Reforms to improve Michigan public record access
It was a simple request of a government agency.
The Mackinac Center for Public Policy wanted 21/2 months' of price data collected by the state Liquor Control Commission.
The information was available and would fit on a flash drive, Michael LaFaive, the center's director of the Morey Fiscal Policy Initiative was told, if he had one on hand. He didn't.
But LaFaive could mail in the drive and make an official request for the information under the Freedom of Information Act.
He did. His request was granted and the center was charged $1,550.22.
The invoice said the costs included "1.5 hours to locate and duplicate the requested electronic information at an hourly cost of $33.48," according to a January lawsuit the Mackinac Center filed in Midland County against the liquor commission. The invoice also stated that the Mackinac Center would be charged 25 cents per page for copying thousands of pages of hard-copy records, which LaFaive said he never requested.
The lawsuit is one of several the Mackinac Center has filed over the years appealing government responses to requests for public documents. LaFaive's initial request was one of thousands that reporters and everyday citizens file daily under the law that was recently updated to make the process less cumbersome.
The Michigan Freedom of Information Act, which went into effect in 1977, set the standards for the public's access to most state records. All 50 states and the federal government have freedom of information laws, though their details differ.
In December, the Michigan Legislature passed a bill that updated and, some believe, improved the state's FOIA laws. Gov. Rick Snyder signed the law in January that takes effect July 1.
The new legislation, introduced in 2013 in the state House of Representatives by Sen. Mike Shirkey, R-Clark Lake (then a state representative), lays out several specific reforms, such as requiring government agencies to create and publish fee guidelines, such that filers will know exactly how much they'll be charged. Those guidelines include charging no more than 10 cents a page for paper copies of files and limiting the labor charges to the hourly wage of the lowest-paid employee capable of finding and examining the requested information, whether or not that person is available or actually performs the labor.
Jane Briggs-Bunting, president of the Michigan Coalition for Open Government, said the state law's improvements are good, but they don't go far enough. The limits on fees are an improvement, she said, because in some instances public bodies had been using FOIA requests as a revenue stream.
'Strains ... credulity'
The guidelines set in the updated legislation won't apply to the Mackinac Center case, as its initial request was filed before the bill was passed.
"High FOIA fees read more like the thwarting of our request than a legitimate business practice," LaFaive said. "The idea that sticking a thumb drive in the computer and clicking 'save' should cost $1,500 strains the bounds of credulity."
Michael Reitz, executive vice president of the Mackinac Center, who has filed many FOIA requests, described some previous invoices. "Those fees can easily jump into the hundreds of thousands of dollars, if an agency wants them to," he said. "We famously were billed $6.8 million for a single records request a few years ago. That exceeds our annual budget."
Under the revised FOIA law, rules and fees regarding appeals on charges also have been refined.
The Mackinac Center's suit, currently in Midland County Circuit Court, asks that the liquor commission be fined $500, that the center be awarded attorney's fees and that a judge declare the liquor commission's response a "constructive denial." Under the revised law, complaints about FOIA responses must be filed within 45 days.
The updated law also emphasized the need to have more government documents available online and that agencies point citizens to those documents promptly.
Shirkey, the bill's sponsor, said in an email that one of his goals was to boost electronic document publishing.
"We were trying to get more things public and online so that FOIA might not even need to be used," he said. "That would save both the people's and government's money."
Eric Freedman, an associate professor of journalism at Michigan State University, said he hopes more public records will become available online, as many people don't know how to go about requesting documents from the government.
"The idea that you have to make a request sounds intimidating and bureaucratic," said Freedman, who also is Knight Chair for environmental journalism at the school.
In some journalism classes at MSU, students are required to file FOIA requests to learn how to do it, Freedman said.
Not a scary process
Joseph Richotte, an attorney with the Butzel Long law firm, said citizens should not be intimidated by the idea of requesting documents under the FOIA. Butzel Long represents members of the Michigan Press Association and deals with FOIA issues frequently. Its attorneys also provide MPA members with a "legal hotline," through which Richotte said he answers questions about FOIA all the time.
"The statute is designed to be fairly simple," he said. "There's no standardized form. Any request for documents that's in writing must be honored. This is not as scary a process as you might think."
Groups like the Michigan Coalition for Open Government provide guidance for FOIA letter-writing and advocate for greater government transparency.
Briggs-Bunting said Michigan ranks among the middle of states nationally, as far as transparency goes.
"I think there's a growing awareness of FOIA from many members of the public," she said.
Many who work regularly with FOIA requests hope that increasing government transparency will help eliminate the endless cycle of requests, denials and lawsuits — an effort that will be celebrated next week as the nation observes Sunshine Week. The annual event promotes freedom of information laws and looks to raise awareness about open government issues, which Freedman said is important.
"It doesn't do much good to have the law if no one knows about it," he said.
Shirkey said FOIA laws shouldn't be the only route to accessing public documents.
"We have to restore a mindset that FOIA is just one tool in terms of people interacting with their government, but it should not be the default way we disseminate information to them."
Richotte said he looks forward to the government making records more easily available in the future.
"My hope is that later this year when the statute goes into effect, we'll start to see public officials really embrace the notion that the public has a right of access to these records," Richotte said. "Really, it's about helping them get access rather than putting roadblocks in their way."
Sunshine Week is March 15-21, 2015. This annual, nationwide event celebrates access to public information and its importance in the community. Visit the National Freedom of Information Coalition at nfoic.org to see samples of Freedom of Information Act letters.
About the author
Maria Servold is the assistant director of the Dow Journalism Program at Hillsdale College.