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.

[Marty Redman]

At first glance this policy doesnt seem to single anyone out, but when you hear the Shay describe it in the vid, its intent is clear.  We don't want someone making any more FOIA requests or appeals.  This is about as covert as the workplace policy.  Your $100,000 plus city manager at work-- he really has to much time on his hands.. 

[Willy]

This group of people [ council, mayor and Shay] are absolutely disgusting. The changes in the FOIA are clearly aimed at one person and It's obvious to me that Shay and the Council are trying to stay one step ahead of X especially when they changed the indigent clause and paragraph "c". Paragraph "c" is undeniably aimed at the Torch. They don't want X to use the Torch to circumvent the FOIA requirements. They're trying to box him in. Just think, the City is using taxpayer money to pay a high priced law firm to make changes in ordinances that are clearly aimed at preventing one individual from seeing public information. What the citizens of Ludington had better understand is that these changes are also aimed at them. Are the Council, Mayor and Shay just being vindictive or are they trying to hide illegal acts and / or corruption that they may be guilty of. This sure makes them look bad. Of course they've been making themselves look bad for years.

[XLFD]

And when Shay says:  "(Mr. Rotta) 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."

 

So if you are someone on the phone with John Shay an hour talking about city issues you are not having to pay him his rate of pay and benefits (nearly $70) over and above what he is getting paid, but if you have a FOIA request where he says he works an hour (hah), he gets an extra $70 above and beyond his normal pay rate.  But here is the bonus point, talking to citizens on the phone is (usually) NOT one of his duties, but as the City's FOIA Coordinator, getting those public records to those who ask for them, IS. 

John Shay's day is apparently so uneventful that even one FOIA request a week over (usually) few and specific records becomes a burden to him, enough to have his buddies in record-bondage, the City Law Firm, help revise policies and devise new means to block requests.  But Shay doesn't strike me as the lazy type, so the reason he is trying his darndest to put up roadblocks is because there are things to hide. 

 

[Jane]

Looks like they just left themselves open to a plethora of lawsuits. What an idiot/bunch of idiots.

They must really have some things to hide!

And if they aren't logging the hours spent on X'as foia requests how can they charge for anything, they are just guessing!!!

[Marty Redman]

If the city charged him around $700 after claiming around $7000 a month before, and the money that they were trying to get in court were for printing records he wanted to inspect and for labor that was not documented ;a public body should darn well need to document their labor if they are charging for it.  And to my knowledge, didn't X say that he never inspected the records anyway?  Seven hundred dollars to pay for labor and paper that has never been accounted for except for a stack of papers in front of Councilor Manhol that could have been her signed copy of BHOs affordable careless act.

[AQUAMAN]

Well Jane, I guess you just hit a big nail on the head for sure. If in fact the time to answer FOIA requests is NOT being logged by the individual searching and copying the records, then where does the FOIA coordinator fees come from?  This in itself is a big bone of contention now for not only X, but the public in general. Just pulling any figure out of the air to justify fees is totally illegal and plainly unethical. But, what would you expect from Shay to begin with? Willy also hit another big nail on the head in paragraph C changes, exactly that, trying to box in X for not being an individual. That simply won't fly, as the Torch is not the ONLY place X has posted this type of info.. It's on several other talk forums out there, copied and sent to his attorney and friends too, nonetheless. Lastly, requiring multiple affidavits of indigency is clearly a unjustifiable amendment that only serves to hassle the FOIA requester. If it had been a yearly test, fine. But to require multiple affidavits 4 times a year is excessive and unreasonable. Just another psychological roadblock and nuisance amendment. Federal law says the poverty line is at $18K per year, nowhere near X's income. But it appears that they want that reduced to $5K/yr.. The assistance payments to many families may exceed that alone, depending on the number of dependents. I truly think almost all the amendments are necessarily open to appeal in the circuit courts, as the reasonableness factors have been thrown out with the bath water and the baby. Just another sad episode of Shay's vengeful attitude and the COL's snubbing State of Michigan laws. Instead, Shay could and should have offered olive branches for peace and continuity in the New Year. We instead witness that he wants to engage in more lawsuits/bad publicity/finger-pointing/defamation/ and childish behavior unbecoming ANY official of a great little City.

[AQUAMAN]

If nothing else, this particular episode should clearly demonstrate even to the most Apathetic Public that Shay is using his position as a Bully Pulpit. And that isn't in the best interests of the public that pays his $100K+/yr. salary. To change and amend State of Michigan FOIA law to gain a position of iron fist rule over one individual, is what is ridiculous. I say that a legal and valid Petition should be drawn up for the public to sign, to once and for all fire and remove Shay for his lack of good ethics and judgement in a public body. Enough people get behind this and go to City Hall with it, and it may prove Shay's final undoing, at long last, we pray.

[Marty Redman]

It does sure look suspicious that the City Manager is spending big money just to intimidate harass and bend FOIA policy on one citizen who just used the FOIA to show the City violated the open meetings act.  How more obvious can it be?

[Willy]

Aquaman

Don't forget that Shay's bosses are the City Councilors. They're the ones directing Shay's actions. He can only do what they allow. Any petition should be against the entire City Council for allowing this to continue and using taxpayers money for unnecessary and gross attorney fees. In my opinion what they are doing is a form of embezzling. They are using taxpayers money and their offices for the purpose of conducting a vindictive and vengeful vendetta and character assassination of a private citizen. In my opinion what they are doing is criminal.

[XLFD]

That's the point that I've learned well over the last year.  John Shay could not do what he does without the complicity of the City Council.  He and perhaps the mayor may have deceived the council down the line, but when the councilors have the opportunity to put forth their own voices, they become apologists for unethical and illegal acts, and show complete solidarity for their fellow officials, and utter contempt for the rule of law (not to mention the whistleblower).

[Willy]

Jane

What you just stated was like a flash bulb going off. You are absolutely correct. How can the City justify any expense if there is no record of any FOIA labor performed by any City employee. I completely missed that logical conclusion until you mentioned it. Good catch.

[XLFD]

It's going to be duly noted in my brief in the Court of Appeals.  How can I owe so much when there is no product (information) transferred, no record of labor used that "would result in unreasonably high cost" to Ludington City, no request for copies, or mailed records?  Without labor, about the only thing they can charge for is necessary copying of records that have redactable material thereon (which I actually inspect or receive!).  And the vast majority of the costs they sought were for non-exempt records-- all of which I never got to inspect!