House Readies For Vote On FOIA Reforms

Michigan residents who want to keep tabs on what government officials are doing may soon be able to do so without having to pay excessive fees.

A vote in the Michigan House could be taken this week on House Bill 4001, which would lower the fees government bodies can charge for FOIA request materials. The bill is an attempt to update the state's FOIA law and bring it in line with its original intent, said Rep. Mike Shirkey, R-Clarklake, the sponsor of the bill.

"There are necessary exemptions to FOIA, but the core of the law should be intrinsic to governmental service and practice," he said. "When the law was first passed in the '70s after Watergate, I think government was trying to show it could regain the public's trust.  But if we want to 'trust but verify,' we have to charge reasonable fees so that people can actually afford being able to get their information."

Some public bodies have been charging what have been determined by the courts to be exorbitant FOIA fees with questionable explanations to justify the amounts. In a case from 2009, the Mackinac Center For Public Policy was billed $6.8 million by the state police for a request about homeland security grant money.

More recently, on Sept. 20, the Mackinac Center filed a lawsuit against the city of Westland for its FOIA fee structure. Westland required a $5 fee before it would provide any information, charged $1 per page for copying and $45.61 an hour to cover the costs of the person gathering that information. The Mackinac Center case was settled when Westland changed its FOIA fee structure.

Lisa McGraw, public affairs manager for the Michigan Press Association, said that House Bill 4001 would bring about needed improvements to Michigan's FOIA law.

"The Michigan Press Association is very excited about the potential passage of House Bill 4001," McGraw said. "The bill makes great strides in addressing current problems in the existing FOIA law in Michigan. It helps construct a consistent fee structure that keeps costs down and it also provides for some repercussions for governmental entities that don't fill the requests in a timely fashion. We're looking forward to having this bill pass the House soon.”

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."

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 bill 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.

The Michigan Municipal League opposes House Bill 4001, but did not respond to a request for comment. MML's website cites concerns about costs and "onerous invoicing" requirements it says would result from the bill's passage. Another bill mentioned on the MML's website, House Bill 4314, has not moved out of committee.