Bill to keep FOIA affordable stalls

May 16, 2013 01:30

By Vincent Duffy, RTDNA Chairman

I was on vacation when my cell phone rang. It was a work call. Actually, that always happens when I’m on vacation, so I should also let you know that this was in 2008.

One of my Detroit reporters was calling to let me know that a Wayne County judge was releasing most of the texts messages that had been exchanged between Detroit Mayor Kwame Kilpatrick and his former Chief of Staff Christine Beatty.  These 6,000 text messages were at the heart of a case against Kilpatrick that resulted in a felony conviction for perjury and obstruction of justice.

“Do we want them?” she asked. “Yes,” I replied, “of course we do.” “OK,” she paused, “They want almost a thousand dollars to pay for the pages. Do you want to put it on the station credit card?” “Um… never mind,” I groaned. I didn’t have that kind of money in my FOIA budget. (OK – I’ll be honest, as a public radio station I didn’t HAVE a FOIA budget.)

That was five years ago, and the costs to acquire documents through Freedom of Information Act requests in Michigan and many other states just keeps going up.

A more recent FOIA request made to Michigan’s Education Achievement Authority carried a bill of $2700 to get the documents.  A state representative eventually paid the bill so the information would be released, because she felt it was important for legislators and the public to have the information.

How can releasing some documents cost $2700, especially when most government documents can now be copied and delivered electronically, without even having to pay for paper or postage? The answer lies in the way Michigan’s FOIA law is written. It says government bodies may charge a fee that includes the actual copying and mailing costs, plus labor. The “labor” is supposed to be based on the salary and benefits of “the lowest paid (employee) capable of retrieving the information.” The public body gets to pick that “capable” employee.

If you want to know how the price-gouging fee was calculated, and on whose salary, you need to (ahem) file a FOIA request.  (You see the catch here?)

Public bodies are using outrageous fees to fulfill FOIA requests in Michigan either as a revenue source, or a way to keep pesky reporters or activists from asking for information… probably both.  Add this to the long held practice of governmental bodies dragging their feet and ignoring deadlines when it comes to fulfilling or responding to FOIA requests, and the whole spirit of the law that is supposed to ensure open government is destroyed.

A possible solution has been proposed. Republican Representative Mike Shirkey of Clarklake, MI has introduced a bill (HB 4001) that would restrict how much government agencies can charge to fulfill FOIA requests. The bill would prohibit a public body from charging more than 10 cents a page for a copy of public records, and prohibit charging a copying fee for in-person inspection of documents. Currently, the bill for public records can sometimes top a dollar a page. The bill would also reduce those charges by 20 percent for every day the public body fails to respond to the request after the deadline.

Those of us in the press who frequently file and pay for copies of public records think Shirkey’s bill is a pretty good idea. It keeps access to public records affordable and eliminates the chilling effect of exorbitant fees. But, of course, not everyone agrees. Shirkey introduced this legislation last year and it was never discussed.  The Michigan Municipal League,  which represents local governments, say these changes would not allow governmental bodies to recoup the costs of responding to FOIA requests. I guess we don’t want our tax dollars wasted on such frivolous luxuries as “open government”?

The Michigan House Oversight Committee was supposed to consider HB 4001 last Tuesday. It never happened. The hearing was cancelled. Why? Well, if you file a FOIA request and pony up a couple hundred dollars, maybe you can get the answer.