[nfbmi-talk] huh?

[joe harcz Comcast]

What the heck this stuff is old, very old and defies everything holy and right with the existing records vis a vis years old expenditures once again!

Has anyone figured out that these documents are ongoing and that we are now half way through fiscal year (federal 2012)?

What a sick and outragious joke this is....

Man, even a blind guy with little computer power and little resources can go up and get this crap that US DOE and MCB and others try to illegally hide to this very date from the public let alone commissioners!

Joe Harcz

(The past has gone nowhere!)

April 29, 2010

 

 

Mr. Larry Posont, President

National Federation of the Blind of Michigan

20812 Ann Arbor Trail

Dearborn Heights, Michigan 48127

 

RE:  Freedom of information Act Appeal; MCB Records

 

Dear Mr. Posont:

 

This notice is in response to your April 26, 2010 appeal of the Department’s April 14, 2010  disclosure denial of your April 9, 2010 Freedom of Information Act (FOIA), MCL 15.231 et seq. request for copies of records you describe as:

 

“…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.”

 

Pursuant to MCL 15.240, Section 10(2)(b) of the FOIA, the Department is upholding the disclosure denial determination of April 14, 2010 by Mr. Melvin Farmer, Jr., Central FOIA Coordinator.  MCL 15.243, Section 13(l)(m) of the FOIA protects from disclosure communications within or between public bodies of an advisory nature that are other than purely factual and are preliminary to a final agency determination of policy or action.

 

In this particular instance the public interest in encouraging frank communication between officials and employees of public bodies clearly outweigh the public interest in disclosure for the following reasons:

 

-         Preliminary and/or draft reports of this nature often contain unverified facts that if released would not provide a clear picture of actual facts; and could possibly hamper the resolution of issues between public bodies.

 

-         Possible mistakes in alleged findings, facts, statements, etc. in preliminary and/or draft reports need to be properly addressed prior to public release of reports of this nature.

 

-         The records requested are designated by the federal monitoring agency (Rehabilitation Services Administration) as “Draft” which illustrates that the contents therein are still of an advisory nature and are preliminary to a final determination.  Release of other than purely factual records clearly does not serve the public interest.

 

-         The “Draft” federal report is considered to be a work-in-process to be used for discussion purposes between the public bodies.  As such, it is subject to modifications, additions, or deletions prior to the issuance of the final, official federal report.  Thusly, the records, in this instance, are treated as confidential and not to be disclosed to third parties, unless otherwise required by law or court order.

 

-         The Michigan Commission for the Blind and other involved Department agencies have been instructed by the federal monitoring agency to not disclose the “Draft” report to any parties not involved in their monitoring activities. Further, Michigan Appellate Court Decision; Soave v Michigan Dep’t of Education, 139 Mich App 99; 360 NW2d 194 (1984), opined that because federal agency regulations have the force and effect of federal statutory law, a state agency may properly withhold a record under the FOIA, 13(1)(d), if that record is exempt from disclosure under a federal agency regulation.

 

In your FOIA appeal dated April 26, 2010, you raised certain questions about the existence of  “…preliminary audit…” records you requested April 9, 2010. Please be informed that the purpose of the FOIA is to provide the public with access to existing, nonexempt public records of public bodies.  The FOIA provides that a written request for a public record must describe a public record sufficiently to enable the public body to find.  It is not the purpose of the FOIA to permit persons to secure, from a public body, answers to questions that incidentally may be reduced to a writing as that term is defined under MCL 15.232, Section 2(h) of the FOIA.

 

Also, in your April 26, 2010 FOIA appeal, you have requested “…the Commission’s Rebuttal to the Draft Monitoring Report…”  Please be informed that this request was not part of your April 9, 2010 FOIA request, or the Department’s April 14, 2010 determination and, thusly, cannot be addressed under this appeal response.  This request will be referred to the appropriate agency for processing under separate cover.

 

Please note that when the Department receives the final report from the federal Rehabilitation Services Administration (RSA), it will be posted and broadly distributed and otherwise made available to the public by the Michigan Commission for the Blind. The RSA has indicated that they expect to release their final report within the next 30 to 60 days.

 

Pursuant to MCL 15.240, Section 10(1)(b) of the FOIA, this constitutes the Department’s final determination regarding this request.  You may seek judicial review in circuit court within 180 days after this final determination.  If you prevail in such an action, the court may award reasonable attorney fees, costs, and disbursements.  If the court finds the Department’s action to be arbitrary and capricious, the court shall, in addition to any actual or compensatory damages, award punitive damages in the amount of $500.00.

 

Sincerely,

 

 

 

Mario Morrow

DELEG FOIA Appeals Officer