The Cost of Doing Business with the City of Manistee, a Cautionary Tale 

As regular Ludington Torch readers know, we are in the midst of a quest for seeking the police incident report regarding Lee Pat Milks who was killed nearly a year ago at his home when Manistee police officer Doug Vansickle with just a little over one year experience on the force repeatedly shot the septuagenarian.  The official story has been inconsistent leading many in the public to seriously doubt the self-serving account released by the new police chief and the county prosecutor just before the four day Independence Day weekend in 2017.

In that quest for non-exempt public records to inspect, I have encountered Manistee's 19th Circuit Court, where I 'lost' my case on January 30, 2018 amid plenty of irregularities by a court that had James Batzer, the former judge of the court who came out of retirement just to rule on my case.  A recent purchase of the Register of Actions for this case shows that he was never properly assigned to the case at least in the way Michigan Court Rules allow (see more court infractions here 19th Circuit Court Holds Judicial Processes in Contempt).

Updating, the Judicial Tenure Commission notified me that it has initiated an investigation on the peculiarities of the court's behaviors as identified, and on Wednesday I filed a claim of appeal by right with the Michigan Appeals Court, sending them a check for $375 and other necessary materials for the hopeful reversing of this bizarre judicial order. 

But one of the things which wasn't considered at the original hearing was the issue of Manistee charging large fees without justification.  While I had fee issues for the partial record I received, these were properly brushed off by Manistee's defense attorney since it was pointed out that the City of Manistee has a separate appeal process for fees which I had bypassed before I took them to court for non-disclosure.  Technically, I needed to go through that process before taking it back to court.  This was one of the few arguments made in court by the defense that had some validity, enough not to challenge it.

So immediately after the hearing, I made three FOIA requests in over the next four days regarding two incidents involving Milks and the City's inventory of FOIA responses over the last year (which the City is required to maintain by the FOIA statute).  The first was already discussed in the article Thad Taylor Won't Take My Money, where I tried to settle an outstanding debt that the city manager said I owed them. Neither Thad nor his secretary would take my money and sign a receipt saying exactly what the money was for.  

There's a good reason for that, they know the fee was not allowable by law, and they would be criminals if they were to accept my payment.  So they can ask for whatever fee they want, and as long as they don't accept my money they get to keep the public away from the records showing their official's part in the homicide of an individual.  This move has the mark of an evil legal genius, like Manistee City Attorney George V. Saylor III, with apologies to Thad if he thought this scheme up.

The first request was for the original mostly-non-exempt public records I asked for in the first place, the police incident report and use-of force report for the Lee Milks killing.  The second was for records involving another confrontation that Milks had had with city officials that led to prosecution (where the prosecutor eventually decided against it), this had been referenced by Judge Batzer and sounded somewhat compelling-- an existing conflict between Milks and city officials, before one of those officials provoked and shot Milks.  The third was for the fee estimation worksheets and notice of granting/denial of all FOIA responses made by the City in the last year.   

The first came back without a cost estimation worksheet, but said I owed $246, and a list of the previous fees they asked for last summer for the same request that they wanted paid now in addition [18-04 FOIA.pdf].  The others required an additional ten days; the only difference between them were that they actually included cost estimation worksheets [18-05 FOIA.pdf] and [18-06 FOIA.pdf] and that they asked for different amounts that had no basis in legality.

The proof they are not legal fees are found in each of the replies.  The City of Manistee actually has a more defined policy than the State of Michigan, in that they actually define what 'unreasonably high costs to the public body' are.  If you look on p. 5 or p. 6 you will see this in all three replies:

So effectively the City cannot charge any labor fee unless they specifically identify the nature of the unreasonably high costs they are forced into due to the nature of the request and then put it in writing [see MCL 15.234(3)].  In response #18-04, they said $246 was owed without anything written as to why.  It was a request for a police incident report along with the accompanying use of force report for a completed investigation. 

That is a rather usual FOIA request by its nature, which is granted without any costs for labor from most other police agencies, even Ludington's.  What's the $246 going to be used for, taking out all of the material that shows their guy didn't act in accordance with policy?

The other two worksheets actually show the inapplicable fees they were asking for.  #18-05 shows a charge for 30-45 minutes of labor without explaining in writing why looking up one incident report of nine pages was that time consuming.  They then charge ninety cents for photocopying non-exempt records I asked to either inspect or receive electronically.  A public body cannot charge for making electronic copies [see MCL 15.234(1)(c), "The requestor may stipulate that the public records be... electronically provided to him or her in lieu of paper copies."  That section of law indicates no fee for this service, only when paper copies are made-- to offset the public body's costs of making them.

Response #1806 follows a similar theme.  Seventy-nine paper copies of non-exempt records that I never asked for and what appears to be 90-105 minutes of work by one of their secretaries.  

It's a very exceptional secretary too, being that their hourly rate is $38.62 (which includes benefits).  The website Indeed keeps track of secretary jobs in Michigan, the nearest location to Manistee being Traverse City they have the average rate for secretary jobs at under $10:

Presuming average benefits multiply that figure by 1.25 to 1.40 (for sake of argument, let's give them the high end of 1.4), a secretary in TC, experienced or not, would be getting $13.58 per hour with benefits at their time of hire, not three times that like the City of Manistee secretary is getting.  Yet once again, it is not identified specifically and in writing why the City is charging $58 for labor fees to either inspect or receive electronic copies of these records-- which need to be maintained on file for public inspection by the FOIA [see MCL 15.233(2)].  

And yet, the ridiculous ransoms they create are not questioned by those who are supposed to oversee that they are following the law.  

At the February 20 Manistee city council meeting, the councilors decided unanimously in lockstep for a newly prepared FOIA cost estimation of $120 for the fee appeal of #18-04 after listening to the city attorney tell them that I was not going to make the meeting and that they would need to make a decision that night [wrong, see MCL 15.240a sections 3 and 2]. 

As the City never provided a cost estimation or rationale for the initial response, their new fee estimate was effectively raising the fees by $120, an action that the FOIA does not allow [see MCL 15.240a(2)].  Neither did they include any specific reasoning for the labor charges in writing, or any of the other fees their amended response asked for.  My guess as to their rationale is that if they start doing that, then they are effectively admitting they were doing it wrong all those times before.  The limited discussion occurs starting at 46:30 into that meeting.

City Attorney George Saylor: (49:00)  "There was just a computation mistake in the original estimate, it was found when we were putting together receipts in anticipation of Mr. Rotta coming in and paying and so it was caught at that time and we were made aware of it and over the last week we made efforts to correct the mistake and he was noticed of it... Due to the time constraints, we are required to make a decision at this council meeting."

Lies.  As I told them via E-mail, they had another two weeks and that there was never an original estimate sent to me, just a claim that for some reason I owed $246 for a simple police report where the City wasn't even the investigating authority.  On March 6, the fee appeals for the last two responses were appealed.  The video is not yet available, I never went to the meeting, but according to the City of Manistee Advocate (COMA)(aka Manistee News Advocate) it was noted:  

"Two freedom of Information Act (FOIA) cost estimate appeals were denied unanimously by council on Tuesday. The cost estimates were set at $20.78 and $68.83; Tom Rotta filed to appeal the costs.

"Staff supports denying the appeal finding that the determination of costs as contained in the FOIA worksheet is accurate and complies with the city's publicly available procedures and guidelines, " stated Mayor Jim Smith, while reading the council agenda."

This is echoed by the meeting's minutes, and the council handled all three fee appeals without ever using their newfound judicial powers vested in them by the FOIA statute, instead they decided to follow their attorney's advice and echo the falsehoods spouted by 'staff' that the fee determination complies with the city's guidelines and accurately does so.  They, and you, only need to look at each of their responses, on pages five and six, to disprove their allegations.  Unfortunately, it's likely to cost us both a lot of time and money to have a court in Grand Rapids affirm the people's right to have these records at a fair and lawful price in full compliance with the FOIA.  

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Thanks for your support, Freedom Seeker.  Ideally, George would learn a lesson in Manistee's 19th Circuit, but I have a feeling they are not my biggest fans right now, and I doubt whether Judge David Thompson wants to touch the unwinnable position Manistee has in the upcoming fee lawsuit, so he'll cower in his judicial chambers and let the Honorable (snicker) James Batzer handle it again.  His last name is not pronounced Bats-ur, but Bot-zer-- as in Bot-and-paid for. He doesn't have to worry about re-election as a retired jurist.

It still amazes me what you have to go thru X, to access public records. I'm even more amazed by your ability and stamina to carry these issues to a legal termination. I have trouble just dealing with a traffic citation. It seems to me that all of these FOIA legal entanglements have their origins in either poor legal advice by hired City attorneys  or possibly a lack of understanding as to how the law applies to FOIA actions by both elected officials and attorneys employed by municipalities.  It doesn't seem possible that Manistee is as corrupt, complacent or ignorant as Ludingtons officials.

It simply amazes me that every time some estimate for labor is given, it's near or over $40/hr.. How can that person be the most economical one in the office? And why do they include benefits as part of the hrly. rate? Plus retrieval of recent public records doesn't take that much time if that person is relatively efficient for their position. Like 1.5 hrs. and .5 hrs.? Should only take a fraction of that time, if they know what they are doing.

Exactly Aquaman. I think they do this to discourage people from filing FOIA's. What should be happening is that any and all public records and information should be accessible and free. It's our information not theirs.

Freeup  Our  Information  As_holes.

My belief is that public attorneys spoil the process.  I gripe about city managers of Ludington and Manisfee being complicit, but where do they get their ideas and support for blocking public records requests?  The city attorneys for those public bodies, the corrupted twins from Manisfee George Saylor and Richard Wilson.  At the county level, I meet resistance from County Prosecuting Attorney Paul Spaniola for non-exempt records from his office, and he spreads his opaque poison to the county sheriff and even the COL.  Even at the high school level, the MCC and LASD school superintendents often go running to their attorneys to block public records requests over sensitive but mostly non-exempt records.

Take the public attorneys out of the equation, you'd have a lot better transparency and a whole lot more money to do the important things.

There's no denying from the records that I have seen and the depositions made by former Mayor Henderson and John Shay, that these people were all involved in the WSP drafting.  The records seem to show that Shay and Venzke wanted the public records protected from my grubby fingers, so Chief Barnett designed what he wanted the policy to be like and Attorney Wilson reviewed it while likely making changes. 

Yet that was in February 2011, I had been making and being rebuffed on FOIA requests for a couple of years before that.  There are numerous times when I got incredibly odd reasons for being way overcharged or not getting simple requests for non-exempt records, and Dick Wilson almost always supplied the lame rationales.

I'm about a month away from the likely final motion hearing on the City of Ludington's FOIA fee lawsuit.  In that one I had been originally asked to pay $2500 for a police incident report and a transcript of a custodial interview.  As I got a not too impressive bit of discovery return from the COL, which may potentially help win the case anyway, I can't help but feel sorry for the psyche of the attorneys who have to defend their city corporate's actions in withholding records and placing inappropriate fees to their FOIA requests. 

Their pocketbooks are doing okay with all the public moneys they drain defending the blockading of public records, unlike mine, but the legal briefs they have been submitting seem rather weak in their arguments.  The public body has the burden of proof in FOIA cases to prove why their records either should not be disclosed or "to establish that the required fee complies with its publicly available procedures and guidelines" and the state FOIA.  I can't help but think that they're like the conflicted lawyer who has to use the best of his abilities to defend a client who has confessed to murder in confidence. 

The city's attorney effectively has to prove their innocence, which should be a high and difficult burden given the fact sets in my cases, they are not a traditional defendant who only needs reasonable doubt.

The local judges, with one exception, have ruled as if I have the burden to show that the non-disclosers are guilty, as a prosecutor would need.  That's rather difficult to do especially when I have not been able to see the records asked for.  

 

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