[nfbmi-talk] Fw: foia canon stuff and more

[joe harcz Comcast]

----- Original Message ----- 
From: joe harcz Comcast 
To: Farmer, Mel (DELEG) 
Cc: Haynes, Carla (DELEG) ; Cannon, Patrick (DELEG) 
Sent: Monday, April 04, 2011 5:19 PM
Subject: Re: foia canon stuff and more


Mr. Farmer,

You don't know about the existence of your own personnel file?

Sincerely,

Paul Joseph Harcz, Jr.
  ----- Original Message ----- 
  From: Farmer, Mel (DELEG) 
  To: 'joe harcz Comcast' 
  Cc: Haynes, Carla (DELEG) ; Cannon, Patrick (DELEG) 
  Sent: Monday, April 04, 2011 4:57 PM
  Subject: RE: foia canon stuff and more


  This notice is in response to your March 31, 2011 email (attached) request for copies of public records under the state's Freedom of Information Act (FOIA), MCL 15.231 et seq., you describe as the personnel files of Melvin Farmer, Jr., Patrick D. Cannon, and Ms. Jo Anne Pilarski in her capacity as a Michigan Commissioner for the Blind for the last decade.

   

  In order to determine the existence of nonexempt records/information within the Department responsive to your request, a search must be undertaken. Therefore, pursuant to MCL 15.235, Section 5(2)(d) of the FOIA, it is necessary to extend the Department's response time through April 21, 2011, or sooner. 

   


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  From: joe harcz Comcast [mailto:joeharcz at comcast.net] 
  Sent: Thursday, March 31, 2011 9:12 PM
  To: Farmer, Mel (DELEG)
  Subject: Re: foia canon stuff and more

   

  Dear Mr. Farmer,

   

  Again I am now requesting your personnel file along with that of Mr. Patrick D.Cannon and now that of Ms. Jo Anne Pilarski in her official capacity of the Michigan Commission for the Blind for the last decade and might I cite the following case:

  STATE OF MICHIGAN 

  COURT OF APPEALS 

  Table with 2 columns and 3 rowsJONI TAYLOR, 

  Plaintiff-Appellee/Cross-Appellant,  UNPUBLISHED 

  June 27, 2006 

  APPROVED FOR 

  PUBLICATION 

  August 29, 2006 

  9:15 a.m. v 

  LANSING BOARD OF WATER AND LIGHT, No. 265533 

  Ingham Circuit Court 

  LC No. 04-1505-AW Defendant-Appellant/Cross-

  Appellee. 

  Table endBefore: Fort Hood, P.J., and Cavanagh and Servitto, JJ. 

  PER CURIAM. 

  Defendant appeals as of right an order granting, in part, summary disposition in 

  Plaintiff's favor and ordering defendant to disclose certain documents pursuant to the Michigan 

  Freedom of Information Act (FOIA). Plaintiff cross appeals from that portion of the order 

  finding requested personnel records exempt from disclosure and denying their release. Because 

  we conclude that none of the documents requested by plaintiff were exempt from disclosure, we 

  affirm in part and reverse in part. 

  Plaintiff filed this action seeking an order compelling defendant, a public body, to 

  produce documents she requested under the Michigan Freedom of Information Act ("FOIA"). In 

  the request, plaintiff sought disclosure of, among other things, Virginia Cluley's (and others') 

  personnel files, e-mails between identified individuals on specific dates, correspondence between 

  named individuals on specific dates, and approval and expense reimbursement information for 

  named individuals on specific dates. Defendant denied the request in a September 29, 2004 letter 

  stating, "[i]t is apparent that the intended use of the requested documents is for the civil lawsuit 

  of Cluley v. Lansing Board of Water and Light and that you are acting as the Plaintiffs' agent 

  and on their behalf in requesting the documents. Therefore, the requested items are exempt from 

  disclosure under FOIA." Plaintiff thereafter filed an action against defendant, alleging defendant 

  improperly denied the request in violation of the FOIA. 

  Defendant moved for summary disposition in the trial court, arguing that at the time of 

  plaintiff's FOIA request, defendant was involved in litigation with plaintiff's best friend, 

  Virginia Cluley, who had told plaintiff about the lawsuit she had filed against defendant. 

  Defendant also pointed out that Mrs. Cluley's counsel in that lawsuit was the same counsel who 

  prepared plaintiff's FOIA request and who currently represents plaintiff, and argued that 

  -1-

  plaintiff's FOIA request was an attempt to circumvent the discovery rules governing the Cluley 

  action. Defendant claimed that it thus properly denied the request as seeking information exempt 

  from disclosure under MCL 15.243(1)(v). The trial court disagreed and, on September 26, 2005, 

  entered an order denying defendant's motion for summary disposition and granting summary 

  disposition in favor of plaintiff1, with the exception of requested personnel records, which the 

  trial court deemed not subject to disclosure. Both parties now appeal the order. 

  This Court reviews de novo a trial court's ruling on a motion for summary disposition. 

  Corley v Detroit Bd of Ed, 470 Mich 274, 277; 681 NW2d 342 (2004). In considering a motion 

  pursuant to MCR 2.116(C)(10), a court considers affidavits, pleadings, depositions, admissions 

  and other documentary evidence submitted by the parties in a light most favorable to the 

  nonmoving party. Id. If the proffered evidence fails to establish a genuine issue of material fact, 

  the moving party is entitled to judgment as a matter of law. Maiden v Rozwood, 461 Mich 109, 

  120; 597 NW2d 817 (1999). Issues concerning the interpretation of a statute are questions of law 

  that we also review de novo. Dressel v Ameribank, 468 Mich 557, 561; 664 NW2d 151 (2003). 

  Defendant argues on appeal that the requested documents are in fact exempt from 

  disclosure under MCL 15.243(1)(v). Defendant contends that in denying its motion for summary 

  disposition and granting summary disposition in favor of plaintiff, the trial court construed MCL 

  15.243(1)(v) too narrowly and in a manner contrary to legislative intent. Plaintiff, in her cross-

  appeal, contends that while the trial court appropriately ruled in her favor, it also erred in 

  excluding the requested employee personnel files, given that defendant did not argue the same 

  were exempt and there is no specific FOIA exemption for personnel records. 

  The purpose of the FOIA is to provide all persons, except those persons incarcerated in 

  state or local correctional facilities, with "full and complete information regarding the affairs of 

  government and the official acts of those who represent them as public officials and public 

  employees. . . The people shall be informed so that they may fully participate in the democratic 

  process." MCL 15.231(2). The FOIA mandates a policy of full disclosure, Stone Street Capital, 

  Inc v Bureau of State Lottery, 263 Mich App 683, 687; 689 NW2d 541 (2004), and a public body 

  must disclose all public records that are not specifically exempt under the Act upon written 

  request. MCL 15.233(1); Scharret v City of Berkley, 249 Mich App 405, 411; 642 NW2d 685 

  (2002). 

  Pursuant to MCL 15.243 (1), a public body may exempt the following from disclosure: 

  (a) Information of a personal nature if public disclosure of the information would constitute a

  clearly unwarranted invasion of an individual's privacy. 

  . . . 

  (d) Records or information specifically described and exempted from disclosure by statute. 

  . . . (v) Records or information relating to a civil action in which the requesting party and the public 

  body are parties.  Although not specified on the record, summary disposition was presumably granted in 

  plaintiff's favor pursuant to MCR 2.116(I)(2). 

  -2-

  The exemptions must be narrowly construed and the party seeking to invoke the exemption must 

  prove that nondisclosure is in accord with the intent of the Legislature. City of Warren v City of 

  Detroit, 261 Mich App 165, 169-170; 680 NW2d 57 (2004). If a request for information held by 

  a public body falls within an exemption, the decision to release the information becomes 

  discretionary. Bradley v Saranac Community Schools Bd of Ed, 455 Mich 285, 292-293; 565 

  NW2d 650 (1997). Whether requested information fits within an exemption from disclosure 

  under FOIA is mixed question of fact and law and, on appeal, the trial court's factual 

  determinations are reviewed for clear error, but its legal conclusions are reviewed de novo. Stone 

  Street Capital, Inc, supra. 

  Case law is clear that initial as well as future uses of information requested under the 

  Freedom of Information Act are irrelevant in determining whether the information falls within 

  exemption, as is the identity of the person seeking the information. See e.g., Clerical-Technical 

  Union of Michigan State University v Board of Trustees of Michigan State University, 190 Mich 

  App 300; 475 NW2d 373, (1991); State Employees Ass'n v Department of Management and 

  Budget, 428 Mich 104; 404 NW2d 606 (1987). Thus, the public body asserting the exemption in 

  MCL 15.243(1)(v) must prove that it is a party to a civil action with the requesting party. 

  Otherwise, this Court's ruling in Central Michigan Univ Supervisory-Technical Ass'n, MEA/NEA 

  v Bd of Trustees of Central Michigan Univ, 223 Mich App 727, 730; 567 NW2d 696 (1997) 

  (holding that the FOIA does not conflict with the court rules governing discovery, nor does it 

  supplement or displace them) is applicable, and the public body is afforded no exemption from 

  disclosure based solely on the status of one of the parties as litigants. 

  A plain reading of MCL 15.243(1)(v) would require a conclusion that the trial court 

  correctly ruled the requested documents were non-exempt. The plain language of the exemption 

  cited by defendant applies only to information relating to a civil action in which both the 

  requesting party and the public body are parties. "Party" is not defined in the statute itself, but is 

  defined in Black's Law Dictionary (6th ed.), p. 775, as: "[t]hose by or against whom a legal suit 

  is brought. . ."2 Plaintiff in this matter is the admitted best friend of Ms. Cluley, a party involved 

  in a lawsuit against defendant. However, there is no dispute plaintiff was not and is not a party to 

  the Cluley action. MCL 15.243(1)(v) thus serves as no basis for exempting the records requested 

  by plaintiff. 

  This Court is well aware a literal interpretation of statutory language is disfavored when 

  that interpretation would lead to an absurd result. See, Houghton Lake Area Tourism & 

  Convention Bureau v Wood, 255 Mich App 127, 142-143; 662 NW2d 758 (2003). This Court is 

  also well aware that a literal application of statutory language leads to an absurd result in this 

  matter. Plaintiff testified that when requesting the documents at issue she was acting as Ms. 

  Cluley's friend, and the attorney who prepared the FOIA request for plaintiff is none other than 

  Ms. Cluley's trial counsel in the Cluley litigation. Moreover, plaintiff acknowledged that Ms. 

  Cluley was present during at least one discussion concerning the FOIA request, and plaintiff 

  frequently testified to a lack of knowledge or memory as to why she requested specific 

  documents. It could be inferred, then, that plaintiff was merely an instrument through which Ms. 

  Cluley sought to gain information concerning the Cluley lawsuit. The literal application of the 

  2 This Court may examine dictionary definitions if a statute does not expressly define its terms. 

  People v Rutledge, 250 Mich App 1, 6; 645 NW2d 333 (2002). 

  -3-

  statute, then, would allow a party to obtain information by proxy that he or she would otherwise 

  not be entitled to receive through the FOIA, thereby easily avoiding the exemption. 

  Nevertheless, our Supreme Court has determined that the "absurd result" rule applies 

  only when statutes are ambiguous See, Gilbert v Second Injury Fund, 463 Mich 866, 867; 616 

  NW2d 161 (2000); People v McIntire, 461 Mich 147, 155-156; 599 NW2d 102 (1999) (If the 

  language is plain and unambiguous, we may not depart from a literal construction even to avoid 

  an absurd or unjust result, lest we engage in impermissible judicial lawmaking); Koontz v 

  Ameritech Services, Inc, 466 Mich 304, 312; 645 NW2d 34 (2002) ("Because the proper role of 

  the judiciary is to interpret and not write the law, courts simply lack authority to venture beyond 

  the unambiguous text of a statute"). 

  In our view, there is no ambiguity in the statute that would require judicial construction. 

  As FOIA exemptions are to be narrowly construed (See City of Warren v City of Detroit, supra) 

  and the term "party" has a distinct and precise legal definition, the Legislature is presumed to 

  have intended the meaning it plainly expressed. Pohutski v City of Allen Park, 465 Mich 675, 

  683, 641 NW2d 219 (2002). Absent an ambiguity in the statute, we must forgo judicial 

  construction and an examination of legislative history. Luttrell v Dep't of Corrections, 421 Mich 

  93, 101; 365 NW2d 74 (1984). 

  While defendant may disagree with the restrictive language of the exemption at issue and 

  the result of its application, our legislature has elected to make it so. And however distasteful the 

  result in this case may be to this Court, it does not give us license to avoid applying the 

  unambiguous language of the statute. We thus affirm the trial court's order that the documents 

  are non-exempt from disclosure under FOIA. 

  Addressing plaintiff's cross appeal, this Court notes that in denying plaintiff requested 

  personnel records, the trial court simply stated "I think there are separate rules on personnel 

  files." No reference was made, however to any specific rule the court relied upon in finding the 

  personnel records exempt form disclosure and this Court was unable to locate any provision in 

  FOIA specifically exempting personnel records, other than those of law enforcement, from 

  disclosure. 

  If the trial court were relying upon MCL 15.243 (1)(a), the exemption relating to 

  information of a personal nature, such reliance would be misplaced. This Court has previously 

  held that personnel documents of public school teacher and principals, which contained 

  performance appraisals, disciplinary actions, and complaints relating to these employees' 

  accomplishments in their public jobs, did not contain information of embarrassing, intimate, 

  private, or confidential nature, and, thus, were not "personal in nature" and exempt from 

  disclosure under privacy exemption under Freedom of Information Act (FOIA). See, Bradley v 

  Saranac Community Schools Bd of Educ, 455 Mich 285; 565 NW2d 650 (1997). This Court sees 

  no distinction, and defendant has articulated none, between the personnel files of public school 

  employees and other public body employees such as those whose records were requested. As a 

  result, there was no basis to find the personnel records exempt from disclosure and that portion 

  of the trial court's ruling is therefore reversed. 

  -4-

  Affirmed in part and reversed in part. 

  /s/ Karen M. Fort Hood 

  /s/ Mark J. Cavanagh 

  /s/ Deborah A. Servitto 

  -5-

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

    From: Farmer, Mel (DELEG) 

    To: 'joe harcz Comcast' 

    Cc: Haynes, Carla (DELEG) ; Cannon, Patrick (DELEG) 

    Sent: Tuesday, March 29, 2011 4:40 PM

    Subject: RE: foia canon stuff and more

     

    Paul Joseph Harcz, Jr.

    1365 E. Mt. Morris Rd.

    Mt. Morris, Michigan 48458

     

    RE: Freedom of Information Act Request Response Extension

     

    Dear Mr. Harcz:

     

    This notice is in response to your March 27, 2011 email (attached) requesting copies of nonexempt public records/information under the state's Freedom of Information Act (FOIA), MCL 15.231 et seq., regarding Mr. Patrick Cannon, Director, Michigan Commission for the Blind (MCB) and MCB Commissioner, Ms. Jo Anne Pilarski.

     

    Please be informed that in order to determine the existence of any nonexempt records/information within the Department that might be responsive to your request, a search must be undertaken. For this reason, it is necessary to extend the time for response, as permitted by MCL 15.235, Section 5(2)(d) of the FOIA, through April 15, 2011, or sooner.

     

    Sincerely,

     

     

    Melvin Farmer, Jr.

    Central FOIA Coordinator

     

    CC: Carla Haynes, Patrick Cannon.

     


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    From: joe harcz Comcast [mailto:joeharcz at comcast.net] 
    Sent: Sunday, March 27, 2011 11:59 PM
    To: Haynes, Carla (DELEG)
    Cc: Jo Anne Pilarski MCB, Chair; Larry Posont; lydia schuck; John Scott MCB, Commissioner; Joe Sibley MCBVI Pres.; John L Wodatch USDOJ; Cannon, Patrick (DELEG); mcb2020-L at LISTSERV.MICHIGAN.GOV; TOM MASSEAU MPAS
    Subject: foia canon stuff and more

     

    FOIA Canon Information FOIA

     

    March 27, 2011

    Paul Joseph Harcz, Jr.

    1365 E. Mt. Morris Rd.

    Mt. Morris, MI 48458

     

    Carla Haynes, Michigan commission for the Blind

    FOIA

    (via E-mail)

     

    Dear Ms. Haynes,

     

    I am writing you today to request via and pursuant to the rights and obligations of the Michigan Freedom of information Act and concurrent obligations under the Americans with disabilities Act and the rehabilitation act of 1973 the complete personnel file of Mr. Patrick D. Cannon, Director of the Michigan commission for the Blind(except for legally redacted information materials like social Security Number for example) , along with all salary and compensation for all State of Michigan activities and purposes of employment therein since he assumed office or directorship of MCB and any other State of Michigan employment considerations including his role as State of Michigan Americans with Disabilities act coordinator.

     

    I am requesting specifically and at a minimum the following information:

    -academic credentials

    -pay and other compensation schedules over years

    -any and all evaluations including those by the Michigan Commission for the Blind (board)

    -all closed session minutes and records of the above listed item (re: bradlee v. Saranac Community Schools)

    -all disciplinary records

    (Again ref Bradlee and subsequent case law)

    -all actions in courts of law, Civil Service Commission, or other administrative bodies, or quasi-judicial or judicial or judicial in nature in his personnel file

    Again this request includes all public domain, and all adjudications public or private against him in his official capacity in courts of law or other quasi-legal or administrative jurisdictions

    -any criminal cases or legal considerations against him

    -any cases in which he testified or was subpoenaed or gave any legal and binding deposition under law in which perjury might be a consideration

    -any signed document to which he affixed his hand in official capacity related to the administration of federal funds and assurances with the United States Government relative to same in his official capacity including contracts, or contracts  per se between the state of Michigan and the United States government including, but not exclusive of: the United States of America, Departments of Education, Dept. of Labor, Dept. of  Justice, or any other "third party pass through agreements" including all those of which Patrick D. Cannon affixed his hand regarding memorandums of understanding with various state of Michigan entities over his term as Director.

     

    In other words, lest this is an exercise in futility I wish for any document signed by Patrick D. Cannon in his official capacity as Director of Michigan Commission for the Blind since his sworn and most accomplished role as MCB Director.

     

    Moreover, I am now also officially requesting any documents by Ms. Jo Anne Pilarski, since she assumed the position of MCB commissioner and Chair of MCB, in her official capacity as same.

     

     

    /Again, I wish for each and every requested document in accessible format. Finally I, as a person who is documented  as  legally blind am requesting that any and all, except for purely redacted, exempt information under either the federal FOIA and the Michigan FOIA request pursuant to concurrent obligations under the Americans with Disabilities Act (Title II, subpart e, effective communications) and the relevant portions of the Rehabilitation Act of 1973 ("auxiliary aid and services"" request with no "surcharge"  for such accommodations that such remissions are made in a timely and accessible manner (re: Tyler v. Manhattan to name one case cite)).

     

    To wit: I ask for all the requested information within 30 days in the format most accessible to me without charge for the accommodation. That format is to make the documents available to me as either Word or plain text attachments, or enclosures to my E-mail address listed above.

     

    Reasonable redactions to the original request may be made as does the U.S. Dept. of Justice or other entities in these regards by simply xxxx out the redacted information. In other words I don't wish for Patrick D. Canon's social security number for example. And it can and should be easily redacted without making a federal or state case over other required information.

     

    Any stalling or other violations of this request over quibbles will be attended to with all legal vigor and with the full force of law.

     

    I thank you, as I have in the past for your, Carla Hayne's, prompt, courteous and accessible responses to such inquiries.

     

    Most sincerely,

     

    Paul Joseph Harcz, Jr.

    Cc: U.S DOJ

    Cc: Office for Civil Rights, Ed.

    Cc: NFB MI

    Cc: Advocates for the Blind

    Cc: MCBVI

    Cc: MCB Commissioners

    Cc: ACLU Michigan

    Cc: MPAS

    Cc: Great Lakes Techinical Assistence Center

    Cc: Governor Rick Snyder

    Cc: Michigan Attorney General

    Cc: Rheabiliation and Services Administration (RSA) (Craig McManus, MI Llaission, Lynnae Ruttledge RSA Commissioner)

    Cc: several media and legal contacts.

     

    P.S. It would be prudent to place upon the Michigan commission for the blind web site all requested information in a timely and accessible manner as a means of complying both with the letter and spiritt of this request for information along with all of the years of State Plan and other required information to.