FOIA Reform Legislation Languishes in Senate

A measure aimed at assuring that government entities can’t use artificially inflated costs to stifle the public’s ability to obtain information is buried in a Senate committee. It is believed that if House Bill 4001 were to be voted on by the full Senate, it would stand a good chance of passing, but with only a few session days remaining in 2014, time is running out.

HB4001 would prohibit public bodies from charging excessive fees for Freedom of Information Act request materials. After being passed by the House with an overwhelming 102-8 vote on March 20, the bill was assigned to the Senate Government Operations Committee. It has been languishing there ever since.

“This bill really would provide impactful remedies to what we feel are currently major problems in the way FOIA is executed in Michigan,” Lisa McGraw, public affairs manager for the Michigan Press Association, told Capitol Confidential. “It would make the costs much more consistent and provide consequences with teeth if responses are intentionally delayed.

“MPA is hoping that the Senate will pass this legislation soon and that the governor will sign it,” McGraw continued. “We feel it would be a great improvement in open government for Michigan’s citizens.”

The chair of the Senate Government Operations Committee, Senate Majority Leader Randy Richardville, R-Monroe, did not return a phone call in which he was asked to comment on the matter. The other members of the committee are: Sen. Dave Hildenbrand, R-Lowell; Sen. Arlan Meekhof, R- West Olive; Senate Democratic Leader Gretchen Whitmer, D- East Lansing; and Sen. Tupac Hunter, D-Detroit.

Some public bodies have been charging what appear to be arbitrary and exorbitant FOIA fees with questionable explanations to justify the amounts.

On Sept. 20, 2013, the Mackinac Center filed a lawsuit against the City of Westland for its FOIA fee structure, which a Circuit Court Judge in a separate case said was “subverting” the FOIA law. Westland required a $5 fee before it would provide any information and then charged $1 per page for copying and $45.61 an hour to cover the costs of the person gathering that information. The case was settled when Westland dropped its FOIA fee structure.

“House Bill 4001 is a long overdue modernization of our FOIA law,” said Rep. Mike Shirkey, R- Clarklake, the sponsor of the bill. “It provides sensible standardization to how government responds to FOIA requests protecting taxpayers from economic and bureaucratic stonewalling.

“It also protects taxpayers by giving government entities more tools to effectively deal with FOIA requests that may not be sincere or result in unpaid expenses,” Rep. Shirkey continued. “And contrary to the assertions of those in opposition, HB 4001 actually provides more protection and clarity to government entities so they can capture reasonable costs above and beyond their routine, expected scope of service. It passed the House with near unanimous bipartisan support.” 

Opposition to House Bill 4001 comes from groups that represent local governments, such as the Michigan Municipal League.

“The Michigan Municipal League opposes HB 4001 because it does not allow local municipalities to get reimbursed for the true cost of FOIA requests and makes an already complex law even more complex,” Matt Bach, director of media relations with the MML, told Capitol Confidential. “It also creates penalties if the municipality does not respond to a request in time while leaving out any sort of penalty for those who are abusing the system.”

House Bill 4001 specifies that a public body would be prohibited from charging or estimating a FOIA fee that was:

•  In excess of the portion of labor costs directly associated with searching, locating and examining.
•  More than the hourly wages (excluding benefits) of its lowest paid employee capable of searching for, locating and examining the requested records, regardless of whether that person is available or who actually preforms the work.
•  Based on the cost of overtime wages unless specifically approved by the requestor.
•  More than 10 cents a page for copying a public record.

The measure also includes language specifying that if local governments can direct people to where the information is available, such as online, they wouldn't need to supply the information in a FOIA request.