Ludington City Council, November 22, 2021: Low Information Voters

[XLFD]

Three hours.  That was the length of the 11-22-2021 meeting of the Ludington City Council up to the point when the council went into closed session to evaluate City Manager Mitch Foster's performance.  After looking at the agenda packet, one might think the meeting lasted so long because of Foster's presentation of the 2022-2024 Budget and Capital Plan running deep into wonkiness.  They would be mistaken, however, as the council had their own deep discussions among themselves regarding some of the issues of the night.  This article will look at one topic near and dear to my heart, the rest of the meeting's business will be covered in an additional post.

The meeting had already crested past two hours before the council took up a Freedom of Information Act (FOIA) appeal by yours truly.  Two hours prior, I had made my case that the city's FOIA Coordinator Carlos Alvarado had made some improper redactions on the police reports I received from a 10-10-21 traffic incident where one of the three pedestrian victims crossing the street died after being struck by a truck.  

XLFD (5:45 in):  "One week after a car ran into three pedestrians over halfway through a crosswalk on James Street, one of the victims passed away.  Chief Kozal issued a press release telling the public that Gloria Trent of Grand Rapids had passed away.  Two weeks after that, I received a FOIA response that redacted Gloria Trent's name, her gender, and her home city in every part of the report.  Clearly, when a public body discloses information via news releases to at least three news sources:  the Daily News, TV 9&10, and Channel 7, they can't whimsically and arbitrarily block that information from another outlet two weeks later, along with a host of other exemptions, none of which fall within the personal privacy exemption.  If this council should accept their FOIA Coordinator's arguments, then they must concurrently sanction the press release of their police chief for egregiously violating the personal privacy of Gloria Trent to be legally consistent.

Carlos Alvarado undoubtedly claimed several hours of research and hundreds of dollars in fees in trying to support his flimsy case of why the name of Gloria Trent, her gender, her city can be redacted two weeks after the city's police chief has disclosed that information freely to the media.  But among his legal blather there is nothing offered to support his claim, or to support why disclosed information can be undisclosed later.  You find he comes to a conclusion that claims the appeal should be "rejected as the city correctly invoked the privacy exemption".

Beyond the exemptions already noted, he claims that the following bits of information is properly redacted from the forms supplied due to the personal privacy exemption:  restraints used or deployed, driver condition, whether alcohol or drugs were suspected for the driver, whether the passenger was injured, ejected or trapped, and numerous other data that do not rise to the level of the personal privacy exemption.  The redactions are not consistent either; the ages, races and sexes of those involved are left in at the beginning of the LPD's incident report, but totally eliminated in the UD-10 and redacted inconsistently throughout the latter half of the LPD report.  

I fully respect the use of the personal privacy exemption when properly applied, but that wasn't done here.  Any of the hundred redactions claimed must pass the personal privacy threshold, and most of these won't fly in a courtroom.  I will save the citing of precedent in this case for any future court proceeding if that is needed, but the attorneys present on the wings of this council should recognize the problems of being legally inconsistent in the use of FOIA exemptions, and the liability of releasing information to multiple media sources one week, then blocking release of that same information two weeks later to another medium." [END Comment]

Almost exactly two hours after my comment, the council would consider this appeal, but before that is analyzed, let's take a look at some of the problems I encountered among the materials I received.  I should note that the body cam videos and a couple of additional videos were provided which were properly redacted; this leads me to believe that the issues that came up in the written reports were due to the FOIA coordinator's ignorance or carelessness in his craft.  

But first, the news that night of October 10th of that incident, courtesy of TV 9&10: 

"The Ludington Police Department says a 2013 GMC Terrain was traveling south on James Street and struck three pedestrians at the intersection of Loomis Street around 7:52 a.m. Sunday.

All three pedestrians are residents of Grand Rapids and were transported to Spectrum Hospital. One of the pedestrians, a 57-year-old female, was then air-lifted to Spectrum Health Grand Rapids. Police say her status was listed as critical.

The driver, a 75-year-old female from Emery, South Dakota, did not sustain any injuries."

On October 18th, multiple news agencies noted that they had received press releases from LPD Chief Tim Kozal, telling them that the critically injured woman, Gloria Trent, had passed away, while relaying the rest of the info about the crash given on the night of the accident.  We know that Gloria Trent is a 57 year old female out of Grand Rapids who was initially transported to Ludington's Spectrum Hospital then airlifted out to their GR facility.  So why is it all deleted out of the records two weeks later?

From the LPD report and the UD-10 report both created by the LPD, we see the following referencing Gloria:

Missing: Name (Gloria Trent), City (GR), and Sex (female)

Missing (by inference):  female, Gloria Trent, Gloria, she, she, Gloria

Missing (by inference):  Gloria, her, Gloria's

Missing (by inference):  Gloria Trent, her, Gloria, her, Gloria, she, Gloria 

Missing:  Age (57), sex (F), name (Gloria Trent), city (GR), many others that do not meet the privacy exemption (highlighted)

The FOIA, which is a pro-disclosure statute, limits exemptions strictly.  When a public body gives out information one day, then actively tries to withhold that information over three weeks later responding to a formal request, they are in violation of the law, one would say it is an intentional violation if they fail to correct it once their blatant error is pointed out.  Nor is there consistency since, for example, the age is given in the first snippet, the age is covered in the last.

Recall we are given the sex, age and city of origin of the driver, but not her name in the news releases.  In the FOIA response, the incident report freely gives us her sex and age plus her name, Joann Rogers, and even her passenger's name.  The UD-10 redactions totally wipes everything out about her including a whole host of non-exempt material not covered by privacy:

Each of the exemptions not covered by the privacy exemption is illegal; Attorney Carlos Alvarado spent a lot of time at around $200 an hour making illegal redactions in these reports and making them effectively unreadable at points because of the extent of the redactions with the victims and the witnesses, for example:

The city council took up the issue at 2:08 into the meeting and spent quite a long time on consideration of it.  The agenda packet (beginning p. 278) had little for them to consider.  The records presented were a 5 page opinion by Alvarado, his FOIA time extension letter, my first letter to the police chief (explaining why the response was inadequate) and his reply. 

The absence of any part of the exemption-filled records was noted by one of the councilors who thought something was amiss, John Terzano.  Councilor John Bulger also posited that the media had release several bits of information that should be granted if they were originally exempted.  These two have a lot of legal experience behind them, one would think that they would have some influence on the rest of the council to do the right and legal thing, given that Alvarado himself wasn't present to further advise the council, and attending City Attorney Ross Hammersley was not aware of all the particulars involved in the dispute.

After some discussion, the two aforementioned councilors put a motion up to affirm the coordinator's general denial, but supply genders, pronouns, sexes, cities of origin, and ages to the requestor.  This was tweaked somewhat, but the rest of the council quickly devolved the conversation out of the legal realm and into a domain of personality-- with Councilors Winczewski and Stibitz pointing to Alvarado's opinions and presented legal precedents as the proper course to follow, while effectively showing their own ignorance of the law in doing so.  For Carlos notes that the seminal case for this is a Michigan Supreme Court decision here:

Alvarado unconvincingly tries to show how this applies to his exemptions, but there is no argument from me regarding the covering up of addresses, phone numbers and other proven privacy exemptions, but gender, age and city of origin have never been shown to qualify for such exemptions.  The FOIA notes that the public body has the burden of proof to sustain their denial and Alvarado makes absolutely no attempt to claim how the redactions satisfy either prong of the exemption, because they do not ever satisfy the second.

Additionally, Alvarado claims I did not appeal appropriately while leaving out of the record my follow-up email to Mitch Foster where I asked to appeal this travesty of over-redacting.  Alvarado was CC-ed in that email as well, but his point seems to be that I didn't supply a reason, when the prior email explains my beef.  Mr. Alvarado and the five councilors who ultimately voted against the motion to release some of the information need to remember that even in an administrative appeal, the burden of proof is on the public body to sustain their denial, 

Councilors Bulger and Terzano understood this concept and many others, but they were overwhelmed by the ignorance and prejudice of the other five asserting that every single pronoun deleted, every already-released city of origin be censored, and every other misguided redaction made by Alvarado was done in accordance with the pro-disclosure precepts of the FOIA.

Five councilors would uphold all of those illegal deletions made above and hundreds more that are inapplicable to the privacy exemption in just these two records.  Councilors Winczewski, Stibitz, May, Cain and Johnson are all enemies of transparency and violators of the law; they all chose to deny the release of already-released information in contradiction of the duties of their position. 

It should be additionally noted that Attorney Carlos Alvarado is currently facing a charge of violating the Open Meetings Act in Scottville by this reporter.  The day before he submitted his 5 page memorandum, Alvarado's attorney had a motion hearing in court to dismiss the case, arguing that the committee he served on did not need to comply with the OMA as a matter of law.  The motion failed in Judge Susan Sniegowski's courtroom.  Four additional FOIA charges remain against the City of Scottville due to Alvarado's disregard of that law in representing that municipality.  I acknowledged in my comment immediately after the council's decision this night that Ludington will have something coming in their future too (before warning them about properly going into closed session under section 8(a) of the OMA):

"As we approach the gift-giving season, I have been inspired by the rejection of my FOIA appeal to give the City of Ludington a gift at the next meeting.  So don't eat too much this Thanksgiving, because you will get one more serving in a couple of weeks."

[AQUAMAN]

Just for the sake of clarity, this is the most blurred video of any CC Mtg. I've ever seen, very poor. But the essence of FOIA requests is also blurred here, continuing to withhold info. already released earlier by LPD.  Makes absolutely no sense to me anyhow, but the status-quo continues with no regard, sad, and not transparent again.

[XLFD]

The last two meetings have been simulcast on the City's Facebook page as they develop, which is nice and allows for interaction by remote viewers through comment, but they have also had a lot less clarity, just like the police records in this FOIA response.  Hopefully, they get better and get pasted on to the regular 'Ludington TV' site.

If you listen in on their conversation about this FOIA response, you begin to see that five of the councilors don't know squat about transparency or the FOIA and will rely on what Carlos tells them even when it makes no sense, but neither does the police chief who was trying to claim an inapplicable 'open investigations don't need to be disclosed' defense, even though that exemption was never claimed nor would it have been applicable (except the private info part of it).  

[Freedom Seeker]

Wow! How more clear could you make it to the Council, X? I hope they will learn from you but it looks like either ignorance or arrogance gets in the way for 5 of 7. I'm glad Sniegowski ruled against Alvarado. Maybe there is hope! Good job, keep fighting for FOIA and thanks for reporting the truth.

[XLFD]

Councilor Terzano had the best point by saying that they were supplied with a lot of law, but not much in evidentiary material.  I was planning on sending them the two documents I shared here over the last weekend and stating my case, until I read Alvarado's opinion in the agenda packet and got offended in a big way for his claims. 

So I decided to see what the council would do with plenty of (mostly inapplicable) case law and not even a glance at the records in dispute.  I guess I wasn't too surprised with the result, but I got offended once again in a big way when I heard those arguing for 'undisclosure' to the unfriendly media outlet.  Thanks for your support.

[AQUAMAN]

I like your closing statement X, "don't eat too much, you'll be getting another serving in a couple of weeks", fine ending for now.