Shadows Fighting the Sunshine

[XLFD]

Sunshine Week was an initiative launched by an association of editors in 2005 to educate the public about the importance of open government and the dangers of excessive and unnecessary secrecy.  Held traditionally since, typically in the week preceding the season of spring, Sunshine Week is held between March 14-20 this year.  I

Ideally, the public and journalists at this time would celebrate their successes in holding government accountable through accessing public records and keeping public agencies true to making their deliberations and decisions at meetings open to the public.  If those ideals weren't met, it would be a time for discussing how to change things so that the Freedom of Information Act (FOIA) and Open Meetings Act (OMA) could be strengthened. 

In the Sunshine Week following a year of Covid-19 restrictions by the state government, greatly weakening the FOIA and OMA by caveat of executive orders, one would think media organizations would push back on some of the irrational limitations of the last year imposed by an administration that appears to only offer lip service to sunshine.   This is no better illustrated than the preeminent press group holding a FOIA/OMA seminar in the middle of Sunshine Week featuring the attorney general who has assisted the state policy of repressing both laws during a public health crisis:

Nessel claimed in her first year that her office was exemplary in following the FOIA and led other seminars where she stated how important it was for citizens to be informed about their government.  Yet, her department's track record does not sustain her rhetoric. 

In May 2020, a FOIA lawsuit was launched against Nessel which explains:  "Nessel began a practice of increasingly-broad application of statutory exemptions to withhold even previously-released records, records that clearly are not subject to the statutory or other exemptions now asserted. That practice is the result of Nessel and other state offices of attorneys general coordinating responses to Plaintiff’s requests for public records, requiring consent by other states before releasing records".  Two of the FOIA requests for public policy correspondence between Nessel and New York officials had Nessel charging $4000 for what turned out to be 130 pages of heavily redacted pages.

In January 2020, another FOIA lawsuit filed against Nessel, the plaintiffs, a Christian group targeted by Nessel in her official capacity, spent nearly $500 to get records that were unresponsive to their requests!  Both of these lawsuits against the attorney general arose from 2019, the same year that Nessel publicly boasted about her agency's own compliance with FOIA and how they did not charge a fee for 6 of 7 FOIA requests.

"My office is as transparent as we possibly can be, and I'm committed to doing that for the rest of the time that I have in office."

The City of Scottville has it's own issue with the FOIA, starting back in the year of non-transparency, 2020.  They denied the local paper and this humble website the results of a completed investigation into their city manager's efficiency, offering an obviously false claim of exemption.  When the records were eventually released, it was clear that they were 100% non-exempt at the time they were requested.  

They compounded their transparency issue this week when their FOIA Coordinator Carlos Alvarado (attired as the 'sheet nazi' above) decided to withhold an accident/crash incident report that should have been mostly complete by the Scottville Police Department three weeks before their response.  You may recall the incident where a 72 year old pedestrian was ran into by an unidentified motorist on East State Street near High Street, we covered it here and here.  Several questions remained from officials' accounts and behaviors which apparently allowed a hit and run to take place without repercussions to the driver.

So when FOIAC Alvarado denied the incident report and follow-up investigations in full, citing without justification that it would interfere with law enforcement proceedings, we were rather upset here at the Ludington Torch.  The state police require police agencies throughout the state to complete forms at every accident scene that sums up what happens and records most of the particulars, much of that already shared with the media.  The media's articles reflects SPD Chief Matt Murphy making statements regarding particulars of this accident scene, everything he has said cannot become exempt later on when somebody requests a report.

Because this response was irrational, not to mention late, I fired back a FOIA appeal to the Scottville City Commission, which will look at and potentially decide the issue at their meeting on March 15th, ironically at the beginning of Sunshine Week.  I fully expect them to maintain their place in the shadows, rather than allow their constituents and the general public to enjoy the sunshine.

ADMINISTRATIVE APPEAL of  FOIA DENIAL.

This denial of my request for a traffic incident report is ridiculous.  First, this response was sent to me six business days after my request was received by the City of Scottville, and was late.  That doesn't mean a lot to me, but you are the same people who sacked the prior city manager as being inefficient and incompetent for nearly missing a deadline.

Second, the response fails to state any proper exemption.  

The Michigan Supreme Court has held that “a generic determination that the release  of  documents  would  interfere  with  law  enforcement proceedings is not sufficient to sustain an exemption.” King v Oakland Co Prosecutor, 303 Mich App 222, 226-227; 842 NW2d 403 (2013), citing Evening News Ass’n v Troy, 417 Mich 481, 486; 339 NW2d 421(1983).  A public body claiming exemption under the statute must establish both that  an  investigation  was  open  and  ongoing,  and  that  disclosure  of  the  documents would have interfered with law enforcement proceedings.  See King, 303 Mich App at 231-232.  In Evening News, 417 Mich at 503, the Supreme Court set forth a clear set of rules concerning the application of the law-enforcement-proceedings exemption: 

1. The burden of proof is on the party claiming exemption from disclosure. 

2. Exemptions must be interpreted narrowly. 

3. The public body shall separate the exempt and nonexempt material and make the nonexempt material available for examination and copying.

4.  Detailed  affidavits  describing  the  matters  withheld  must  be  supplied by  the agency. 

5. Justification of exemption must be more than “conclusory,” i.e., simple repetition of statutory language.  A bill of particulars is in order.  Justification must indicate factually how a particular document, or category of documents, interferes with law enforcement proceedings. 

6.  The  mere  showing  of  a  direct  relationship  between  records  sought  and  an investigation is inadequate.

The response made is fully conclusory, and falls far short of these rules, particularly when one considers the non-exempt nature of the vast majority of a traffic incident report; after all, police are required to fill out UD-10 forms for each accident ASAP and file them with the MSP .  When Mayor Joe Baxter drove his car into the gulley on a superdrunk spree, Commissioner Rob Alway was resolute in having the MSP release their report and investigation , which they did without claiming exemptions that don't apply.

You may also want to review the following precedent where the trial court erred, but on remand from appeals court they decided that every single word of the Lee Milks assassination report was non-exempt at the time of my FOIA request.  Deny disclosing this police report and you will bring a new degree of notoriety to the City of Scottville when your lame denial gets weighed by the court; you will also encourage additional forensic investigations into why COS officials have become so blatantly corrupt, cancerous, and self-serving.   TOM ROTTA V CITY OF MANISTEE :: 2019 :: Michigan Court of Appeals -...

If the City of Scottville wasn't currently so corrupt, maybe you would understand the wisdom of  former officials Tracy Thompson and Amy Williams, who never created lame, unsupported excuses for withholding public records from their true owners, the public.  Serve the public for once, rather than treat them like ATMs.

[Willy]

Excellent article X. Love your parody photo of the "sheet Nazi". It's hard to imagine how out of control local Government would be if not for your efforts to hold their feet to the fire. Our representative Governments from the Feds to cities and villages are being filled with leftists because of ignorant voters.

This is one of the results from stupid voters decisions.

By the way what is this reference to "members only" when the meeting is supposed to be open to the public.

We and especially the future generations will be paying a high price for this ignorance. We have a senile President whose handlers are working to morally bankrupt society at breakneck speed which will eventually lead to a clash with the Chinese and a nuclear Iran. I'm afraid the only sunshine future citizens may see will be coming through barbed wire fences.

We have a leftist, freedom robbing Governor and Attorney General who can't wait to destroy Conservative ideals. And a City ran by fools who could care less how their decisions affect it's citizens. Our children, grandchildren and great grandchildren will inherit a Country that would be unrecognizable to citizens of the 20th century.