[nfbmi-talk] Fw: FOIA Request for "Commission Rebuttal to Draft Monitoring Report" & Fee Waiver Request

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,
Sections
13(1)(d) & 13(1)(m) of the FOIA which provide exemption from disclosure:
--Records or information specifically described and exempted from
disclosure
  by statute. The RSA has instructed the Department that it's
preliminary
  reports involving the MCB shall not be released to third parties.
--Communications and notes within or between public bodies of an
advisory
  nature that are preliminary to final agency determinations of policy
or
  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.

-----Original Message-----
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

 517-482-1800

 Email: president.nfb.mi at gmail.com

Web page

www.nfbmi.org

Attention: Mario Morrow, Ottawa Building-4th Floor, P.O. Box 30004,
Lansing,

Michigan 48909.

Dear Mr. Pruss:

On April 9, 2010, the National Federation of the Blind of Michigan
initially

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
"...the

preliminary audit documents that  were delivered to you in September

2009..."

DELEG FOIA Coordinator Mel Farmer denied our request via e-mail under
date

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
correctly

identified both the month in which the monitoring took place and the
month

in which the monitoring report was delivered to the Commission for the

Blind.

In his response, FOIA Coordinator Mel Farmer "certified" that no
documents

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
the

federal agency (Rehabilitation Services Administration) that monitors
the

Michigan Rehabilitation Services agency. Thusly, this portion of your

request must be denied and we certify that the public record requested
does

not exist in this Department by the name given ,or by another name

reasonably known."

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
currently

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
final

agency determinations of policy or actions. The disclosure of such

information/records prior to final determinations would not be in the
public

interest in encouraging frank communications between officials and
employees

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
officials

and employees of public bodies?"

Obviously the documents at issue here were readily identifiable by DELEG
and

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
the

precise document being requested.

Moreover, Commission director Pat Cannon prominently referred to the

Monitoring visit in MCB newsletters and at Commission Board meetings
during

2009.

Contrary to the assertion in Mr. Farmer's denial, the Draft Monitoring

Report is not protected.  It pertains to factual information only,
having

been prepared following a week-long visit by a team of not less than
nine

officials from the RSA.  As is often the case, facts can be disputed
between

parties.  Consequently, we are requesting the Commission's Rebuttal to
the

Draft Monitoring Report, because that is the vehicle by which the MCB
would

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
Information

Act was enacted by the Michigan Legislature.

We thank you for your attention to this matter, and anticipate the
prompt

delivery of those sections of the 2009 RSA Michigan Draft Monitoring
Report

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
their

receipt of the Report, on or about September 17, 2009.

Sincerely:

Larry Posont

President, National Federation of the Blind of Michigan;

www.nfbmi.org