Proposed laws will make public records truly public

Most government officials and politicians will agree in public that the work of government should be transparent so citizens can judge whether money is being spent wisely and decisions are being made properly.

But the reality is that getting your hands on specific government information isn’t always easy, even when the law says it should be available.

A bill proposed in the Michigan Legislature, House Bill 4001, would amend the Michigan Freedom of Information Act (FOIA) to make that information more accessible by limiting fees and discouraging delays.

The Michigan Coalition for Open Government (MiCOG) strongly endorses the legislation and believes that the bill would help promote transparency and accountability in state and local government. It applauds Rep. Mike Shirkey, R-Clark Lake, for introducing the bill.

Although Michigan’s FOIA law rightfully requires much information to be available, the law is being undermined by officials who block access to public information by wrongly denying requests, unnecessarily delaying the release of information or charging too much for searches or copies.

Delays that hold up the release of information until after an election is held or an important public policy is set can lead to bad governance and decision making. And officials who want to keep information secret or complain it takes too much staff time to fill a public records request know that charging high fees to track down or copy public records is often an effective way to stop a request dead in its tracks.

A substitute version of House Bill 4001, known as H-4 after some changes, has been approved unanimously in committee and sent to the full House. Here are some ways the substitute bill, if passed by the House and Senate and signed by Gov. Rick Snyder, would help:

  • Public bodies would have to establish procedures for determining charges for public records, including use of a standard form with itemized details for each of the six fee categories. If they don’t do this or don’t make the procedures publicly available without charge, they couldn’t charge a fee for a request under the Freedom of Information Act.
  • If you need a public body to make copies to take with you, it couldn’t charge you more than 10 cents per page for copying. The state treasurer would adjust that amount for inflation in 2020 and every 10 years thereafter.
  • If your request isn’t denied but you don’t receive the information by the law’s deadline, the fee for labor costs would be cut by 10 percent of the original amount for each day after the deadline the information is withheld if the late response was willful and intentional. After five days, the fee would be reduced by a maximum of 50 percent.
  • Punitive damages would be higher if a circuit court rules that a public body has arbitrarily and capriciously violated the Freedom of Information Act by refusing to release a public record or delaying its release. The damages would increase to $2,000 from the present $500. (That fee was set more than four decades ago.)
  • If you think fees are too high, you could appeal to the head of the public body or file an action in circuit court.
  • If you go to circuit court to fight a denial of information or a fee amount, the public body couldn’t give new or additional reasons it hadn’t given initially for the fee or the denial unless it showed good reason why the reason wasn’t provided previously. If the court finds that the legal basis for a reason given for the denial was clearly erroneous, it would require that the fee be cut in half.
  • If the court rules that the public body willfully and intentionally failed to comply with FOIA or otherwise acted in bad faith, it would fine the public body $2,500 to $7,500 for each occurrence.

Legislation also has been proposed to create an Open Government Commission to hear FOIA appeals (HB4314) and to expand FOIA coverage for the legislative branch so it is more in line with the broader coverage for the executive branch (HB4302 and SB202).

Those bills also are supported by MiCOG, a nonprofit, tax-exempt organization open to citizens, journalists and associations concerned with open government and freedom of information.

Rep. Tom McMillin, R-Rochester Hills, sponsored HB4314, while HB4302 was introduced by Rep. Brandon Dillon, D-Grand Rapids, and SB202 was introduced by Sen. Steven Bieda, D-Warren, showing that support for openness is bipartisan.

Officials still could charge reasonable fees for labor to search and review the requested information and to separate exempt information from information that must be made public. There still would be disagreements over those fees, but the proposed legislation would provide faster resolutions and a better way to appeal.

The need to pass these FOIA bills is growing every day. Many news organizations and citizens simply cannot afford to pay the high fees public bodies increasingly require to get at the very information citizens and the media need to hold government accountable.

Some officials argue that their resources are shrinking, too, and that it’s too expensive, time-consuming and distracting to fulfill information requests.

But any hardship they experience is outweighed by the value of having an open and transparent government. The fact that government resources are shrinking makes it even more important to make sure citizens can find out how their government is spending the people’s money.

Citizens need to know about possible waste, fraud, corruption, conflicts of interest and bad decisions so changes can be made. They need to know about successful practices so they can be replicated and encouraged.

Citizens can’t truly be a part of that analysis if they let governments do their own grading and assessments.

These judgments are crucial. Are the police and judges keeping your community safe while still treating the accused fairly? Are schools and teachers making the most of their opportunities to educate your children? Is your money being spent to get the best services -- or to reward elected officials’ friends? Are people in need getting help?

You can’t make those assessments without knowing what’s in the public record. The proposed legislation would make it more likely that you will get that vital information. We encourage the Oversight Committee to move the remaining three bills to the full House and urge the House and Senate to approve all four bills this session.

Charles Hill is a member of the board of directors of the Michigan Coalition for Open Government and a former Michigan bureau chief for The Associated Press. To join or find out more about MiCOG, go to http://www.miopengov.org or follow MiCOG on Facebook https://www.facebook.com/MIOpenGov or Twitter @miopengov.

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Comments

Diane
Wed, 12/04/2013 - 2:19pm
Van Buren Township frequently uses the excuse of "frank conversation" to deny FOIAs. Who has the time or money to take them to court? Sadly, I don't see anything in these bills that remedies this situation.
Cathy
Thu, 12/05/2013 - 10:00am
From what I see here, this proposal doesnt protect the governmental unit from individuals who use FOIA requests as harassment-- requesting huge volumes of information time and again. Our local government resorted to charging for the employee's time per hour, which raised the costs considerably, but limited the requests and allowed the local government to continue to function. One individual abused the privilege.
Marcia Robovitsky
Thu, 12/05/2013 - 5:42pm
I wish a law would make it mandatory for certain public information to be posted on the website. Contract language/ wages/ annual budget year after year/ etc. If the PUBLIC BODIES would take the information....and POST IT on their website and archive it there.... less people would be requesting FOIA.
Thu, 12/05/2013 - 5:57pm
Once again, the legislature in it's infinite wisdom is casting a one-size-fits-all blanket over everybody to try and fix the problems of a few. We follow the rules in the current law and have never had a problem, never been sued for compliance and our costs are minimal. Now when this passes, lookout for more problems-they just think they are fixing the issue, but it is only going to make it worse.
Al Buckner
Thu, 12/05/2013 - 10:54pm
In Garden City, I went to the clerk to get a copy of the city investment and information on a lawsuit. At first I was told it would also cost me $25 per hour. I debated the issue to go over to her computer and run me a copy shouldn't take her less than 5-minutes. It was 7-pages, which the clerk charged me $1 per page for a total of $7. No labor charge. But if I hadn't debated, she would have charged $25 per hour, who knows what the amount would have been. $.10 per page is great....BUT do away with the "search charge" it can still cost the residents plenty for information that they should be able to get for free online.
Duane
Fri, 12/06/2013 - 8:39am
Mr. Hill seems to be no different than the government people he wants to monitor. He simply wants, he uses 'transparency' as his sole justification. I support open government, I believe in accountability, which requires an open access to activities. To improve the effectiveness of any organization there needs to be openness. However, any activity must have a stated purpose and a means for its own accountability otherwise, as in this case of 'transparency', it seeds itself for the same abuses that Mr. Hill suggests he wants to ferret out. Mr. Hill shows no interest including the purpose of the law, a means to monitor its effectiveness/accountability, responsibilities/accountability of the requestor, and methods to correct problems. Mr. Hill shows no interest in considering the ‘unintended’ consequences these laws may have. It seems Mr. Hill wants what he wants and nothing else matters. Maybe a bit of openness and two-way discussion with the readers would change that impression.
Diana Menhennick
Sun, 12/08/2013 - 10:29am
As a local elected offical I am always supporting open government and transparency. However I don't always feel that the legilsature at the State level really understands how these blanket type policy mandates impact local units of government. Some of these requests that show up are extremely vague and replying to them is subjective in meaning. I am concerned about how local units of government with small staffing will be affected by these new guidelines.
Sun, 12/08/2013 - 3:19pm
Public Hearing on Proposed Budget: I attended the BOT meeting on Watertown Township’s Clinton County 2014 Budget Public Hearing. I sent the Board my concerns on the budget before the meeting so they would have advanced notice of my questions. When I asked the Board even the simplest questions about the budget, their standard answer was they did not know. I sent a FOIA for several questions to the clerk on the questions I asked at the meeting and received several denials for a varity of reasons. I am including the summary of the meeting and audio that includes my questions. Dale Westrick Former Trustee 2008-2012 Website www.wacousta.org BOT Meeting Summary - Click To View My Comments 2014 Budget - Listen
Sun, 12/08/2013 - 3:26pm
After posting my comment it was apparent that the links I posted did not work. To view or listen to my comments click on my website www.wacousta.org click on monthly meeting and then the November meeting for the information. Dale Westrick