NEWS

How open are Michigan's public records?

Steven R. Reed
Lansing State Journal
Historian and community blogger Alice Dreger sits with the 2,300 pages she received from the city of East Lansing in response to a Freedom of Information Act request for records related to ownership of a retaining wall.

LANSING – After Tess Brown lost her job at Lansing Community College, she submitted a Freedom of Information Act request seeking records that might help her understand why, after 18 years, LCC believed her position no longer was needed.

Twenty days later, an LCC official responded — not with records but with estimates of retrieval time and the cost of fulfilling her request. LCC said it could take more than 2,400 hours to locate the records and likely cost Brown more than $48,000.

LCC asked Brown for a good-faith deposit of $12,000, plus her written pledge to pay the balance of all "chargeable costs."

"If you do not want to spend such large amounts of money, we suggest that you … narrow your request …" J.R. Beauboeuf, LCC's director of legal services, said May 15, 2014, in a letter to Brown.

"I was shocked when I got that dollar figure back from them," Brown said. "I didn't feel my response needed to be narrowed. ... But I didn't have the means to fight it, so I let it go."

Ten months later she remains unemployed and empty-handed in terms of records and understanding her dismissal.

It could be argued Brown's request was overly broad, but starting July 1, changes to Michigan's FOIA law forbid state and local governments from responding with generalized estimates of retrieval time and costs such as those that overwhelmed her.

Cost itemization required

Public bodies will be obligated to have policies and to use a standard fee-itemization form so requesters can understand the cost of their requests, according to Robin Luce-Hermann, general counsel to the Michigan Press Association.

Labor costs related to searching for and examining a record must be estimated and charged in 15-minute increments, rounded down and applied to the hourly wage of the lowest-paid employee capable of doing the work regardless of whether that person is available.

The amendments also will standardize the cost public entities charge for copying records — 5 cents per printed page or 10 cents per sheet if the printing is double-sided.

A nickel-and-dime matter on its face, the change is significant when you consider the many variations in copying fees across the state and multiply duplication costs by the incalculable millions of copies made each year.

For example, the Eaton County sheriff's website says the office charges $17.47 for the first page of each FOIA response. That alone might deter someone from requesting a record, but additional charges apply for researching and copying information, according to the sheriff's website.

The site offers no explanations, no FOIA form or link, no policy and no instructions.

By July 1, the sheriff's office and other government units across Michigan must establish FOIA procedures and guidelines and make them available to the public. Every entity that has a website and handles FOIA's must post the guidelines or a link to them.

If a requester seeks a record that exists on the public body's website, the requester must be notified of the online record, which often would allow it to be reviewed or printed for free.

Labor charge abuse

Changes were resisted by the Michigan Municipal League, the Michigan Association of Counties and the Michigan Township Association — organizations whose members are on the receiving end of FOIA requests.

"This particular piece of legislation took about three and a half years" to pass the Legislature, said Lisa McGraw, public affairs manager of the MPA. "We've worked on different parts of it for probably eight years. We think its good start."

Herschel Fink

Herschel Fink, a First Amendment lawyer for the Lansing State Journal and Detroit Free Press, says the Legislature sold the citizens of Michigan short when it revised the law.

"It is the labor charges that are the killers," Fink said, "and it is abused all the time by public bodies and it is not corrected in the new law."

Government units commonly charge for searching, reviewing and redacting records, which the old and new FOIA laws allow, even when there is virtually no need to do so, he said.

"Labor charges that are clearly excessive are intended as a brush-back pitch from a public body that doesn't want to be bothered or is concerned about being embarrassed," Fink said.

East Lansing lawyer Mark Grebner is a community watchdog who tracks government spending. He also compiles voter information for targeted campaign mailings. As a result, he is a prolific FOIA requester. He agreed that public bodies ask for large amounts of money to scare people away.

"They're confident about 97 percent of requests can be turned down," Grebner said. "The reason is people don't sue" to challenge excessive costs.

Government units learn what they can get away with it, Grebner said, "believing it's safe to make up flimsy arguments" to deter FOIA requests.

Fink said FOIA laws benefit taxpayers and voters because of the role the laws play in opening government to public scrutiny.

"Transparency is the whole key to representative government and an informed public," he said. "If you cannot get the information, you cannot hold your elected representatives accountable."

Contrast in styles

Over time, frequent FOIA requesters see patterns in government responses. Some units operate in the spirit of the law, making records accessible, keeping fees low and responding quickly. Others adopt a pricier or more proprietary stance.

There are "a lot of municipalities with a reflexive 'no' policy," said Grebner.

Differences between Lansing and East Lansing's approach often are evident.

In Lansing, the city generally charges for all FOIA requests, including labor, according to Assistant City Attorney Don Kulhanek.

The city doesn't have a policy to maximize charges but "all FOIA requests for all departments are reviewed by an attorney prior to release," said Kulhanek.

The hourly rate is $61.41 and is charged in smaller time increments, Kulhanek said.

"Some records may be reviewed by non-attorneys prior to release in order to save expenses for the requester," he said.

Last year, FOIA requests generated $24,164 for Lansing, Kulhanek said.

"They don't give up anything easily," said Steve Harry, a community watchdog. "They charge just as much as they can justify."

In contrast, East Lansing does not collect labor, legal review or copying fees about 90 percent of the time for non-police requests, according to City Clerk Marie Wicks.

"Very seldom do we charge," said Wicks. "We try to make it very minimal. The law requires that. It's definitely not a money maker."

She said the city tries "to be open even if it may not reflect the best" on East Lansing and she makes every effort to treat everyone the same.

Alice Dreger, a historian, blogger and community activist, described Wicks as "incredibly helpful, always willing to help clarify your request, answer it promptly."

"She is really by far the best FOIA clerk I've ever worked with," Dreger said. "She really believes in transparency of government (and) in democracy, so when you're dealing with her, you're dealing with somebody who feels, as she says, that City Hall is your house and you are entitled to know what is going on."

Last year, FOIA requests generated $7,484 for East Lansing, of which $6,744 was charged by the Police Department, according to Wicks.

Intimidation dispute

Tess Brown

Tess Brown said she was shocked last year when she lost her job and again when LCC said it would take at least $48,000 to respond to her attempt to obtain records that might explain her dismissal.

"I was just trying to figure out if I was treated fairly," she said about her unfulfilled FOIA request. "I'd never had a negative performance review in 18 years."

Ironically, Brown's responsibilities as a Human Relations Department supervisor at LCC included handling FOIA requests.

"I used to do FOIA's all day long," she said. "The largest amount (cost) we ever quoted somebody was about $112. …

"I feel as a public employer, (LCC's) records and accounting should be available to the public. They're run by public dollars. … I just think their reply and cost was out of line."

Because she did not have a job or the $12,000 deposit LCC required, she did not pursue the FOIA.

Brown said she considered the $48,000 fee request an attempt to intimidate her. Her FOIA included requests for copies of:

•Employee severance agreements for 2012-14

•Employment contracts with LCC President Brent Knight

•Contracts for repair and renovation of the housing provided to Knight

•Receipts for food and alcohol provided at events hosted at the president's home and expense records for outdoor sculptures at the president's home

•Records related to the Michigan auditor general's 2007 investigation of LCC

"They didn't like what I was requesting," Brown said.

She did not take up LCC's written offer to meet to discuss ways she might be able to "obtain whatever records you are really trying to get."

Beauboeuf, LCC's director of legal services, told the State Journal that FOIA cost estimates were the result of a diligent effort to determine how much it would cost to comply.

"The numbers we have are not taken out of thin air," Beauboeuf said. "My estimate of 2,400 hours was very conservative. It was not J.R. making a guess. It was backed up by documents from staffers.

"Once you get that document, we would have to separate the wheat from the chaff and a fair amount of redaction would be needed. ...

"We do not do it in any intimidating way."

Michigan FOIA tools

•Michigan Coalition for Open Government

www.miopengov.org

•State FOIA guide

www.michigan.gov/documents/ag/FOIA_Pamphlet_380084_7.pdf

•State Open Meetings Act handbook

www.michigan.gov/documents/ag/OMA_handbook_287134_7.pdf

•Sample FOIA request

www.nfoic.org/michigan-sample-foia-request

•Michigan Press Association summary of FOIA changes

www.michiganpress.org/Portals/8/img/sunshine-week/butzel-long-foia-statute-summary.pdf

•MPA open government resources

www.michiganpress.org/OpenGovernmentResources.aspx