[nfbmi-talk] Fw: FOIA Request for "Commission Rebuttal to Draft Monitoring Report" & Fee Waiver Request
president.nfb.mi at gmail.com
Thu Apr 29 16:11:31 UTC 2010
----- Original Message -----
From: "Farmer, Mel (DELEG)" <farmerm at michigan.gov>
To: "Larry Posont" <president.nfb.mi at gmail.com>
Cc: "Cannon, Patrick (DELEG)" <cannonp at michigan.gov>; "Haynes, Carla
(DELEG)" <haynesc at michigan.gov>; "Heibeck, Cheryl (DELEG)"
<heibeckc at michigan.gov>; "Luzenski, Sue (DELEG)" <LuzenskiS at michigan.gov>;
"Martin, Carrie (DELEG)" <martinc2 at michigan.gov>; "Turney, Susan (DELEG)"
<turneys at michigan.gov>
Sent: Thursday, April 29, 2010 8:10 AM
Subject: FOIA Request for "Commission Rebuttal to Draft Monitoring Report" &
Fee Waiver Request
Mr. Posont, this notice is in follow up to the Departments April 29,
2010 response from Mr. Mario Morrow, DELEG FOIA Appeals Officer
regarding your April 26, 2010 appeal of the denial of disclosure of your
April 9, 2010 request for records under the Freedom of Information
Act(FOIA), MCL 15.231 et seq. regarding preliminary/draft
monitoring/audit reports between the Michigan Commission for the Blind
(MCB) and the federal Rehabilitation Service Administration (RSA). As
indicated in the Department's April 29, 2010 response, in your appeal
you requested "...Commission Rebuttal to the Draft Monitoring Report..."
Please be advised that this request is denied pursuant to MCL 15.243,
13(1)(d) & 13(1)(m) of the FOIA which provide exemption from disclosure:
--Records or information specifically described and exempted from
by statute. The RSA has instructed the Department that it's
reports involving the MCB shall not be released to third parties.
--Communications and notes within or between public bodies of an
nature that are preliminary to final agency determinations of policy
action are exempt from disclosure.
Further, please be advised that your April 26, 2010 request to waive any
fees related to the processing of your April 26, 2010 FOIA appeal is
also denied, as the Department's April 14, 2010 disclosure denial was
upheld per the April 29, 2010 notice from Mr. Mario Morrow, DELEG FOIA
Appeals Officer. Thusly, there are no processing fees charged.
Under the FOIA, MCL 15.240, you may submit a written appeal regarding
the denial of any portion of FOIA request to Stanley Pruss, Director,
Michigan Department of Energy, Labor & Economic Growth, Attention: Mario
Morrow, Ottawa Building, 4th Floor, P.O. Box 30004, Lansing, MI 48909.
Your appeal must include the word "appeal" and state the reason(s) for
reversal of the denial(s). You may also seek judicial review in circuit
court within 180 days after this notice of final determination. If you
prevail in such action, the court shall award reasonable attorney fees,
costs, and disbursements. If the court finds the Department's action to
arbitrary and capricious, the court shall, in addition to any actual or
compensatory damages, award punitive damages in the amount of $500.00.
From: Larry Posont [mailto:president.nfb.mi at gmail.com]
Sent: Monday, April 26, 2010 2:29 PM
To: Larry Posont; marrowm at michigan.gov; Pruss, Skip (DELEG)
Cc: hanesc at michigan.gov; Farmer, Mel (DELEG)
Subject: Appeal of Denial in accordance with FOIA (MCL 15.240) and
Requesting the immediate release of those portions of the Draft
Monitoring report pertaining to the Michigan Commission for the Blind
national Federation of the Blind of Michigan Larry Posont, President
20812 Ann Arbor Trail
Dearborn Heights, MI 48127
Email: president.nfb.mi at gmail.com
Attention: Mario Morrow, Ottawa Building-4th Floor, P.O. Box 30004,
Dear Mr. Pruss:
On April 9, 2010, the National Federation of the Blind of Michigan
requested copies of nonexempt public records under the Freedom of
Information Act (FOIA, MCL 15.231, et seq..
Specifically, we asked for "the preliminary audit of the Michigan
commission for the blind that was conducted in March of 2009."; and
preliminary audit documents that were delivered to you in September
DELEG FOIA Coordinator Mel Farmer denied our request via e-mail under
of April 14, 2010. .
We are herewith appealing that denial:
We understand that our April 9th request incorrectly referred to the
document at issue as a "preliminary audit". We also know that it
identified both the month in which the monitoring took place and the
in which the monitoring report was delivered to the Commission for the
In his response, FOIA Coordinator Mel Farmer "certified" that no
that could reasonably be identified by this name or any related name,
existed within the MCB.
"1. MCL 15.235, Section 5(4)(b)--No preliminary audit has been issued by
federal agency (Rehabilitation Services Administration) that monitors
Michigan Rehabilitation Services agency. Thusly, this portion of your
request must be denied and we certify that the public record requested
not exist in this Department by the name given ,or by another name
However, Mr. Farmer went on to state that the documents requested were
actually protected as "notes that are of an advisory nature":
"2. MCL 15.243, Section 13(1)(m)--The documents and or information
received from the federal monitoring agency are communications and notes
within or between public bodies of an advisory nature to the extent that
they cover other than purely factual materials and are preliminary to
agency determinations of policy or actions. The disclosure of such
information/records prior to final determinations would not be in the
interest in encouraging frank communications between officials and
of public bodies. Thusly, this portion of your request is denied.
The first question that we asked ourselves upon receiving Mr. Farmer's
denial was, "Which is it? Are these documents non-existent, or are they
protected as important advisory notes, and communications between
and employees of public bodies?"
Obviously the documents at issue here were readily identifiable by DELEG
MCB. The Department's response refers to the "monitoring agency", and
correctly identifies that agency as the Rehabilitation Services
Administration (RSA). How then could DELEG officials not know that the
documents requested pursuant to the March monitoring visit that was
identified in the NFB's request, were not the "Draft Monitoring Report"?
Item 2 of the response indicates that the officials did indeed identify
precise document being requested.
Moreover, Commission director Pat Cannon prominently referred to the
Monitoring visit in MCB newsletters and at Commission Board meetings
Contrary to the assertion in Mr. Farmer's denial, the Draft Monitoring
Report is not protected. It pertains to factual information only,
been prepared following a week-long visit by a team of not less than
officials from the RSA. As is often the case, facts can be disputed
parties. Consequently, we are requesting the Commission's Rebuttal to
Draft Monitoring Report, because that is the vehicle by which the MCB
have communicated any and all disputed findings to the RSA.
Mr. Farmer's denial of the March 9th request might almost appear to be
obstructionist, thwarting the purposes for which the Freedom of
Act was enacted by the Michigan Legislature.
We thank you for your attention to this matter, and anticipate the
delivery of those sections of the 2009 RSA Michigan Draft Monitoring
that pertain to the Michigan Commission for the Blind, and the Rebuttal
that was filed with RSA by the Commission for the Blind pursuant to
receipt of the Report, on or about September 17, 2009.
President, National Federation of the Blind of Michigan;
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