Open government

The so-called Freedom of Information Act — so-called because it’s studded with exceptions and doesn't apply to the legislature or courts — was modified during the just-ended legislative session to give people a bit more leverage to press government for information.

The changes are designed to curb abusive fees and encourage prompt compliance with the law, according to an analysis by Butzel Long, the First Amendment attorneys for the Michigan Press Association. And while the law firm's FOIA highlights were designed for the journalists, it's important to remember that FOIA isn't just a press issue.

Gov. Rick Snyder put it this way: “The reforms make clear that we in government are working on behalf of our residents, who should not be discouraged from learning about how that government is serving them.”

What's changed with FOIA is the ground rules. Public bodies — local government, school boards, state agencies and authorities — must summarize their FOIA policies, post them on a website if they have one, and provide a copy of, or link to, the policy to those filing a FOIA request. Starting July 1 when the revised law takes effect, public bodies must tell you if a document is available at no charge on a website before they can charge to fill a request.

They must establish a standard fee itemization form. What public bodies charge and how they establish costs, has been an ongoing issue with FOIA. The revised law prevents what had been arbitrary and at times deliberately high fees demanded by public bodies to discourage inquiries.

Revisions to the law will require public bodies to fully itemize all of the costs that it factors into its FOIA fee and there are limits on how they can compute their charges.

Copying fees must reflects real costs. Governments can't charge more than 10 cents per sheet for paper and they must copy on both sides. Labor charges are pegged to the hourly wage of the lowest paid employee capable of searching, locating and examining documents, whether or not the work is done at that level.

This should encourage public bodies to minimize the cost of complying with FOIA although many won't since their payroll costs are fixed. But it does limit what they can charge.

And the law also limits what public bodies can charge for outside expertise. Some governmental bodies may not have the staff to handle a FOIA request and are forced to contract for lawyers or accountants or other professionals.

Right now this can result in steep charges — hundreds of dollars an hour. But starting in July, these contract wages will be limited to six times the state minimum hourly wage, or $48.90. The public body must tell you who it hires, it cannot pay fringe benefits and can't charge overtime for the contract employee unless you agree to it.

All labor charges must be computed in 15-minute intervals and rounded down. If a request takes 14 minutes, there should be no labor charge. Also, a public body cannot charge for redacting a document that already has been redacted.

More important, the law says that a public body may not charge for a FOIA request unless it entails an unreasonably high cost and that it must identify the unreasonably high cost.

There are also new penalties for failing to comply with FOIA. If a dispute goes to court — the Court of Claims if the state is involved and Circuit Court for other disputes — and a public body is found to have “arbitrarily or capriciously” refused or delayed disclosing information, the court shall order it to pay $1,000 to the Michigan State Treasury and $1,000 to the requester. If the public body “willfully and intentionally" fails to comply with FOIA, a more serious action, the court shall raise the fine to the state by a minimum of $2,500 and nor more than $7,500.

This is real money and ought to help governments focus on treating FOIA requests professionally.

The new law does give public bodies some relief from gadflies who barrage them with frivolous and wasteful requests. If the fees to fill a FOIA request are likely to exceed $50, it is normal to require a 50 percent deposit. But starting in July, the public body can require a 100 percent deposit for people who failed to pay for their last request.

The law also places the onus on the individual to ensure that the public body actually receives a FOIA. There are penalties for failing to comply in a timely manner, and the clock starts with receipt. But the Legislature in modifying FOIA recognized that may requests are filed using email and that sometimes these emails are treated as junk mail or spam and never seen by the public body.

The point is, if you send a FOIA request make sure to follow up with a phone call, a letter or in some way inform the public body so that it is aware and it must answer within five days. Remember, FOIA is a two-way conversation. You will be louder in the future, but make sure that it's heard.