Manistee FOIA Disclosure Lawsuit Advances in Higher Court

[XLFD]

As a FOIA fee lawsuit with the City of Manistee is in the midst of the discovery phase, the first lawsuit I have had with the city regarding disclosing the city's incident report regarding the shooting of Lee Pat Milks has entered another phase in the Michigan Court of Appeals after being rebuffed at the Manistee Circuit Court in an odd judicial decision by an improperly assigned judge.  

Summarized, Manistee withheld the shooting's incident report and use-of-force report drafted by the unnamed officer (at that point) ten days after the event.  Yet they would reveal a couple of dozen line-items you would find on either report to the media in a press conference and releases to the public.  The City is required to separate exempt from non-exempt parts of the record for FOIA requests.   They didn't release anything, citing the prosecutor's advice (whom would later admit on a sworn affidavit that he hadn't seen either record at the point of denial).

                          Lee Pat Milks (left) and the Public Safety Officer, Doug Vansickle, that shot him dead 

The circuit court would make a ruling against the words of law when they couldn't even explain or show under what authority they had to preside over the case.  Retired Judge Batzer was challenged at court to explain why he was there when neither party had received written notification of his assignment (the court register received later would show he was never assigned and no letters were ever sent out), before making his decision citing a court precedent (Evening News v City of Troy) which said completely the opposite of how he ruled.  

With that amount of injustice, and still without any part of the record (if the judge had ordered production of the currently totally exempt use of force report or mostly-exempt incident report, he would have needed to declare the plaintiff's prevailing in the case) the trip to appeals court was in order.  As you will note in my Appeals Brief, shared below, I glance over the court's indiscretions to bring the focus on the requirements of the law.  However, I warn anybody using that court to beware, their administrator has no interest in playing by the Michigan Court Rules, she makes her own.  

My brief has a variety of arguments towards my points, backed by statute and legal precedents, I include some of the main observations here:

"A public body cannot publicly disclose information found on public records like the use-of-force report at one point, and then claim that same information is exempt 10 days later when they respond to a FOIA request."

"And even more strongly, MCL 15.243(1)(b), the exemption the City of Manistee uses, necessitates that the disclosure "would" interfere, not that it "could" interfere. Michigan trial and appellate courts have routinely dismissed claims of exemptions made by police agencies who use the word "could" rather than "would" when claiming exemptions."

"Incredibly, the City of Manistee's response is found to be inadequate for all points of the six point test in Evening News, and perhaps more incredibly, their defense appears to be that another agency had an investigating pending (the Michigan State Police) and even claim the prosecutor was conducting his own investigation ten days afterwards, even though he claims in his sworn affidavit that his duties were only to review and make charging decisions to determine whether criminal charges are warranted and that he had not been able to conduct a review at that point in time that he was contacted."

"FOIA does not permit public bodies to wait nearly two years to explain why the production of public records would have interfered with an ongoing investigation. Here the court had to fill in the blanks. But even the court did not explain how release of the recordings from the patrol car and station house would have interfered with the investigation." Radford v. Monroe Cnty. & Monroe Cnty. Sheriff's Dep't (Mich. App., 2018)

The omission of willful disclosure of the two reports by the City of Manistee to prove their burden or judicial review of them by the court was a dereliction of duty by the trial court. "Evening News requires the trial court to review each section of the public record and determine whether, for the particular reasons given by the public body, disclosure of the section would interfere with law enforcement proceedings" Herald Co, Inc v Kalamazoo, 229 Mich App 376, 383-385; 581 NW2d 295 (1998).  (emphasis added)"

Here's the full brief in three parts:

COA RvM Errata.pdf

COA RvM Facts.pdf

COA RvM Arguments-Errata

[Willy]

I don't know how you do it X. To much legalaleeze for me to squeeze into my noggin, but this is exactly what makes your opinions, observations and criticism of local malpracticing Governmental agencies so valid. Most people like me just  complain but you dive into the workings of the law and how it should apply when it is not done properly. That's why you are such a threat to the goonies on the Council and their cronies who hang around for all the goodies they can get. Great job X.

[XLFD]

The underlying laws dealing with public records and public meetings are based on the premise that almost all public records are available and almost all public meetings need to be noticed and open to the public.  A disturbing trend that I have noticed taking place in the state legislature and the courts in the ten years I've been involved in making local governments transparent, is that whatever they say, they do not seem to be working towards that goal in their litigation and precedents. 

I commend Jason Kennedy of the LASD for willingly working to make that agency more open, I commend Amy Williams being responsible at the City of Scottville, and I commend Mason County Administrator Fabian Knizacky for his responsiveness-- albeit the county sheriff and county prosecutor are among the worst in the area, they feel they are above the law.  The COL has improved since the days when Shay was FOIA Coordinator, but they have their moments when they go nuts.  The City of Manistee will pay dearly for their cover-ups, and I don't see the MI Court of Appeals siding with Judge James Batzer without making a very dangerous precedent.