Sunshine Week 2018: FOIA Updates Three

This is the last day of Sunshine Week 2018 where the legal right of citizens to ask questions of their local elected officials is celebrated by honoring the Open Meetings Act and the Freedom of Information Act.

Does a citizen have the expectation of being able to ask reasonable questions without having to submit a FOIA is a question to also ask elected officials?

The Village of Bear Lake has taken the position that all requests must be done via FOIA.

To reiterate the policy of Bear Lake News – we report, we do not comment.

February 6, 2018:

Under MI Freedom of Information Act (Public Act No. 442 of 1976 as amended): I hereby submit this request.  I am requesting the items in electronic PDF or Word format to be sent to me via email. I am also requesting this issue be discussed at the Budget review hearings.
I am requesting:
1. A copy of the full application for funding sent to USDA concerning the proposed DPW Building – from the documents I have seen, the construction site seems to be in conflict with the access road for the new Water Wells?
Has MDEQ agreed to the storage of salt and sand this close to the well sites?
  1. Communication from USDA confirming acceptance of an application, estimate of fundability, allocation of funds or indication of availability of funds, and in which FY
3. Amount and terms of repayment of the Loan.
4. Amortized final cost, including interest over 30 years.
As this pertains specifically to how the Village will set it’s FY2018-19 Operating Budget it is worth noting the mandate to designate repayment funds as listed in the June 2017 Minutes:
At the request of the USDA & Rural Development, repayment of loan for construction of new DPW building (approx.. $310k over 30 yrs.) must be amended into the 2017-2018 Village Budget. Loan repayment per month approx.. $1,225-$1500)
▪ Motion to amend the budget for repayment of DPW building in 2017-2018 Budget as follows: General $1,800, Water $7,200, Park $1,800, Major $3,600, Minor $3,600, by Bass, seconded by McPherson. Motion Carried

As we know the construction estimate has risen, what is the new line item allocation?

In light of the January Budget Amendments, moving these funds to cover other Budget shortfalls, I would like the Council to address if they either intend to raise taxes or cut expenditures to guarantee the ability to make those future loan repayments? As Streets Superintendent, I am sure you know that only a certain % of Act 51 Funds can be used.
Increase Repairs & Maintenance $1,054.43
Increase Professional Service $433.50
$1,487.93 from DPW Build Repayment
Increased Repairs (Outsourced) $1,000
Increase Repairs & Maint-Winter $600
Increase Repair & Maint – Summer $45.93
Increase Equipment Rental $2,100
$3,000 from DPW Building
$700 from Gas & Oil

Reply Received February 8, 2018:
“Answer to your questions:

I am requesting:
1. A copy of the full application for funding sent to USDA concerning the proposed DPW Building – attached
from the documents I have seen, the construction site seems to be in conflict with the access road for the new Water Wells? – No, it is designed around it.
Has MDEQ agreed to the storage of salt and sand this close to the well sites? – Well testing has been accepted by the DEQ.

2. Communication from USDA confirming acceptance of an application, estimate of fundability, – USDA has not awarded the village any funds.

allocation of funds or indication of availability of funds, – USDA has indicated funds are available

 and in which FY – unknown

3. Amount and terms of repayment of the Loan. – no award has been given
4. Amortized final cost, including interest over 30 years. – no award has been given
Repayment has been budgeted – no award has been given at this time.
Thank you for your concern.”
February 13, 2018:
having had a chance to consider, and ask for some expert assistance regarding your response, I don’t believe my questions have been answered?
1. The document you sent, SF-424, is just the cover sheet – dated 9/14/17
“This is a standard form used by applicants as a required face sheet for pre-applications and applicatons submitted for Federai assistance. It will be used by Federal agencies to obtain applicant certification that States which have established a review and comment procedure in response to Executive Order 12372 and have selected the program to be included In their process, have been given an opportunity to review the applicant’s submission.”
On November 15 the Village held a Public Hearing where it was stated that USDA had requested changes to the application (see attached documents you previously supplied as a partial response to a prior request for the Public Hearing documents)
My request was to see the full application not the cover sheet – the Summary, Narrative, Environmental Assessment, the Proposed Timeline and the Site Plan
2. In reviewing the initial draft designs, the Village is proposing a 60′ x 40′ structure with a 42′ trench drain to a sump pit? Does the new design include a revised VOC catch basin?
3. In reviewing the Bid package for the water project – where will the DPW building be located on this property? It’s original location was scheduled as adjacent to the Sand storage barn?
The reason for this query is that one of the reasons given for requiring the relocation of the existing wells was their proximity to potential sources of surface/ground water contamination.
Comparing the design of the DPW building to the attached schematic of the Water well access raises questions.
a) close proximity to the main 8″ tie in line as well as the natural gas service line
b) the potential for damage or destabilization of those lines during construction and operation of the proposed DPW building – unless, of course the Village intends to locate the structure elsewhere?
My question does not relate to MDEQ testing of the wells themselves – however, as a prior member of the Wellhead Protection Committee, and as the well drilling and water quality reports are available I would like to see those please?
4. At the November 2017 Public Hearing it was noted that USDA queried the defined costs. My request to see the communications from USDA was as follows with your response in bold:
2. Communication from USDA confirming acceptance of an application, estimate of fundability, – USDA has not awarded the village any funds.
allocation of funds or indication of availability of funds, – USDA has indicated funds are available
 and in which FY – unknown
3. Amount and terms of repayment of the Loan. – no award has been given
4. Amortized final cost, including interest over 30 years. – no award has been given

Again I requested the confirmation from USDA on the fundability and anticipated terms and timeline of an award?

5. There is a significant math discrepancy in the attached SF 424C Budget Information Sheet – can you supply the final version approved following the November 15 Public Hearing?

And again – the original proposed repayment was for $310,000 financed over 30 years. The attached SF 424C lists $328,134.32 – how does the Village plan to allocate this new amount to it’s FY2018-19 Budget?

As the Village is proposing a $2.25m debt for Village residents, although I appreciate these questions may be outside your realm of expertise, your assistance would be appreciated in supplying the requested documentation.
Response received February 15, 2018:

“I have sent you the information that I have regarding your questions.  If you would like me to continue research on additional items you have listed, I would be glad to do that.  However, there would be FOIA research costs that would need to be paid up front before any research would be done.  Please advise me if you will pay FOIA fees for researching your questions and I can send you an FOIA itemized cost sheet.

The Proposed Budget 2018-2019 was sent to you regarding repayment of the DPW building.
Confirmation from USDA on the fund ability, anticipated terms & time line of award, again, The village has not been awarded and funds at this time.
You are right, some of these questions are out of my expertise, maybe we should let the professionals working on this project do their job!
Thank you for your concerns.”
February 18, 2018: A request was sent to the Village President:
“I would like to know – is the Village Clerk unable to locate a filed PDF copy of the DPW USDA loan/project application revised following the November 2017 Public Hearing? Or the prior/subsequent USDA Letter of Commitment?
If so, please let me know so I can request one directly from USDA.”
A response was received February 21, 2018:
“Jennifer Wahr at the USDA may be able to help you if Cindi does not have the information you need.”
The approved FY2018-19 Budget can be viewed here. It was sent to Bear Lake News by a member of the public:
The Minutes seem to indicate an additional piece of property has been purchased but this can not be confirmed at this time.

Sunshine Week 2018: FOIA Updates

It’s Your Right to Know

March 11-17, 2018

Sunshine Week lasts seven days, but it’s up to all of us to keep the sun shining on government all year. Share your local FOIA stories and other efforts on behalf of open government on Twitter using #SunshineWeek.”

During this week Bear Lake News will report on recent FOIA submissions and the response they received.

A local tax payer submitted a FOIA requesting the 2016 and 2017 W3, W2s and 1099 Misc documents as a record of the % spent on salaries and wages following the State of MI reporting online for 2016


  • Village of Bear Lake 2016
  • Census

    Name Value
    Population 282.0
    Square Mileage 0.31
  • Budget

    And in 2018 see Year End figures here.

    The request was submitted February 7, 2018. The response was received on February 13 as follows:

    I am asking for a 10 day extension for your FOIA request on;  any and all of the 2016 and 2017 Federal and State W3, W2 and 1099 Misc forms completed and/or submitted for or on behalf of the Village to be sent to me via email in electronic PDF or Word format.
    There will be a charge of $50, [NB: = 2 hours of labor charged] paid in advance for this request.  FOIA Cost document attached.
    A check can be sent to:
    Bear Lake Village
    Attention: Clerk
    PO Box 175
    Bear Lake, MI  49614

    A subsequent follow up by a different resident asked for only 2017 documents – a total of 21 (with SS# redacted) for which Baird, Cotter and Bishop PC were paid $400 to prepare in January, 2018.

    On Tue, Mar 13, 2018 at 10:47 PM:

    Under MI Freedom of Information Act (Public Act No. 442 of 1976 as amended) I hereby submit the following request:
    In looking at the attached, I see that Baird, Cotter, & Bishop PC were paid $400 in February to prepare 2017 W3, W2s and I assume the 1099 Misc?
    Past Minutes state that Baird, Cotter, & Bishop PC were hired to train the Clerk and Treasurer to properly use the Village accounting software, not perform accounting duties?
    As $400 was paid to them to send in both federal and state 2017 documents, and knowing that both agencies require filing online, Baird, Cotter & Bishop PC would have submitted and supplied a PDF electronic copy to the Village to distribute to employees and contractors.
    By my count this should translate to 9 Council, 3 Employees, 4 Planning Commission, The Blight Enforcement Officer W2s. And 3 1099s: Mead Hunt, Fleis VandenBrink and Baird Cotter themselves. A total of 20 documents requiring the redaction of social security numbers. At 5 seconds per redaction that does not meet the 15 minute threshold for requiring payment.
    As the W3, W2s and 1099 Misc had to be prepared before January 31, 2018 – I am requesting, within 5 days, an electronic copy please.

Response received March 14, 2018:

“Thank you for your FOIA request for the forms, I will need to ask for a 10 day extension on this request as I need to request the electronic forms from the CPA office.

If they have to do the redacting of information there, there could be some cost and we would need to pass along it on to you, paid in advance.
If I use my paper copies and black out all personal information, scan and email them, there would be a be a $50.00 cost paid in advance.
Please advise if you would like me to continue with this request.”

Thank you for your service …… now prove it.

This is only the second time Bear Lake News has written an Editorial. As the masthead states, we print information not opinion.

On Veterans Day we make this exception.

On the eleventh hour of the eleventh day of the eleventh month in 1918, the most bloody example of human barbarity (to that point in history), World War One, came to and end.

The Village of Bear Lake sent its young men off from the platform of Kaleva railway station to that war, and some never came back from the killing fields of Flanders.

[In Flanders Fields was written by a Canadian officer called John McCrae and is read by poet Michael Rosen.]

The Village has sent it’s share of service men and women to fight and uphold the spirt and principles of democracy in every war and ‘police action’ from the Civil War to this day. From the Grand Army of the Republic Reunion in Hopkins Park to the Rolling Thunder honor rides – we stand and pay tribute to those who serve, fought, were injured, or died defending the self evident principles of our government: for the people, by the people with liberty and justice for all.

For some returning from Korea, Vietnam, Iraq and Afghanistan the wounds are not so evident. Many carry the legacy of psychological or chemical trauma – but without exception they do not complain or define themselves by the horrors they have witnessed. They only ask for fair treatment and respect.

Surely not too much to ask?

Especially on this Veterans Day?

They came back here – to live, build homes, raise families, support the community and paid their taxes each year, every year, on time.

Because that’s how we raise our children here – with honor and integrity. That a debt paid is a credit earned in the life of this, or any, small community. Do unto others.

“We firmly believe in ‘open government’, ‘transparency’, ‘communication’”.

Do we really?

Consider these questions.

When is a ‘public’ document, well, ‘public’?

If a document is ‘public’, which ‘public’ does it belong too?

The one who paid for it to be created?

The one for whom it was created in the first place?

The one it affects, either by regulation or actual cost?

The one who then has the right to contest it?

When do the public have the right to request a ‘public’ document?

Running for Governor of the State of Michigan in 2018, current Attorney General Bill Schuette has this to say in his guide to the OMA_handbook_287134_7:

The Open Meetings Act (OMA) is 1976 PA 267, MCL 15.261 through 15.275. The OMA took effect January 1, 1977. In enacting the OMA, the Legislature promoted a new era in governmental accountability and fostered openness in government to enhance responsible decision making.

Using e-mail to distribute handouts, agenda items, statistical information, or other such material during an open meeting should be permissible under the OMA, particularly when copies of that information are also made available to the public before or during the meeting.

Excluding individuals – no one may be excluded from a meeting otherwise open to the public except for a breach of the peace actually committed at the meeting.

It’s worth looking at the opening preamble of PA 267 of 1976 itself:

Open Meeting Act of 1976

P.A. 267 of 1976

As amended through 2016:

AN ACT to require certain meetings of certain public bodies to be open to the public; to require notice and the keeping of minutes of meetings; to provide for enforcement; to provide for invalidation of governmental decisions under certain circumstances; to provide penalties; and to repeal certain acts and parts of acts.

(3) After the effective date of this act, nothing in this act shall prohibit a public body from adopting an ordinance, resolution, rule, or charter provision which would require a greater degree of openness relative to meetings of public bodies than the standards provided for in this act.

The State of Michigan Legislature published its own guide to the “Sunshine” Laws OpenMtgsFreedom in which the following introduction states:

Dear Citizen,

The ideal of a democratic government is too often thwarted by bureaucratic secrecy and unresponsive officials. Citizens frequently find it difficult to discover what decisions are being made and what facts lie behind those decisions.

The Michigan Freedom of Information Act, Public Act No. 442 of 1976, establishes procedures to ensure every citizen’s right of access to government documents. The Act establishes the right to inspect and receive copies of records of state and local government bodies.

The Open Meetings Act, Public Act No. 267 of 1976, protects your right to know what’s going on in government by opening to full public view the processes by which elected and nonelected officials make decisions on your behalf.

This guide to the Freedom of Information Act and the Open Meetings Act is designed to make it easier for citizens to keep track of what their government is doing.

“designed to make it easier for citizens to keep track of what their government is doing.”

The Open Meetings Act was amended in 2012 to require the inclusion of this language to all Village of Bear Lake meeting notices:

Persons with disabilities needing accommodations for effective participation in the public hearing/public meeting should contact the Bear Lake Village Clerk at 231.970.2066 or at the above address one week in advance to request mobility, visual, hearing, or other assistance. 
Cindi McPherson Village Clerk

Any member of the ‘public’ is legally entitled to reasonable accommodation, to have the same ability to be an active participant in the business of their own government as if they were physically able to be present.

A reasonable accommodation would be a copy of the Meeting Agenda, the previous draft Minutes, the financial reports, any document of importance to be reviewed and discussed in the open public meeting – a facility easily afforded by many municipalities who simply post all that to their web site as the Meeting packet. A one time, cost saving, time saving ‘public’ service.

Which leads to our closing question – when a veteran makes a request to attend via telephone conference, can a FOIA request be required to receive those ‘public’ documents every other member of the public in attendance can simply walk up to the table and pick up for themselves?

Should a veteran be required to pay again in advance to receive the public documents his tax dollars have already paid for?

Should any unit of government spend his, and your, tax dollars for your municipal attorney to write a 9 page letter TitleVIFOIA1161706112017 (1) asking that veteran to prove his disability? (and send that same letter to others asking for the same reasonable accommodation)

Why, in good conscience would any municipality of 137 households do that?

Thank you for your service.