I linked to a copy of the email that I sent to the mayor and all members of the city council in a previous post, but I didn’t include the attachments. I’m not hiding anything; it was just a lot of stuff to read through. I think it’s important to share all the history at this point. Based on experience, I know that city officials will spin things to save face and try to justify their actions now that the lawsuit has been filed and served. Once you see the extensive back and forth communications between me and the city, it’s obvious the city is inexplicably and deliberately hiding records and city officials believe that it’s worth a lawsuit to keep it that way. The city attorney was copied on most of the correspondence, and the city’s own records show he has responsive records, so unless he’s advised the city that it has to comply with the law and city officials are ignoring him (unlikely), he’s approved this course of action and advised city officials they can violate state law. Wowza.
You might think it’s strange that the city would choose a path that will likely end up with them producing the records anyway and paying attorneys’ fees and costs, but they know that if a court is involved, they can delay producing the records until the lawsuit is over. After all, it took me five years to get them to cough up the records in the first lawsuit. What on earth do they think is worth hiding?
Honestly, I can only think of two reasons why they would do this. First, they are reckless and believe that violating the FOIA statute allows them to get even with me somehow. While I realize they don’t like me, are still annoyed that they lost the first FOIA lawsuit and hate my website because it’s critical of city government and brings to light things the city would prefer to keep hidden, this would be a really dumb reason for inviting a lawsuit. It’s like the expression describing resentment as similar to swallowing poison and expecting the other person to be hurt. Or holding onto anger as like grasping a hot coal with the intention of throwing it at someone else, burning only yourself. The city had a lot of fun playing games with the litigation process during the first lawsuit at the insurer’s expense, so perhaps they think that will happen again this time. (They might have another think coming about that, but I guess we’ll have to see how things play out.) Alternatively, they must really want to cover up things in their ostensible pursuit and investigation of the Millpond Inn Bed & Breakfast and are counting on the delay to keep them hidden for a longer period. Or perhaps both things are true.
I sent all the things I’ve linked below to the mayor and city council. I also copied the city manager, city attorney, city clerk, and the editor and the publisher of the Clarkston News. After all, if we’re going to litigate about secrets, then let’s do it in the sunshine. I specifically told the mayor and city council that I wasn’t filing an appeal and I intended to sue if the city didn’t provide the records. (I’d already tried an appeal to the council in the past, and surprise(!), they completely ignored it.) I told them that if they wanted to try to beat me to court and provide all the information before a lawsuit is filed, then they could avoid paying attorney’s fees and costs in addition to providing the records. It’s been well over a month, so it’s clear they’ve chosen the lawsuit route.
Here is everything I sent to and received from the city regarding the two requests that are the subject of my lawsuit. I’ve made comments about what is required. Ironically, much of what I’ve said is covered in the city’s own Procedures and Guidelines, linked here. I’m not commenting one way or the other on whether the city’s procedures and guidelines are compliant with the FOIA statute; I’m including a link to them to show you that the city published the procedures and guidelines on its website and knows what it’s supposed to do. If the city has misstated anything in the procedures and guidelines, the FOIA statute is the more important document, and you can find a copy of that here.
You can read the correspondence and decide for yourself who is in the right. Please keep in mind that a FOIA requester isn’t required to do any follow up whatsoever with a public body. If the public body’s response is late, incomplete, or fails to comply in any way with FOIA, the requester can file a lawsuit immediately. And, while you’re reading, please consider why the city would be motivated to hide these records.
Here is everything:
01-19-2023 First FOIA request. I asked for a copy of what had been referred to at a city council meeting as a “court-ordered special variance” for the Millpond Inn Bed & Breakfast; any communications between the city and the Millpond Inn for the last two years; and any communications within the city or between the city and any third party for the last two years concerning the Millpond Inn “in the possession of any Clarkston charter officer, elected official, appointed official, contracted official, employee, or the Office of the City Attorney.”
01-24-2023 – Clerk email acknowledging receipt. The city was required to respond to the request within five business days, or by 01-27-2023, because it gets an extra day when a request is sent electronically. That response must be a grant, denial, grant/denial in part, or an extension of time for up to ten additional business days. A receipt acknowledgement is polite, but it has no legal effect. There are litigious FOIA requesters who would have filed suit on Monday, 01-30-2023, the next business day, and they would be in the right because a failure to timely respond to a FOIA request is a legal denial under the statute.
02-02-2023 – Letter from the Law Office of Richard D. Bisio. My attorney sent a letter to the clerk regarding this request and two other simple requests I’d made for records regarding tree removal at a specific address and copies of signed electric vehicle charging contracts. He explained how to count time under the FOIA statute.
02-03-2023 – Email from the clerk to me responding to the request. The city attorney and city manager were copied on this email.
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- 02-03-2023 – FOIA response letter (attached to the clerk’s email). Setting aside the fact that the response was late, the letter claimed to grant my request as to “existing, non-exempt records in the possession of the City . . .” If there are existing records that are exempt, the city is required to say what they are and the reason why it is withholding them. (The only allowable reasons are found in the statute.) If a document is partially exempt, the city is required to produce the record with the exempt portions “blacked out,” or redacted, and it must explain what part of the FOIA statute allows it to exclude that information. For all requests that include any sort of a denial, the city’s response letter is required to advise a requester that they have a right to an administrative appeal (even though the city council will likely ignore an administrative appeal as they did mine) or file a lawsuit. The clerk provided two records and said that she found no correspondence between Clarkston and the owners of the Millpond Inn within the last two years, something that she may have thought was true, even though the Notice of Violation she did provide would have qualified as a responsive record (but the city has more records than that). When a public body tells a requester that there are no records, it is also required to provide a “certificate that the public record does not exist under the name given by the requester or by another name reasonably known to the public body.” The certificate doesn’t need to be something you can hang on a wall – saying “we determine and certify that the requested records do not exist” in the response letter is sufficient. She did not respond at all to the request for correspondence within the city or between the city and third parties about the Millpond Inn; that non-response is a legal denial. The city attorney and city manager were copied on this letter.
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- 10-28-2022 Notice of Violation directed to the Millpond Bed & Breakfast (attached to the clerk’s email). This was apparently part of the clerk’s effort to respond to the request for correspondence between the city and the Millpond Inn, even though the FOIA response letter stated that there was no correspondence between Clarkston and the Millpond Inn. I wrote about why I think this Notice is legally problematic for the city here.
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- 06-27-1995 – Michigan Court of Appeals Opinion in Kopietz v Clarkston Zoning Board (attached to the clerk’s email). This was one of two court of appeals opinions (in 1995 and 1997) involving the fight between the Kopietzes and the city over the Kopietzes’ attempts to get the city to approve the conversion of a funeral home into a bed and breakfast (now known as the Millpond Inn Bed & Breakfast). This court opinion was not responsive to my request for a “court-ordered special variance.” In both court of appeals opinions, the court only ordered that the Zoning Board of Appeals objectively and fairly consider the Kopietzes’ request under the criteria in the zoning ordinance and make its own decision.
02-03-2023 – Email from me to the clerk. I explained what was required if the request for correspondence between the city and the Millpond Inn was denied, but I also noted that the city’s own records proved that this couldn’t possibly be true (and I attached two records described below proving that point). Since the clerk said the response pertained to “existing, non-exempt records,” I asked if there were exempt records, and if so, what they were and why they were being withheld. I also asked her to conduct a more thorough search. The city attorney and city manager were copied on this email.
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- 12-01-2022 City attorney invoice (attached to my email). The invoice referenced a response from the Millpond Inn to the Notice of Violation, something the city didn’t provide.
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- 11-07-2022 Code enforcement officer invoice (attached to my email). The invoice refers to an email between the code enforcement officer and the clerk, as well as an email from the code enforcement officer to the city manager enclosing a letter she proposed be sent to the Millpond Inn. The city didn’t provide these records in its response.
02-04-2023 Second FOIA request. Because the city sent me a nonresponsive published court opinion in response to my first request for the “court-ordered special variance,” I sent a follow-up request. The city referenced an agreement between the city and the Millpond Inn at public meetings on multiple occasions. This request asks for records dated after the later 1997 court of appeals decision. I asked that the city search in the following places: the office of the city attorney (because he should have a copy of such a document in his litigation files, since he handled both the 1995 and 1997 court of appeals cases), the Zoning Board of Appeals (which the court ordered to make the determination about using the site for a bed and breakfast), and the Planning Commission (that may or may not have been involved). The city ignored this request.
02-06-2023 – Email from the clerk. The clerk advised that she’s working on the request, looking for the correspondence referenced in the code enforcement officer’s bills, and said she will search the previous clerk’s emails. The city attorney and city manager were copied on this email.
02-07-2023 – My response to the clerk. I referenced the invoices from the city attorney and city code enforcement officer and reminded the clerk that other people beyond the city attorney and code enforcement officer may have records. I encouraged the clerk to ask other people within the city to provide records, and I suggested that she talk to the city manager about where to search. I also included a form that a previous clerk used to ask others in the city to search for records in response to a FOIA request. The city attorney and city manager were copied on this email.
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- Example of the internal search request form used by a previous clerk (attached to my email).
02-09-2023 – Email from the clerk purporting to enclose all records. The clerk said she was attaching “any/all the correspondence, to include emails and text messages (please note that there were no text messages), between Clarkston or its agents or representative and the owners of the Millpond Inn Bed and Breakfast within the last two years.” She did not provide a certification that text messages do not exist, and she did not state that she was including communications among Clarkston employees, officials, and agents (even though some were included). She also did not include the response from the Millpond Inn to the 10-28-2022 Notice of Violation that the city attorney mentioned in his 12-01-2022 invoice nor the letter the code enforcement officer sent to the city manager that was referenced in her 11-07-2022 invoice – even though I sent the clerk those invoices to show that these were responsive documents. The city attorney, city manager, and city mayor were copied on this email.
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- Partial record set (attached to the clerk’s email). Please note that I removed a name and telephone number and wrote the red text stating “(removed for privacy reasons)” before posting the information here.
02-12-2023 – My response to the clerk. I went through the records the clerk provided on 02-09-2023. I forwarded five emails that mentioned other correspondence or included attachments that had not been provided. I asked that the clerk make a thorough search for all responsive records.
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- Email #1 (attached to my email). The response to the 11-10-2021 Notice of Violation to the Millpond Inn was not included. There were also no records regarding the way the complaint came to the attention of the city, i.e., through “a concerned third party.” Both of these would be responsive to my FOIA request.
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- Email #2 (attached to my email). None of the communications from the former clerk regarding her intended follow up with the code enforcement office regarding the 11-20-2021 Notice of Violation were provided.
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- Email #3 (attached to my email). Two email attachments were not included in the response. Attachments are part of an email, and even if they weren’t, they would be independently responsive to my FOIA request.
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- Email #4 (attached to my email). If a civil infraction was issued, it was not provided and should have been. The Millpond Inn’s response to the 10-28-2022 Notice of Violation was also not provided, even though the city attorney referenced it in his 12-01-2022 invoice.
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- Email #5 (attached to my email). Mayor Haven asked for evidence of previous complaints form the Millpond Inn’s next-door neighbor. None were provided. The email also references emails exchanged between the code enforcement officer and the former clerk that were also not provided.
02-17-2023 – Email from the clerk. The clerk claims she’s working on the response but needs more time. She states she “cannot comply with the request for records within the 5 business day time limit without unduly burdening or interfering with the City of the Village of Clarkston’s operations,” and notes that the city manager was absent leaving her as the “sole full-time employee.” The clerk didn’t provide any suggested date by which she would respond after the city manager returned from what was announced in a city council meeting as a planned absence. It’s unclear why the records couldn’t have been provided before – or after – the city manager’s absence. Though it’s been more than six weeks, the clerk is still apparently too busy to respond to my requests.
02-20-2023 – My response to the clerk. I advised the clerk that even though the reason given for not responding to my request (that it would unduly burden the city or interfere with its operations) appeared to have been provided by the city attorney, it wasn’t an authorized reason for extending the time to respond to a FOIA request and did nothing to prevent a lawsuit. I discussed what was still missing from the first request and noted that the city had not responded to the second request at all. Since she should have forwarded the FOIA requests within the city to people she knew could possibly have records (which would include the city manager, city attorney, planning commission, and zoning board of appeals), I voluntarily extended the time to respond to 02-24-2023. The clerk did not respond with a date counteroffer. In fact, she never responded.
03-09-2023 – My email to the Mayor and Clarkston City Council. I outlined what had transpired to date and advised that I planned to sue the city, and if the city wanted to avoid paying attorneys’ fees and costs, it could respond before I filed the lawsuit. I enclosed all the correspondence I’ve linked above. (It actually took two emails to provide all the documents linked above because the twelve documents were too large to email at once. The second email to city council simply notes that I’m attaching four additional documents.) In addition to the city council, I copied the city attorney, city clerk, city manager, and the Clarkston News’ publisher and editor. No one from the city responded to this email.
Additional records:
03-22-2023 – Complaint. After waiting quite a while and receiving no response from the clerk, city council, or anyone else at the city, I filed a lawsuit in the Oakland County Circuit Court.
So, there you have it. Everyone at the city has chosen not to provide any additional information about the Millpond Inn Bed & Breakfast. Seriously, don’t you wonder what they’re hiding this time?
If you don’t agree with the council’s actions, you can always let them know directly. Their email contact information is provided on the city’s website and linked here. Or, maybe you do agree and don’t mind your tax dollars being spent on litigation involving the city’s desire to hide records from the public (as opposed to spending those dollars on city services). If that’s the case, then be sure to let the city council know that as well.