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.