The City’s New Tactic for Hiding Records (While Still Ignoring the FOIA Statute)

I haven’t posted here or on the Sunshine page for a while because I’ve been super busy, but I wanted to drop in for a moment to let you know that the city hasn’t changed one bit when it comes to complying with the FOIA statute. This is despite the city manager’s insistence that the city learned from my FOIA lawsuit and is supposedly super committed to transparency. (Frankly, if you ever really believed that I have a bridge that I’d like to sell to you.)

I sent a nine-part FOIA request to the city on June 14th. Most of the requests related to the city’s attempt to hide the identity of “a charitable organization or business” (the city manager’s description, not mine) that paid $10,000 to the law firm of Howard & Howard for attorney Mark Peyser’s work on behalf of Clarkston relating to my FOIA lawsuit. Clarkston city officials knew who the mystery entity was, but they were apparently under the impression that they had the right to keep the identity of that payor a secret. In essence, they acted as though Clarkston is a privately owned business and they are the private owners who owe us nothing – as opposed to recognizing their proper and much lower place as elected and appointed officials within a governmental entity that is completely responsible to every Clarkston taxpayer and constituent.

To refresh your recollection regarding what happened, the city concocted a plan for a mystery donor to pay Peyser and Howard & Howard directly in an off-the-books transaction. The purpose of this irregular procedure was to avoid creating a public record for you to examine and to allow our government officials to keep the entire chain of events an unsavory secret from the taxpayers. That no one within Clarkston government recognized how grossly improper it was to arrange for a secret payment from an unidentified benefactor for the city’s financial obligation is simply shocking. Not only did these actions blow the city’s newly minted commitment to transparency to smithereens, it also created the impression that the city was potentially hiding a payment from a local business made in exchange for past (or future) favorable treatment from Clarkston government.

Peyser is the Howard & Howard attorney who represented the city at mediation in my FOIA case. This was because our city attorney told the city council and the public that he could not represent Clarkston at mediation due to a “conflict.” That conflict was apparently the need for our city attorney to bring a separate attorney to personally represent him at the mediation and to negotiate how much the city attorney’s malpractice carrier was going to chip in to pay toward the final settlement in my FOIA lawsuit – a lawsuit that the city attorney was responsible for instigating and prolonging. (At the conclusion of the case, the city attorney’s malpractice carrier and the city each paid the same amount, with the balance paid by the the city’s insurer, the Michigan Municipal League Liability and Property Pool [MMLLPP].)

After I made an issue of the mysterious $10,000 payment on this website, and after the city heard from other taxpayers who also didn’t appreciate this type of government (mis)conduct, the city manager was finally forced to disclose that the secret $10,000 payment was made by the city’s insurer, the MMLLPP. Surely the city manager knew that the MMLLPP was not a charity as the words were coming out of his mouth. Suggesting that the mystery donor might be a charity was a false statement that was expressly intended to mislead taxpayers about the origin of the secret payment.

The city was required by law to respond to my June 14th FOIA request within five business days after receipt, and the FOIA statute is quite clear about what that response must include. Among other things, the city was obligated to grant my request, deny my request, grant my request in part and deny my request in part, or notify me that the city was extending the time to respond by ten additional business days with an explanation why more time was needed. If the city chose to extend its time to respond by ten business days, then at the end of that additional time, the city was obligated to grant my request, deny my request, or grant my request in part and deny my request in part.

The city could also have chosen to request a deposit if it determined that responding to my request would result in more than $50 in labor costs. To accomplish that, the city simply needed to prepare the required response plus an invoice that estimated the time and cost to respond. After that, they wouldn’t have had to lift a finger to process my request until I sent them a check for 50% of their estimated costs. Sending a request for deposit not only protects the city from spending time responding to FOIA requests that they may never be paid for, it also protects the person making the request by permitting him/her to discuss the costs with the public body or to narrow the FOIA request so that it’s less expensive for both the city and the FOIA requester.

Since the city apparently decided to complete the response rather than send a request for deposit, it had additional obligations. For example, if some of the requested records didn’t exist, then the city was required to certify their nonexistence. If any information was removed, whether by pulling out pages entirely or using a marker or some other method to black information out (which is known as “redacting”), then the city was required to explain which portion of the FOIA statute authorized it to remove the information.

What do you think the city did?

Absolutely none of these things.

I received an email on June 15th from the clerk (who is also the City’s FOIA Coordinator) acknowledging that the city had received my emailed FOIA request. While polite, that email wasn’t worth the powder to blow it to Hades under the FOIA statute because the statute specifically tells the city how it should have responded – and a “we received your FOIA request” email doesn’t qualify. (The FOIA statute isn’t all that long, and it’s fairly straightforward. But when city officials and employees don’t bother to read it, or if they are relying on bad advice regarding their legal obligations, then they expose Clarkston to lawsuits.)

On July 13th, the clerk emailed me and said that she was going to take even more time to respond (without asking me if that would be OK as required by the FOIA statute), and she said that she would email the records that I requested on July 15th. On July 15th, I received an email enclosing a bill for $777.25 – and no records. The invoice included charges for a non-existent employee making $17.00 per hour who supposedly spent 41 hours looking for documents and 3.75 hours copying them (even though that was impossible, since no city employee makes $17.00 per hour).

Now you may have read a story or two about how public bodies jack up their requested FOIA fees in an attempt to make a FOIA requester go away. And I’m pretty sure that’s what happened here. I also believe that someone (or more than one someone) doesn’t want the records released and is using the invoice to discourage me from obtaining the records – and they really don’t want me sharing any of those records with you.

On August 2nd, I sent a long email to the clerk explaining what was required in a response, and I even gave her the sections in the FOIA statute so she could look them up for herself. I asked her to properly respond to my June 14th request (so that I would know which of the nine requests the city had records for), to give me an idea of the costs associated with each of the requests so I wouldn’t have to play a game with the city and send nine separate requests to figure that out, and to correct the deficiencies in the invoice. Since the clerk acts as Clarkston’s FOIA Coordinator, she should already have been aware of everything that I mentioned in my email – if not, then the city manager needs to send her to FOIA training. Until now, I’ve always found the clerk to be very nice, and she usually does try to be helpful. But if she has never been taught how to properly handle FOIA requests, the responsibility for that glaring omission properly rests on the city manager’s shoulders. Perhaps his “commitment to transparency” should include staff training in . . . transparency? Just a thought.

What do you think the clerk did in response to my follow up email?

Did you guess . . . that she did nothing?

If so, you would be correct! She ignored that email entirely, and to this day, not only has she never sent the legally required response to my June 14th FOIA request, she’s also never corrected the invoice.

I sent a second FOIA request on August 3rd asking for copies of time sheets or time logs to support the number of hours that the city claimed were accrued to fulfill my June 14th FOIA request, and I asked for a record that supports charging a $17.00 per hour labor rate (since the FOIA statute requires that the public body charge the rate of the least paid employee capable of doing the work, whether or not that person is available or actually performs the work). This is information that the city should have immediately had available. Time records documenting the hours spent fulfilling a FOIA request are made at the time the work is done, not after the fact, and the city already knows the labor rate of the least paid Clarkston employee capable of making copies and collecting records (hint: it’s $14.42/hour, based on the city manager’s budget presentation earlier this year, not $17.00 per hour).

What do think the city did with that FOIA request?

Absolutely none of the things it was required to do.

Failing to respond to any FOIA request within five business days is a statutory denial, and a lawsuit can be filed right away. If my only interest was to run to court again, the city gave me the perfect opportunity to file two separate lawsuits for its failure to provide the required response to the June 14th and August 3rd FOIA requests. (Still think they learned anything from the first FOIA lawsuit?)

What I chose to do instead was to file an administrative appeal with the city for the ridiculous invoice and the statutory denials of the June 14th and August 3rd FOIA requests. We may still end up in court, but at least I’m giving the city a second opportunity to fix things. Unfortunately, if they’re getting FOIA advice from the same city attorney who was responsible for causing the first FOIA lawsuit and who had to ask his malpractice carrier(!!) to help pay my legal fees after my FOIA lawsuit ended, I don’t have much confidence that they will fix it. After all, this is the same city attorney who thought that he was entitled to create and receive Clarkston records, hide them in his off-site office, and then claim that they weren’t subject to the FOIA; who told the city council that the insurer would pay for all of my attorneys’ fees despite knowing that the insurer had objected in writing to paying my attorneys’ fees after I filed the lawsuit; and who also claimed that it was up to him to decide when something “became” a public record that the public could see. (I’m going to go out on a limb here and guess that anything that the city attorney didn’t want you to know about would never “become” a public record.) Not only is the city attorney’s stamp of approval unnecessary to determine whether a record is a public record, there isn’t any “becoming” requirement in the FOIA statute. (The Michigan Supreme Court agreed with me, and it held that the records the city attorney prepares, uses, retains, or possesses concerning Clarkston business are public records.)

I sent the appeal to the clerk and the city manager and asked them to acknowledge receipt.

Do you think they acknowledged receipt?

Of course not, silly. I pay their salaries, but they don’t think they are required to click reply and simply acknowledge that the appeal was received. The closest thing to a “response” that I received was an email from the clerk a few days later telling me that she would respond to my August 3rd request for time records and a record supporting the $17.00 labor rate, records that should have been available on July 15th (the day that the invoice was prepared and sent) . . . but she wouldn’t be able to get around to it until September 8th.

You know, I think that the city council, the city manager, and the clerk should all be required to attend FOIA training. The Michigan Municipal League provides FOIA training, and if there’s a cost, perhaps the MMLLPP could chip in and pay for it. After all, they had $10,000 lying around for a secret payment to Mark Peyser that they weren’t required to make, and FOIA training isn’t that expensive. (I’ve personally trained lots and lots of coworkers, and most of them could run circles around our city clerk with regard to knowing how to properly and timely respond to a FOIA request.) Here’s another suggestion – perhaps someone in Clarkston government could, I don’t know, maybe just read the FOIA statute and do what they are required to do?

I’ve linked all of the documents in connection with my June 14th and August 3rd requests at the end of this post in case you’d like to read them. I’ve also provided a copy of the Michigan FOIA statute so that you can look up any of the citations that I mentioned in my correspondence to Clarkston and see for yourself just how screwed up their response was and why this appears to be a clumsy attempt to keep the records I asked for a secret.

Hey, speaking of secrets, did you know that the city is trying to keep you in the dark about some additional work that Peyser recently did? Take a look at Peyser’s regular invoice at pages 20-24 in the March 22, 2021 city council packet, linked here:

3-22-2021 council packet

You’ll note that the March 22nd city council packet includes all of the pages of Peyser’s invoice. The additional pages contain individual entries describing the date and type of legal services work that Peyser performed for Clarkston, as well as the number of hours and the total cost for each individual entry. This is a typical billing format for outside lawyers.

Now, take a look at the one-page “invoice” that the city recently posted at page 22 of the most recent August 23, 2021 city council packet, linked here:

8-23-2021 council packet

Apparently, you only get to know that Peyser gave the city “general corporate” advice – but you’re not entitled to know any of the details because the city excluded the additional page(s) that described exactly what work Peyser performed in exchange for our tax dollars. (And no, the city can’t argue that it’s privileged – Peyser has been practicing law for decades and knows how to write a billing narrative that isn’t privileged, just as every other firm lawyer who works with government entities and has been practicing for more than a minute knows how to do). I haven’t had the opportunity to listen to the August 23, 2021 city council meeting yet, but I’ve been told that this $595 charge related to my FOIA request. I guess that means that providing only part of Peyser’s bill in the city council packet is simply another attempt by the city manager to demonstrate his “commitment to transparency” to us. 😂 😂 😂

You really couldn’t make this stuff up if you tried. I feel sorry for people who recently bought homes in the city. I doubt that they are aware that their new digs come with the clown car that is our city government, a government filled with people who believe that they aren’t responsible to the taxpayers, who think that they don’t have to follow the law, and who believe that they are entitled to hide information from us. As an added “bonus” – because our elected officials have always appeared to be more interested in favoring one particular business owner over all others in the past – our once-beautiful little town has become nothing more than “a food court with a street running down the middle” to go along with all of that bad government (h/t to the commenters on the Clarkston News’ Facebook page for the quoted content).

Correspondence:

June 14, 2021 – FOIA request

June 15, 2021 – (Speagle) Request received

July 13, 2021 – (Speagle) Unilateral two-day extension, no consent

July 15, 2021 – (Speagle) Email enclosing invoice requesting excessive fees without a FOIA response

July 15, 2021 – (Speagle) Invoice requesting excessive fees

July 20, 2021 – (Speagle) ‘Friendly reminder’

August 2, 2021 – Email requesting a FOIA response and a corrected invoice

August 3, 2021 – FOIA request

August 10, 2021 – (Speagle) FOIA received

August 29, 2021 – FOIA appeals

September 1, 2021 – (Speagle) City will not respond until September 8th

Michigan FOIA statute

  • Where is the elected city council? Where is the representation of the public? Where is the concern for the intent and letter of the law, charter and ordinance? You hear nothing from city council members even when informed and questioned by a member of the public. Have you heard of any involvement at all in the community by a council member?
    The city manager writes the agenda for city council meetings, he writes the resolutions, he provides only the information that supports what he has written versus all sides so there can be an informed decision. They are no longer council meetings but instead city manager meetings where some of what has already been decided is presented.
    Spending continues to be in violation of law, charter and ordinance while the council, and most of the public, says nothing.

  • Susan-Thank you for your persistence. I, too, am hoping to gain clarification from listening to the 8/23/21 council meeting. Unfortunately, the meeting is not able to be heard due to an audio problem. It will be interesting to understand what caused the audio problem and whether the audio problem can be repaired and the corrected recording made available. I am wanting to listen to exactly what the Mayor said to me when I was seeking clarification regarding City expenditures during the consent agenda discussion. I believe the Mayor asked me to seek my answers by going to City Hall and asking, rather than asking my questions during the City Council meeting. I was seeking answers to expenditures that had not been approved by council prior to commitments or payment as required by Michigan law. Invoices related to these payments had not been included in the meeting packet, but the expenses were reflected in the financial report ending 7/31/21 for treasurer software purchase (greater than $2000) and insurance premiums paid in the tens of thousand of dollars spread over several accounts. Most of the questions I ask in council meetings are my attempt to inform council members who may not understand the City’s financial condition (and have not acted to resolve it) and may not understand Michigan budget law. Neither of these would be achieved by my asking the questions at City Hall where the City’s dire financial situation is understood and where the Michigan budget is acknowledged, but not necessarily followed. My public comments in the 9/13/21 council meeting will focus on these issues. The $595 Howard&Howard invoice in the 8/23/21 meeting packet did not mention Atty Peyser or your FOIA request. In response to my question the City Manager indicated the expense related to a Bisio FOIA request. I do not believe that Council had approved this expenditure prior to commitment and payment as required by Michigan law. The City Manager is permitted to make commitments for expenses up to $500 (or $1000 in case of emergency).