PLAINTIFF'S SUPPLEMENTAL BRIEF FOR MOTION OF SUMMARY DISPOSITION

[XLFD]

 STATE OF MICHIGAN

                   IN THE CIRCUIT COURT FOR COUNTY OF MASON

 

                             File No.  11-415-CZ               Hon. Richard I Cooper

 

TONI SWIGER And

TOM ROTTA,

137 E  Dowland

Ludington, MI 49431

Plaintiffs,

 

Vs.

 

CITY OF LUDINGTON

400 S. Harrison

Ludington, MI4943l

Defendant,

 

PLAINTIFF'S SUPPLEMENTAL BRIEF FOR MOTION OF SUMMARY DISPOSITION AND REPLY TO DEFENDANTS MOTION FOR SUMMARY DISPOSITION

 

FACTS

Prior to filing:  On 9-7-2011, Plaintiff Swiger submitted a FOIA request whose body asked for "all bids, contracts, agreements, receipts, and invoices since January 1, 2008 - September 6, 2011 between the City of Ludington (including all public bodies within that entity, such as the DLB, the MMB, et.al.) and either Tye's Signs, Tye's Inc., or Nick Tykoski (the individual)". 

The FOIA Coordinator (FOIAC) replied on 7-13-2011 with the complete response of "Your FOIA request below is similar to FOIA requests dated October 18, 2010, November 15, 2010, November 29, 2010, and January 24, 2010 that the City of Ludington received from Tom Rotta and/or you.  Therefore, please refer to the City's responses to those previous FOIA requests, as your current FOIA request is considered a multiple or duplicative request for essentially the same information in an effort to avoid the cost reimbursement of the City's FOIA Policy."

This contradicts p.2 of the Defendant's brief "FACTS" that says "the response of Ludington to the previous requests should be considered its response to this FOIA request", as each of those requests determined largely disparate fees, the first two having never been defined by a fee structure to Plaintiff Rotta, who made those requests, and would be unknown to Plaintiff Swiger who made the 9-7-2011 request.  The point was no records were granted by Ludington, nor was any fee asked for.

As stated previously, Plaintiff Swiger requested an appeal, Plaintiff Rotta supported her claims and briefed the administrative appellant body, the Ludington City Council of the basis of the appeal via E-mail, and Plaintiff Rotta requested the right to appear at the City Council meeting, but was denied.  Plaintiff Rotta had a Letter of Trespass placed on him on March 1, 2011 which forbade him from entering on the property of City Hall to attend the open meeting where the appeal was to take place.  The FOIAC, who coincidentally had the power to determine whether Plaintiff Rotta could attend the meeting, declined to let him attend by denying him written permission.

The City Council eliminated any discussion on the FOIA appeal at their meeting, and after the statutory time had elapsed for their response to Plaintiffs' administrative appeal, they applied at the 51st Circuit Court for relief, as representatives of the Ludington Torch, a local watchblog that Plaintiff Rotta created in 2009, and for which all the FOIA requests were made on behalf of to create articles and content for public consumption.

Post filing:  Plaintiffs' ignorance of Michigan Court Rules led to their improper service of defendant for injunctive relief.  As the Ludington Torch was still active, FOIA requests were still being made and plaintiffs claim a variety of abuses of FOIA policy and law.  Some of these were touched on in our 12-6-11 reply to defendant's counterclaim.  The replies referred to in our 2-15-12 brief are included as  Exhibit P1 through Exhibit P12, and will be seen to run a range of violations of FOIA law and precedents.

The defendants released Exhibit M in their 2-13-12 Brief, with an affidavit by the FOIAC certifying it as a complete response to the 9-7-11 FOIA request.  Exhibit M contained the 1-24-2011 response in its entirety, even though less than 20% of it actually applied to the 9-7-11 request.   Defendant’s claim of a duplicative request would apply if that response was accurate, but it wasn't. 

Shortly thereafter, a review was made by plaintiffs on records previously received from defendants pointing to the possible existence of up to 9 other records that would qualify to be in the 9-7-11 request's response.  The defendant and their counsel sent all but one of these records to the plaintiffs in the ensuing weeks plus about a dozen others which miraculously were found.  These were included in the 3-1-12 supplemental brief by the defendant, again with the FOIAC's certification that it was a complete response.  But that either is not true, or the defendant has destroyed or arbitrarily and capriciously withheld at least one record, which is included as Exhibit P13. 

The existence of more such records has also been denied by a 3-2-12 FOIA response which again claims illegitimate fees, and does not define or certify what records do not exist. 

 

STANDARD OF REVIEW

 

Plaintiffs readily admit that they are far from being attorneys and may make mistakes as per the voluminous Michigan court rules or established court protocol in their submission of their motions and briefs, and we ask for the court's grace for the rigor of their filings and any actions that Plaintiffs make outside of such dictums. 

Defendant in their 2-13-12 Brief claim that plaintiffs have failed to produce documentation, et. al. in support of their assertions that reveal facts that would be incontrovertible at a summary disposition.  Plaintiffs disagree; the actual FOIA requests and their replies by the FOIAC are admitted as actual and factual by both parties.  The response dated 9-13-11, shows defendant's inability to respond according to MCL 15.235.  This may be disputed by the defendants, but they can't even answer the question as to what exactly was the fee charged on 9-13-11, and they can't because no figure is expressed, legitimately enumerated or not.

Until the 2-13-11 brief by defendant, the content of their defense/complaint relied mainly on a table manufactured by defendant, which Plaintiff Rotta had made several corrections to during his deposition until he was stopped from doing so, which were conveniently summarized on the 2-13-12 brief of defendant to a comment Rotta said that the table was "essentially correct" (as far as dates and the requests made).  This was disingenuous of defendant's counsel.  A table with numerous inaccuracies should not even be accepted as evidence, without correction, and is much less contentious as to the facts raised in plaintiff’s motion and presented to the court requesting summary disposition by the corresponding court rules.  

 

ISSUES

 

Can a public body refer to previous, diverse FOIA responses, that aren't equivalent or made by the requesting person, to use as a proper response to a FOIA request?

 

Ludington says:  Yes

Plaintiffs say: No

 

Can a public body charge a fee for a FOIA request without explaining what the charges are for?

 

Ludington says:  Yes

Plaintiffs say:  No

 

Can a public body refuse to provide a FOIA request in the format that is requested if that format is available and economically feasible?

 

Ludington says:  Yes

Plaintiff's say:  No

 

Is the FOIA a commodity that can be regulated by a public body by either limiting the amount of requests or giving the FOIA Coordinator non-statutory discretionary powers?

 

Ludington says:  Yes

Plaintiffs say:  No

 

Can a public body refuse to provide the relief offered an indigent FOIA requester if they suspect that requester is getting that information for the public at large or another person they presume is non-indigent? 

 

Ludington says:  Yes

Plaintiffs say:  No

 

Can a public body demand fees for FOIA requests without relying on the fee structures found in State or Local policies, and without justifying these unwarranted costs, without being guilty of public extortion? 

 

Ludington says:  Yes

Plaintiffs say:  No 

 

 

 

ARGUMENT:

I.  Defendants have not followed their own policy or state law as to the establishment of fees and replying to FOIA requests.

 

MCL 15.234 states what fees can be charged for FOIA requests: 

 "The fee shall be limited to actual mailing costs, and to the actual incremental cost of duplication or publication including labor, the cost of search, examination, review, and the deletion and separation of exempt from nonexempt information as provided in section 14."

"In calculating the cost of labor incurred in duplication and mailing and the cost of examination, review, separation, and deletion, a public body may not charge more than the hourly wage of the lowest paid public body employee capable of retrieving the information necessary to comply with a request under this act."

"A public record search shall be made and a copy of a public record shall be furnished without charge for the first $20.00 of the fee for each request to an individual who is entitled to information under this act and who submits an affidavit stating that the individual is then receiving public assistance or, if not receiving public assistance, stating facts showing inability to pay the cost because of indigency."

"A public body shall utilize the most economical means available for making copies of public records."

"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."  [Ludington had this set at being a minimum of $100 for 'labor', changed to $50 on their change of FOIA Policy in December 2010.]

"Fees shall be uniform and not dependent upon the identity of the requesting person."

Since this civil action was filed all but the last fee determination procedures have been violated, as described in the analysis of Exhibits B1 through B12.  Frequently in the past, the FOIAC has responded without any fee structure recognized by FOIA, that includes the 9-13-11 response to the 9-7-11 request, and the requests made by Rotta referred to in that response.

 

II.  Defendant has failed to respond properly to the FOIA request and subsequent requests.

 

The 9-7-11 request:  The four ways a FOIAC can respond are listed in MCL 15.235(2).  The FOIAC's response corresponded to none of these.  Densmore v Dep’t of Corrections, 203 Mich App 363; 512 NW2d 72 (1994), said a public body does not need to provide additional copies of records it has already provided unless the requester can demonstrate why the copy already provided was not sufficient. 

The defendant wanted this court to believe that "Exhibit M" was a complete FOIA reply and a total duplicate of two prior requests.  That was not the case, and if the defendants wished to not provide additional copies of those already received by plaintiffs, they were free to do so, as long as that was noted.  It wasn't.  But only four records of the 28 that filled the 9-7-11 request were already received by plaintiffs.  The two dozen new records given in the 3-1-12 brief render moot any such claims as multiple and duplicative records.

The newer requests:  Furthermore, the FOIAC continues to provide non-exempt electronic data not in the electronic format requested, but instead makes paper copies that were not requested and charge for each copy and the labor needed to make those copies. This violates the precedent from Oakland County Treasurer v Title Office, Inc, 245 Mich App 196; 627 NW2d 317 (2001), Public bodies are required to provide public records in the format requested. If there is no explicit statutory language that provides fees for electronic records, the records must be provided using the FOIA fee requirements. Ludington FOIA has no such fee specified.

Also, Hartzell v Mayville Community School District, 183 Mich App 782; 455 NW2d 411 (1990) states that the FOIA requires disclosure of the fact that a requested document does not exist. In requests for multiple documents, Ludington frequently uses the reply that a record does not exist, but never certifies as per MCL 15.235 (4)(b) or clarifies that fact

 

III. The public records withheld show public corruption among defendant's operatives

 

Among the four requests made on 10-18-10 along with the first request concerning Tye Sign's was a request to inspect the contract between Ludington and the company hired to paint the City's two water towers.  Plaintiff Rotta paid $57 for 24 pages of records that were not presented to him in the format requested, and without any sort of fee structure supported by the FOIA. 

This is public extortion as per MCL 750.214, "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; but no prosecution for such offense shall be sustained unless it shall be commenced within 1 year next after the offense was committed."

But this criminal violation is overshadowed by the data in those 24 pages which showed that there was no competitive bidding performed, and that the total cost was $1.2 million to the Ludington taxpayers.  Scottville had their one similar water tower painted for under $50,000 local funds that same year.  It also showed that the painters were supposed to paint both towers in 2010, and the one tower has still not been touched. 

Among the other requests we've made (at about 4/month since 2009), plaintiffs have uncovered several other incidences of questionable, unethical, or illegal behavior by Ludington officials, and even exculpatory material for what we have suspected.  Uncovered was the lack of traffic control orders for illegitimately placed signs, the lack of competitive bids for a large variety of public projects that were required to have such bids by law, the misuse of public funds by the DLB/DDA, the violation of process in amending the downtown TIF by the DLB, illegitimate raises to certain public officials, lack of oaths of office for officials required to have them, the nepotism practiced in the hiring of City Marina personnel, etc.  These issues are not being addressed by the regular media, but they do exist, and many are still hidden because of Ludington violating the FOIA.

 

 

IV. Defendants continue to withhold public records called for by the original request

 

The existence of Exhibit B13 further explained in VIII. shows that the FOIAC has still not complied with this request, contrary to his second affidavit that said he had supplied all records.  Other records existence seem also to be available, but the FOIAC wants to play games by denying a legitimate response as per Exhibit B14.  The FOIAC is an active member of the DLB/DDA and should be well aware of the signage projects being done by his fellow DLB member Tykoski, under the direction of his then-fiance/DLB Chair Heather Venzke, both of who sign most of the invoices included in the amended responses.  That he is unaware of these records is improbable at best.  That he delays, and impedes the disclosure, and twice displays incomplete sets of records with an affidavit that he has given all the records, is bordering on criminal.  He has effectively said Exhibit B13 is not in possession of Ludington.  Why not? 

 

MCL 750.491 states:  "All official books, papers or records created by or received in any office or agency of the state of Michigan or its political subdivisions, are declared to be public property, belonging to the people of the state of Michigan... Any person who shall wilfully carry away, mutilate or destroy any of such books, papers, records or any part of the same, and any person who shall retain and continue to hold the possession of any books, papers or records, or parts thereof, belonging to the aforesaid offices and shall refuse to deliver up such books, papers, records, or parts thereof to the proper officer having charge of the office to which such books, papers, or records belong, upon demand being made by such officer or, in cases of a defunct office, the Michigan historical commission, shall be guilty of a misdemeanor, punishable by imprisonment in the state prison not more than 2 years or by a fine of not more than $1,000.00." 

Has the DLB Chair and/or the FOIAC broken this law by not being able to produce all records?

 

V.  Defendant's FOIA Coordinator has committed a breach of duty and Defendant has misrepresented FOIA precedent.

 

MCL 750.492 states that:  "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." 

By placing a Letter of Trespass on Plaintiff Rotta, the FOIAC/City Manager prohibited Rotta from inspecting the documents in the above manner, and is guilty of a misdemeanor, from prohibiting Rotta access to Ludington City Hall and the Police Department to do so by the LOT's onerous limits.

In their 2-13-12 brief, Ludington's counsel presented Detroit Free Press, Inc. v. Department of Attorney General improperly.  Counsel said it established the precedent that fees could not be disputed in FOIA appeals.   In that case, the dispute of fees imposed by the public body was under proper review, but the plaintiff won that aspect of the dispute (the charge for labor) and prevailed in part under section 4 (fees) which was upheld, but did not prevail under section 10, for in order to receive attorney fees and costs they had to prove that such an appeal was necessary for production of the documents. In our case, the City of Ludington has not only not offered us any manner to get these records but also have produced a false set of records in their brief and claim the request has been fulfilled. Nor have we ever been given a fee constructed under the fee schedule provided in either state or local policy to dispute.

  

VI.  Defendants prevented timely disclosure of records salient to the public

 

The incomplete batch of records that defendants have produced for the court first in their 2-13-12 Brief, followed by a corrected but still incomplete batch of a couple dozen more records in their 3-1-12 Supplementary Brief, nearly six months after Plaintiff Swiger's request for those records, is not a timely release of the public records in question.  Defendant's Exhibit A clearly shows why the approximately 30 records that were in possession of the defendants were not allowed to be inspected or scanned to Plaintiff Swiger back in September 2011. 

Then Candidate Nick Tykoski was in a race for the Ludington 5th Ward City Council seat, and had the tacit support of many incumbents.  The records clearly show unethical and unlawful links between his position as a City official serving on the Downtown Ludington Board (Ludington's Downtown Development Authority) and doing work for that Board by his own private business (Tye's Signs, aka Tye's Inc.). 

Complicating that obvious conflict was the fact his present wife, and then long-term fiance, Heather Venzke, was the administrator of that Board and signed the majority of the invoices, and among the records there is not a single contract between the company and the City.  This was clearly violating the standards of conduct for Public officials (MCL 15.342, et. al.) and numerous ordinances of the Ludington City Code. 

Had the City Council actually touched on the FOIA appeal at their 9-26-11 meeting, they may have had to address some touchy subjects, particularly since the City Clerk had told Rotta that his statement was to be entered into the record, yet never was.  Had the records been given out at that point, Candidate Tykoski may have had a lot of explaining to do.  Now City Councilor Tykoski will have a lot of explaining to do to the people who were denied the timely access to these records, which include an invoice dated the same month Plaintiff Rotta was banned from City Hall that has Tye's Inc. doing over $13,000 of work, where his company is listed as having the same address as the DLB's Chair/his fiance, and a note on the bottom that reads "Do not mail".  His fiance was the only one signing the invoice. 

 

VII.  Affidavit of Indigency and Fraud issues are a moot point as concerns plaintiffs

 

Defendant’s counsel has a valid point in that Michigan never statutorily defines the term “indigent”.   My legal dictionary defines Indigency:  "Indigency refers to persons who have a significant lack of income. Indigency is governed by various federal, state, local, and administrative laws and rules, which vary. It is often defined by 1) the receipt of certain public assistance payments, 2) income, after taxes, which does not exceed 125% of the current Federal Poverty Guideline, or 3) that a person cannot pay required fees or costs without depriving themself or those who are dependent on them of the necessities of life, including food, shelter and clothing."  (US Legal.com)

The facts included on Plaintiff Swiger's Affidavit has not changed.  She has no income and does receive several hundred dollars each month on her Bridge Card (a MI food stamp program), and receives Medicaid for herself, as well.  This satisfies all three conditions of indigency. 

Plaintiff Rotta's financial situation is not much better.  During the calendar year of 2011, the Federal poverty guideline for his household size (1) was $10,890.  125% of that is $13,612.5.  Plaintiff Rotta can certify under oath that he had made less than that amount in 2011.  This qualifies him, as well, for being indigent, as per the legal definition of that term.   In the 161 minutes of defendants deposing Plaintiff Rotta, they never asked anything about his own indigency, even though they were presumably aware that Rotta had lost his job in March on account of the defendants policies and actions of its operatives and its attorneys.

As the defendant excoriates Plaintiff Rotta for avoiding costs by using Swiger because of her Affidavit on file, the issue is a dead end, as Rotta also qualified for an Affidavit of Indigency during the full time period in question.  Even if Rotta had continued on his job for the full year, he would have been defined as “indigent”.  What may be a better exercise of the court's time as regards the Affidavit of Indigency is to track the associated 'inflation' of costs tacked on to FOIA responses that occurred after the Affidavit was accepted by the defendant, as well as a pattern of refusal of the defendant to comply with the affidavit in an arbitrary and capricious manner.

 

VIII.  Affidavit of Indigency violations and fraud by defendant

 

Defendant's Exhibit 'O' in the 2-13-12 Brief shows the Affidavit of Indigency accepted by the defendant for Plaintiff Swiger.  This was notified and accepted by the defendant's City Clerk as a document that had that purpose as concerns FOIA requests for Swiger.  Yet, the FOIAC on Exhibit 'D' of Plaintiff's 12-6-2011 response to defendant's counterclaim denied that affidavit on October 3, 2011 as he made the statement that Swiger was making the requests through Rotta as a cost-saving measure on his part.  The fact is:  Swiger was making requests because of the active trespass letter preventing Rotta from using that facility freely.  This was an unfounded assertion on the FOIAC's part, and deprived Swiger her rights under MCL 15.234(1) to receive public records at the discounted rate.  As was shown previously, Rotta also had the ability to claim indigency, and receive that discount as well. 

In producing that affidavit on 2-13-12, when it was requested in a prior FOIA request (Exhibit H, of 12-6-2011 response by plaintiff) and denied by claiming it was exempt due to 15.243 (1)(v) was totally against the pro-disclosure intent of the FOIA and that subsection.  Swiger continues to be indigent, and the affidavit was stripped of power arbitrarily and capriciously by defendant's FOIAC.

 

Fraud was perpetrated on the plaintiffs and this court by the defendant's FOIAC John Shay when they signed an affidavit on both 2-13-12 and 2-28-12 that claimed that the defendant has complied with the original 9-7-11 FOIA request.  The two dozen or so records added on 2-28-12 were due to a supplemental FOIA submitted by Plaintiff Rotta, who had in his possession the financial records of the DLB which claimed many such records existed, denying the veracity of the 2-13-11 affidavit.  Exhibit B13 effectively shows at least one document that should have been sent with the FOIAC's FOIA reply, but wasn't, thereby proving the 2-28-12 affidavit, once again claiming the request was fulfilled, was false. 

The court may ask where the Plaintiffs got Exhibit B13.  The record was part of the documentation filed in a denied PPO application by the defendant's DLB Chair, Heather Venzke on Plaintiff Rotta on 2-22-11 and recently found out about by Rotta in a FOIA to the County Prosecutor.  A copy of this document should have been included in the FOIA reply, and nullifies the latter affidavit.  The FOIAC denied proper handling of another FOIA request (Exhibit B14) requesting more documents that may have been relevant.   

As the FOIAC and the DLB Chair has attended most every DLB meeting held as well as signing most of the records included in the 2-28-12 addition, their ignorance of these extra records is doubtful, and may lead a reasonable person to suspect they were withheld in an arbitrary and capricious manner by these agents of the defendants, against the public interest and right to know. 

 

IX. Defendant and its counsel have acted to intimidate and harass plaintiffs

 

This pattern began on 11-8-10, when the defendant decided the second administrative appeal of Plaintiff Rotta deserved negative media attention.  The FOIAC misrepresented in front of the public and City Council at an open meeting, my FOIA appeal and my actual request, while exposing an irrelevant, incomplete, and invasive fact about a traffic violation more than two years previous (Exhibit P15) and other private information, in violation of the Preservation of Personal Privacy Act (MCL 445.1711-15).

This pattern continued with a nuisance PPO applied for and rejected by Judge Mark Raven in February 2011 by Heather Venzke, with no basis behind it, followed by Ludington's adoption of the Workplace Safety Policy adopted on 2-28-11, with a letter of trespass placed on Plaintiff Rotta the next day.  This was followed by another negative newspaper article (3-5-11) on the plaintiff prompted by the defendant which was defamatory enough to help cause him to lose his job as a security officer. 

When Rotta ran for City Councilor in 2011, Rotta was disallowed to come into the City Hall three times, by refusal of FOIAC to respond to Rotta's pleas to.  This included a much publicized City Hall forum, where the FOIAC never gave him written permission to step on the property, and the local paper once more did one-sided stories about it.  Legally placed campaign signs for Rotta, were taken down illegally by City officers, a fact documented on in the Ludington Torch.

Since plaintiffs have started a civil action, the defendant’s attorneys have continued this pattern of harassment and intimidation, which is reflected in their various court submissions and the various motions for sanctions they submitted on 2-13-12 in their 132 pages of documents.  The motions pettiness and vindictiveness speak for themselves.

Defendant's counsel also requested Plaintiff Swiger to produce documents for a deposition in under the time allowed by court rules, when she is admittedly indigent, then threatened and produced motions to harass her, disregarding her Motion to Quash, and otherwise acted against the precedent of Cashel v. Smith, 1982.  They then sent an E-mail message to Rotta just as he got out of his own 161 minute deposition with no breaks saying that the deposing counsel stated he was going to make someone cry by the end of the day of the depositions.  Was it misdirected, or did it have some other purpose?

 

CONCLUSION

 

Defendants would like this court to believe that Plaintiffs make about one FOIA request a week on average in order to diminish the operability of that public body and their ability to respond to FOIA requests effectively.  That is ludicrous.  The FOIA was instituted to allow individuals and the media (which the plaintiffs are) 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. The people shall be informed so that they may fully participate in the democratic process.  Our requests are purposeful, almost all are very specific, and all are designed with limiting the burden and cost on the public body to provide us the required records.

The Ludington Torch is a website that prides itself on the right to speak freely, with the duty to do so responsibly.  Plaintiff Rotta established this site as a watchblog, a place where those people who care about the Ludington area and its progress could talk freely about what was happening in their area and beyond.  It has prospered where others have faltered.  Rotta created the site in 2009, Swiger, his girlfriend/fiance, joined in 2010, but has always assisted in the endeavor. 

Rotta's main impetus throughout that time has been to offer a free forum of ideas, and to investigate the actions of the local governments when they seem to have gone awry.  The Torch has all of its content since 2009 open to the public for viewing with no restrictions except for a couple of closed subgroups.  We have often been critical to public institutions and policies, but this should only lead to making those better. 

In order to fully investigate all sides of an article, we have requested information from the defendant to get as close to the truth as possible.  We then vet it in the public forum, and welcome all points of view to participate.  This requires gaining information through what has proved to be a reluctant source, Ludington's FOIAC. 

FOIA requests sometimes have a "snowball effect", getting one piece of information to answer a question, sometimes opens up two or more other questions, prompting more requests.  Ludington's records frequently have shown problems with established protocols and laws, a fact we display at the Torch, and have seemingly made defendants more reluctant to give plaintiffs records declared property of the public by the laws of Michigan.

The FOIAC seems to have the view that the FOIA is a source of revenue for the City of Ludington, not a necessary duty they have to the citizens.  This is reflected in the defendant's briefs and in his first exhibit, a table with many large cash figures next to plaintiffs' requests.  The requests are not arbitrary, nor capricious, the determinations of the FOIAC frequently are, as displayed in Exhibits B1 through B12. 

Plaintiffs have pointed out many laws and policies that are not being followed by the public body known as the City of Ludington by the FOIAs they have received; a strong, enforced FOIA is a necessary tool for them to continue their work.  Yet, as displayed in plaintiffs' arguments and prior submissions, the City of Ludington is violating even more laws and policies in denying the open flow of information to the rightful owners of that information, the public.

 

Whereas, because the defendant has behaved arbitrarily and capriciously throughout this process, denied plaintiffs time-sensitive records in an expedient manner in order to hide corrupt behavior, by corruptly misstating that all records have been produced, when they have not, plaintiffs humbly ask this court to:

1)  Dismiss the nuisance counterclaim and motions of the defendants.

2)  Find that injury has been inflicted on the plaintiffs by the refusal for timely disclosure of the documents, and award them court costs and expenses.

3)  Find that agents of the defendant have withheld these documents in an arbitrary and capricious manner, and sanction them with the awarding to plaintiffs punitive damages in the amount of $500 as per MCL 15.240(7). 

4)  Permit and/or appoint a neutral mediator to review outstanding and upcoming FOIA disagreements between plaintiffs and the City of Ludington so as to see that this court will not be inundated by future appeals if the defendants continue not to act in good faith towards the FOIA statutes.

5)  Find that the defendant must reinstate Plaintiff Swiger’s Affidavit of Indigency, and to accept a future affidavit from Plaintiff Rotta.

                                                                        Respectfully submitted,

 

______________________          ____________________________________________________

            Date                                                                 Plaintiffs

 

[Sweater Cows!]

So did you have court today? What happened?

[XLFD]

Yes.  Something significant did happen, although the decision was once again postponed as per the FOIA issues.  I will be putting something up in the main forum shortly as far as the latest update. 

[Lisa O'Brien]

Well I was hoping you would type/scan faster. I was anxious to hear what happened -but I'm tired and have to go to sleep. It'll give me something to look forward to tomorrow.

[XLFD]

Sorry, I got into some research and discussion on it, and will have to delay this at least until later today.

[XLFD]

I'm more than half done, I'll finish it and post it over the weekend, because I still have a contact or two to make for research purposes.  It is good tidings for the people, IMHO.

[AQUAMAN]

From what I've heard so far around the grapevine, you've practically won now, by attrition and patience. But, that alone does not excuse the improprieties of some that actually have participated and lied/deceived their position of authority, to the point of, well, being fired/retiring shortly for unethical conduct and such. Or perhaps having a severe legal reprimand by the Michigan Bar. Thus endeth the lesson tonight.

[Lisa O'Brien]

Well that only make me more curious as to what happened.

[XLFD]

As noted in my brief, the public records have essentially been revealed to me, and certified as complete, at least twice now.  A decision on whether the withholding of those records was done in an arbitrary and capricious manner (which would allow plaintiffs an extra $500 in punitive damages) or whether we now do indeed have a complete set  is still the non-moot point of our case.  Of course, the brief above shows there are other avenues of criminal and civil investigation into the activities of Ludington's brain trust, as well as what further has developed.

The defendant's counterclaim is and was just a money pit for the citizens of Ludington with a cavern in it that leads to the coffers of a firm of shysters from our sister city of Manistee. 

And a means of trying to harass the plaintiffs into submission.  It has done its objectives; the plaintiffs are in the process of submission of more complaints to state and federal agencies.