The answer to my complaint was due on Thursday, April 20th, and that was the day that the city responded. Honestly, after reading the answer, I think the city would have been better off if the city attorney had simply called my attorney and asked for more time to informally resolve the lawsuit, because it’s clear the city is not going to mount any defense whatsoever to my complaint claims. Filing an answer to the complaint means the city will be billed for the cost of the time to draft that answer and the cost of the time that it took my attorney to review it (because whenever a FOIA requester wins a FOIA lawsuit, that person is entitled to reasonable attorneys’ fees and reimbursement of lawsuit-related costs). I suspect I know why the city is acting this way, and I’ll share that secret at the end of this post.
I’ve linked my lawsuit complaint and the city’s answer at the very end so you can see them for yourself. I’m the plaintiff (the one bringing the lawsuit), and the city is the defendant (the one being sued). The complaint contains numbered paragraphs, as does the answer. The way to read a complaint and answer is to match the numbered paragraphs in the two documents. For example, paragraph #1 of my complaint contains an allegation, and the city’s response to that specific allegation is contained in paragraph #1 of its answer.
The city is supposed to answer all the factual claims contained in each paragraph. Failure to do so is the same as admitting the alleged facts are true. For example, in paragraph #23, we allege the city didn’t respond to my second request or send an extension letter, and we cite to the FOIA statute to show what part of the FOIA statute requires that. When answering that paragraph, the city attorney simply said that the statute speaks for itself. By not thoroughly answering the allegations in that paragraph, the city has admitted the factual things I alleged were true – specifically, the city didn’t respond to my second request or send an extension letter (which is a violation of the FOIA statute).
Here are a few highlights from the city’s answer, along with my comments.
Paragraph #14:
One of the things we allege in paragraph #14 was the city’s answer to one of my FOIA requests was copied to the city attorney and city manager. In its answer, the city notes that the email address for the city attorney was incorrect. (The city says the same thing in paragraphs #16, #17, #25, #26, #27, and #38.)
I used the email address the city clerk used, so any email address error began in city hall and was carried over. Was I supposed to double-check the email addresses the city clerk used for her copies? No. My computer defaulted to use the address she used for the city attorney, assuming that she knew how to contact the city’s lawyer.
In every case the city attorney was copied using an incorrect email address, the city manager was also copied. The city does not dispute that the city manager’s email address was correct, and no explanation or excuse was offered for the city manager’s failure to get involved with my FOIA requests after being copied on the flurry of emails. The city attorney’s March legal services bill (included in the April 10th city council packet) proves that as of March 10th, the city attorney received and reviewed every piece of correspondence that had been sent to the incorrect email address. This means the city attorney was fully aware of all the facts involved in my FOIA requests for twenty days before the city was served with my lawsuit on March 30th.
Paragraph 39:
On March 9, 2023, I sent an email to everyone on city council with a copy to the city manager, city clerk, and city attorney (using the email address that the clerk was using) and two people from the Clarkston News. I included copies of every communication I’d had with the clerk about my FOIA requests. (This was the email that the city attorney said he reviewed on March 10th.) I advised the council that I was planning to sue the city for not responding, but if they wanted to avoid paying attorneys’ fees and costs, they could beat me to the courthouse and simply provide the material. (You can read all of the correspondence here.) The city attorney answered this paragraph by admitting that my allegation was true, and incredibly, the reason the city gave for ignoring my email to the city council was “because the City Attorney, when reviewing all the conespondence [sic] and the threatened litigation advised it would be best not to respond.”
When someone sends you a letter saying that they are getting ready to sue you and they tell you why they’re going to do it, it’s really, really dumb to ignore them. People are always free to go straight to court; they write these letters as a last-ditch attempt to avoid a lawsuit. The city attorney’s position is bizarre – gosh, she said she will sue us if we don’t answer her FOIA requests, so I’m advising you that the best course of action is to continue to ignore her and not answer her FOIA requests. Oh, and P.S. – I’m not going to get involved either for some reason.
This is horrible legal advice and an inexcusable course of action, and I honestly can’t believe the city attorney admitted he’d given advice that invited an inevitable lawsuit. Perhaps he thought the insurer would pay for the city’s defense and the city could drag things out for years, but that provides zero legal excuse for the city to ignore my FOIA requests. (As it turns out, the insurer didn’t assume the defense of the lawsuit, and I’ll explain why I believe it didn’t later in this post.)
Paragraph 40:
In this paragraph, I explain why I filed the lawsuit. The city attorney answered by giving several reasons why the city screwed up – the clerk is new; she doesn’t have experience; she didn’t know how to ask for an extension of time; the city has a small, part-time office staff; the city manager and city attorney were on vacation for part of February 2023; and the city attorney’s email address was incorrect. So, after he placed most of the blame on the clerk (something I have never done), the city attorney essentially said: “Judge, please see our list of reasons. None of them explain why we stopped responding over two months ago, but please see our list of reasons. Did you see our list of reasons, Judge?”
As we all know, people love to give reasons when they’re called to answer for what they did. But, as my old boss used to say, those are reasons, not excuses. In other words, none of the reasons offered by the city attorney are valid excuses (defenses) under the FOIA statute, which means the city attorney threw the clerk under the bus for nothing. This is something I have gone out of my way to avoid, since she is new and in my limited experience working with her, she came across as intelligent and nice, and she really seemed to want to make the effort to respond to my FOIA requests – or at least that’s what she was trying to do until the city attorney apparently told her to stop what she was doing and ignore me. The asshattery involved in giving advice like that is astounding.
And for some reason, someone in the city believes that I’m suing the clerk, which is not true at all, and no one apparently corrected that misunderstanding. My lawsuit was served the way that a city ought to be served; the clerk merely accepted service from the process server. The address on the summons contained the clerk’s name in order to tell the process server who in the city, under the court rules, had to be served with the lawsuit papers. That does not mean she is being sued – in her official capacity or otherwise – so the resolution to go into closed session on April 10th to discuss my lawsuit was incorrect in that regard. The lawsuit names only the City of the Village of Clarkston.
Paragraph 41:
In response to my allegation that the city’s failure to respond or provide records was a denial of my requests (because failing to timely respond is a denial), the city admits that what I said is true, but yo, they are now preparing a supplemental response to my requests.
So, the only reason the city is answering my FOIA requests now is because I filed the lawsuit that I said I was going to file in my email to city council that the city attorney advised them to ignore. I’m not litigious, but my takeaway from that is I should sue more often and not bother trying to work with the city. I hope that’s not what the city is trying to communicate, especially since Clarkston has a track record of trying to hide public records. Not only that, the standard for a plaintiff to receive an award of legal fees and litigation costs in a FOIA lawsuit is that the lawsuit was necessary to force the public body to produce the requested records and the lawsuit was instrumental in causing the records to be produced. The city attorney admitted that is exactly what happened (and is going to happen).
The “Wherefore” Paragraph:
At the end of the city’s answer, the city states: “WHEREFORE, Defendant prays this Honorable Court after Defendant City responds to Plaintiff with supplemental information order reasonable attorney fees as agreed by the parties or ordered by the Court consistent with equity and fairness.” Translation – yeah, we know we violated the statute, and we know we didn’t provide the records, but we’re going to provide them now (but only because she sued us), so please have mercy on us when you assess legal fees and costs if her lawyer and I can’t agree to an amount even though it’s entirely our fault that we are taking up the court’s time on a lawsuit that we were warned would be filed if we didn’t respond.
Normally, an attorney’s answer to a complaint will also include what are known as affirmative defenses. These are usually listed at the end of the answer to the complaint and give the defendant’s legal basis for why the defendant should not be found responsible for the claims in the lawsuit. For example, one of the defenses the city raised in my first lawsuit was that I wasn’t the real party in interest. This was how the city initiated its misogynistic campaign against me. They claimed I wasn’t really the plaintiff and that I was nothing more than my husband’s puppet. (I didn’t say affirmative defenses had to be wise or good. 😂) I’ve never seen a defendant raise zero defenses to a lawsuit, but that’s what happened here.
I don’t mean to imply that this ends the lawsuit because it doesn’t. I’ve said that I would have preferred not to file another lawsuit, and this is only the second personal lawsuit I’ve filed in my entire life. My goal has always been to get the records, but as I advised the city council would happen, I now also want the city to pay my litigation costs and reasonable attorneys’ fees (which have already climbed into thousands of dollars because of all the pre-lawsuit work that the recently updated court rules now require). The only way to curtail those fees and costs is for the city to be promptly forthcoming with all the records it should already have provided, to agree to compensate my attorney fairly for his time, and to reimburse me for all the costs I’ve already had to pay (which included hiring a process server to serve the lawsuit, since the city played games with service in my first lawsuit and I wasn’t having it this time).
I don’t know if the city will continue to withhold some of the records. For example, in one of her later responses, the city clerk said that there were no text messages (even though I’m aware of text messages). This doesn’t mean that the clerk was lying; it likely means that people with text messages didn’t provide screenshots to her. We’re prepared to vigorously pursue the lawsuit that the city invited by following the city attorney’s advice to just ignore my requests for records, even if that means hiring an expert to image and search cell phones and hard drives for records. (FYI, that would be a very expensive litigation cost that would be subject to reimbursement after I win the lawsuit.)
I can promise that one of the first things we will do if we are forced to continue with the lawsuit is to file a motion to disqualify the city attorney from any further involvement. He has responsive records that he’s refused to provide to me, and he’s now admitted that he advised the city not to respond further, which caused the current lawsuit. This means that the city will end up paying for a different attorney at the city’s expense, someone who will charge multiples more than the $95.00 per hour the city attorney charges.
I told you that I would share a secret with you at the end, so here goes. I think that the reason the city attorney is handling the lawsuit instead of an attorney hired by the city’s insurer is because we “pled around the policy” the city holds with the Michigan Municipal League Liability and Property Pool (MMLLPP). We learned during the last lawsuit that the only reason the city’s defense was covered by the MMLLPP was because we asked for damages (“damages” is a monetary award to compensate for a loss or injury). The FOIA statute allows for very, very minimal damages and it’s typical to add a request for them in a FOIA complaint.
That small request for damages was the only hook that allowed the city to receive a “free” defense last time, though as we all know, nothing is really free. The attorneys hired by the insurer were indirectly paid with taxpayer dollars the MMLLPP collected from all its city, township, village, and county customers. As a result of their “free” defense, the city had no reason whatsoever to act reasonably, and the city attorney encouraged them to keep fighting. City council members smugly pointed out that they had no reason to resolve the lawsuit because they’d “won” the right to hide public documents in the city attorney’s off-site office. That was true, at least in the circuit court and court of appeals. The city council was shocked when it lost in the Michigan Supreme Court, and they continued to fight that decision with their “free” attorneys, racking up a significant amount of additional legal fees for the MMLLPP – and for me.
The city’s attorneys were the big winners in that first lawsuit. The city attorney inexplicably continued to bill for his “work” on the lawsuit, even though he had an unwaivable conflict (because his advice to the city was the reason the lawsuit started in the first place) and even though his involvement was unnecessary because the insurer was already paying for the services of two entire law firms to defend the city in that lawsuit (because the primary attorney changed law firms during the lawsuit). My attorney’s firm settled for significantly less than it was entitled to receive because everyone wanted to move on. Clarkston taxpayers had to pay part of my attorneys’ fees and all the fees for the outside attorney the city hired to help it settle the lawsuit (except for an additional $10,000 that the MMLLPP contributed, a fact that the city stupidly tried to hide from the public by funneling the payment directly to that outside attorney so that no one would be able to use the FOIA to find out who was secretly paying part of the city’s legal bills). The city attorney’s malpractice carrier had to pay as well, because Clarkston advised him that the city was going to file a claim against him (and that insurer paid for an attorney to represent the city attorney at our voluntary facilitation). The attorneys paid by the MMLLPP were the biggest winners because they had a team of lawyers who were paid monthly to raise stupid arguments that had nothing to do with the core legal issue in the case, which was whether the city could hide public records in off-site files and claim they weren’t subject to the FOIA.
Here is the language in our complaint that removed this lawsuit from the MMLLPP policy coverage (which can be found right at the end):
Plaintiff does not seek actual, compensatory, punitive, or exemplary damages or a civil fine under MCL 15.240(7). Plaintiff seeks only the non-monetary relief of an order for production of the requested records and an award of reasonable attorney fees, costs, and disbursements associated with the non-monetary relief under MCL 15.240(6).
Plaintiff requests that the court-
-
- Order the City to cease withholding and to produce all records responsive to plaintiff’s requests, regardless of location. MCL 15.240(4).
- Award plaintiff her reasonable attorney fees, costs, and disbursements under MCL 15.240(6).
- Grant any other appropriate relief except damages or a fine under MCL 15.240(7).
Feel free to give this language to your attorney should you find yourself wanting to sue Clarkston over a FOIA or Open Meetings Act (OMA) issue. (You’re welcome.) And, before you file a FOIA or an OMA lawsuit against another public body, be sure to send a FOIA request and ask for their litigation insurance policy. You can then provide that policy to your attorney to review so that s/he can determine whether you can also “plead around the policy” (since what I write here is not intended as legal advice to anyone in any way).
I believe that the insurer’s rejection of the city’s defense is why the city is rolling over on this lawsuit. If the insurer had agreed to defend the city and hired a law firm to do it at no cost to the city, we would be involved in months of discovery and incurring huge legal costs on both sides. After all, those attorneys have an incentive to act this way because they’re paid monthly, and I have no doubt the city would want to take the opportunity to “teach me a lesson” by using their attorneys to attack me again.
As for who should pay my attorneys’ fees and my litigation costs, I don’t think it should be the taxpayers. Since the city insists on continuing to employ a city attorney who is personally responsible for causing three lawsuits that I’m aware of (my first FOIA lawsuit, this FOIA lawsuit, and my husband’s OMA lawsuit), I think it should file another claim with his malpractice carrier. The city had a last chance opportunity to avoid litigation after I emailed the city council, and the city attorney admitted he told them to ignore that email and ignore my FOIA requests. He also had full knowledge of the issues relating to my FOIA requests as of March 10th – including the fact that he possessed some of the responsive records – and yet he did nothing. I don’t think Clarkston taxpayers should be financially responsible for the actions of the city attorney.
I’ll keep you posted regarding any interesting developments. I hope that there won’t be many of them because I’d rather the city do what it should have done months ago – provide the records, with the added penalty of reimbursing my litigation costs and paying my attorneys’ fees.
You can read my complaint here.
You can read the city’s answer to my complaint here.