True Colors (Nontransparent) of Ludington's New FOIA Policy

[XLFD]

The Ludington City Council had just been burned by the Freedom of Information Act.  A citizen asking for information, discovers among the E-mails provided evidence of a large contract being entered into by a favored contractor without seeing the light of day at an Open Meeting.  Worse, the January 21 meeting had the prospect where they actually would have to publicly admit that they did break the Open Meetings Act, totally documented by the sequence of E-mails given out via the FOIA. 

 

This was untenable, they had to strike back at these unfair laws that held them accountable for "technical" mistakes that weren't all that important.  In their mind.  It would not be wise to admit simply that they erred, went around the OMA, and that the no-bid deal, done secretively, looked bad for them.  They went ahead to devise a story to make it look like violating the law was needed to save the residents' basements and to keep the street from collapsing.  But they also needed to block citizens getting records that implicate them in possible wrongdoing.  So they also devised a tweaking of the FOIA law to further restrict the right of the people to see their public records.

 

Who are they?  Probably the usual culprits.  Our Manistee City Law Firm and the City Manager looking to close more avenues to the records, but not to everyone.  In fact, the five revisions would not really apply to most organizations and individuals, but each affected the object of their public torment, that Rotta guy. 

 

In this article, I've got the new policy's revisions, what City Manager Shay said exactly when introducing each one at the meeting, what the statute says, and then some notes and analysis of the effect and legality of the changes.  Be aware, that the changes these out of towners did to our FOIA policy amounts to putting the City in more jeopardy because the new amendments sometimes run counter to the law.  One must ask this question:  If they have nothing to fear from the public records, why do they keep trying to find ways how to block the public from getting them?  Why make five new facets of their policy, some extra-legal, designed to restrict one person from finding out more? 

 

 

SHAY:  "Some of the changes that are being proposed, one of the first changes is to provide a clear definition of a person who is indigent. Currently a person who claims they are indigent would simply file an affidavit stating such, and the City has accepted that at face value; by having that affidavit, that person is entitled to a $20 credit under FOIA off the cost to respond to a FOIA request. The proposed changes would, if a person files an affidavit claiming to be indigent, they would need to meet the standards for the poverty exemption policy, basically they would have to be at or below the federal poverty level guidelines, and they could have up to $5000 in assets beside their home in order to be eligible for their credit and they would be good for three months to reflect the fact that financial conditions may change, so it would have to be renewed every three months."   THE NEW POLICY:

 

STATE STATUTE:  Section 4(1)  of the State FOIA says:  "A public record search shall be made and a copy of a public record shall be furnished without charge for the first $20.00 of the fee for each request to an individual who is entitled to information under this act and who submits an affidavit stating that the individual is then receiving public assistance or, if not receiving public assistance, stating facts showing inability to pay the cost because of indigency."  

NOTES:  I have an Affidavit, sworn and signed to in the presence of a notary, which indicates that I will notify the City if my status changes, or risk the penalty, and states the three generally accepted legal definitions of being "indigent".  The Law mentions nothing of renewal, and only requires the receiving of public assistance (any), or defines "indigent" by using some policy for poor homeowners.

 

SHAY:  This provides a clearer definition of the word "person" as defined in the FOIA act, cause the FOIA act basically says that a "person" can file a request for information, and this clarifies what the definition of a "person" is.   THE NEW POLICY:

STATE STATUTE:  Sec 2(C):  “Person” means an individual, corporation, limited liability company, partnership, firm, organization, association, governmental entity, or other legal entity. Person does not include an individual serving a sentence of imprisonment in a state or county correctional facility in this state or any other state, or in a federal correctional facility.

NOTES:   The three new exceptions are cumbersome, and could be legally challenged.  How would you determine whether a person is using an assumed name?  Is not an 'unincorporated voluntary association' still an "association"?  And how do you determine whether a media outlet does not have a recognized legal status?  These are dangerous definition alterations, one that can make a FOIA Coordinator make a decision that could take the case to a Federal Court, for denying a real "person" the ability to see public records.

 

SHAY:  It also clarifies that the FOIA Coordinator can determine the format for the way the records are released, whether that is hard copy, whether it is electronic copy, whether it's a copy put on a disc, and so forth.  And the cost to provide that can be charged just as the costs to scan information.  THE NEW POLICY: 

STATE STATUTE:  Sec. 3(1) "...a person has a right to inspect, copy, or receive copies of the requested public record of the public body."   Sec 4(3):  " A public body shall utilize the most economical means available for making copies of public records."   Sec 4(1): "the fee shall be limited... to the actual incremental cost of duplication or publication..."

NOTES:  The requester has the right to inspect, copy, or receive copies in whatever form they request; this has been regularly decided in the courts.  If the public body is not furnishing the records in the manner requested, provided it is the most economical method, they have effectively denied the request.  A reading of the state law indicates the customer (the public) is always right.

 

SHAY:  Also the City does... contrary to Mr. Rotta's assertion; he is correct that he did file a FOIA request with respect to payroll records trying to see how much time the City spends on FOIA requests, our payroll records do not itemize for our employees what we do in a day so if for example I spend an hour and a half on the phone, 3 hours answering E-mails, 2 hours responding to FOIA requests, it doesn't do that level of detail. 

However, a lot of time is spent doing those items, and changing the policy would allow the City to charge a person the costs of search for records, compile the records, determine whether the records can be released or not, and to charge those costs exceed $25, because the City does incur costs, and this is generally for the benefit of just the person who is requesting the records, not necessarily for the benefit of the general public.  THE NEW POLICY:

STATE STATUTE:  Sec. 4(3): "A fee shall not be charged for the cost of search, examination, review, and the deletion and separation of exempt from nonexempt information as provided in section 14 unless failure to charge a fee would result in unreasonably high costs to the public body because of the nature of the request in the particular instance, and the public body specifically identifies the nature of these unreasonably high costs." 

NOTES:  When I originally started making FOIA requests, Shay had said $100 in employee time (w/o including benefits) was "unreasonably high costs", in December 2010, he lowered it to $50 (including benefits), and now to $25.  Thus, in 2009, I could be charged only if, for example, CDD Heather Venzke worked about 5 hours on the reply, now it takes only 3/4 of an hour to reach that point.  If the FOIAC works a half hour, one needs to pay at least $30 just for that by the new policy.  And if the past is any indication, he doesn't budget his time well.  This number should be going up along with the City Hall salaries. 

But I do declare that providing FOIA replies is part of the duty of all affected public officials, and so if the FOIAs do not impinge on the normal operations of the public body, the labor cost should be eliminated or minimal.

SHAY:  Then it also provides a detailed procedure for  a person to appeal a FOIA Coordinator's decision for a FOIA request, and the language generally mirrors the language in the state statute of how a person can appeal a FOIA decision, there really is no change from what we are currently practicing.  THE NEW POLICY: 

STATE STATUTE:  "A board or commission that is the head of a public body is not considered to have received a written appeal  until the first regularly scheduled meeting of that board or commission following submission of the written appeal. If the head of the public body fails to respond to a written appeal, or if the head of the public body upholds all or a portion of the disclosure denial that is the subject of the written appeal, the requesting person may seek judicial review of the nondisclosure by commencing an action in circuit court..."

NOTES:  The expanded policy does not necessarily go contrary to the Act, except where the appeal gets sent to the FOIA Coordinator, not the City Council, but it does give options that aren't otherwise included in the 'administrative appeal'.  Otherwise, it adds nothing either way.

 

These five additions to the already Draconian policy that went into effect in 2011, make it ridiculously hard to get records that should be readily available.  But the City Council voted it in as law 7-0.  Showing everyone that even though they got caught doing things in secret, that they are willing to make their secret acts harder to discover in the future.

[XLFD]

This policy is likely to be soon tested, irregardless, as I have made a couple requests this last week dealing with the facts behind the excuses the City is putting out about the OMA violations.  I would conservatively say that half of my FOIA requests arise from checking out the 'stated' public record that the City of Ludington Daily News (COLDNews) readily accepts as facts. 

Thanks Aquaman, Jane, Marty, Willy for offering up some poignant points.  When the Appeal's Court makes a decision on our FOIA appeal appeal, and we get some decision or credible settlement deal for Rotta v. Shay in the Federal Court, I think we'll see even more eyes open.  To many, my plight is still a guilty pleasure that they can't fully support because of the possible retributions that would come forth to them, but I acknowledge all the well wishers I run into and the folks who drop me an E-mail with their backing, usually on conditions I preserve their anonymity. 

Perhaps when the realization comes that the clique of politicians running Ludington are not inviolate, we may have some officials coming forward to do some real whistleblowing on the City's way of doing business. 

 

[AQUAMAN]

I don't see whistleblowers coming together at the COL at all in the council, maybe the staff if enough pressure was to bear down. A petition to remove Shay, yes, would have to be validated and voted on by CC to effectively cancel his renewed contract by vote. If they were to re-vote him in anyway, foresaking all the evidence of wrongdoing and lawlessness, then a petition for recall on those CC members would follow. Hard to do? Perhaps, but a start for true transparency and honesty would be reborn to the good folks paying for all this nonsense.