John Shay-- Criminal Intentions: Violations of Personal Privacy

[XLFD]

Back in 1988, the state passed a law called the Preservation of Personal Privacy Act  mcl-Act-378-of-1988.pdf.  It was subtitled as "AN ACT to preserve personal privacy with respect to the purchase, rental, or borrowing of certain materials; and to provide penalties and remedies for violation of this act."  It was a one page law, fairly straightforward, and I will go through it as I present my premise that Ludington City Manager John Shay has violated this act in his handling of my October 2010 FOIA Requests and is succeptible to civil and criminal penalties as a result.  But first, here is the newspaper account of my 'appeal' to the City Council for John Shay charging illegal fees to my FOIA requests, which includes a bunch of erroneously paraphrased FOIA requests I made to the City Manager in his capacity as a FOIA Coordinator:  LDN FOIA Appeal Nov. 2010

Sec. 1 defines the terms used in the act, and it defines three terms as used in the act: 
(a) “Customer” means a person who purchases, rents, or borrows a book or other written material, or a sound recording, or a video recording.

(b) “Employee” means a person who works for an employer in exchange for wages or other remuneration.

(c) “Employer” means a person who has 1 or more employees.

PofPP Definitions

According to the FOIA, a “Person” means an individual, corporation, limited liability company, partnership, firm, organization, association, governmental entity, or other legal entity. (MCL 15.232 c).  Both I, John Shay, and the City of Ludington, are 'persons' by this definition; when someone (like I) makes an FOIA Request using the FOIA Coordinator John Shay who works for the City of Ludington, we fit the definitions of customer, employee, and employer, respectively.  

Sec. 2 says:  "Except as provided in section 3 or as otherwise provided by law, a person {CITY OF LUDINGTON}, or an employee or agent of the person {John Shay}, engaged in the business of selling at retail, renting, or lending books or other written materials, sound recordings, or video recordings shall not disclose to any person, other than the customer {XLFD}, a record or information concerning the purchase, lease, rental, or borrowing of those materials by a customer {XLFD} that indicates the identity of the customer."

Bracketed material is for the patient reader's convenience, italics for emphasis.  Public records are referred to as 'writings' which encompass the whole range of written and recorded materials in sec. 2  (MCL 15.232 h).  As a 'public body' the City has a duty to provide such writings (same law, section d).

When John Shay, malicious intent or otherwise, not only gave out my name at a public meeting in my appeal of his findings, but also the nine requests I had made for records, and the totally irrelevant factoid that I had been the subject of a traffic stop (at an unlawfully erected stop sign) which was upheld at a local court (of questionable jurisdiction), this was clearly an infringement of my rights, as per this section. John Shay, is the curator of all public records for the City and should know very well the privacy protections and exemptions under the law.

Sec. 3 has five exceptions for sec. 2.  None of them apply here. 

Sec. 4 says:  A person who violates this act is guilty of a misdemeanor.

Sec. 5 gives me my possible means of recompense.
 
"Regardless of any criminal prosecution for a violation of this act, a person {John Shay and/or the City} who violates this act shall be liable in a civil action for damages to the customer {XLFD} identified in a record or other information  that is disclosed in violation of this act. The customer may bring a civil action against the person {john Shay and/or the City} and may recover both of the following:
(a) Actual damages, including damages for emotional distress, or $5,000.00, whichever is greater.
(b) Costs and reasonable attorney fees."

 

This wasn't a small violation of this act, like it could be if your video store clerk told everyone you rented out Terms of Endearment  or your librarian telling your friends you check out Harlequin romance books each week. 

John Shay not only told everyone I had requested specific written materials, he had done so in a very public forum into the public record and depicted my requests (and the reason for my appeal) inaccurately.  He then told a totally irrelevant and incomplete story of a bicycle traffic stop I had over two years prior, and the outcome (which will likely be overturned someday).  He finished his dastardly invasion of my privacy by giving out some of my personal information without my consent (my E-mail address to Kevin Braniczeski of the LDN) and spoon-fed the 'journalist' his made-up variants of my requests for his story.

But given his track record with me and another devoted public servant, former Building Inspector Jack Byers, should we really be surprised at this criminal behavior?  Or should we just let him continue to make no-bid contracts with water tower painters that cost about a million more than it should, and continue to look the other way when ethical issues are brought to bear on other public servants in Ludington?

 

 

 

 

[AQUAMAN]

Trouble is, Shay has and continues to win fans at city hall as a Shyster character. He does their bidding, irregardless of ethics or law, and since the recent Byers settlement out of court with city hall's insurance policy to pay off the victim, has a total green light to continue behavior in this mode for as long as he's reappointed to City Manager. And as long as his appointee friends hold office. This will change though some day, maybe sooner than Shay realizes, or will it? His handling of the FOIA requests certainly are not in line with ethical and prudent behavior of recent, and should be noted by the press as well as any other individuals that believe in freedom of information to the public, without prejudicial fees and inflated quotes on time to prepare them.

[XLFD]

You can tell a lot about the underlying ethics of an organization by the way they respond to accusations of unethical/unlawful behavior.  The City of Ludington's leader either doesn't respond or act on it, as is part of the duties of his job.

We recently got a FOIA request back from FOIAC Shay wherein we asked for just the FOIA Requests sent to the Ludington City Hall or Police Department regarding the Baby Kate case, and the respective replies from the City/LPD with the fees and charges for those FOIAs enumerated.  That will be posted soon with analysis. 

In the meantime, guess how much money the City required for the the four requests (one from the LDN, one from WZZM, and two from WOOD TV)? 

[Lisa O'Brien]

I betting zero $$

[AQUAMAN]

I'd second that bid Lisa.

[XLFD]

Our regular contributors are so brilliant!

[Marty Redman]

I cannot believe that newspaper article.  WTF does  Shay hope to prove by rehatching your traffic criminal career for other than for intimidating you and anyone else not to do an FOIA req.  I ceed your point on not giving out such information in a public forum.   I betcha Spanolia (sp.?) the prosecutor won't touch the violation of the PPPA law.  From what I hear hes too busy throwing the mothers of murdered daughters in the slammer for lesser things.

[Willy]

Shay must be boiling. I would love to see what legal information/advice he has requested from the "city attorney" or his own personal lawyer regarding his violations of Privacy Act.

[AQUAMAN]

Willie, I'd have to bet that Shay isn't shaking in his boots at all, but should be. No doubt the city will rely on a general liability insurance policy when the time comes to just pay X off and go away, and go about their corrupt and unethical behavior as usual, the same as with the Byer's case, no sweat.

[XLFD]

Shay should be feeling a little bit uneasy, as unlike most of his other neglectful behavior dealing with the Open Meetings Act, the Whistleblower's Act, the FOIA, etc., this state law actually has criminal sanctions against those that violate it, not just civil actions that can be shrugged off and dealt with through tax money.  

Would the County PA take this case?  Almost assuredly not-- John Shay is on a couple of county boards, and there is a matter of positive city-county relations that Mr. Spaniola has to politically deal with.

Would the Michigan Attorney General be interested?  Maybe, particularly if there were one or more other criminal allegations against Mr. Shay...

[Marty Redman]

XLFD, I was just thinking having read the Library Diaries postings

 

The authoress there used made up names and slightly altered characteristics of the patrons.  This isn't that different, except  John Shay used your actual name,  and slightly altered your traffic stop + your FOI requests in telling his story to the public.   If she was fired by your local govt. for her regression then John Shay should likewise get the ax for his.  Agreed? 

[XLFD]

It is only fair-- LOL.