Privileged Ludington Officials Conspiring Secretly Over Destroyed Records

[XLFD]

Our loyal readers should know by now that the City of Ludington (COL) received a FOIA (Freedom of Information Act) request from this reporter for police body cam footage of an accident where the LPD responding officer allegedly let a drunk friend off of any charges.  The response set a high ransom on the records which was appealed to the city council, which upheld the price absent any compelling argument.  The ransom was paid, and it was said that the records would be ready in about two weeks.

The problem was, Police Chief Chris Jones, nicknamed Thief Jones, had changed the deletion date of the footage from one year (the default) to one month following immediately after the publication of an article here on the officer's alleged misconduct.  The footage was destroyed 10 days before the council decided the price was right on the footage, 24 days before the COL accepted my payment and said they would have the record ready in short order.  In this article, we showed the timeline of what happened and delineated the civil penalties that the COL would be liable for under FOIA and the potential criminal penalties for the crimes of destruction of public records, fraud using false pretensions, and the public extortion they have grown accustomed to using in order to hide public records behind an illegal paywall.  

We additionally noted that the presentation of a release of claims agreement to this reporter from city administrators was contrary to the city charter's assignment of that authority solely to the city council.  Respectable city councils would discipline such a breakdown of city law by their hired help, but that's unlikely to happen here, almost as unlikely as the officer letting his inebriated friend go home after causing a major accident getting any meaningful sanction from Thief Jones.  Now that you have been refreshed with the background, we enter a new realm of COL depravity, the cover-up of the records showing the iniquity behind these crimes.

We related that we had did a follow-up FOIA request here for nine additional items as a supplement to find out what went wrong in the background and the complicity involved in this sordid affair.  We finally received various communications between city officers and found a lot of dark areas, redactions made to cover up what was stated to fall under the sole exemption of being within the attorney-client privilege.  The rationale for using this privilege in the email correspondence is that a city official was seeking or receiving legal advice from a city attorney.  

Applying that privilege isn't automatic; it must be claimed and the privilege can be waived involuntarily in multiple ways.  The Fahey Schultz law firm is a respected specialist in municipal law and has put out a primer out on the privilege as it relates to municipalities and their legal teams.  In response to my supplemental FOIA request, I was given an email chain that was almost totally redacted in the body of the email.  These were not proper exemptions when we look at them and apply the principles of what determines the AC privilege; here's one in that chain:

This is an email from the police chief to City Manager Kaitlyn Aldrich and two city attorneys.  Any privilege suggested by having the two attorneys being co-recipients, is waived by having a third party on the reception end.  "One of the most common ways to waive the privilege is to have a third party present at the time of the communication." according to Fahey Schultz, so when the chief includes Aldrich as the primary recipient, the privilege sought is automatically waived and the redaction is erroneously applied.  Another email shows a similar concept:

Here Aldrich sends an email to two attorneys and includes Chief Jones as a CC.  However, we see that her actual target is Jones as she indicates that with the word "Chief" to start her otherwise redacted message.  We see that there seems to be an intent here to cover up Aldrich's message to Jones by including two attorneys as recipients in the email and thereby allowing the use of AC privilege later on to cover up the message between two non-attorneys obviously not dispensing confidential legal advice between each other.  

This then appears to have been a rather insidious practice they used that signifies that the two terrible actors in the office of the city manager and police chief would try to cover up their emails by including city attorneys not acting in any meaningful legal role as primary recipients.  Professionally acting attorneys actually should reveal "confidences and secrets to the extent reasonably necessary to rectify the consequences of a client’s illegal or fraudulent act in the furtherance of which the attorney’s services have been used."  Illegal destruction of public records and fraud using false pretenses show that the privilege was waived here.  It's a terrible look for the Mika Myers firm and the two city officials to cover-up their lawbreaking efforts by claiming privilege communications in this case.

Lastly, the majority of redacted emails in the collection are of the form seen above, where you have one attorney send a message to another attorney, with Aldrich and Thief Jones in the CC line.  The "privilege essentially makes communications between a client and their attorney private."  This is a communication effectively between two attorneys; there is no recognized attorney-attorney privilege, nor is any claimed here.  An attorney seeking legal advice from another attorney, or just communicating with them, has no associated privilege.  Nor were they trying to keep their communication confidential, as they copied it over to two city officials.  Claiming any privilege on these communications fail on these basic grounds.  

EPILOGUE:

I was sent an offer of $500 to settle any potential claims against the COL for violating the FOIA by destroying public records duly requested and paid for weeks after they had been illegally destroyed at 2:16 PM on March 11th.  The "release of claims" contract/agreement was sent to me at that time as well.  As you can see, Aldrich sent a letter to the city council and other elected officials two hours later at 4:09 PM.  Councilor Winczewski would send back a text saying that she wouldn't have offered any money, but no other request-compliant record was received, showing that nobody else in the council acknowledged or agreed with the contract placed in their in-box, a contract they never approved of as is their duty according to the city charter.

Such a contract could have been presented to council and considered at the March 9th meeting, but City Manager Aldrich decided to spend an awful lot on legal fees unilaterally and then circumvent such approval by council of a non-budgeted expense, effectively giving the COL's most outspoken critic a significant amount of money.   The record shows that this was the first instance of the council hearing about this criminal act of destroying public records, it would have likely been snuck under their purview and the public's knowledge if administrators weren't fairly certain that this reporter would be bringing this to their attention at future meetings.  

Now she is trying to conceal the breadth of her disloyalty to the city council by covering up her conspiracy with the police thief and the shaky legal team that a saner city council dismissed before.  These illegal redactions will be coming in front of them at the council meeting coming up on April 13th as a FOIA appeal.  Will they take that opportunity to show the public that they are willing to sublimate more of their authority to administrators to keep the public and themselves in the dark as to the extent of the conspiracy to destroy public records, unlawfully give out what can best be said is hush-money, and illegally redact public records without any recognized privilege?  Or will they do what they do best: nothing.