City of Wayland FOIA Follies

[XLFD]

I had the feeling that the City Hall of Wayland was messed up after all the turbulence involving their City Manager swinging gate and the debacle of firing a police chief which the public has more confidence in than the sum of the rest of the City Hallers, but now I have more than a feeling.  I have a strong suspicion.  Like everything in life for me nowadays it started with a FOIA request-- what I thought was a simple FOIA request-- sent to the City Clerk of Wayland on April 23, 2012...

 

 

Sent: Monday, April 23, 2012 12:30 AM
To: [e-mail]
Subject: FOIA Request: Dan Miller's personnel records

Michelle,

Under provisions of the Michigan Freedom of Information Act (MCLA 15.231 et seq; MSA 4.1801 (1) et seq) I am requesting to receive scanned images sent electronically to this E-mail address or failing that, to personally inspect the following public records:

Former Wayland Police Chief Dan Miller's personnel records. Please include his personnel records with the Wayland Fire Department as well.

By all means, edit out any material that may be exempt due to privacy or other law enforcement exemptions, but please note the reasons why if it is not entirely obvious.

If you need any clarifications of this request, please reply expediently to this E-mail address.

If you determine that some of the requested information is exempt from disclosure, please detail what is being withheld and cite the exemption under FOIA.
If fees to comply with this request exceed $20, please contact me at this E-Mail address with those fees enumerated. We are a modestly funded newsblog that may qualify for reduced rates as per the Act.

As provided under FOIA, I would anticipate my request being filled within five working days of receipt of this letter.

Thank you very much for your help,

Tom Rotta

The Ludington Torch

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

The response came one week later, informing me that the City needed more time to process the request.  This is allowed under the act, to reflect that it may take more than the 5 business days to get all the information sometimes.  This typically is invoked, however, when the records are found in many diverse locations and or other field offices, or are very comprehensive.  I found it odd that this would apply to his personnel records, that probably exist in one or two folders.  But they seemed to think that they would have to redact a bit of information.  Fine-- take ten more business days to do all that.  But that tenth business day came and went as May 14th turned into May 15th, and no response came.  That is an automatic denial of the request when you can't get it done within that extended time limit.  I sent her the following on May 15th to explain, complete with my contemplated complaint:

 

Sent: Tuesday, May 15, 2012 1:40 PM
To: Michelle Herman
Subject: Re: FOIA Request: Dan Miller's personnel records

Ms. Herman,

I am prepared to file the Complaint for Injunctive Relief with the 51st Circuit Court tomorrow, drafted below so as to get the City of Wayland to produce the documents I have requested as per the FOIA, and which you have failed to respond to except to extend the deadline which has come and passed. Filing this in Circuit Court will subject me to a charge of $150 for the filing fee, and may subject the defendant, "City of Wayland" to repay this and any other fees, including any attorney fees, and may subject defendant to an extra $500 in punitive damages.

If you can get the requested information to my inbox by the end of today, May 15, 2012, I will not need to file this tomorrow, and you will not have to explain to the citizens of Wayland why you could not respond to a simple FOIA request within three weeks, as per your duty under law. Thank you.

Tom Rotta

The Ludington Torch

COMPLAINT FOR INJUNCTIVE RELIEF
1. This is an action under the Freedom of lnformation Act, MCL 15.231 et. seq., to order the production of agency records by the City of Wayland.
2. This court has jurisdiction over this action pursuant to MCL 15.240 (4).
3. Plaintiff has a right to inspect, copy, or receive copies of the requested public record of the public body by MCL 15.233(1) and the public body known as the City of Wayland has a corresponding duty to respond to a request for a public record within 5 business days after the public body receives the request by MCL 15.235(2).
4. Defendant is an agency of the State of Michigan and has a duty to abide by the FOIA laws of Michigan.
5. Plaintiff sent a FOIA request via E-mail to Wayland City Clerk, Michelle Herman, on April 23, 2012 regarding public records her agency was likely to possess. (Exhibit 1, highlighted)
6. Clerk Herman sent plaintiff an E-mail on April 30, 2012 (the 5th business day) asking to extend the time it had to respond by ten business days, as allowed by the FOIA, noting that plaintiff would have a response by May 14, 2012 (10 business days). (Exhibit 2)
7. Plaintiff received no response of any kind by the end of May 14, 2012.
8. Failure to timely respond to a request constitutes a public body's final determination to deny the request (MCL 15.235(3)).
9. Plaintiff has not been given information by Wayland's FOIA Coordinator as to who is the "head of the public body", nor their rights as for an administrative appeal by that agency, necessitating a Circuit Court appeal to enforce Plaintiff's right to inspect the records.

WHEREFORE, Plaintiff requests this court:
1) Order Defendant to provide access to the requested public records.
2) Judge the incontrovertible facts of this FOIA denial in expedited proceedings as provided for in MCL
15.240(5).
3) Award Plaintiff costs, fees, and other and further relief as it may deem just and proper.
4) Determine that Defendant has arbitrarily and capriciously violated this act by the refusal or delay in

disclosing or providing copies of a public record of immediate public interest, and award, in addition to any actual or compensatory damages, punitive damages in the amount of $500.00 to the plaintiff seeking the right to inspect or receive a copy of a public record.

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

Two hours and some odd minutes later, I received the following from Michelle, CCed to the City Manager and the City Attorney of Wayland:

 

Dear Tom:

I have attached a copy of the email sent 5/10/2012 by our City Manager, Mike Selden regarding your FIOA request. I have attached a copy of the document Mr. Selden sent to you on my behalf. Unfortunately, my mother-in-law passed away and the funeral was last week in Flint, Michigan.

If you are having difficulty reading viewing the attachment, please provide a mailing address and a copy will be mailed First Class Mail to your attention.

Respectfully submitted.

Michelle Herman

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

I had sent the City a second FOIA request regarding records dealing with process serving of PPOs on May 3, because I had gotten bored waiting for the first to come in.  New City Manager Mike Selden extended that FOIA reply by ten days in his May 10th letter included therein with that topic clearly put on it.  Never was the original FOIA, the one in controversy discussed.  I didn't believe this was an oversight, and put this in my reply earlier this day:

 

TO:Michelle Herman

CC:Kurt P. McCamman Mike Selden

Wednesday, May 16, 2012 12:51 AM

Michelle,
If you will notice the material on the Motion for Injunctive Relief that I forwarded to you, it refers to the FOIA request I sent on April 23, 2012, to which you replied with a request to extend the time for a response on April 30, which went to May 14.

As I believe you, Mike, and Kurt may be playing legal games to escape culpability for the failure to timely respond to a FOIA request concerning what I feel are time-sensitive records of interest to the public, I am filing this Motion later on today, slightly amended, to reflect what could be perceived as an arbitrary and capricious withholding of public records by the City's continued reluctance to comply to a fairly simple request in over three weeks time.

Whereas I'm sorry to hear about your mother-in-laws passing, you still had a duty to perform or to delegate to another city officer. You failed to do so, frittered away the opportunity to amend that error I gave you yesterday, and now you will likely cost the taxpayers of Wayland some money and waste my time as well in procuring these records for the public.

Tom Rotta
The Ludington Torch

 

What a sad reflection on the stewards of the people's records down there in Wayland.  How neglectful of their duties to the public can they be?  A simple showing of a personnel file takes three weeks plus to retrieve?! 

And yet, these were the same folks who fired their police chief of over thirty years effectively for disposing of property properly, doing his sworn duties, and doing extra work from home.  Fancy that.

[AQUAMAN]

You know, whenever the public doesn't need to know, they can always claim it's for the sake of national defense....lol.

[XLFD]

I wouldn't be surprised if these jokers at WCH claim that in the future.  I got a couple of hundred documents sent to me this morning.  It shows a very distinguished career in both the WPD and WFD by Dan Miller, but conspicuously absent is anything of recent vintage.  Nothing since 2008 as regards to his WPD job.  No performance reviews, disciplinary acts, or commendations in that time. 

Seems like another oversight.  I have suspended any legal proceedings since I am finally getting some cooperation, but I will definitely proceed if they try to say they have sent me everything in their possession.  Destroying and/or withholding records is a crime, unlike any violation alleged to be committed by Dan Miller.

[Phil Convissor]

XLFD, Now your being deceptive, you know darn well the only reason they havn't released anything after 2008 is because it can't be good for Miller and Miller has not given the release of those documents. 

Why don't you ask him directly for those documents, maybe there stashed in some of those boxes of other peoples personal stuff he shouldn't have been hording.

What you are doing is only "Cloudying the situation"

Bottom Line.

Miller was given a Direct order by his supervisor

Miller agreed to abide by that direct order

Miller then decided to try and work around that direct order by ordering one of his officers who work under his direction to complete a "follow up". Which still was his disobeying a direct order which he had already agreed not to do.

But keep "cloudying" the real issue all you want, last I knew the "grass is still green" where I come from.

[XLFD]

If the City Clerk had some sort of legal reason so as to not show the recent personnel actions for Dan, it should have been mentioned in the FOIA reply, it was not.  There's been a lot of going on personnel-wise with Dan, and it's not being released by the City of Wayland.  That should concern any Wayland citizen, which neither of us are, Phil.

Your bottom line is being investigated, but my first impression is that it is, to quote the immortal Bard, "Much Ado About Nothing."

[Fran Cisco]

Sure seems Mr Con Visser seems to know quite a bit out of WCH. Maybe he has a "connection" there.   I am sure had XLFD had the itemshe would hav no problem letting us know about them.  AGAIN, Mr. Con Vissor is ONLY interested in Dan Miller, maybe he needs to look into a PPO for his safety since the WPD feels "awkward and embarrassed " in handling things.   Hummm.  Maybe they need to be in another profession and not law enforcement.   

[Gary Koboldt Woodstock, Jr.]

I understand the furstration you believe is happening.  HOWEVER, I think you should look at this another way.  Dan has been there a long time.  I suspect there are reams for paper in that file that needs to be reviewed.  I respect the time that is being taken to be sure nothing that will violate Chief Miller's privacy or lead to ID Thief potential. I do not have the trust that would other staff to go through sensitive files so carefully based on my dealing with other CH Staff. 

 The Treasurer person may know her numbers, but is totally clueless about what, where or how other day to day stuff happens.  Try and get responses from that lady.  I had to call several times, and she was out of the office for the day.  Three times, were on a Friday.  She must only work part-time. 

 I contacted City Hall to ask some election questions, and discovered Ms. Herman was out for a family emergency.  Pleasantly to my surprise, I received a return call from Clerk Herman on a Saturday with the information I asked for. SATURDAY - this too is dedication from where I sit. During this conversation, I asked some several other questions and received excellant information.  I finally asked Mrs. Herman about the family member's emergency.  Herman hesitated for a minute and went on to tell me her husband's mother has a massive stroke and a good outcome was not expected.  Stop being so petty.  You look like an insensitive fool.

This lady seems to be the one person a citizen can go to receive good information at City Hall.  I think you have crossed a line dissing her on this page.  Check Mlive Obits Flint, or Swartz Funeral Home you can view Mrs. Herman's mother-in-law obit. I did - it is all right there.  I plan to mail her a sympathy card TODAY.  Sorry for her loss. 

[Fran Cisco]

I think there is supposed to have an Asst. FOIA coordinator should something happen to the FOIA Coordinator.  I don't think XLFD is insensitive on Ms. Herman's death in the family however there must be things in place to fall back on should something happen.  Gary you are so right on the Treasurer.   I have heard she has no clue what's going on up there in that the finance department.   I have heard there have been 2 part time people hired to assist her plus Chief Millers xwife too.   That lady is never at work.   I thought that was an issue with the former CM.    Where's the mole now?   Could it be that the people who he felt threatened by are now gone so he can relax and do as he now wants  while on the public expense ????

Last point I am sure Ms. Herman is a dedicated employee and I know Dan Miller was........could it be that she is next ??

[XLFD]

Anyone can be designated as a FOIA Coordinator by the prior FOIAC or the City Manager if the usual FOIAC can not fulfill their duties.  The new City Manager, Mike Selden, apparently was filling in for Ms. Herman that week she was grieving, so his wet-behind-the-ears self may have factored in.  A communications mix-up was likely the cause for the delay, but from prior experience, I assume they were just delaying for delaying's sake.

All dedicated employees in Wayland better look out, there very well could be a purge going on.

[XLFD]

Gary,

If you do a topic search on FOIA here at the Torch, you will note that I have did extensive FOIAs at the City of Ludington (over 100 to date) and other local public bodies.  I have went to Circuit Court pro se twice to get records, and found that even though the delaying/withholding bodies (the City of Ludington and The County of Mason) were clearly in the wrong, they used a bunch of specious legal tricks to try to absolve their neglect of duty. 

I did research the obits, and found that there was a death in the family, and I know she was focused on things other than a FOIA request.  Fine; but for the 190 pages of personnel records for the police department there were the following redactions:  6 pages where a SS# was blackened, 3 pages (from 1972, 73, and 75) with an address was crossed out, and 1 page with his children's DOB crossed out. 

The 71 pages for the Fire Department had about the same amount, but someone's black Sharpie didn't work very good that day, so if I was interested in getting Dan Miller's SS#, his recent address, or his kids' DOB, I have it now.  As can be seen in this swath of a record where the dark black is my addition, to protect the Chief's privacy:

Furthermore, on a hunch, Gary, I just did a quick people search on your name, and it was revealed that you are related to Ms. Herman herself:

 

Now, I don't know why someone with address records only from Saginaw would be calling Wayland City Hall for election information, unless the City Clerk may be your daughter (?).  As such, it is incredibly disingenuous of you to come upon here and defend her thusly as a disinterested outsider.  But it is a great and noble gesture as a father. 

I have offered my condolences to Ms. Herman, I have said I was sorry for her loss here; but let's have Wayland City Hall practice what they preach.  A dedicated Wayland public servant lost his job because City Hall in the guise of Herr Hoffmeyer, saw Dan Miller's private life playing a part in his public life.  I still don't see that, so I must be an insensitive fool.

[Marty Redman]

Gary, youz been tagged as a ringer. 

[Gary Koboldt Woodstock, Jr.]

Good evening.  Please note, the person above referenced is not me.  Koboldt is my middle name (from my Mother's family), so please do not confuse me with this gentleman.   

[Phil Convissor]

XLFD, The Insensitive part you had right. I could have chosen a better second word, but I think I covered that before, in another blog.