Anatomy of an Administrative Appeal, 12-17-2012

[XLFD]

At the Ludington City Council meeting of December 17, 2012, they adjudicated what they called the 168th FOIA request of Tom Rotta.  A new tact the City Manager has taken is to misrepresent the number of FOIAs I have performed, and display a running tally in their responses.  If I claim responsibility for the requests I have had my allies make on my behalf, the number does add up to about 140 to the City of Ludington.

I do not include about a dozen Baby Kater's requests or FOIA requests I have had to resubmit to get a fee determination; FOIA Coordinator Shay does.  Either way 140 or 168 does seem to be a large number, but I would swear under oath that each one I have made is vital into understanding the workings of our corrupted local government.  City Manager Shay will not even swear to his Constitutionally-mandated oath of office, and like I've mentioned uncontestedly at four City Council meetings, he committed willful perjury in my FOIA lawsuit.

Misnumbering my FOIA requests is the least of my concerns, and if his desired result is to keep my requests from coming, this will probably only have the opposite effect.  What will reduce requests wil be a more transparent, less belligerent, way to look at the City's records, and for the City to abide by proper laws and ethics of governance.

At 20:00 in, the council affirmed the new contract for the City Attorney, reappointing the lawfirm of Gockerman, Wilson, Saylor, et. al. with a $3000 raise.  This year they ony got a 6.25% raise unlike in 2010 where they got a 70 % raise.   Pretty nice when you consider that their main job seems to be involved with blocking public information from coming out, writing laws without any concern for those affected by them (their living in another county helps with that) and justifying lawsuits taken out against the City.

At the 21:00 mark, they got to the administrative appeal of the FOIA request, and as I cover what it was in my five minutes I will go to a narrative account of what happened at the meeting, which you can follow along with, while listening to the video.  Running commentary is provided with the City Officials as a service to the community in the brackets.

MAYOR PRO TEM TARANKO:  We have an appeal for a FOIA decision dated Dec. 3, 2012.  Tom Rotta's 168th FOIA request.

CITY COUNCILOR HOLMAN:  Ohhh, I move to uphold the FOIA administrator's decision [Kaye shows her knowledge of FOIA by calling the coordinator an administrator, and moving for a vote before any discussion-- oh wait, they have likely discussed it already out of the public eye, as per the lawsuit they later went into closed session contends.  It sounds like she's already got her mind made up, like a typical judge around here.]

{Taranko is whispered to by FOIA COORDINATOR SHAY}

TARANKO:  Before we do that Mr. Rotta has a right to come up to address the council [ actually, no such 'right' exists, it is just the protocol for meetings that the Ludington council has adopted.  I take advantage of it.]

CITIZEN DENIED PUBLIC RECORDS:

In my FOIA request I asked to inspect correspondence between City representatives and Utility Service Company, a private painting contractor that occurred during this year.  I asked for less than a year's written communications with a company the City engaged in 2009 to paint two water towers, and spread the payments out for ten years in a contract worth over $1.2 million.

Without any other company's bids.  They also have had them inspect and prepare a bid for the Brye water tank in September of this year.  Again, without any other competitive bidding.  Once again, well before the structure needs a repainting.

Previously, I had asked for the original contract between the City and Utility Service in 2010, and could only look at these 24 pages by paying the City manager $57 for the privilege.  I asked many times what this $57 was for, as these 24 pages should have been all together in one folder, I was never told how the City manager came up with this amount.  I paid it, and found out there never was any competitive bids, and several statements the City manager made publicly were in error.

Subsequently, I or my allies have FOIAed the City for water tower inspection reports and correspondence between the City and Utility Services.  Each time I was quoted extremely high figures including labor and copying costs that were excessive and charged me for things that were not applicable.  It has been obvious, the City Manager does not want these records made public.

This time was no different, I was quoted a $151.63 figure.

There are four things I am appealing about the City Manager's response:

1)  Invoking the invasion of privacy exemption.  I have learned since that a City Official included their personal cell phone number in an E-mail.  Voluntarily putting such info in an official E-mail is effectively waiving the personal privacy provision of FOIA; so feel free to black it out, but don't charge me for labor and copying in doing so.

2)  Exempting some info due to them being  records of security measures to the extent that the records relate to the ongoing security of the City of Ludington.   Conceivably, water tower security measures were passed along to the painters so that they could paint.  One would presume that whatever measures were passed along, would be changed after the painting so that Utility Service painters and those they may talk with would not come back and tamper with the water tower thereafter.

Once again, I think this is as irrelevant as Chief Barnett's marina camera angles being classified as 'security measures', so I say again feel free to black it out, but don't charge me for labor and copying in doing so. 

3)  The labor cost which included an estimated 2.5 hours of work by someone who makes over $80,000 a year in wages and benefits.  And

4)  Copying non-exempt material I asked to inspect and charging me 25 cents per page for doing so.

The misinformed City Manager and City Attorney will tell you that fees cannot be appealed, but they can and are successfully appealed.  In Detroit Free Press v. Michigan Attorney General, the Freep appealed a FOIA decicion by the AG to the trial court to

(1) ask for reconsideration of the copying fees,

(2) argue that labor fees are unnecessary because the request was not unduly burdensome, and

(3) ask the Attorney General to clarify the decision to exempt certain documents from disclosure. 

In that way it is precisely what I am appealing here, so that it needs not go to Circuit Court and beyond , at a great cost to all parties in time and money.  Why does the City want to continue to spend thousands of dollars to block the viewing of public records by the people?

Anyhow, the appeals court found for the Free Press on the Attorney General's labor charge because it ruled that, under FOIA, a government agency may not charge a labor fee unless the failure to do so would result in an unreasonably high cost to the agency.  According to the trial court, the Attorney General failed to show that not charging the $60 labor fee would result in unreasonably high labor costs to the Attorney General's office.   However, the trial court denied the Freeps motion for summary disposition on the copying fees because the Attorney General established that the per-page charge was within the appropriate parameters of FOIA.

I have asked, as I have asked for most of my requests, to inspect the records or receive scanned images, whichever the City decides is best to comply.  It is a waste of paper to print out E-mails with no FOIA exemptions thereon, and it is illegal and unethical for the City to make copies when I have explicitly asked them not to.   Forward E-mails to me, or allow me to come in and check them on City computers, while I look at the other records.  I will look at them and scan whatever ones I need to myself, at no charge to anyone...

TARANKO:  Thank you, Tom, your time is up.  Does the City Manager or Attorney want to give any information to the council before we act on this?

SHAY:  Sure.  Mr. Rotta submitted the 168th FOIA request here, requesting correspondence between the City and Utility Service Maintenance Company regarding the painting of our water towers or the Brye water tank.  Mr. Rotta brings up a couple things , but the City granted and denied the request in part.

The part that we denied was what he is appealing [No, I appealed the fee determination as well.  As already stated, denying me that, is denying the FOIA request, even if we both agree on the denials based on exemptions.]  was we were going to redact out, and then there were photos and information about how the water tower and hatch and so forth are secured, that we feel are legitimate security measures dealing with our potable water supply [I agree; but I also think it is irresponsible security-wise for City Officials to send such information as correspondence able to be viewed or intercepted by potential security threats.  That's why I thought this FOIA exemption was specious.]  and we were going to redact that information out.

Mr. Rotta has brought up a couple of things here; he feels that everything should be under one folder [No, I said the 24 pages I was charged $57 for previously were presumably all in one folder-- or should have been.] and that he should be able to have this information at our fingertips, as he's said before [It should be; a simple search in his and Malzahn's (water plant superisor's)  E-mail service, and then any mail/memos in either person's USMC file date this year.]  This information that he's requesting is in several different departments.  It's in my office it's in the office of the water plant superintendant, and even some of the information is with the City Clerk.

It takes time to go through this information to determine if all of this information should be released or should be exempt [the nature of the records, official correspondence between the City and this contractor, should have none.  Cell phone numbers and security measures should not be here.].  It takes time to do that [2.5 hours?]  For him to just say simply to forward the E-mails-- we will not do that-- because he could alter those E-mails, and we will not allow him to alter any E-mails-- so we need to go trough those, go to several different sources.[This is perhaps the lamest excuse.  What is preventing me from altering copied public records, if I had any desire to do so?  Besides ethics and my conscience, the City's possession of the original records prevent me from altering either.]

He feels the fees are excessive.  It's the same argument he brought up in the court trial in the FOIA lawsuit [my complaint was that the City's response was not valid under FOIA, supplementary issues were not over the costs, but how they arrived at those costs.] and the judge in the Circuit Court [not the City Attorney's father, Judge Richard Cooper, but the one who took his place after he was disquaified by Mr. Rotta] ruled in the City's favor on how we charge our fee structures in terms of how we compile our hourly rate and how we charge our per copy fee [there was no ruling on this aspect,which was unfortunate.  The judge accepted both process and figures of the City as being legit; we will see if those stand under appeal.]  He's bringing up much of the same information that was brought up in court, for which he did not prevail [not fully, yet]

He had brought up the fact that we have not gone out for bids in the Brye Road water tank project and what he did not tell you is he submitted a FOIA seeking bids, all the bids that were sent in on the tank and we replied there have been no bids.  We do plan to seek bids, we told him this, but he didn't mention that today.[No, time prohibited me from that, but check out these two documents, they sure like some company was allowed to get a bid in before everyone else:  USMC.][They sure look like bids have been put in, and let's not forget the 2013 budget and beyond already figures in the USMC price, which the second document indicates that it was not an estimate]   We plan to seek bids next year, not only for the repainting of the water tower, and I want to address something he keeps bringing up is different dollar figures for painting the Brye Road water tank [Not surprising when Shay puts up a five year figure of $238K, when the contract goes ten years for over $326K.]

And we're not just looking at painting the water tank, we're looking at going into a maintenance contract that would include not only painting the Brye Road water tank, but also some additional structural repairs and additions [as above record shows] adding a ladder gate, painting the inlet frost jacket, installing an intermix system to help prevent ice from forming in the water tower and to help better mix the chlorine.

In addition a maintenance contract would provide annual visual inspections [I've done that a lot more than annually], and washout inspections [our City's water guys should be able to do this easy enough.], provide an ongoing warranty, unlike a 1 year warranty you get from strictly painting projects, and it also provides for emergency repairs, and if you recall we had an emergency repair at the Danaher water tower back in February 2010 [the same year USMC were contracted to paint it, but didn't.] when one of the hatches sprung a leak.  That would have cost up to $5000 and it was covered in the contract. [Similar repairs could have been performed by City personnel for a lot less.]

So when we are looking at the Brye Road water tank, we are looking at more than just slapping a coat of paint on there, and we are going to seek proposals on the maintenance contract for that.  He mentions again that he is threatening legal action against the City, which I feel is a complete waste of taxpayer's money [City officials not following the law is a complete waste of taxpayer money, especially not seeking competitive bids], especially if it's over the fee issue, we have already addressed the fee issue in court [...and it's under appeal] and the judge awarded about 90-95% of the fees that we were seeking [the court awarded under $700, all of which was for FOIA requests we never seen, note this for later]

So in this particular case, I am recommending that the council uphold the... my decision [surprise] to grant his request in part and deny it in part.  Basically uphold our [italics for emphasis, it loks like these people are on the same team, a feeling I got in court as well.] response dated November 30, 2012 to his FOIA request dated Nov. 27, 2012.

CITY ATTORNEY (1 of 7) WILSON:  I'm sorry I would also point out that Mr. Rotta was also given his $20 credit on fees based on his affidavit of indigency that's been on file, so.. [this wasn't under question, however, the attorney wanted to make sure the public knew my financial status]

HOLMAN:  NOW... so moved [damn FOIA request banter keeps her away from her shows.]

COUNCILOR JOHNSON:  Support [This is my ward's councilor]

HOLMAN:  Now.. I have a question.  [Kaye, jumping the gun again.]

TARANKO:  Wait until... Moved by CC Holman, supported by CC Johnson to uphold the FOIA Coordinator's decision.  Any discussion?

HOLMAN:  I have a question; do you have any idea how much money we have spent on these 168 [fourth time this number is used.] as far as wages and time?  Do you have the vaguest idea how much it has cost the City... and the taxpayers?

SHAY:  Easily tens of thousands of dollars with different expenses. [Then why was the recent FOIA counter-lawsuit over all my prior FOIA requests udged to have less than $700 for unfulfilled FOIA requests?  However, the attorney costs to the City to avoid one FOIA request probably did cost the City this much.  The public definitely wasn't served by the City obstructing, lying, and countersuing throughout the suit, which is still pending in Appeal's court.] 

HOLMAN:  Well I don't think we have room to complain about [careful Kaye, you better restart.]... I don't think that Mr. Rotta has any room to complain about what it costs when he personally is costing probably more than he thinks you're making mistakes about.  That's all I have your honor.  [A unanimous vote followed for the FOIAC; I lost again.]

The last exchange between Kaye and Shay was consistent with the defamation the City has continued to heap upon me, but I think it is particularly inexcusable to do so right before Christmas to a person who has just suffered a great loss in his family and who has legitimate complaints in three courts regarding derelictions of city officials, including this manager and the city council, in each complaint.   I know two things, however; I am not spending any taxpayer money at all from my side, just a lot of my own.  And I will win. 

[Willy]

X

If I were from another planet and I saw this on my intergalactic television I would be asking myself what the heck are these people doing. First of all the snide comment about the "168th FOIA request" was totally uncalled for. They are trying to imply that these fact seeking requests are unwarranted nuisances. The only reason to state so publicly is to belittle the person making the requests. And your right, Holeman jumped the gun and actually revealed, by her enthusiasm to "rub it in", that the council already had met and discussed the FOIA vote. Shay's comment to say that you have costs the city "tens of thousands of dollars" is ridiculous. The fact is the City's elected goons have cost the City tens of thousands of dollars by withholding information causing the introduction of lawyers into the simple process of giving public information to the public. None of this would be happening if not for the arrogant and illegal actions of the present elected body of the Council and Mayor. These people have got to be the dumbest rocks in the pile. The fact that you have shared your experiences here on this forum and have been open about your plight of being denied information on how the City is being ran shows that you have gone about this quest in an honest and open manner unlike the foolish elected officials who have turned a simple act of dispensing information into a Russian KBG novel. I'm proud of you X.

[XLFD]

If I didn't continually get to update the real progress of things on this website, the whole messed up City Hall and COLDNews corruption of the facts would be driving me nuts.  Or at least nuttier.  I can't believe they have Shay up there saying they have not had bids with these USMC contractors, when each city councilor has a copy of those two records above, and more that shows USMC have already got a gigantically unfair advantage over any other bids, or have already been given the job; just like Councilor Nick, who was on the DLB-DDA Sign subcommittee, got the Golden Signs contract by first doing $15,001 of work and putting in a bid before the 'bidding process' started, and his wife gave the other companies three days to bid on a complex project. 

These guys, the City Councilors and everyone in the center of those councilors, are screwing the taxpayers royally. 

[AQUAMAN]

I noticed the new contractor shows a new Pax mixing system and performance bond at about $29K extra over and above the recent contract. Wonder just how that is required, esp. the performance bond, which is usually a std. cost of doing business with any municipal type contracts? And of course the antics of an elderly woman council member that usually are dramatic as per her manner of operation for show. Did she ever ask why & how many times her pet City Mgr. Shay has asked for City Attorney help and assistance in answering standard FOIA requests? Perhaps if he knew his duties as prescribed by his lofty position, he wouldn't need so much help and advice, thus not costing anything extra to do his legal duty as FOIA administrator, let alone the claim of tens of thousands of dollars. And btw, when this question always reappears, I see no specific accounting to substantiate this claim of monies spent, it's always an off the cuff estimate. As former chairman of the finance committee, wouldn't you want a more exact accounting of that particular cost? Esp. if this question appears over and over again? Now who's being lazy Holman? Methinks you both speak with forked tongue in cheek, to achieve some notoriety and fame to your gestures of contempt. Again, shameful and juvenile behaviors.

[XLFD]

And I can't help but wonder why the City had Dixon Engineering (a strictly engineering company, not one that should be making estimates on painting/maintenance projects, except to figure out how much to charge for engineering related fees) go through the bother of making an estimate in 2006 (or in 2005, if made prior thereto) 5 (or 4) years after the previous paint job. 

Other of your questions deserve investigation itself, but as I have always bemoaned:  it seems as if most FOIA responses I get back from the City of Ludington, give me more questions than they do answers.  Posturing by these public officials (literally and figuratively), telling me there is no bids made, when they have records showing USMC has did a thorough figuring of the work (not marked as an estimate, and referred to as the amount it will cost in the budget records), holding their third closed meeting hearing concerning a lawsuit over violations of the Open Meetings Act, etc gives one questions as to their accuracy and veracity. 

The Closed sessions over OMA violations always strikes me as incredibly ironic-- the longer they avoid taking responsibility for deliberating and making decisions contrary to the OMA, only mean more attorney fees for them and for me, all of which may be shouldered by the taxpayer when if we prevail in this lawsuit.  This aspect of the OMA says that public officials who intentionally violate the act will be personally liable for the costs of so doing, so the longer they take, the more they may find themselves in debt. 

 

[XLFD]

Side note:  the OMA lawsuit concerns decisions made in early 2011, so City Councilor's Tykoski and Rathsack are not personally involved in the violation, but former City Councilors Paul S. Peterson and Pete Engblade may be found liable. 

[Lisa O'Brien]

This coming January, you should FOIA an accounting of all city employees who received overtime. 

Employee - Department - Week. Then match it up with your FOIA requests. If there was no overtime given- how can they justify the tens of thousands of dollars. 

[XLFD]

As of now, if I use my figure of 140 distinct FOIA requests that me and Toni have made since my first FOIA on 8-24-2009, that amounts to 1 FOIA request every 8.6 days, about 3.5 per month, and I have never had any (that have been fulfilled) be what I would call complex. 

That is a great idea, Lisa, but I know that even if I find there was no overtime, and that there was nothing that was neglected by the City workers because of them taking a few minutes to compile (usually) very specific records, they would still throw out their fatuous figures.  I still may make a request like that, however, because it would show they are full of gas.

[Lisa O'Brien]

But, it was also show when you go to court, that they are slanderous and dishonest, when dealing with the public.

[XLFD]

Excellent idea; I shall, at the least, try to incorporate this latest casual use of the facts at a public meeting in my appeal's brief.  I shall also try to craft a FOIA that will show their statements are ridiculous as far as costs, as you suggest.

[AQUAMAN]

We already know by Shay's own repeated admissions why costs are calculated so high for FOIA's, he's assigned the tasks solely to the most expensive person on the COL payrolls besides Shay himself, that of the City Clerk Deb Luskin. He's supposed to assign these tasks, according to FOIA law, to the "least expensive employee" on the payroll, any common clerk that can open a file cabinet and retrieve files and copy/scan them. It's not rocket science. Shay is using his authority as usual in zealous manners to coverup the truths and quash the FOIA responses with overblown costs to the requester, just that simple. Overtime is not in the mix here. These council members either are blind, or just don't care either way, so this is the root of the FOIA problems that Shay keeps insisting is X's fault, when the blame is in his own lap of deceit.

[XLFD]

I am actually very sympathetic to the time it takes to do the requests I make, but I was told it would take what I must assume is the City Clerk 2.5 hrs. to do.  I see it taking a few minutes of Shays, Clerk Luskin's, and Malzahn's to gather this information, no more than 15 minutes each.  Definitely no unreasonably high cost to the City. 

Then he charges for an estimated 190 copies of non-exempt data.  He violates with seeming pleasure, the letter of the law, while charging $131 for simple records with a lot of interest to people of the city, to an indigent person.  How more arrogant can you get, particularly when you may cost the City of Ludington big bucks by your past indiscretions against that person?

[Willy]

Very good idea Lisa. If no overtime was assigned that would mean the City is double dipping into citizens pockets for employees wages. If no overtime is shown it will reveal that employees were doing work they are assigned to do, meaning, filing and gathering data. If no overtime was assigned it means the City is in the business of extortion by making a profit off FOIA requests. And if the City decides to use the tactic of paying overtime if and when you request that information it will show a conspiracy to defraud the public.