Agencies Use Questionable Legal Reviews To Inflate Charges For Open Record Law Requests

The Mackinac Center for Public Policy recently sought copies of email communication between the Michigan Department of Health and Human Service and a contractor about the state’s COVID-19 responses.

State officials demanded $12,420 for the information.

The state’s response to a document request authorized by the Michigan Freedom of Information Act illustrates how some agencies and local governments have found legal ways to use high costs to effectively bar many entities from obtaining government records to which they are entitled.

The FOIA law applies to citizens too, not just watchdog organizations. Few residents could afford to pay the amounts municipalities are now routinely demanding.

In 2015 the Legislature amended the law in a way that has markedly increased the cost of obtaining documents from government.

“Public bodies have always used fees as a deterrent,” said Robin Luce-Herrmann, the general counsel for the Michigan Press Association. “Are we seeing more of the kind of charges you are talking about? Yes.”

The state of Michigan was able to hike up the cost of releasing the public information due to various aspects of FOIA law.

Officials charged $5,941 to have attorneys review the documents to see what would have to be exempt from being released. Under FOIA law, personal information such as Social Security numbers and certain confidential communication involving an attorney do not have to be released.

In this instance, officials demanded payment at a rate of $21 per hour for what they said was a total of 282.50 hours of necessary work. The law also lets the state charge half the cost of fringe benefits of that $21-an-hour employee, an add-on that increased this bill by $4,140.

More than $10,000 of the $12,420 came from that review of documents by legal department staff.

Requests for regular interoffice communications, such as emails, are unlikely to involve exempt personal information like Social Security numbers.

“You aren’t going to find Social Security numbers commonly listed in an interoffice e-mail,” said Steve Delie, an attorney at the Mackinac Center for Public Policy who specializes in FOIA law. “And there shouldn’t be much in the way of truly private information in those e-mails. But they will review it all and attempt to apply as many exemptions as they can anyway. The problem is that they shouldn’t be necessary in most circumstances. Public bodies shouldn’t be spending hundreds of hours reviewing documents to try and apply every discretionary exemption. They should only review when there is a legitimate concern that something important might be inadvertently be disclosed if they don’t.”

Delie said there are two related problems. One is that the law permits excessive charges that effectively prohibit most people from obtaining records that are supposed to be “open.” The second is when a public body actively looks to apply exemptions in every instance, even when there is no need.

A common remedy is to file a lawsuit.

“You can’t simply send everything that is gathered by the lowest-paid employee to a lawyer and charge for it,” MPA’s Luce-Herrmann said. “Some public bodies are taking advantage of it because they haven’t been sued yet.”

In 2019, the Mackinac Center submitted a FOIA request to Tuscola County, asking for all documents related to county employees and officials and a wind energy company.

Tuscola County responded with a $3,224 fee, of which $2,836 was related to having an attorney involved in reviewing documents.