Skip to content

Blog

Blog Posts

Areas To Consider For A FOIA Revamp

By Zachary Gorchow
Executive Editor and Publisher
Posted: February 16, 2016 1:51 PM

The pressure to end the exemptions for the Legislature and governor’s office in Michigan’s Freedom of Information Act is building in a big way in the midst of the Flint water crisis, and with a key legislator saying he is drafting a bill to do so the idea could actually see some serious consideration.

But there are many other areas in the 1970s-era FOIA that warrant consideration for an update.

There are two major areas in the law beyond the question of whether the Legislature and governor’s office should be exempt ripe for review – whether and how much governments should be able to charge compensation for having their employees respond to FOIA requests and the use of a one-size-fits-all timeline for governments to respond to those requests.

Government bodies must provide a response to a request within five business days and can ask for an extension of up to 10 additional business days.

The problem here is the law treats a simple request for a small document the same as one for thousands of pages of material. So a government can potentially take three weeks to release something that it could have handled in a day or it can be asked to produce records in three weeks when it understandably needs more time to pull together the records, vet them for exemptions and compile them.

There was an effort in the previous legislative term to address the cost issue and it succeeded in limiting what governments could charge for copying, ending the practice of some of charging 40 cents or more per page. But the labor is where the real costs get generated, and it’s why virtually every reporter can share a story about a government seeking tens of thousands – even hundreds of thousands – of dollars as compensation to process a FOIA request.

There is a section of FOIA that says, “A search for a public record may be conducted or copies of public records may be furnished without charge or at a reduced charge if the public body determines that a waiver or reduction of the fee is in the public interest because searching for or furnishing copies of the public record can be considered as primarily benefiting the general public.”

Public bodies do receive a number of FOIA requests from individuals with a proprietary interest, those seeking information on their competition.

That’s different from requests from the news media, where the overwhelming number of requests stems from pursuit of stories to inform the public about the workings of government.

In recent years, I have always put this section of the law into my FOIA requests. It almost always gets ignored.

To the credit, I suppose, of the Department of Environmental Quality, it was actually up front and just outright rejected the suggestion in a recent request I made.

“Although a majority of the DEQ FOIA requests pertain to records that may be considered as primarily benefitting the general public, the DEQ does not waive, reduce or exempt the fee solely on the basis of benefit to the public,” the response said. “The DEQ must utilize our monies and resources, entrusted to us by the taxpayers, in the most efficient manner possible to carry out our mission. The DEQ Special Projects FOIA Coordinator has denied your request for a waiver of fees.”

News organizations have the resources to pay FOIA charges, mostly, though depending on the size of the organization there are informal thresholds when the organization will push back.

But what about members of the public? Governments must waive the first $20 of a FOIA fee for those on public assistance or demonstrating they cannot pay because of indigency.

For starters, that $20 – unchanged since the law was first enacted in 1976 – would be $83 today adjusted for inflation. Plenty of people in Flint interested in obtaining records about the water crisis could benefit from modernizing that number.

But for requests that run into the hundreds of dollars or more, the waiver, even if adjusted for inflation, will mean nothing for those who qualify for it. And what about those who don’t qualify for the waiver and don’t have a few grand lying around to obtain the information?

The question ultimately boils down to whether a price should be put on public information. Otherwise, public information is only public for those with the resources to pay for it. Yes, governments have to expend resources to respond to FOIA requests, in the time of staff as well as paper and occasionally materials.

Is access to information about their government part of what residents fund with their taxes like police, fire protection, schools, prisons or is it a fee-for-service like paying for an inspection, using the courts or paying gasoline taxes for using the roads?

Back to top