The Cover Up Cover-Up

[XLFD]

In this thread, Hiding Behind Signs 2, we found that the City Manager was all set to present a Power Point about FOIA Requests done by Ludington Torch citizen journalists.  Sounded interesting and wasteful, so we checked in on it by doing... an FOIA request. 

 

We received the Power Point without any notes, so we created our own commentary and presented it  from our viewpoint.  But we were still annoyed that some of the inter-office communications were withheld from us by the attorney-client privilege.  It seemed odd that such a privilege would be enacted in such a case, or whether each communication would be able to pass the 5 part test of such privileged communication.  After all, the City Attorney not only has a duty to the members of City Hall, they also have a duty to the public, who are the ones paying his salary (which was raised 70% last year by City Hallers, to the dismay of the public).   This differs City Attorneys from those who represent private clients.

 

We did an administrative appeal to the Ludington City Council at the last meeting, and it was denied after the City Manager and Attorney put their kibosh on it.  But it gets interesting here, because even though an A-C communication may have its message redacted (blacked-out), we never received the redacted messages.  We had made this point right after we found out what the verdict was, but was ignored until our first Circuit Court appeal was served.  On Friday, we received these 5 redacted 'privileged' E-mails in .pdf format.  But I go over each here:

 ----------------------------------

---------------------------------

-------------------------------------------------------

 

Quite a bit of blacked out stuff for just an attorney-client privilege being invoked.  Is the date/time when an E-mail is sent subject to A-C privilege?  Are senders and receivers?  Subject lines?   

I envisioned a likely scenario of why Shay would cover-up material that obviously has nothing to do with the A-C privilege which makes perfect sense, and we will be sending out one more FOIA to check that out.  In the meantime, if you want to hazard a guess, do so in the comments.  However, we did also make a further request on this cryptic reply:

 

"Please explain the redactions, using section 13 of the FOIA given for your convenience here:  MCL 15.243 Exemptions  Thank you.

  

1)  The redacted times of when the E-mails were sent.

2)  The redacted subject lines of what the E-mails referred to

3)  The redacted senders and recipients that are found throughout the four E-mails

  

4)  In the first and third E-mail, Shay sends to the CA RMW and one other recipient that is redacted.  The attorney-client privilege may cover the Shay to CA RMW, but unless the other recipient is an attorney representing the legal interests of the City, that E-mail should be available non-redacted.  If it was another City employee/official or anyone else, it should be available.  You can't claim A-C privilege while sharing with other non-attorneys at the same time.

5)  Similarly, in the 2nd and 4th, the redacted sender and receiver parts clouds the issue.  Hopefully, you can explain it.

  

6)  As CA Dick Wilson said at the last CC meeting, any of the City of Ludington employees have the right to declare that privilege.  They also have the option of waiving that privilege.  In the name of open government, can you not waive that privilege here?  After all, we are talking about communications about a power point presentation on FOIA Requests, what would you possibly be covering up?

[Lisa O'Brien]

I have to say that is pretty interesting. I can't wait to see why dates and recipients are considered priveledged.

[XLFD]

Me too.  And see whether it confirms my suspicion when I do get that information. 

"It's not the crime that kills you, it's the cover-up" was coined by someone long ago whose methods were similar.

[AQUAMAN]

Nixonian in Nature? I'd say cover-up is an understatement, at best here this time. Sad, but revealing in a way? Bloodhounds on the trail of truth not wanted, (request simultaneously approved/denied ), to clear this matter up imho.

[Marty Redman]

Seems kind of strange that Richard Wilson-- aka Richard M. Wilson Jr.-- is one of multiple targets or senders in each of the Emails.  It looks to me like they are trying to cover normal communications using the AC privelege by having everyone use Richard Wilson as a co-sender or co-receiver.  Its amazing that someone who commutes all the way from Manistee has someone else sending on his line.   This is good s&%t, Shay is imploding in on himself.

[XLFD]

Richard M. Wilson...Richard M. Nixon.

 

If I remember correctly Richard M Nixon fired two Johns for Watergate (Dean and Ehrlickman).  More coincidences, LOL.

[Willy]

The ignorance of the City attorney and Shay is astounding. Shay and the City attorney are both on the taxpayers bankroll. Nothing they discuss about City business is privilaged. The only reason that the dates and names have been blackened, that I can think of, might be that the information  shines  light on their shady dealings. The deeper this saga goes the worse Shay and his coherts appear to be slapping the taxpayers and citizens in the face while rubbing their noses [citizens] in the tattered Conistitution. This is local government gone wild.

[XLFD]

Lisa, Aquaman, Marty, Willy, any other sleuth,

 

Ask yourself why would a sleazy politician decide to redact the dates and times of already redacted communications.  Not to mention senders and receivers.  

Why would someone violate disclosure rules so plainly, just to cover this information up.  In Freudian terms, ignore your ego and superego, and listen to your id, like many of our current City Hallers do, and think of what time might these communications have been made.   

 

[Lisa O'Brien]

To me at first glance the redacted date's, time and recipients seems suspect like there is indeed a cover up going on. But I also realize that sometimes things aren't always what they seem and there might be a law/reason as to why it is considered privileged. So in order to keep an open mind I will reserve judgement until you go to court and receive the  answers to these questions. At the very least it will be very informational.

[XLFD]

Sherlock Holmes would not have solved all those mysteries if he kept an open mind and waited.  Let us put on the deerstalker cap and note the following:

1)  The Client, The City of Ludington, CM Shay in particular, has claimed that keeping this material private is in the best interests of the City, and has declared the privilege on that grounds.

2)  He has decided to do that for all communications, leaving the name of the City Attorney and his name as sender or recipient and covered up all others.

3)  Each stroke of the black marker is deliberative, in that it consistently blocks the time sent, other senders/receivers who are not Shay or Wilson, and the subject, not to mention the body of the text.  So there is a consistent denial throughout on all redactions.

4)  In the past, he has claimed the A-C privilege while only crossing out the body of the Email, and leaving the rest unmolested.

5)  Ergo, he does not want the extra names, time, and subject in these communications to be publicly available, because if they were they would show...

 

Dr. Watson, are you listening?  

[Sweater Cows!]

I am not getting what your getting at, but if there are others on the emails besides the attorney and shay then those are no longer "privileged". So why is ANY of it covered up?

[AQUAMAN]

Good point Dag, and as evidenced above, it clearly shows that the pattern of cc's to others does exactly that, it no longer is a privileged conversation strictly between client and attorney, thus nullifying the privilege in it's entirety. Perhaps Shay just woke up to this error recently, and thus continues to obscure the facts to hide his deficiencies. Can't expect much legal expertise from a man that only has an associates degree can we, and as such his privileged emails and such can readily be challenged and dismissed in any court with any worth for a judge that knows the laws. But, this all costs more time and money to prove and get settled, which seems to be a primary motivating force, you can just bankrupt anyone that disagrees with you if they want to fight city hallers.

[XLFD]

This is exactly why the E-mails fail the A-C privilege test, and would lose in a fair court.

Public servant Al sends an E-mail to Barb and Clark, and Barb is an attorney, then even though Al might want to keep the message private between him and Barb, the fact he has sent the message to non-counsel Clark as well, makes it a public record available to disclosure by FOIA.

 

Richard Wilson's general disclaimer at the bottom of his E-mail claiming "it is an attorney-client communication that is privileged and confidential" sounds nice to the public officials he contacts, but that privilege is not conferred by him.  His client can waive that privilege at any time.  Whenever you get FOIA documents declaring such a privilege, your first thought should rightly be:  "Why is that official declaring this privilege in this instance?" 

 

That privilege will be valid when the City's strategies on how to deal with the 'Rotta issue'  will have legal implications, but for now, it's just so they can cover up embarassing subplots and intrigues.