Injustice at a Cost

[XLFD]

A comprehensive 2015 study ranked Michigan dead last in the State Integrity Investigation, a data-driven assessment of state government transparency and accountability by the Center for Public Integrity and Global Integrity.  Since that point in time, Michigan hasn't had a good record in correcting that deficiency; if anything, our legislature hasn't passed any substantive reform to its Freedom of Information Act (FOIA) and numerous state court rulings have decidedly gone against strengthening or at least maintaining the FOIA or Open Meetings Act (OMA) on behalf of the people's rights to having an open and accountable government.

Sadly, this open government activist has only lost more ground for the people in a totally unjust ruling against me in an unpublished opinion issued last Friday by the Michigan Court of Appeals.  The appeals court overlooked quite a bit in this case, following a pattern by the circuit court judge whose bias for her husband's employer and against a caustic critic shined darkly throughout the original appeal. 

For those that haven't been following the facts of this case since it began in 2023, I provide a summary of what this was about.  For many years, the City of Ludington (COL) and their police department (LPD) provided body cam footage of accidents/arrests w/o charge to me upon request, there are 16 examples of this.  I never abused the privilege, but then Christopher Jones became chief.  They tried to charge about $230 for about 8 minutes of body/dash cam footage of an outdoor arrest, footage from a different vantage point I already had from the sheriff's office.  They crafted an unlawful FOIA fee worksheet charging $25 each for nine videos, the footage cost over $225.  

When I paid the deposit, I went over to the aforementioned sheriff and showed all of the elements of the misdemeanor of public extortion, shortly after the two agencies communicated with each other, I received an amended cost worksheet doubling the amount and suggesting that it would take over 8 hours to edit out exempt material from what I already knew from existing videos was totally non-exempt footage of an improper arrest made by LPD Officer Morris.  

I would make two other requests for arrest videos where improprieties happened according to police reports and a security video.  One was for a warrant arrest where an 'innocent bystander' was arrested too for not providing her name or ID (your right under Michigan law, felony obstruction to LPD).  The other was for a less-than three-minute unlawful arrest of Joe Oquist, where one of his security cams caught the whole exchange and came into my possession.  Again, unlawful LPD improprieties would be part of the footage.

These were both priced at around $900 and $120 respectively primarily for the time to redact exemptions.  The Oquist arrest video (which we would eventually get) had no lawful exemptions within it; we anticipated about 15 minutes of footage from the other arrest would be easily prepared by totally blacking out all video that happened inside a residence due to privacy, a simple editing move that would take less than a minute for a trained person.  

These prices were upheld in an administrative appeal and I would take the package to the circuit court, moving to disqualify Judge Susan Sniegowski due to her husband being an official/employee of the COL, a move she had agreed to six times before when I took the COL to court, and a move she would acknowledge was appropriate when she disqualified herself from Dr. Riemer's lawsuit against the COL during the time of my FOIA case solely because her spouse was an official for the COL.  

Instead, she took my case up, even after being apprised of a long list of Ludington Torch articles where her jurisprudence and ethical character was called into question.  What followed was a long list of violations of court rules and protocols followed over what was supposed to be an expedited proceeding that lasted 18 months and an unheard-of abuse of discovery by the defendant having nothing to do with the appeal, where the COL needed to simply justify their charges of fees.  

The process would all end with an opinion where all fees would be upheld as lawful and reasonable, all FOIA violations made by the COL would be forgiven-- the public extortion so evident in the original response, totally ignored, a fee scheme repugnant to FOIA approved solely due to an affidavit by LPD Captain Haveman.  The three minute LPD body cam footage with no lawful exemptions requested for the Oquist had been supplied and was reasoned by "Her Honor" to still have been worth $120 for separating out exempt materials. 

More background information to flesh out this summary on this can be found here, here, and here.  My appeals court filing containing the judge's order and court register is here, the appellant brief is found here, as well as the judge disqualifying herself for Riemer because of her husband's employment.  What I don't include (and is available on the Court of Appeals' website under this case, is the Appellee's Response Brief and my Reply Brief, which is basically support and recitation of Judge Smiegowski's opinion and the COL's position that everything that the COL did was compliant with the FOIA, followed by me arguing against their relevance over the facts in the case. 

But then we have this opinion drafted by a three-judge panel which decides to ignore the facts and the law as pertains to the case, and I'm aware enough to notice that the facts were adulterated throughout by the city attorney, their risk management attorney, the circuit court in its opinion, and finally, the court of appeals' specialist attorney retained by the COL.  When all of those Michigan based authorities do their best to distort the actual record and distort the prevailing laws and precedents, what's a citizen who has been victimized to do with the unadulterated facts, laws, and precedents?

The facts according to the appeals court is that the original $25 per video was legit and simply outdated, rather than note as I have said throughout that the police chief/city attorney had to specially draft an unlawful fee worksheet and expand the scope of my request.  I was always consistent in defining my request to be of the arresting actions, stressed that in every appeal, but they wanted to broaden the request to show much more than I wanted, which was three videos under 20 minutes that would have no exemptions, and another of about 15 minutes which would almost totally be a blanked-out screen due to the privacy exemption.  

But the opinion erroneously states that the COL offered to reduce the scope I asked for, adopting the Sniegowski opinion's facts and the ones propped up by attorneys who framed events they never saw at council meetings and I vehemently explained throughout all appeals.  The facts are otherwise written as if done by the COL's attorney.

This case was severely hampered by Judge Sniegowski's bias throughout the proceedings as noticed and highlighted by her inconsistent disqualification from the Riemer case solely on the basis of her husband being an official employed by the COL.  The judges refused to address that inconsistency and the abuse of the discovery process for the defendant in a FOIA fee case-- I have asked repeatedly at all points for any other defendant using discovery in any FOIA case, not just a FOIA fee case, and have heard no reply.  

The biggest mistake of the court, and the most likely to be seized upon by police agencies across the state, is their blanket acceptance of FOIA fees as applied in this case. 

These three respectable judges on the Michigan Court of Appeals have approved of a cost system for body, dash, and security cam videos that allow public bodies to charge by the minute (multiplied by three) for any calls for footage, even if they know before processing that there should be nothing at all taken off of the video as a valid exemption and would require a small time only to retrieve the information.  As was the case for two of the three responses.  Compare this with the 1985 case of Cashel v U of M Regents, where the appeals court saw nothing amounting to "unreasonable costs" to the public body for an official observing up to 80 hours of a citizen's search through files, and tell me that the judiciary of Michigan is working towards transparency or accountability.

The 3-1 ratio has never been validated; on its face, it's illegal under FOIA's section four, the law.  I could Monday morning quarterback the whole fiasco of this opinion, but it was an unworthy decision that will make Mike Haveman's unsupported claim of a fee scheme a burden to investigators looking to rectify police impropriety and any other requests by a citizen to their public body for footage of all those cameras we pay for.  I apologize to my fellow open government advocates in Michigan for getting this result, and hopefully, if they can review the record, they will learn the total extent of the injustice to all, propagated by our public officials.

[Freedom Seeker]

Knowing of your perseverance in the fight for justice, X, this ruling will be a spring board to greater exposure of the corruption. Sniegowski has been at the heart of covering corrupt COL

[XLFD]

I expect you are right, though I would have loved to have prevailed on the merits of this case and have a judicial panel that verified what actually happened and why it was wrong.  It would have been great to recover the filing fees, transcript costs, etc. that cost me over $1200 too-- ironically that's almost as much as the three videos would have cost me had I felt the price of them was allowable through FOIA.  They aren't, but now we have an appeals court that permits a flat fee for footage based on minutes rather than the likelihood of edits and allows the public body to greatly broaden the actual request.