New FOIA Law Passed, Will Help Foster Transparency, Rein in Costs

Michigan House Bill 4001 turned into law as Public Act 563 following Governor Snyder's signature on January 11, 2015. This Act provides the most significant revision to Michigan's Freedom of Information Act since its inception almost 40 years ago.

The Freedom of Information Act (FOIA) reforms are designed to make public records cheaper and easier to access.  The new policy strengthens penalties against agencies that don't respond in a timely manner to requests made under the FOIA.  All too often public officials have attempted to thwart the law through extended or indefinite delays in providing the documents or by charging exorbitant fees.  Keep in mind, making these records in the first place already came courtesy of you funding your governments via taxes and fees.

Signing the bills, Snyder issued a statement to remind government workers that they "are working on behalf of our residents, who should not be discouraged from learning about how that government is serving them."

"Getting this legislation passed was a long process and involved some compromise.  We are pleased with the end result as it addresses the two most major concerns expressed by our members with regard to FOIA in Michigan; costs and delays." said Dirk Milliman, Michigan Press Association public policy committee chairman.

The final wording of PA 563 of 2014 has still not been published yet (here's a description), being that the law won't go into effect until July, but here are some of the positive changes that have been noted, and how they compare with the City of Ludington's current policy, which has been changed three times over the last 50 months to make the FOIA more costly and restrictive each time. 

• Reimbursement for copies is capped at 10 cents per page. [City of Ludington currently charges 25 cents per page]

• The first $50 in costs to furnish a public record are to be covered by the agency that holds them when requested by certain nonprofit organizations and low-income residents.  [City of Ludington allows the first $20 to indigent individuals only if they provide personally invasive economic information to the public body that would then become publicly available]

• Labor costs must be itemized on the bill and provided at a reduced charge if the agency did not respond to the request within five business days [City of Ludington has almost never offered an itemized labor bill, however, they have a good track record of timely responses].

• An agency may request a deposit of up to half the total estimated fee if that cost will exceed $100, instead of $50 as was the policy under the prior law. However, if an individual failed to pay the full costs for a prior request, a full deposit may be required [City of Ludington has followed the $50 deposit level, but has held requester's accountable for such fees even if they contest the fee and never received the documents]. 

• If you believe you are being overcharged for your request, you may sue and ask a judge to lower the cost. If you win, the court can award you $1,000 in punitive damages, as well as attorney's fees and other costs. If it is determined that a public body arbitrarily and capriciously violated the law, the court must award $2,000 in punitive damages, which is increased from $500 [The only recourse for overcharges existing now made by the City of Ludington is to complain about why the charge is outrageous, then pay the fee].

• Increases court-imposed fines from $2,500 to $7,500 for intentionally failing to comply with the law [The City of Ludington's refusal to follow the FOIA in 2011 leading to a court case was an obvious failure to comply by FOIAC John Shay, but the court's have made it almost impossible to get punitive damages absent direct defiance of disclosing records the court has deemed non-exempt].

The changes take effect July 1.

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I'm happy to see some progress in making Government more responsive to FOIA requests, however this bill doesn't even come close to rectifying the abuse public officials are raining down on the people who put them in power. First of all there should be no need for filing a FOIA. The only reason it exists is that Government officials were withholding information and citizens had no recourse with which to obtain that information. Now we must file FOIA's for any written information we seek. For instance a friend of mine, who lives in another city, was in an accident recently. When they went to the police dept. to simply get a copy of the accident report they were required to fill out a FOIA request, pay a fee, then was required to wait 5 days before it was issued. My friend had to make 2 trips to the police dept. and had to pay a fee for the experience. The FOIA itself is a loss of our freedoms. Because of FOIA the Government can now "legally" hold our information hostage until we jump thru their legal hoops and even then the information can be denied. When the Government eases up a little on their grasp of our documents as per this new law, we are expected to be thankful and full of gratitude that their boot is a little less heavy on our necks.

The only major change in the FOIA that I can see is the increase penalties imposed on an agency who refuses to cooperate. This is a welcome addition to the law. I believe Government agencies can sill request personal information to determine if a person is indigent so no change their. Copy fees should not be charged at all. It's our paper for God's sakes not their's and they are being paid by us already to make copies.

I can see where this will help the citizenry by given us a bigger tack hammer but the Government still holds the sledge hammer which was never intended to be when our Country was founded.

One of the things I didn't bullet-point was that people could now get information via electronic means and not just confine you to 'paper copies'; a public body like the COL or the police agency you spoke of must be able to provide the option to give that information via E-mail in electronic files, meaning they cannot charge you for postage or copies (with the possible exception where redactions must be made), and ergo can only charge you for labor involved if it is an unreasonably high costs to the public body because of the nature of the request in the particular instance, and the public body specifically identifies the nature of these unreasonably high costs. 

Your friend should be at least able to cut down one trip to the PD, and some copy fees, if not, they can go to the new 'FOIA small claims court' process and get a reduction if the PD has violated the rules of feeing.  The FOIA law is not as strong as it could be and may have some loopholes to be exploited by public bodies, but it is a step in the right direction, unlike what our State courts have recently been doing.

The problem is that many people do not have or want access to the internet. The more the Government and people rely on the internet to do business the more vulnerable we become and the fact that everything is now computerized leaves us extremely vulnerable to attacks on our infrastructure. Power grids, water supply, fuel distribution, military establishment, nuclear facilities, ect. We are sitting ducks and it will only be a matter of time before a serious incident happens.

All those are valid points, and paper copies of most types of public records should be maintained by the public bodies, along with duplicate copies of electronic records on independent storage media, just in case.  If you're a frequent FOIA-er,however, it is in your interest to get an E-mail account and receive the records electronically, where you can then print them at your leisure, store them as files somewhere, and/or conveniently add them to your favorite website.

This would also serve as the solution to a disruptive cyber attack.  Always have a Plan B, and if economically feasible, a Plan C. 

Willy, I agree mostly. In today's life though, anyone can access the internet simply from their smart phone, or the library, friends, and relatives, if they truly want to, and don't want the cost of a computer and high speed in their home. Secondly, I am not going to hold my breath as to Ludington observing State of Michigan Law. We have witnessed the COL repeatedly ignoring, and loop-holing state laws, and even passing new/revised ordinances to obstruct the state laws. ( Refer to earlier Torch discussions on the animal feeding, cats, medical marijuana, liquor sales, and several others).  Ludington has blindly let our leaders make  unconstitutional judgments on our lives, and as Councilor Castonia pointed out at the end of the last CC mtg., this will continue unabated, at the cost of more of our freedoms. When you live in Ludington, expect the COL officials to make their own law, and break any state laws along the way, if they don't fit their agenda for ruling with an Iron FIST!

A lot of my older relatives cannot or will not use computers and that goes for many of their friends.

There's no problem with that, Willy, other than you have to have someone print out the Ludington Torch for the latest news.

The FOIA still allows the low cost alternative of inspecting the records, a courtesy most public bodies will not charge for, and in July, if you want to get copies, they can't charge you more than ten cents.  Ten cents is actually still a great bargain for them, as it should be way over their incremental cost which the law already mandates.  I've printed thousands of copies on my ink-thirsty printer, and charging four cents per page would net me profit.

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