McAdam- '12: City Wants to Suppress Release of Information

[XLFD]

The City of Ludington, and the County of Mason, our two local governments of note have been quite successful in keeping the Joseph McAdams lawsuit out of the public spotlight for the last three years, and now that the public is actually taking a closer look at the facts behind this lawsuit, they are seeing a lot of behavior from our police and deputies that defy the rights of an individual, show a lack of training in tasers, and totally go against their duties, ethics, and Oaths of Office.  Most of the court material is in this thread McAdams Documents.

Before these documents were found using the PACER system, even before I knew what the full extent of the "McAdam's lawsuit" referred to in the City Council's agenda for it's August 27 meeting, I sent a letter to my friend, FOIA Coordinator of Ludington, John Shay, requesting information because I don't like remaining in the dark, when there's light switches not being used.

John,

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 copied electronic files to this E-mail address or failing that, to personally inspect the following public records :

1) Court-related documents (the Complaint, Summons, discovery, etc.) received by the City and/or its officials regarding the lawsuit brought against the City and/or its officials by the McAdam party (Sue?), which is slated to be a topic of discussion on Monday night in closed session.

2) Court-related documents sent to the McAdam party from the City and/or its officials/attorneys in response to that suit, and any countersuit, if applicable.

3) All communications in the City's possession regarding the dispute in question between the McAdam party and the City of Ludington occurring prior to the lawsuit being filed.

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

If requested record(s) do not exist, please enumerate which ones do not, as per the Act.

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.

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

A standard form letter I have used often, differing only in what I am seeking at the time.  I chose the records so as to avoid exempt material, so that I would either get it scanned to me, or have the minor inconvenience of coming in to scan it.  I got the following:

Tom:

I have attached the City of Ludington’s response to your FOIA request. The fees associated with your request are calculated as follows (Response)

Labor to scan records = $23.07 per hour (including benefits) x 2 hours = $46.14 This would be performed by the lowest paid employee.

Labor to separate exempt from non-exempt records = $63.64 per hour (including benefits) x 2 hours = $127.28 This would be performed by me.

Total = $173.42 less $20 credit for Affidavit of Indigency = $153.42

Upon receipt of your 50% deposit in the amount of $76.71, the City will begin to compile the records. Upon receipt of the payment in full, the City will release the records to you.

John Shay

City Manager

The FOIA Coordinator must have felt somewhat strengthened by Kaye Holman's support of him, since this was the first time he charged me for "scanning" labor.  The 'separate exempt from non-exempt records' also was a surprise.  I fired back an E-mail to him and the seven members of the Ludington Rubber Stamp Club.

John,

In the records requested there are no records that should be exempt. The first two sub-requests are court documents, many of which are available through the PACER system, the third are simple communications between the McAdams and the City, all of which should have non-exempt material.

You have marked the attorney-client privilege as the only exempt material, and I am not asking for anything which should have that privilege. I am not asking for internal communications of the City or its principals with its attorney.

The court documents should have already had their exempt material treated, and even if you were to find some that weren't, I debate your choice as to being the lowest paid employee to do so, or the time it would take you to do so. If you don't get it yet, that is public extortion and is illegal in this state.

I have also asked to inspect these records, so charging me one of your inflated office worker prices $23.07 an hour to scan these documents is also against my wishes. Remember, if you want to charge labor for this service, I am more than happy to come in and do it myself.

Therefore, on re-examination, you should be inviting me to the City Hall to inspect these non-exempt documents for free. Please, adjust your response and reflect that, or consider this an appeal of your decision which violates FOIA law.

As usual, John will defer these improper costs to the Council with a recommendation to uphold his decision, and they will.  And the costs of doing such unethical suppression of information will be passed on to the electorate who will be told that I am the bad guy for making the request in the first place.  Pretty silly when you think about it, isn't it City Hallers?

[AQUAMAN]

Shameful and disrespectful at least, but, that's Shyster Shay's job, make it impossible/improbable that people should even ask or have the ability to want such public info.! Thanks COL for all your transparency!

[Willy]

Shay's response just burns my rear. I can't fathom how a Government agency can hold our information hostage in this manner. The sooner Shay and the other bums are thrown out the sooner Ludington can return to a cooperative, people representative organization. As it is now they fight the public every way they can and charging a fee for public information is just outrageous. Ludington citizens had better wake up because our freedoms are being held captive by a group of people who have no understanding of what a free society should be. Is this the United States of America?  Unbelievable.

[XLFD]

I got my response back from John Shay, once again I go before the City Council for a FOIA appeal.  No consideration for my two concerns, just flicking it to his Amen Corner who will find his two fees appropriate, without any concern for what FOIA law says. He continues to prove my points.

[In Dulci Jubilo]

Dayyyyum.   I am clearly in the wrong profession.    I need to go get me one of those city jobs.

[XLFD]

$23.07 minimum for the lowest paid city clerk assistant is quite a gig, that's nearly $50,000 a year in remuneration.  And if I accept these unlawful fees, they are getting paid twice; by the general fund and by me.

[Willy]

X

When you think about it the City is making a profit on selling public information. The employee receives their pay anyway, then the CIty double dips for that job by taking more money from tax payers. It should be illegal to profit from or sell public information.

[XLFD]

It was almost the same thing when the City received over $5000 from the private Dog Park Committee (led by then- Ludington Planning Commissioner Joe Moloney) for the City DPW workers to partially clear out an acre of Cartier Park for use as a dog park. 

The DPW workers ignored sand-ravaged Stearn's Park and their other jobs while they spent a couple weeks prepping this tract, but they got their regular pay while sublimating or neglecting their assigned duties in order to work for a 'private' concern with City-funded equipment on City-funded time. 

And I say almost the same thing, because responding to a FOIA request is a duty the public body known as the City of Ludington must honor to respect the rights of the person who wants to view that information.  Furthermore, they must honor the law as regards to what fees they can and cannot charge for a FOIA, otherwise they are double-dipping.  And City Hall isn't the House of Flavors. 

[Jane]

wHY IN THE HELL SHOULD THAT GUY MAKE $60/HR with benefits included. $12-15/an hour no benefits seems sufficient for someone who works behind a desk.

[CLFD]

A couple of questions?

 

Why did it take 2 hours to scan the records? With an office copy/scan machine, I can easily scan half a dozen papers in about 1 minute. Some copy/scan machines can scan 30 or more pages in about 1 minute.

 

Why are you being charged a fee for separating the exempt from the non-exempt? 15.244 Sec. 14.2 says in part "When designing a public record, a public body shall, to the extent practicable, facilitate a separation of exempt from nonexempt information." This suggests that the public body should have already had the material separated during their filing process.

 

The way I see it, the most you should be charged is $26.14 and this should be waived because the search and copying is of benefit to the public interest.

[AQUAMAN]

Good questions and logic there CLFD, and I now also ask, why does Shay include benefits as part of an employee's pay in this formula? I think it's exempt, it's simply the hourly wage that applies here imo. If so, then someone over there has to be making around $10/hr. or less, and that is the person by law, that is supposed to be assigned such menial tasks. The more Shay blows these situations out of proportion, the worse he makes X look, and afterall, that's the key to this entire BS. Thwart the FOIA law to the best of your ability, to make it a big deal, when in fact, it's not a big deal at all, just another way to grind an axe. And to think, the axe master makes well over $100K/yr. to pull such arrogant and immature stunts, of course with the overseers of Mayor and City Council members to all approve such conduct.

[Willy]

Excellent points Aquaman and CLFD.

[XLFD]

City Manager Shay justifies the separating exempt from non-exempt records by claiming only the attorney-client privilege, as per sec. 13.  This is used to maintain the integrity/security of City officials to get legal advice from their attorney (whether a City Attorney or regular one like Vander Laan) without having to worry about that privileged infor coming out.   That's fair, but there were no records asked for covered by that privilege, so Shay will take 2 hours doing nothing, unless they have done actions contrary to sec. 14, by integrating confidential attorney privileged content with non-exempt material. 

 

The scanning charge is also hyperinflated; me and my cheap scanner can do at least 6 pages a minute, one that has an automatic feed can do it a lot quicker, at the rate CLFD mentions.  Two hours adds up to a lot of pages.  And I always have offered, when I am actually allowed to enter the facility, to come to City Hall/LPD and scan away.

 

Aquaman, when Shay and crew revised the City FOIA policy in December 2011 (surprise:  increasing costs and difficulty of getting information) he put in wages and benefits for the lowest paid employee.  This has been allowed by Michigan courts, and is a reason to continue chipping away at City Haller benefits, which have been at over 50% of their salary.