Michigan FOIA proposal would eliminate fees, reduce wait times for public records

Joe Guillen | Detroit Free Press

Public records in Michigan would be free under new legislation introduced by a Detroit lawmaker this week.

Citizens can be required to pay hundreds of dollars or more for public records under the state's current law.

That's one reason why the state's Freedom of Information Act, or FOIA, needs an overhaul, said state Rep. LaTanya Garrett, D-Detroit, who is behind the proposal, which also would cut down on wait times for records.

"I feel like it should be free. The public feels like it should be free," Garrett said in an interview. "You're not open if you want to charge someone $1,200" for public records.

Michigan consistently has been a basement dweller when it comes to government transparency, chiefly because the Legislature and governor's office are not subject to t FOIA. Legislation to address those loopholes passed the House of Representatives earlier this year and is awaiting action in the state Senate.

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State Sen. Jeremy Moss, D-Southfield, said he and state Sen. Ed McBroom, a Republican from the Upper Peninsula, plan on ushering bills through the Senate next year to open up the governor's office and Legislature to FOIA. "We're as close as ever" to passing the bills, Moss said.

Meanwhile, Garrett's legislation, introduced Thursday, takes aim at fees and wait times for records allowable under FOIA.

Currently, citizens can be required to cover labor costs to gather and review requested records. For larger requests, the fees can be astronomical. The City of Detroit demanded a $222,667 fee from the Free Press in order to fill a public records request earlier this year.

Public bodies, such as cities and school districts, would not be able to charge any fees for public records under Garrett's bill.

Advocates for government transparency said they support Garrett's bill but said the changes are drastic and likely face an uphill battle for passage.

"This is a beautiful thing. It's reaching for the stars," said Lisa McGraw, public affairs manager for the Michigan Press Association.

"Maybe it's a good way to start the conversation over again," McGraw said, adding that the bill needs some significant fine-tuning.

But eliminating a municipality's ability to charge fees for filling FOIA requests would be the equivalent of an unfunded mandate, said Jennifer Rigterink, a legislative associate for the Michigan Municipal League.

Filling public records requests can be a burden, she said. In some communities, people file voluminous, broad requests that take a lot of work to fill. In other cases, consulting firms or other businesses from out of town file FOIA requests to advance their interests at the expense of the municipality.

Processing public records requests is not an essential service, Rigterink said, such as public safety, trash removal or infrastructure needs. "There’s not enough money to cover essential services in a lot of municipalities right now across our state,” she said.

Moss, the senator from Southfield, said he supports the spirit of Garrett's bill. While basic public information should be free, he said, in some cases it is appropriate to charge a fee for a large FOIA request. But municipalities should not be able to "weaponize fees" to prevent disclosure of public information, he said.

In addition to eliminating fees, Garrett's legislation also would severely shrink the amount of time a government office could take to respond to a public records request.

Public bodies would be required to provide public records within 10 calendar days under Garrett's proposal.

Under current law, there is no concrete deadline for providing records. Public bodies have up to 15 business days to decide whether a request is granted or denied. After that, the law only requires government offices to provide the records in a reasonable amount of time.

The open-ended time frame can leave citizens waiting months for records. The Free Press is still waiting for City of Detroit emails that were requested in May as part of its long-running investigation of potential conflicts of interest involving the city administration and leadership of the Make Your Date program.

Jarrett Skorup, of the Mackinac Center for Public Policy, said wait times can be excessive under Michigan's open records law. The center, which advocates for free markets and limited government, files FOIA requests to about 1,000 public bodies each year. In one case, the University of Michigan took four months to produce four emails, Skorup said.

"The problem with the law right now is if they request payment, once they request payment, they can take as long as they want," Skorup said.

Skorup said it will be difficult to pass a bill that eliminates any fees for filling FOIA requests. But taxpayers shouldn't be forced to pay for records that are simple to retrieve and provide, such as employment contracts.

Garrett said she's open to negotiate the bill's details.

Her public policy aide, Robert Davis, has been a government transparency activist for years. Davis, a former Highland Park school board member, has frequently sued public bodies for denying or delaying his FOIA requests. Garrett said Davis does not set her legislative agenda.

"Robert does not come to me with any public policy unless I ask," she said.

Joe Guillen has been covering city governance and development issues for the newspaper since 2013. He has covered Detroit city hall, been a member of the investigations team and previously worked at The (Cleveland) Plain Dealer covering county and state government. Contact him at 313-222-6678 or jguillen@freepress.com.