Late last year, a lame duck Michigan legislature and a lame duck governor conspired to take your rights away under the Freedom of Information Act (FOIA). Often good bills can take years to go through committees of both congressional houses, get multiple changes and finally get signed by the governor. This bad bill (House Bill 6582) was introduced early December 2018, and came into immediate effect after Governor Snyder signed it on December 31st, just in time to usher in a new era of darkness.

The Michigan Senate thought so little of your basic rights that they passed it in unusual bipartisan fashion. The Michigan House at least had some 'nay' votes, but passed it with over 90% of their members. The Michigan Senate, House and Governor are already all exempt from the FOIA which instructs us that it is the right of all people to be entitled to full and complete information regarding the affairs of government and the official acts of those who represent them as public officials and public employees.

Michigan consistently ranks as the worst state for transparency and accountability, could it be why it also has the worst roads and the highest car insurance rates, since state officials want to operate against state policy by doing their actions unbeknownst and unjustified to the public. So should we really be surprised that Michigan lame ducks passed this law in such a hurry, when it seems utterly discriminatory at face value?

The rational behind its passage was the "Emily" FOIAs made back last August by a voting rights group. These burdensome requests by an anonymous 'Emily' inspired both parties to figure out how to thwart them. Part of that effort seems reasonable, in that if a fee is required and justified by a public body's FOIA procedures in their response, the request will be considered abandoned if the requester does not appeal or pay up within 45 days.

That itself will allow all of the clerks in Michigan to avoid another 'Emily' conundrum by allowing them to wait just a month and a half for payment or appeal before being able to ignore the request. A group intent on harassment rather than information-gathering, however, can still resubmit the same FOIA request every 45 days and have the same result as before.

The positive effect of this section of new law is that a city that greatly overcharges you for a record and asks for a deposit (like the City of Ludington did with$2500 for a police report and interview), they cannot, after 45 days, say that you legitimately owe them the ridiculous amount of cash sought if you don't pursue it. If you have been here long enough to remember 2011, another citizen and I were countersued on a FOIA lawsuit we prevailed on for FOIA fees of response that we never pursued because of the ridiculous aspect of their costs. We lost, paid the cost, and still haven't seen the records.

The discriminatory part of the new law, however, is where it requires a FOIA requester to give their complete name, mailing address, and contact information in order to receive public records. You don't have to give any of that information to a law officer unless he has reasonable suspicion of you having either committed a crime or are about to. There should be nothing against you walking into city hall with a paper bag over your head and asking the city clerk for public records without having to identify yourself. Everybody has that right (except incarcerated people, who wouldn't be going to city hall in the first place).

If everybody has a right to inspect and receive copies of public records, why does the government need to have your name, address, and contact information, when that data automatically becomes a public record? There is a lot of good reasons for not having to give all of that private information about yourself when making a request beyond the invasion of your privacy.

If you make a request from across the state, there's a lot less likelihood you will challenge an outrageous fee determination, since any appeal must go to the county court where the public body resides. If you make a request locally, the politics can get pretty interesting depending on the records you are looking into and all the people at city hall or the courthouse making their own presumptions as to why you want to see John Smith's arrest record or Mary Jones' autopsy.

You wind up getting on somebody's list as a troublemaker or a nosy individual-- and who wants that-- so you don't make requests even though you really want the info. I have made multiple requests myself as a proxy requestor, contacted by others who, for various reasons, can't make the request without repercussions. This law will only make that more common.

There should be nothing wrong with making an anonymous FOIA request if you're willing to pay any fees and receive the records electronically. They're public records; they should already be out there in some form if we had enough data entry people. Personally, I almost always use my name in FOIA requests, but I respect the rights of the individual to have privacy when exercising their rights-- as much as I expect that public records should not be kept private from the public, with some exceptions. Do I have to tell the city clerk that information when I make an informal request at her desk? This brings me to a local case in point.

I happened to notice the Mason Lake Conservation District (MLCD) based just north of Scottville across from G2S had a rather obnoxious FOIA policy printed on the bottom of its contact page. It stated that any FOIA request would have a minimum of a $30 fee attached to it, plus more depending on the request. Nothing more concerning a policy. Such a base fee policy is repugnant to the FOIA so I sent a simple request to the e-mail of one of their officers I was able to find somewhere and asked for:

"The Mason-Lake Conservation District's FOIA Policy and the minutes of the meeting it was adopted."

The answer came three days later, pointing to the page I found earlier, and provided me with a copy of the minutes of the April 10, 2018 board meeting where the policy was adopted. FOIA Coordinator Dani McGarry ended with:

"Per our policy, any additional requests will invoke the $30 per hour charge for processing. Have a nice day."

Sounds like a challenge to make another request. So I did and I included Michigan law primarily MCL 15.234 which said that her agency could not collect any FOIA fees without having a written policy complying with the state's allowable fees chargeable directives. After several paragraphs of legalese I supplemented my FOIA request to:

"inspect all FOIA responses to FOIA requests made by the MLCD since January 2015 at a time mutually agreeable to us both. If that is not convenient, you can send electronic copies to this E-mail address. If you want to charge me $30 or more, I will report the MLCD to the proper authorities for attempted public extortion, a misdemeanor."

Her reply to that is where I learned of the new rule that requires FOIA requesters to supply name, address, and contact information. She let it slide for the first FOIA, but denied me the records (other than to say she hadn't remembered any FOIA requests over the last year (probably because of the mandatory $30 charge for anything) because of that technicality.

I reviewed what she said and sure enough, there was the new law saying I needed to supply a mailing address even though I explicitly do not want it mailed to me. Some police/prosecutor agencies have made that a pre-requisite in the past, then billed me for mailing records I wanted to either inspect or receive electronically. I shouldn't need to now, and if this is what the legislature wants to do with FOIA, I hope they leave it alone. My reply reflected my contempt for the new rule:

"For all intents and purposes, consider me homeless. Thanks for reminding me of my dire plight. Please fulfill my request and send a response to my E-mail inbox; that's my address. If you wish me to inspect the records, if any exist, invite me to MLCD HQ. I'll leave my pickle jar outside."

A couple more exchanges occurred and I effectively found out that there had been no FOIA responses in their records (not surprising with a fixed $30 fee for the 95% of requests that shouldn't reach that level. And if you check their current website, you will find they eradicated the rule and put up a policy that follows the state's guidelines. Now if you make a simple request and charge you anything they have to justify the expenses. 

Mission accomplished.  Now all I have to do is find my home.

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Why can't these damn politicians understand one important fact. It is not their information. It belongs to the citizens who pay for it's gathering, storage, processing and dissemination. As you said anyone should be able to request information without paying large fees. My guess is that the group that caused the "Emily FOIA" changes were retaliating against the tyrannical hoarding and hostage taking attitude of our public records. An open society with free flowing information is a good thing. This type of knee jerk reaction by the State only serves as a reminder that many of these politicians are not happy unless they have their boots on John and Jane Doe's necks. Thanks for the information. I had not heard of this change in the law.

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