The Michigan Freedom of Information Act is 34-years-old this month. According to a ranking by the Better Government Association, it’s one of the stronger Freedom of Information laws in the United States.
The intent of the law is to make sure the people can find out how tax dollars are being spent and how public officials are conducting public business.
The Michigan Freedom of Information Act helps keep government open and transparent.
It’s used by companies, advocacy groups, interested citizens and journalists.
It’s a tool the American Civil Liberties Union uses often.
When the ACLU heard that the Michigan State Police might using portable devices which can be used to secretly extract personal information from cell phones, it filed a Freedom of Information Act request to find out what was going on.
If there are such devices, they could be gathering information such as text messages, phone contacts, who’s been called and so on. It’s kind of like copying all the papers in your locked briefcase while your back is turned. If they are being used, it could be construed as illegal search and seizure.
Kary Moss is the Executive Director of the Michigan chapter of the ACLU. Her group wanted to know whether and when the Michigan State Police used the devices. So, they asked for documents about them.
“So we filed Freedom of Information Act requests now back in 2008 and have yet to see a document."
LG: What kind of response have you gotten from the State Police?
"We’ve gotten a lot of slippery responses. First, they came back with a completely crazy dollar calculation of what it would cost to answer our questions and then they wanted an incredibly, several hundred-thousands of dollars of a deposit.”
The bottom line: after three years of waiting, the Michigan State Police indicated getting the information would cost of $544,680.
Moss says this is not how the Freedom of Information Act –or FOIA-- is supposed to work.
“Fees of that size are more than a deterrent. I mean they essentially undermine the whole intent of the FOIA laws.”
The Michigan Freedom of Information Act has a whole section on fees.
It indicates a public body or agency doesn’t have to charge a fee at all, but if it does, it may not charge more than the hourly wage of the lowest paid employee capable of retrieving the information.
It shall utilize the most economical means for making copies. And if the costs are high, it must specifically state why they’re so high. The idea is the people requesting information might be able to adjust their request to keep the costs down.
So, maybe this ACLU request about these cell phone information-grabbing devices is an isolated incident.
Well, the Michigan State Police have charged more.
In 2009 the Mackinac Center for Public Policy was looking into how some tax money was being spent. Kathy Hoekstra with the Center filed a Freedom of Information Act request.
“Well, what I was looking for was information related to Michigan State Police’s handling of Homeland Security money, federal money, $129-million in federal grant money.”
Basically, she wanted to make sure there was no fraud, waste or abuse.
Hoekstra received some audits for what she considered a reasonable fee, but she wanted more detail. The Michigan State Police response was more than Hoekstra expected.
“Yes, more than two-million pages and the final tally of $6.8-million.”
LG: Now, by my calculations, that’s about 13-percent of the State Police annual budget.
“Exactly! Exactly. So, yeah, that was a stunner. I will say that. Absolutely.”
The State Police explained to Hoekstra everyone would have to check his or her email accounts and the Center would be expected to pay the hourly rate for each employee.
“Multiply this by everyone involved in handling Homeland Security and you come up with a big chunk. Let me add this as well: I did ask for a breakdown of this and a lot of this retrieval estimate was based on handwritten notes just calculating -- I don’t know if it was ballpark figure. I mean, I can go on my computer and type in a keyword here and there in my inbox and retrieve emails within a matter of minutes. We have IT folks who can do that too. But, according to State Police, it would have taken hours upon hours upon hours of sitting in front of one’s own computer retrieving emails. So, that’s how they came up with the cost.”
Nearly $7-million seemed a little steep. Hoekstra says it left her shaking her head.
“It does make somebody wonder if there’s an institutional attempt to subvert or undermine the process.”
The Michigan State Police says, not so. Tiffany Brown is with the Public Affairs Section of the State Police.
“The State Police will provide information in accordance with the Freedom of Information Act and the Department only charges the actual cost of processing fees. We have established procedures for how we calculate those fees and that includes a charge for materials, a charge for the time of our employees to search for, retrieve, review, examine and separate exempt material. There’s also a fee to mail the materials.”
LG: ‘And you believe the Michigan State Police is adhering to the Freedom of Information Act in good faith?’
"That is correct.”
“I think a body that simply responds by saying it’ll cost you a half-a-million dollars or seven-million dollars to get what you want, I would question whether that body is operating in good faith.”
That’s Len Niehoff. He’s a law professor at the University of Michigan Law School. Before that he spent 26 years assisting the Detroit News in making its Freedom of Information Act requests.
“In my view, a party that’s operating in good faith who gets a request like that, comes back to the requester and says, ‘Look, for us to give you that detailed level of information would cost a lot of money, but we can tell from your request what you’re looking for and we can try to help you find some parts of what you’re looking for, will probably satisfy your request without bankrupting you.’ ”
Niehoff says the Freedom of Information Act is intended to assist the people in keeping an eye on their government, making sure the agents of government are operating above board.
Making access to documents expensive makes that much more difficult.
“It is the nature of public bodies to conceal their misconduct, to conceal their bad decisions, to conceal their mistakes and the Michigan Freedom of Information Act is intended to make that harder.”
