law introduced by the decision, namely:  "the appropriate time to measure whether a public record is exempt under a particular FOIA exemption is the time when the public body asserts the exemption."   By itself, they reason, this would render plaintiff's argument concerning the mootness of using exemption MCL 243(1)(v) meritless, because it is unquestionable that the exemption was first declared before a finalized settlement was reached in 'FOIA Suit 1'.

Defendant would have this court believe that the fact that they and the plaintiff were engaged in another civil action dealing with similar issues would allow them to redact the two portions of the record that they did, while originally claiming two other exemptions of questionable applicability.  A further reading of the State News decision from the point left off above states:

"The denial of a FOIA request occurs at a definite point in time.   The public body relies on the information available to it at that time to make a legal judgment whether the requested public record is fully or partially exempt from disclosure.   The determinative legal question for a judicial body reviewing the denial is whether  the public body erred because the FOIA exemption applied when it denied the request." 

In October 2015, when this request was originally made and denied on the basis of Chief Barnett's affidavit, the FOIA Coordinator (FOIAC) and Chief Barnett were well aware of the fact that 'FOIA Suit 1' was underway.  Due to the first suit's filing, the FOIAC had released a police report received from Chief Barnett the previous month that had the defendant's SSCENT Officer's name and his occupation multiple times on it and the fact that he had worked on one of the days on the payroll record, which this court determined was properly released in 'FOIA Suit 1'. 

When this case was administratively appealed, the FOIAC finally defined the parameters of the denial as subsection s(ii) and s(v) of MCL 15.243(1).  A literal interpretation of State News would declare that the determinative legal question for this court in reviewing the denial, which occurred on a definite day in October 2015, would be to see whether those two determinations made ultimately by the FOIAC were plausible when they denied the request and justified it to the council.

 

However, other Michigan Appeal Court decisions stated by plaintiff in his motion brief would seem to suggest that the above paragraph from the more recent Michigan Supreme Court ruling in State News is off-based.  Instead of the definite point in time of the denial being back in October 2015 when the FOIAC denied the records at issue, the defendant wants to create a new definite point of time for a new denial in March 2016, with the filing of their brief.  The State News case had the exemptions taking place at the original point of denial, before any lawsuit was contemplated.  They weren’t contemplating expedient denials made after litigation commenced.

Furthermore, defendant wishes to absolve the FOIAC as an actor in making the denial at that time, and introduce their amended 'legal judgment' five months after the denial.  Plaintiff declares this is an absurd result, the definite point of time of the denial and the legal judgment used by the defendant were back in October 2015, and this court should use those decisions to base its decisions on, if it wants to decide the issue based on State News declarations, and not earlier appellant court determinations that appear to the contrary. 

In the event, however, that this court wishes to attach higher merit to the appeals court cases where denials may be made by defendant at several different points in time during the period of litigation, with the courts having the flexibility to consider the best rationale at the time they are invoked, let's assume for the sake of argument that the issue of using MCL 15.243(1)(v) is not made moot by the defendant's refusal to release the missing portions of the records after 'FOIA Suit 1' was finalized.  Plaintiff stands by his arguments in the record that it is moot, but in the case that this court decides otherwise on 'mootness', the argument then becomes whether it is applicable in this case.

The exemption ultimately fails when tested against the facts and weighed against the law.  Undeniably, both parties were active in another civil action at the point this supplementary exemption was brought to light in March 2016, but there are other factors involved in utilizing this exemption. 

In the unpublished opinion of Beaty and Keag v. Ganges Twp. (2010), included with this brief, the Michigan Appeals Court denied the defendant the ability to use (1)(v) to deny the records to plaintiff, even though the two were opposing parties in another civil action.  They looked at the issues of relativity and relevance.

After noting that the exemptions listed in MCL 15.243 are to be narrowly construed, Detroit Free Press, Inc v Southfield, 269 Mich App 275, 281; 713 NW2d 28 (2005), and that the burden is on the public body to prove that a claimed exemption applies. MCL 15.240(4), the Beaty judges addressed whether the exempted material in the second civil case was somehow 'related' to the other civil action, a necessary stipulation within the (1)(v) exemption. 

It was noted in Beaty that portions of the information sought by the plaintiffs would have no bearing whatsoever on their underlying litigation in the other civil action and thus would be subject to disclosure under the FOIA. 

In this case, at the time defendant claimed the (1)(v) exemption applied (March 2016) to their redaction of the SSCENT officer's name and hours worked during a week one year prior in March 2015, the information sought had no bearing on the former case.  As noted, the plaintiff was aware of the SSCENT officer's name, who he worked for, and how the SSCENT task force was set up by a brief, exhibits, and disclosures for the summary disposition hearing in 'FOIA case 1' in February 2016.  Likewise, nothing of relevance to that suit could be gained from finding out that the officer worked a certain number of hours on certain days one year previous. 

'FOIA Suit 1' was effectively over, a decision had only to be written up, in which the defendant conveniently took their time in doing, making their newly claimed exemption appear more provocative.  The exempted portions in the public records of this case, however, had no bearing on the concluding events of the first case, nor could it be reasonably argued to have any sort of meaningful relativity to the outcome, especially considering the pro-disclosure aspect of the Michigan FOIA.

In closing, I would have the court be aware that the portion of the payroll records denied to the public under FOIA have not yet been disclosed by defendant.  The defendant has only argued that their new exemption applied when they invoked it and have not suggested that there are currently any applicable exemptions still extant.  They imply that State News mandates plaintiff to make another FOIA request to get such information, but it says no such thing.  It remarks that the FOIA does not prevent subsequent requests if the requestor believes the exemptions no longer exist.

It does not disqualify or soften the ruling in Krug (2004) (argued in the response brief), where the appeals court found that when one files a FOIA lawsuit, it effectively becomes a continuing request for that information until resolution by the legal action occurs.  When an exemption no longer exists over the course of litigation, the public body should reveal that information as their duty to the public, the requester should not have to burden themselves and the public body with new FOIA requests, especially when the public body offers obviously inapplicable exemptions to begin with and has a history of doing so.

With a voluntary disclosure, defendant had the opportunity to avoid the imposition of punitive fees as per Local Area Watch v. City of GR, 262 Mich App at 151-153 and the rules of MCL 15.240(7) if this court otherwise believes they acted arbitrary and capriciously.  They refuse to do so, even with the records being otherwise innocuous and almost inarguably non-exempt to the general public.

I would just add that the late addition of the State News decision as a viable defense against mootness, when part of its ruling flies against the arguments raised in defendant's brief about creating eleventh hour exemption is another indicator of whimsy on defendant’s part.  The defendant also shows their affluence as a public body for consideration of a 'bad faith' sanction by the attendance at a hearing involving only disputed issues of law by the defendant's city manager during his work hours.

 

Reliable sources informed plaintiff that this city officer did not take time off to attend the hearing, thereby attending it was done in his official capacity for purposes not delineated by defendant's city charter.   If the defendant’s treasurer can so easily justify paying their city manager nearly $100 in wages and benefits to not do his job, defendant can surely afford paying the state treasury a few thousand for their cumulative actions in denying non-exempt records to the public in a manner throughout that could be a future textbook example of what 'bad faith' is. 

The plaintiff solemnly requests this court order the full payroll records to be disclosed, find that the plaintiff has prevailed in this FOIA case and is entitled to his costs and disbursements in prosecuting it.  Furthermore, find that defendant is liable for punitive damages in failing to disclose the records in an arbitrary and capricious manner and otherwise acting in bad faith throughout the process of denial. 

  

 

[Willy]

Fantastic work X. I bet Shay has nightmares every time he deals with you.

[AQUAMAN]

Good one Willy, fits the profile too, lol.

[XLFD]

Thanks for labelling the subpoena recipient, Willy.  With the facial hair and the height, I thought you may have been trying to represent the mayor. 

If I do get a clear victory, what remains to be seen is how the City management will spin it.  For the legal wonk, the whole case and defense has been laid before you here at the Ludington Torch, as will the final written order and opinion of the judge, whatever the decision is.