Lest Ye be Judged: Appeal Claims Fee and Judicial Improprieties

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The biggest villains in this reporter's opinion are the ones who choose to be public servants and use that opportunity to protect themselves and their peers from accountability, transparency, and responsibility.

Using procedures under the Freedom of Information Act (FOIA) in early 2024, we requested from the Ludington Police Department (LPD) three different segments of body worn camera (BWC) footage of arrests made by LPD officers that, diplomatically put, did not go according to accepted policy.  When we received our written responses, we actually had videos of two of the incidents recorded by another police agency and on a security camera, showing that there were no allowable FOIA exemptions to be seen on those two occasions.  

We witnessed four criminal acts corresponding to the response to those requests.  The first response asked for a "per video" charge of $25 and said there were 9 videos.  Totally unwarranted by FOIA law and the city's own policy.  When reported to another police agency as a criminal act, the response would be amended, doubling the amount to over $400. claiming that it would be all for the cost of separating exempt material out of what was requested: an eight-minute video showing an arrest.  The other agency's video showed there was nothing to separate out.  

This started a legal squabble that began with a perfunctory administrative fee appeal to the Ludington City Council, where they did what any respectable city council would do-- they accepted everything the city attorney (who doubles as the one who justifies each FOIA response) said. 

We chose to appeal this result further in the circuit court, expecting the sitting judge, Susan Sniegowski (pictured above), to disqualify herself from the case by dint of her husband being an officer of the City of Ludington, as she had done on seven prior occasions when we sued the city for FOIA and/or Open Meeting Act violations.  She would not do this, even upon the revelation that her husband was a material witness for a manufactured crime the City of Ludington placed upon this reporter (and summarily dismissed in October 2025). 

It turns out that she disqualified herself from the "AndyS lawsuit" with the City because of her husband being an officer of that public body defendant the day before she filed her opinion on my case.  The opinion and order, almost exclusively devoid of legal justification and accepting a fee scheme that was unlawful at face value, unsurprisingly found for the defendant on all counts.  This decision was made ten months after the last pleading or hearing, and the whole affair lasted 19 months.  FOIA lawsuits are mandated by law to be conducted in the most expedient manner, we've had more complex cases decided within three months.

Letting this travesty of justice go without challenge would be a crime in itself, but a main trap of establishing an appeal to the next level, the Michigan Court of Appeals, would be to allow the unethical behavior of the judge throughout the last couple years become its centerpiece, rather than secondary to the issues of law independent of the unfair arbiter.  This was a delicate balance, being that there is a different tribunal to report judicial misconduct (the state's Judicial Tenure Commission), and appellate justices rarely consider such malfeasance unless it's directly tied to other issues like abuse of discretion or clear error of that judge.  

We recently submitted an Appellant's Brief in the case, following our submission of a claim of appeal in November and a docketing statement in December.  This lays out our case against the City of Ludington and how the trial court erred and otherwise behaved badly.  The defendants, represented by a team of attorneys from their risk management authority, will have an opportunity to file an answer to this appeal and submit a defense.  We will then have the opportunity to address that with a reply brief.  With any luck, we may see a decision coming out by the end of the year.  The appeals court has no mandate of expediency like the trial court, but they will likely make a quicker decision.

                                                     INTRODUCTION

The facts of this case show that this FOIA fee appeal for multiple requests was not made in an apolitical vacuum; underlying events in the background and the contents of the bodycam footage requested were very pertinent as to why the public body involved decided to commit public extortion and then double down on that criminal act to legally construct a paywall acting against transparency and invent exemptions that never were part of the public records requested.

Plaintiff Tom Rotta (hereafter ROTTA) has been an alternative media journalist since 2009, creating and adding regular content to his website the Ludington Torch mostly based on local politics and court activity. Over the last 18 years, ROTTA has made hundreds of Freedom of Information Act (hereafter FOIA) requests to the City of Ludington (hereafter COL) and this has led at times to disputes, administrative appeals, circuit court appeals, and even appeals to this court starting in 2012.

But for a time, the COL adopted a policy that was more pro-disclosure at about the same time they adopted the use of body worn cameras (hereafter BWCs) on the Ludington Police Department (hereafter LPD). For the first nineteen requests ROTTA made that involved Body worn camera (hereafter BWC) footage, the COL fulfilled those 19 requests without charge and without excessive claims of exemptions.

A new police chief and a new FOIA Coordinator would change the policy with unlawful charges repugnant to the FOIA starting with a request for BWC of an arrest where county deputies were also involved. The sheriff's office supplied their own 8-minute BWC of the arrest made outdoors with no exemptions claimed through a FOIA request with them. The COL wanted to charge about $225 for their BWC of the same event, claiming there were 9 separate BWC videos that they assigned $25 for each. Over the course of litigation, eight of the videos were non-compliant with the request, the only one that was compliant would cover the same action as the deputy's video and require no redaction.

ROTTA would pay the deposit with the understanding that the request would be fulfilled but immediately filed a complaint with the sheriff's office for the crime of public extortion. The actions by the FOIA Coordinator and/or the police chief indicating the elements of that crime were met. Almost immediately after filing the complaint, ROTTA would receive an amended FOIA response almost doubling the fees without offering a reason compliant with the request and the law.

Two more FOIA request were made in a short period of time, where ROTTA was seeking other specifically described BWC footage of two other LPD arrests that appeared to be as unlawful as

the first, as seen in security camera footage and described in reports. The fees for them totaled about $1000. Like the amended response to the first request, the charges were primarily for the time it would take to separate exempt material out of the footage. Ironically, two of the three FOIA responses showing outdoor arrests that were caught on other footage in possession of ROTTA indicated that nothing needed to be separated out from the public record requested.

These would go through a perfunctory administrative appeal process involving FOIA fees where the Ludington City Council would ignore the violation of their own policy by the FOIAC introducing his own fee schedule, protecting him, and then ignore the obscenely high fees that were based on a fee scheme that would charge the requester for three times the amount of footage minutes in the full record, even parts that were never requested, and charge it at the rate of the police captain. This was how specifically requested BWC footage without any exemptions claimed and under three minutes in length would cost $108.

Since 2016, ROTTA appeals of COL FOIA (and Open Meetings Act) cases in the proper venue of the 51st Circuit Court have had the sitting judge, Susan Sniegowski, disqualify herself on her own motion in the court's order of disqualification six times due to the fact that her husband has been an officer and employee of the COL for the last two decades. The judge would fail to disqualify herself for this case, despite that record, despite the motion filed for disqualification, despite the underlying criminal acts alleged in the complaint by COL officers, and despite the fact that her husband, in his capacity as a COL officer, was a material witness to an alleged crime happening three months before initiated by the COL against ROTTA and eventually dismissed in October 2025 by the 79th District Court. The trial court judge would, however, disqualify herself from another case with the COL as defendants the day before her final judgment in this case, citing the fact that her husband was an officer of the COL as the grounds.

The FOIA fee appeal for three separate time-sensitive records and by law requiring an expedited process through the courts would take over 17 months before a final opinion and order was issued by the trial court that repeatedly shown it was working against expediency and propriety by its conduct over this period. The opinion would indicate that the defendant met their burden of proof in establishing that they could charge hundreds of dollars for the act of separating exempt from non-exempt records in records that had no exemptions that needed removal, suggesting ROTTA's FOIA requests were much broader than they were made and that the initial attempt at public extortion was immaterial, as the court approved the latter attempts at doing constructively the same thing. This cannot stand if the FOIA is to mean anything in 2026

                                                 STATEMENT OF FACTS

The acquisition of BWC by the LPD assuredly happened before ROTTA's first FOIA request that asked for them on July 1, 2021, but the COL would supply the footage without charge for that request made solely for journalistic purposes in order to assure accountability of the LPD. The next 18 times ROTTA made FOIA requests to the COL for BWC footage for journalistic purposes, the footage was offered without charge, free.

This policy ended starting in February 2024 without any change in FOIA policy considered by the Ludington City Council with a response totaling $229.38 consisting of a charge of $25 for nine videos and $4.38 labor for separating out exempt material (AA1- Original complaint, Exhibit 1). This change would start just after a recall effort started on three COL councilors and the mayor spearheaded by ROTTA based on what he and others believed were serious ethical and political miscalculations started in January of 2024, and other articles on his website questioning the methodology and philosophy of the new LPD chief.

This worksheet had never been approved by the COL (only the form AA1- complaint Exhibit 2) and was sent by City Attorney Ross Hammersley, serving as the new FOIA Coordinator (hereafter FOIAC), created by an unknown entity, but deemed legit by the FOIAC. On February 14, ROTTA would pay $114.69 to the COL to pay the requested deposit and immediately file thereafter a criminal complaint at the Mason County Sheriff's Office (MCSO) of public extortion, believing all of the elements of that crime were met by the actions of the FOIAC demanding more than the legal fee for a service and the acceptance of ROTTA's money as down payment for that service.

The FOIAC would amend his response after the fallout of the MCSO investigation and send a different cost estimation worksheet (AA1- Complaint Exhibit 2a) increasing the cost to $423.80 and indicating that it would take eight hours of labor to separate out exemptions from the BWC footage. The original response indicated only 15 minutes would be required to separate out exemptions, this was increased by a factor of 32.

And yet no exemptions were claimed for this response originally, as a FOIA response from the MCSO asking for their own BWC footage of the arrest incident would affirm that was the actual case: no exemptions. Both departments responded to an outdoor arrest outside of the COL and the 8 minutes of BWC footage ROTTA received from the MCSO at no cost (later revealed under duress through discovery to the COL) indicated there was no exemptions to separate out the arrest of a man.

The amended response showed that the FOIAC wanted to include 14 BWC videos, all but one unresponsive to the reasonable meaning of the FOIA request for BWC and/or dashcam video showing an arrest of a man. They primarily showed investigations of domestic violence leading up to the arrest, post-arrest actions, and recorded phone calls. ROTTA would clarify his request in person, in his administrative appeal, and throughout the 19 months of the trial court process that he was interested only in footage of the arrest, not the errata. The FOIAC and COL at the time would not explain why their standing policy changed from charging nothing to charging hundreds of dollars for a simple request without any exemptions claimed and not explain why they wouldn't honor the actual request clarified repeatedly.

The administrative appeal called at the March 11, 2024 COL council meeting (AA2: 3-11-24 LCC minutes), with the FOIAC would misrepresent ROTTA's dispute ignoring the terms of the appeal for a mechanism to get the records, explaining previously unclaimed exemptions were due to an ongoing investigation and involvement of minors, none of which were in the MCSO videos of the arrest. The LPD chief would additionally explain that the state standard for redacting video is that it takes three minutes to redact every minute of video. Such a "state standard' has never been produced, nor does it seem reasonable, but it was used by COL throughout their defense in the trial court and accepted by the judge in her opinion and order. The council would deny an appeal that was made to contest not having a mechanism to get the records especially highlighting the original request's legality and propriety.

Prior to that March 11, 2024 meeting, ROTTA had made two other requests involving BWC footage. On 2-18-2024, ROTTA made a request in relevant part for the BWC "footage of the arrest of two individuals" with the knowledge aforehand that one had a warrant arrest for them and the other was arrested incidentally for failing to provide her identity to LPD officers and that

the arrest occurred in a home. ROTTA fully expected that the video footage would be totally exempted being that it would occur in a private place, and that the audio footage would be the only part of the record available without any clear exemption, since the woman arrested would not volunteer any of her personal information-- which led to her arrest while the man's information was on the warrant.

The response would arrive on March 12, 2024 and ask for $879.41 in payment for what amounted to over 16 hours of separating exempt information out of the footage, which according to the associated police report would cover an arrest sequence that lasted about 15 minutes, but was said to be over 5 hours of footage in the response, likely covering pre- and post-arrest actions that were never requested. They also added 30 minutes of in-car camera footage never requested. They would indicate the BWC Act would apply but never explained the underlying reason why the audio components would need to be removed, which ROTTA would indicate as his interest, accepting that the privacy exemption would apply to all indoor video.

Also on March 12, 2024, in a seemingly unrelated incident, ROTTA was given a "letter of trespass" by an LPD administrator after ROTTA called for assistance out of a local park where he was trapped within when the COL decided to hold a deer cull without notification to the public and without closing the park.

On March 15, 2024, ROTTA would test the baseless trespass letter by walking in the park where he would be seen by two COL officers, one who was Tom Sniegowski, employed by the COL for decades and the husband of local circuit court judge, Susan Sniegowski. He would become a material witness put prominently on the witness list for the COL in an action by the local prosecutor charging ROTTA with criminal trespassing, based on ROTTA's walking through the park that day (AA3- incident report, warrant) due to the eyewitness accounts. The prosecution of that case for over a year occurred within the 19 months of the time the FOIA fee case was in the circuit court and ended with the district court judge dismissing it under Constitutional grounds, based on the police captain having no authority to trespass ROTTA from a public park.

On March 31, 2024, ROTTA would make the last FOIA request for bodycam footage associated with a February 29,2024 arrest in the backyard of the arrestee. ROTTA possessed a security

video belonging to the man with audio that showed the arrest happening, from the point when the officer exited his vehicle to the time that he put the arrestee in the back of that vehicle, a time period less than three minutes.

The response was received one day late and indicated it would take two hours to separate out exempt portions of the one BWC footage of the arrest. None of the exemptions claimed would apply to the record requested. This was actually verified to be the case when the COL released the video over the course of litigation in March 2025. Additionally, the LPD captain who edited BWC footage was intimately involved in the arrest of the man and would know that there would be no exemptions on the footage but was caught pressing his knee on the shoulder of the man leading to the puncturing of the man's lung. The cost they assigned to the three-minute non-exempt record on April 10, 2024: $108.24.

All three were administratively appealed to the COL council on April 13, 2024 (AA 4-Admin. Appeal email) explaining first the COL's record of responses, the abrupt change in policy without formally changing the policy. The FOIAC would introduce a change to their FOIA policy to the COL council for approval on April 8, 2024, and it would change the existing policy to give the FOIAC an enormous amount of power to respond to FOIA requests, including the ability to change policy on a whim. It should be noted that all three requests in this case were made before the FOIAC changed policy in an attempt to cover up the prior liberties he took at the expense of the integrity of the former policy.

In the FOIAC's lengthy defense of his FOIA fees at the April 22, 2024 COL council meeting where the three fee appeals would be taken up, he would use the policy adopted after the three requests were made to explain the COL's position and would not tailor the responses to the actual records requested: the BWC footage of the four arrests made. This was made clear in talking with the FOIAC, in ROTTA's appeal, and in his comments made in front of the COL council.

In the original appeal ROTTA asks why it would take a supervisor nearly a full day to separate exempt material from an 8 minute outdoor arrest, regarding the first request. "I would expect the redaction of all video inside that residence... (but the FOIAC) does not suggest why (audio of) a couple of arrests taking place in a few minutes of time would cost nearly $1000." for the second

request. And acknowledgment that the third request was for nothing more than the arrest of the man while he was on his property lasting less than three minutes, not of a "ride to the jail that I did not ask for."

The recalls of three councilors ROTTA inspired were all underway at this point, as was the criminal trespass complaint formulated against ROTTA, and not surprisingly, the COL council voted against ROTTA and for their FOIAC in support of the fees he asked for without any consideration of the records actually asked for or why the 3:1 redaction ratio allowing the city to charge 3 minutes of wages per 1 minute of footage, even to non-exempt BWC footage, was appropriate in all such cases.

With the administrative appeal failing on April 22, 2024, ROTTA would seek timely remedial action in the county's 51st Circuit Court on June 6, 2024, 45 days later, submitting a summons, complaint and a motion (AA1: DQ motion w/complaint) for judicial disqualification against Judge Susan Sniegowski, primarily based on her husband being an officer for the COL and her past long-term employment by the COL as a legal contractor.

Her Honor had held her position since 2015 and had disqualified herself under the same grounds seven times when ROTTA had legal cases against the COL to consider regarding the FOIA and/or the Open Meetings Act. This was a point ROTTA would make at the DQ hearing held on July 11, 2024 (AA 5- DQ hearing transcript) but was disallowed to read each case into the record. ROTTA was allowed to read three criticisms of Her Honor into the record written by ROTTA on his website after her last disqualification about how she ignored basic legal principles in her decisions.

The last of these criticisms was a scathing rebuke of the judge's ruling in the Lance Eichler case, since overturned by this court in 2025 with almost equal scathing-ness. Calling it "the biggest miscarriage of justice ever seen" in my 16 years of court coverage, it cemented ROTTA's belief along with several other observations that she could not be a fair judge, especially when one party is a public official or entity.

Though her husband worked decades for the COL and still worked there, she would not relate that her husband had witnessed what would be called a criminal act by the county prosecutor and

had made a statement three months prior against ROTTA. She was also fully aware of the recall petitions out in the public for her husband's fellow officers in the COL and knew that ROTTA spearheaded them.

ROTTA had also attended a June 13, 2024 hearing regarding an injunction filed by Terry Grams back in March 2024 about the aforementioned deer cull against the COL. ROTTA had seen the time-sensitive injunction passed over by the court for months and witnessed her rule in favor of the COL that day. When ROTTA asked Grams afterwards whether he knew the judge's husband was an integral part of the COL's DPW who logistically ran the deer cull and were likely paid extra for setting it all up, he related that he didn't know that, as it was never disclosed by the other party (the aforementioned FOIAC as attorney) or by the judge. The lack of disclosure of this appearance of impropriety would be written about by ROTTA.

On July 15, 2024, the court sent out a scheduling order which was never received by ROTTA who had wondered why the judge didn't have a scheduling conference at the same day as the DQ motion hearing to expedite the procedures as normally done in the past. This order, received months after by ROTTA, called for 106 days for discovery for a FOIA fee case, where expediency is prioritized and mostly unheard of in FOIA cases in general. It allowed for discovery by the defendant COL even though ROTTA had nothing to do with the FOIA fee rates set by the COL which was the dispute.

The COL would use that opportunity to send what could only be classified as nuisance discovery: 8 interrogatories and 9 requests for production, including asking for ROTTA's MCSO video and security cam footage he was holding for impeachment purposes for when and if the COL would make claims that their fees and exemptions were accurate for the first and third request.

At the 10-10-24 hearing (AA-6, Compel Hearing transcript), the court would compel ROTTA to answer all discovery made by the COL despite ROTTA's immense case law showing that discovery is rarely made in FOIA cases, and when it is allowed by the court, is granted to the plaintiff. ROTTA would also receive and look at the scheduling order for his case for the first time. At this point the COL's criminal case was over a month past the arraignment of ROTTA

for the specious trespassing charge, with the judge's husband listed prominently as a material witness on the warrant, ROTTA had through discovery on that case, a video showing the husband being interviewed back in March 2024.

ROTTA would respond with answers to the various interrogatories and RFPs on 10-24-2024; the COL wanted more and made a second motion to compel discovery on 11-18-24 to be heard via zoom on 12-19-24 (AA-7 12-19-24 transcript). Once again, the court would rule for the COL, even though the COL had already submitted a motion for summary disposition without such unnecessary discovery on 12-4-24 and ruled that the videos in my possession for use in impeaching the fee claims raised by the city must be disclosed.

With this trial court and the hollow arguments in support of a fee scheme being made by the COL, it was apparent that the impeachment value of the two arrest videos showing nothing needing exemption on them would not change the ultimate opinion and order, given the ongoing bias of the court which would ignore court precedent as regards limited discovery in FOIA cases and only against the plaintiff.

The COL's motion would say that their fee calculations were proper throughout the responses, even supplying affidavits from the police captain that claimed the amount of time he spent redacting the three footages, including two that had no exemptions (one that even claimed no exemptions, but over 8 hours to redact) was in actuality an underestimation. ROTTA's request continued to be overestimated in scope, despite ROTTA's consistent clarification throughout the two years that he was only interested in BWC footage of the arresting acts, not phone calls part of a larger investigation.

ROTTA would provide the LPD FOIA policy covering early 2024 that said in relevant part that "the fee schedule utilized by the LPD shall be the schedule adopted by the Ludington City Council and shall (sic) uniformly applied to all requesters." (AA-8 cross motion, exhibit) indicating the $25 per video scheme of count one was unlawful and amounted to intentional public extortion.

ROTTA would argue that the fees were not in accordance with FOIA law, and like he was practically forced to at each stage of the process, remind the court of various improprieties and

appearances of same. (AA-8 cross motion, argument 5). The argument compiled the actions of the compromised court up to that point and added two violations of court rules made in her unilateral scheduling order about motion hearings which worked greatly against expediency by factors greater than two.

At the summary disposition motion hearing on 1-30-2025 (AA-9 1-30-25 hearing transcript), the COL would argue that their policy was proper, that the extraneous material they added to each request for arrest footage on BWCs was properly added to the response and required 3 minutes of edit time for each minute at the very least.

ROTTA would argue in depth about why the fees were unlawful and the actions of COL officers were fraudulent in many ways and the COL acted in bad faith throughout. He would argue that the excessive fees for separating out exempt information from what were two arrests that had nothing to exempt out were unfounded and nonsensical.

ROTTA would analogize that editing out a rated G movie that you've already seen for perusal by children would generally not require any effort, but editing an X-rated movie you've never seen before for perusal by kids would probably take a while. In the first and third arrest incidents, those who lived that movie would know that there wasn't inappropriate content (exemptions) therein. In the second, ROTTA understood that the movie would take place in a private place and could be fully redacted for video, while the two LPD officers who were there that day would know whether there was anything in the audio that may have been inappropriate (exempt).

ROTTA's goal all along has been to make it as easy as possible for the COL to respond to his request for arrest BWC footage; at every turn, the COL has did their best to make things as hard as possible by ignoring the terms of the request, as if their goal was to get money illicitly.

The trial court judge would indicate after the arguments were made that she wanted to review the records in camera prior to making a judgment, in the meantime she would take it under advisement. The judge would ask the COL for the records that they had along with ROTTA's two videos they received through discovery and when she finally got through reviewing the records, she would "notify the parties in writing what the next steps are." (AA-9- transcript p. 32, line 12).

The register of actions reflects what the next steps were. Ten months later, on 11-6-25, she would give the parties her final opinion and order (AA-10, final order). The document speaks for itself, doesn't rely on much for law and precedent, but it found that many BWC records never requested were responsive to ROTTA's requests and all were reasonably charged at the rate of 3 minutes redacting for every minute of footage without referencing anything other than the COL's claim that was the rate that was reasonable for them in all cases, even when nothing needs to be separated out. It concluded that the city had met its burden of proof on all counts.

The COL on its own volition would provide the BWC video of the outdoor arrest that lasted under three minutes to ROTTA in March 2024. While this video would vindicate ROTTA's assertion that there was nothing that needed to be exempted on the video, just like the security footage showed, this would not be reflected in the eventual order that claimed ROTTA would still need to pony up $108 for the three-minute video of the outdoor arrest of the man, as requested.

The day before she signed the final order, 11-5-25, the trial judge would sign an order of disqualification for herself (AA-11, DQ order) for a high-profile case involving a local developer suing the COL. She would check the box that indicated she or her spouse was an officer of one of the parties; neither were working for the developer, but one was an officer on the COL. The day before she would rule on a 19-month-old case where expedition was required and where her spouse was an officer of the COL, but not deemed to be disqualifying unlike it had been for seven other prior cases involving ROTTA and the COL, she disqualified herself on that principle for another lawsuit against the COL.

The unprincipled actions and opinion and order following the three unprincipled FOIA responses would lead ROTTA to necessarily file this action with the court of appeals seeking justice, accountability of the courts, and reasonable fees for information requests.

                                                 LAW AND ARGUMENT

                                                STANDARD OF REVIEW

The court in Herald Co Inc v Eastern Michigan University Board of Regents, 475 Mich 463 (2006) clarified the standard of review to be seen in FOIA cases back before FOIA statutory amendments that allowed fee challenges for FOIA responses. Even so, they seem to apply for FOIA cases not necessarily seeking disclosure, but seeking disclosure at a lawful cost, and this case in particular:

"First, we continue to hold that legal determinations are reviewed under a de novo standard. Second, we also hold that the clear error standard of review is appropriate in FOIA cases where a party challenges the underlying facts that support the trial court’s decision. In that case, the appellate court must defer to the trial court’s view of the facts unless the appellate court is left with the definite and firm conviction that a mistake has been made by the trial court. Finally, when an appellate court reviews a decision committed to the trial court’s discretion . . . we hold that the appellate court must review the discretionary determination for an abuse of discretion and cannot disturb the trial court’s decision unless it falls outside the principled range of outcomes."

                                                        ARGUMENTS

I. The FOIA does allow for charging fees for separating exempt material out from FOIA responses, but the public body must claim such exemptions, usually explain in detail why they must be separated out, and only charge for costs that would actually occur for such separation.

Before cost estimation worksheets were first required by law a dozen years ago, FOIA has allowed the public body to charge fees for FOIA request as acknowledged in Tallman v Cheboygan Area Sch, 183 Mich App 123, 130; 454 NW2d 171 (1990): “The FOIA clearly

provides a method for determining the charge for records. It is incumbent on a public body, if it chooses to exercise its legislatively granted right to charge a fee for providing a copy of a public record, to comply with the legislative directive on how to charge. The statute contemplates only a reimbursement to the public body for the cost incurred in honoring a given request—nothing more."

MCL 15.234 establishes the 'rules' a public body must follow in order to charge fees and is the standard yardstick for figuring out what fees are proper and what isn't. The Tallman court went further than that acknowledging that FOIA reimbursements to the public body should not be anything more than the cost to produce them, it went further in saying that such behavior cannot be by the public body's whimsy: "A public body is not at liberty to simply ‘choose’ how much it will charge for records.”

The first count in ROTTA's original complaint shows that the fees charged were chosen whimsically and in no way complied with Michigan's legislative directives. Nothing in MCL 15.234 allows a public body to charge $25 for any police video, and in this case, they indicated a short video of 34 seconds documenting a phone call on a BWC cost the same as a 36-minute BWC footage documenting something that was also never requested: $25.

That fixed $25 charge does not meet any of the permissible fees noted in MCL 15. 234(1) which makes fees "limited to actual mailing costs, and to the actual incremental cost of duplication or publication including labor, the cost of search, examination, review, and the deletion and separation of exempt from nonexempt information." The videos claimed responsive, most of which were noncompliant with the request as indicated, came with no rationale then or since as to what allowable fees were consistent with the $25 price tag.

The COL claims this was a simple error, but as we shall explore further, it was fraud and an intentional act of public extortion as they had to create a new, special form that was supposed to justify their $25 per video charge, a form which had never been approved by the COL council. Additionally, to this $225 charge for 9 videos they indicated that they needed 15 minutes to separate exempt materials out.

After the FOIAC's crime was caught and documented by the MCSO, the amended FOIA response was crafted, adding six more videos that were surplusage to the request made for BWC and in-car camera footage associated with the arrest of a man. The MCSO's video showed that the entry of police units on to the property, the totally outdoor arrest of the man, and the loading of the man into the patrol car was about 8 minutes with nothing exempt under the FOIA indicated. Movements of the LPD unit with the active BWC who made the arrest were effectively monitored throughout the MCSO BWC footage. The LPD unit involved could easily confirm that assessment that there was nothing to exempt concerning the arresting act.

Thus, it's unclear where the separation costs would apply even for 15 minutes as indicated in the first response, and it's ridiculous to think that the time for separation of non-exempt material climbed up to over 8 hours for the amended response, establishing a newly established fee scheme never invoked for the 19 times prior to this request BWC was provided.

While not legally binding to this court, Attorney General Opinion #6923 established after Tallman was drafted in order to address three aspects of FOIA fees and offered this as regarded one of those:

"... a public body may establish a fee in advance of compiling the records responsive to a request under the Freedom of Information Act so long as the fee represents the actual cost of responding to the request based on prior experience and it is calculated in accordance with section 4 of the Freedom of Information Act." (emphasis added)

Most definitely in the two disparate fee responses to the first request, the fee does not represent the actual cost of responding to the request based on prior experience. If it had, the 19 other responses for BWC footage that were free before that (several of those being more expansive than this request) would indicate there would be no charge for this one barring some policy change adopted by the COL council.

The LPD policy makes clear that they follow the COL FOIA policy in effect at the time. That policy did not include a $25 per video clause or the fanciful notion that every police video, even if known to be fully non-exempt from disclosure from the start, would require three minutes of labor for separating non-existent exempt material from each minute of video.

With acknowledgment of the Tallman court, AGO #6923 continues with: "A public body may not establish an arbitrary fee that is calculated in a manner that is inconsistent with the FOIA." Both of the fee schemes used for the first FOIA responses were indeed arbitrary and calculated in a manner not envisioned by any section of MCL 15.234; they were unlawful fees from the start and designed against transparency by putting up an unlawful paywall which is intolerable under the FOIA's declared policy declaring the public is "entitled to full and complete information regarding the affairs of government and the official acts of those who represent them as public officials and public employees, consistent with this act". MCL 15.231(2). Both fees were inconsistent with all portions of MCL 15.234 and thus inconsistent with the FOIA. "The FOIA does not preclude a public body from establishing a fee in advance of compiling the records responsive to a request so long as the fee represents the actual cost of responding to the request based on prior experience and it is calculated in accordance with section 4 of the act." AGO #6923, emphasis added.

The initial FOIA response would claim no exemptions were among the BWC footage, perhaps an oversight on their part, but more likely an admission that the footage of the outdoor arrest had nothing allowable by FOIA to redact out. When they added exemptions for the second response, the only one that might have applied to the BWC footage requested was the invasion of privacy exemption MCL 15.243(1)(b)(iii), which was known not to apply because of the corresponding MCSO BWC video. At this point in the litigation, the COL has never claimed the nature of the use of this exemption as it applies to the outdoor arrest of the man captured on film, and as they have the burden of proof in such cases, the reason is obvious that there is nothing to exempt in the requested footage.

For the second FOIA request in the third count, more specifically asking only for footage corresponding with the arresting of two individuals, the COL and their FOIAC chose their second 3:1 fee scheme to erect paywalls and threw in large surplusage of videos that were unresponsive to the request. ROTTA made it known early and often that the indoor arrest of two people is expected to have no video throughout the action indoors, and as of this point, the COL has failed to say why this would not make the response easy as they would only need to be concerned with what was on the audio of the arrest; they have yet to claim anything said was exempt and nothing on the associated police report indicates otherwise.

At this point it should also be noted that FOIA exemptions are permissive in nature. In effect, a public body is not mandated to take out exemptions from any public record, as MCL 15.243(1) explicitly states: "A public body may exempt from disclosure as a public record under this act any of the following...". Then begins a list of all possible exemptions. The word "may" as used in this case has regularly been defined as to be discretionary, a public body is under no duty to remove exemptions, but at their discretion they may.

Thus, when a public body says it needs to take over two full days of work for a police captain to separate out exemptions and there exists no obvious public benefit in doing anything beyond darkening the video of indoor arrests and releasing audio where the COL does not even work to establish one reason why the audio might be partially exempt. The problem for the COL and LPD is that the audio would show that their officers arrested someone absent any reasonable cause just for failing to tell them her name. Nobody in their right mind would spend $900 in order to listen to 15 minutes of audio that would likely be unlawfully redacted to cover up more than what might be claimed exempt.

The last response, asking for over $100 to separate unclaimed exemptions out of a three-minute totally non-exempt video, finally given to ROTTA in early 2025, continues to show the abuse of the second fee scheme, where footage was increased by over a factor of ten and each minute of footage was three minutes of a police captain's time, when that police captain was there and knew nothing was exempt in the arrest BWC footage.

II. The COL operated in bad faith throughout, broadening FOIA responses, inventing unlawful fee schemes, and creating cost estimation worksheets that subjected those involved to credible charges of public extortion.

ROTTA is compelled to remind this court of what public extortion is and why it explains the bad faith conduct that the COL began with their response of 2-13-2024 and their introduction of an unlawful form put forth by the COL FOIAC as legitimate, and their acceptance of ROTTA's

FOIA deposit (and subsequent retaining of that deposit despite attempts to have it refunded) fulfilling the elements of intentional public extortion by the FOIAC.

MCL 750.214 states simply (for a law) that: "Any person who shall willfully and corruptly demand and receive from another for performing any service, or any official duty, for which the fee or compensation is established by law, any greater fee or compensation than is allowed or provided for the same... shall be guilty of a misdemeanor."

The action of crafting a cost estimation worksheet that violated MCL 15.234 and was in direct conflict with the lawfully established fee structures in the COL's FOIA policy was intentionally done by the FOIAC and/or LPD police chief in order to willfully and corruptly demand $25 per police video in the original response. The acceptance of the deposit money given over the next day in order to pay the ransom, had them receive a greater fee than is allowed for by law.

While it may have been beyond the trial court's purview in a FOIA fee case to conduct a review of criminal activity, and definitely this court's purview, the actions are definitely consistent with acting in bad faith in the realm of responding to a FOIA request. That bad faith was doubled when they doubled the height of the paywall by indicating that the exemption redaction time would go from 15 minutes to over 8 hours for the responsive records. While ROTTA would clarify what he wanted when he asked for BWC footage of a man's arrest over the course of the last two years, the COL would continue to push 13 non-responsive BWC videos on him, and the trial court would not drop the surplusage in its evaluation, while accepting the alternative scheme for fees as if it was reasonable.

That second fee scheme is especially pernicious to the FOIA. As ROTTA would note in the 1-30-25, if you asked the COL for a video from one of their LPD's front lobby security cameras for one day, a place where there is no expectation of privacy by definition, the LPD could and would claim that it would take a police captain three full 24 hour days to separate out exempt information, even when the lobby was closed for two-thirds of that day. The cost would nearly be $4000 just to separate out no exempt information.

That, of course, is ridiculous and unheard of, but the COL argues for this in their briefs and the trial court agrees with it effectively in their final order. The April 8, 2024 rewrite of the City's

FOIA policy by the FOIAC effectively doubled it in volume and made such absurdity within the law as the FOIAC would be given a great amount of discretionary power, and work against transparency with paywalls.

It's worth repeating, as it was done with all three requests here and is assuredly being used to block other requests for specific BWC footage, that the COL has no power to broaden the scope of a FOIA request, under the FOIA, in order to either make tons of money with their fee scheme or block requests due to an unlawful paywall. ROTTA would clarify what his requests were for before the administrative appeals, at the meetings where the appeals were held, and in multiple hearings and briefs in the trial court, but in every case, the FOIAC and appellant bodies would not accept that he knew what he wanted in his request!

This is seen in the trial court's final order for all three responses. Rather than accept the only incident mentioned in the actual first FOIA request, the arrest of a man, the court concludes that the greater incident never mentioned, an allegation of domestic violence against the arrested man, warranted the inclusion of 13 additional videos that would have exempt material therein, unlike the BWC footage of the arrest. ROTTA would clarify his request repeatedly, but colluding officials would not honor his requests.

The trial court would even allow the COL to define my second request saying in her opinion: "The plain language of the request specifically requested body cam videos of the arrest of the two individuals. The wording of the request is subject to interpretation. The defendant gave it an expansive interpretation and included all video "associated" with the arrest... it is a reasonable interpretation..."

This same judge admitted on 1-30-2025 on p. 7 of the transcript that she viewed six-hour videos in criminal cases where the only point of interest is in twelve minutes and the rest is irrelevant before asking whether their estimates are based on the total run time of the video or just the part of interest. The COL would reply that it would be a reasonable estimation based on training and experience, before mentioning and defending that the 3:1 ratio was determined to be best used for all such requests.

Even if the six-hour video contains only three minutes of material responsive to the request totally non-exempt and the trained and experienced police captain knows that, and charges for 18 hours of redaction when none are necessary!? "A public body may establish a fee in advance of compiling the records responsive to a request under the Freedom of Information Act so long as the fee represents the actual cost of responding to the request based on prior experience and it is calculated in accordance with section 4 of the Freedom of Information Act. In making such a projection the public body must proceed in good faith predicated on the number of records involved and the permissible statutory charges that will be sought. AGO #6923

None of the three responses indicate the COL acted in good faith towards the public policy of transparency that the FOIA trumpets, nor in good faith towards MCL 15.234, violating the fee provisions repeatedly with two unlawful fee schemes.

III. Public confidence in the judiciary is eroded by irresponsible or improper conduct by judges. A judge must avoid all impropriety and appearance of impropriety. A judge should raise the issue of disqualification whenever the judge has cause to believe that grounds for disqualification may exist. The trial court judge's bias and unfaithfulness to the rule of law throughout the case, always against ROTTA and for her former long-term employer and employer of her husband at all turns indicates any remand without strict guidance would lead to another unprincipled judgment.

ROTTA fully understands that this court is not the proper venue to report the sundry improprieties experienced throughout the 19 months of what was supposed to be an expedited FOIA case, and much of the energy ROTTA has had to use to prosecute four FOIA fee violations by the COL that were casually dismissed in the judge's final order.

Such is the realm of the Judicial Tenure Commission, so in this argument the appellant implores the court to consider the trial court's conduct as delineated in the introduction and statement of

facts as a whole and understand that she openly violated multiple court rules to work against the expediency mandated by law for such cases, how she handled nonproportional discovery for the defendant in a FOIA case where there was nothing in possession of the plaintiff that would apply to the fee issue in front of the court, how she took almost ten months after her in camera review to make a final ruling, basing that final ruling on records that the court was repeatedly told in claims, briefs and in person by the plaintiff that were unresponsive to the request.

Nor did she ever address the propriety of having an unprincipled fee scheme that has never been accepted by any prior court, and should never be in the future, as shown in the previous arguments here. The seven times she has recused herself before this case in ROTTA's ongoing battle against the COL's non-transparency, ROTTA has never had any issue with the trial court judge, even when the ruling came out against him. Each of those times, the court dealt with the case in a manner that facilitated expediency, scheduling matters immediately with both parties and having matters resolved through summary disposition often under three months, cases more complicated than this.

When one looks through the scheduling order for this case, an order that was never received by ROTTA until three months after it went into effect, one sees that discovery was nearly four months long without limitation, and this was exploited by the COL while the trial court judge would enforce nonproportional discovery onto the plaintiff of a FOIA (fee) case. This seems to be unprecedented, as neither the court or the COL could answer where this has ever been allowed before, the plaintiff providing plenty of precedent to the contrary.

The scheduling order worked against expediency in every situation, extending minimal times mentioned in court rules by unwarranted amounts for what was the relatively easy exercise of a FOIA fee case. The 28 day period minimum mentioned in MCR 2.116(B)(2) and 21 day period mentioned in MCR 2.116(G)(1)(a)(i) was extended to 60 days for each. The seven day period in MCR 2.116(G)(1)(a)(ii) was extended to 21 days

The judge was inconsistent in disqualification actions. She would claim that her husband serving as an officer on the COL was a disqualifier for sitting on the 51st Circuit Court case ASR Real Estate v. COL on 11-5-25, the day before she submitted a final opinion on this case that quite

simply vindicated everything the COL did in the course of this dispute, even ignoring the outright fraud (and public extortion) of the first response that asked for $25 a video, not even recognizing it as a bad faith gesture.

Meanwhile, her husband was a material witness to a fraudulent trespassing charge the COL leveled against ROTTA in what appears to be retaliatory action with political motives when ROTTA filed this case, during the DQ motion hearing for this case, and he only dropped out of being a material witness when the district court threw out the baseless charge about a month before her final order. The court would never disclose that fact even when challenged to by ROTTA in his brief for summary disposition. Additionally, she would never notify Terry Grams during his lawsuit with the COL that her husband was an officer in the COL department closest affiliated with the issue at hand.

The trial court judge's disregarding these acts showing her disregard towards the ends of justice for the parties in her cases can be expanded further, but ROTTA would hope that this court would have as little confidence in the trial court judge's judgments of propriety than he does after what has happened over the last two years. Judicial conduct like this severely erodes any confidence the people of Mason County have in their judiciary, and is a disservice to the profession when it is not noticed by their peers as transgressions.

Again, while ROTTA asks the court to weigh these actions by the trial court judge in making their decision in this case whether to affirm the fee scheme without merit under MCL 15.234 deemed appropriate in the trial court, we acknowledge they have no disciplinary power even should this court find the actions egregious and unprincipled. ROTTA just hopes that they can provide a remedy that would give the trial court as little discretionary power as possible, should they reverse in part or fully.

EDITOR'S NOTE:  The Appellant Brief had several other parts not included here, the introduction the facts, and the matters of law being the gist of the appeal.