House Panel Likely to Approve FOIA Reforms

A measure to prohibit overcharging for Freedom of Information Act request materials is poised to begin moving in the Michigan Legislature.

House Bill 4001 is scheduled to be taken up by the House Government Oversight Committee today. It is expected that a vote will be taken on the bill and it will be approved, possibly on a bipartisan vote. If approved, the bill would be sent to the House floor for consideration.

"This is a modernization of the FOIA law that focuses on standardization and transparency," said Rep. Mike Shirkey, R-Clarklake, the bill's sponsor. "The bill is aimed at the few local governments that have been stonewalling when they receive FOIA requests. It would force them to adopt a policy [on FOIA fees], so they could no longer just come up with costs that scare people away. It also creates the opportunity for people to appeal the charges."

The city of Westland could be an example of the "few local governments that have been stonewalling" to which Rep. Shirkey referred.

On Sept. 20, the Mackinac Center for Public Policy filed a lawsuit against Westland for its FOIA fee structure. Westland requires a $5 fee before it will provide any information and then charges $1 per page for copying and $45.61 an hour to cover the costs of the person gathering that information.  

A Wayne County Circuit Court ruled recently in a separate case that Westland was "subverting” the FOIA law by overcharging for FOIA materials.

The court ordered the Westland to bring its FOIA fees into compliance with state law. The Mackinac Center case is still pending.

Under current law, "a public body can charge a fee for a public record search, the necessary copying of public records for inspection, or for providing a copy of the record.

"The fee is limited to actual mailing costs and to the actual incremental cost of duplication or publication, including labor, the costs of search, examination, review, and the sorting of exempt from non-exempt information."

However, some public bodies have been charging what appear to be exorbitant FOIA fees with explanations to justify the amounts that are highly questionable. In another case from 2009, the Mackinac Center was billed $6.8 million by the state police for a request about homeland security grant money.

Under House Bill 4001, 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 legislation would also specify that a public body would have to permit and would be prohibited from charging a fee for copying during an on-site inspection of public records, unless the requestor asked the public body to provide the copies or used the public body's copying equipment.

In addition, under the measure, labor costs would be "estimated and charged in increments of 15 minutes or more with all partial time increments rounded down. For non-paper materials, the fee or estimate would be based on the actual and most reasonably economical cost of the computer discs, computer tapes, or other digital or social media."

"This bill also protects local governments, by saying that, if they can direct people to where the information is available, such as online, they wouldn't need to supply the information in a FOIA request," Rep. Shirkey said.

House Bill 4001 was the first legislation introduced in the House this session and it has been in committee for nearly 11 months. Rep. Shirkey said that time was well spent.

"I think we struck a good balance with this legislation," he said. "At the end of the day when those on both sides of the issue are equally happy and equally unhappy, that means you've probably accomplished something."

The Michigan Municipal League opposed the bill during previous committee hearings. A spokesman for the MML did not respond to a request for comment.