LANSING — Early in 2019, newly elected Gov. Gretchen Whitmer ordered state agencies to respond more quickly to requests for public records under Michigan's Freedom of Information Act, and to reduce the fees citizens are charged to receive those records.

But one year later, Whitmer's office has not been tracking the response to her executive directive, and users say not much has changed.

FOIA is used by journalists, attorneys, contractors and regular citizens to access records containing a huge range of useful public information, from how much the state is paying its park rangers, to whether a high school teacher has ever been disciplined, to when the city council plans to resurface a local street.

A year after the governor called for improvements at the state level, the Free Press found:

Users say 10-day extensions are still the rule, not the exception

It's not unusual for state agencies to take months to produce requested records

High fees to obtain public records remain a concern.

In a Feb. 1, 2019, speech to the Michigan Press Association in Grand Rapids, Whitmer said she wanted closer adherence to state law, which says public bodies shall respond to FOIA requests "within five business days" of receipt.

“State government must be open, transparent and accountable to taxpayers," said Whitmer, a Democrat, in announcing her plan to improve FOIA and state government transparency.

Extending the response time by 10 additional business days — an option provided for in the FOIA law — is "going to be the exception, and not the general rule," she said.

Regular users of FOIA say that has not happened. And they say the initial response time Whitmer targeted is often a red herring. State agencies can lawfully respond within five business days by providing an estimated fee for gathering and processing the records and requesting payment of a 50% deposit, but after receiving the payment take much longer to produce the records.

Issues beyond whether a 10-day extension is taken "are much more significant," said Detroit attorney Ralph Simpson, who helps citizens and community groups with FOIA requests as part of his practice.

"It's the cost, whether they are now going to say they can take several months, and whether they provide a good faith response," he said.

Long delays, high fees

Earl Booth, a corrections officer at the Charles E. Egeler Reception & Guidance Center, a state prison near Jackson, has used FOIA to investigate what he sees as sometimes lax and inconsistent internal security, uneven enforcement of prison rules, and retaliatory internal affairs investigations, among other concerns.

Booth, who filed the FOIA requests on his own time and at his own expense, said in the last year he has seen an apparent abuse of the law, both in terms of response times and the fees charged.

Booth just received a set of emails he requested more than six months ago, despite setting tight limits on which public records he wanted to see and promptly paying all requested fees.

Booth requested emails sent or received by one prison employee during a six-day period last June. He further limited the request by saying he only wanted emails that contained six key words or phrases.

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After requesting a 50% deposit for an estimated 3.5-hour job costing $111, the department told Booth it might take 60 business days to complete the request. It took just over twice that long. The department, which received final payment from Booth Feb. 6, did not send him the 110 emails until Monday, after the Free Press inquired about the delay.

Department spokesman Chris Gautz said Booth's request was handled by an inexperienced employee, who only started one month earlier.

"Of the 1,600 FOIA requests that come to the department, 80% are handled here in (the) central office," Gautz said. "There are two employees who process those, so when one is new and learning, it can slow it down a bit."

In March, Booth filed a series of FOIA requests for emails that resulted in requests for 50% deposits ranging from $14,573 to $70,187.

"I feel they tried to price me out," said Booth, who has not paid the deposits.

For the request that received the $14,573 estimate, Booth requested, for about a seven-month time period in 2018 and 2019, all emails sent and received by one employee that contained five key words or phrases.

"His request generated 1,842 emails to be searched, not including all the attachments on those emails," Gautz said. "That was more than 3 gig(abyte)s worth of data to sift through."

Gautz said the department charges a fee for fewer than 25% of the FOIA requests it receives.

Agencies not tracking response times

Whitmer did not direct state agencies to track improvements in their response rates, and several said they have not done so.

"Those are not stats we track at this time," said Jake Rollow, a spokesman for the Michigan Department of State.

"The FOIA office would have to manually review each file to get accurate numbers on extension data, time to respond to payments, etc.," Gautz said.

But Booth is not alone in experiencing state FOIA responses that are often slow and sometimes costly since Whitmer issued her directive.

Of 31 state government FOIA requests filed with 10 state agencies by the Free Press Lansing bureau since the directive took effect March 10, state officials took a time extension of 10 business days before responding to 25, or 81% of them.

The average response time from the date of the request to the date the records were produced was 25 business days, or five weeks.

For 17 of the requests, six agencies — the Corrections Department, the Department of Technology, Management and Budget, the Public Service Commission, the Michigan State Police, the Department of Transportation, and the Attorney General's Office — provided a total of 450 pages of records, at no charge, with an average turn-around of just over nine business days.

But for the 14 other requests either completed or still outstanding, the Corrections Department, the Department of State, the Michigan Lottery Bureau, the Michigan State Police, the Michigan State Housing Development Authority, the Attorney General's Office, and the Department of Licensing and Regulatory Affairs have together charged the Free Press $1,237 so far to produce about 1,400 pages of records, with an average turn-around time, to date, of 44 business days, or about nine weeks.

After Whitmer issued her directive, "I don't recall receiving anything sooner," and "I don't think costs were any less," said Jim Malewitz, who covered the environment for Bridge Magazine from November 2017 to November 2019 and is now investigations editor for Wisconsin Watch, a nonprofit news outlet based in Madison.

"For me, it's been hard to notice any major difference," said Jonathan Oosting, who has covered state government for Bridge since last fall after previously handling the same beat for The Detroit News since 2016.,

"It's not like it's suddenly become an extremely easy experience."

Tim Fischer, transparency liaison for MDOT, said he is tracking his agency's responses toWhitmer's directive, and the numbers have improved. In the year before the directive, the agency took a 10-day extension almost 20% of the time, he said. In the year after the directive, that went down to about 13%, he said.

But Fischer did not have data on overall response times from the date the records were requested to when they were received. That's an important metric for people making FOIA requests.

In the last year, MDOT only charged fees for 22 of the 413 requests that were either partially or fully granted, Fischer said. The average fee charged was about $491.

Big variations among state departments

There is wide variation in how various state agencies respond to FOIA requests.

To illustrate that, Malewitz pointed to an experiment he conducted early in 2019, around the time Whitmer issued her directive on transparency, in which he asked each state agency to produce a log of the FOIA requests it received in the previous year, including the date, who submitted it, what they asked for, and information about response times and fees charged.

Nine agencies, including the Corrections Department, DTMB and MDOT, quickly and at no charge provided spreadsheets or logs with most or all of the requested information, according to data Malewitz compiled and provided to the Free Press.

But the Department of Natural Resources estimated it would cost $5,287 to provide the requested information, while the Attorney General's Office estimated it would cost $880 and the Department of Licensing and Regulatory Affairs gave a $592 estimate, the records show. The Department of Civil Rights said the requested records did not exist, and the Department of Military and Veterans Affairs did not respond, Malewitz said.

Ed Golder, a spokesman for the DNR, said the agency does not keep a FOIA log and should have denied the request on that basis, rather than quoting a large fee.

In retrospect, "we could have worked with him to alter his request so we could respond at little or no cost with information we did have available at the time," Golder said.

Asked about the $880 quoted fee, Courtney Covington, a spokeswoman for the Attorney General's Office, directed the Free Press to put that question, along with earlier questions about Attorney General Dana Nessel's FOIA goals and the tracking of those goals, into a FOIA request.

LARA confirmed the $592 fee, but said it was justified because the agency would have been required to redact large amounts of information from what it sent Malewitz, such as the identities of medical marijuana card holders.

At Civil Rights, the agency did not have the records in the form Malewitz requested, but "should have given the reporter an estimate for creating the log of information from our database," said spokeswoman Vicki Levengood. "We erred."

At DMVA, spokesman Andy Henion said the agency did respond to the FOIA request, but said the records did not exist.

Oosting said state agencies requested time extensions for three out of four FOIA requests he has made since joining Bridge, and he has requests still pending. But he noted that DTMB, after taking a 10-day extension, quickly provided 170 pages of emails at no charge.

Snyder stumbled on transparency pledge

It's not unusual for Michigan governors to campaign on pledges of increased transparency and then fall short, once they take office.

In fact, Whitmer's predecessor, Republican Gov. Rick Snyder, also campaigned on increasing government transparency, in 2010. In 2013, the Free Press published an article titled: "Snyder hasn't kept transparency pledge."

The article noted that Snyder had refused to disclose contributors to his NERD (New Energy to Reinvent and Diversify) Fund nonprofit agency, had successfully fought court orders to disclose emails and other records related to the recruitment and appointment of Detroit emergency manager Kevyn Orr, and that his top officials were involved in a secret education planning group its own members dubbed "skunk works" that was working on a "value school" plan that critics said would allow public funding of private schools.

“Improving FOIA response times continues to be a priority for this administration," said Whitmer spokeswoman Tiffany Brown. "While we are making progress on this front, we’re committed to ensuring citizens receive public information in a timely manner."

Transparency liaisons

Asked why Whitmer did not direct state agencies to track progress on her executive directive, Brown said tracking is under review with the state's transparency liaisons — officials tasked in Whitmer's executive directive with educating the public and being agency advocates for the disclosure of public records quickly and inexpensively.

Of 18 executive branch agencies whose websites were surveyed by the Free Press Feb. 17, six made no mention of a transparency liaison, and another seven did not identify the transparency liaison by name. Only three — the Corrections Department, the Department of Labor and Economic Opportunity, and DTMB — identified the name, phone number and email address of the transparency liaison, though four others listed two out of the three.

That means that one year after Whitmer's directive was issued, the public in many cases does not know who is the transparency advocate in a given state agency, if they even know one exists, or how to make contact.

Whitmer's office released a complete contact list for transparency liaisons Friday, following a Tuesday request.

Whitmer has taken steps to heighten transparency that Snyder did not, including an "open government" tab on the website of the governor's office, where parts of her federal income tax returns and personal financial disclosures are posted, in addition to copies of her monthly public schedules. Snyder released parts of his federal income tax return each year, but only once it was requested by the Free Press. He did not make personal financial disclosures, which are not required under state law.

But Malewitz said he is disappointed Whitmer has not made her own office, which is exempt from FOIA, subject to public record requests, even in the absence of a law requiring such disclosures.

Michigan is a rare state in which both the governor's office and the Legislature are exempt from public records laws. Whitmer said during the campaign she favors extending FOIA to both.

At the time of her directive, Whitmer was asked why she did not simply issue an order extending FOIA to her own office.

She said she held off on doing that to create better leverage for a law that would apply to both her office and the Legislature and to ensure the resulting transparency lasts beyond her time in office.

"The sun should sign as brightly on both branches," and a law would ensure "this isn't just a policy for the Whitmer administration," she said.

Malewitz noted that while campaigning in 2018, Whitmer said during a press association candidate forum she would go further than she has done so far.

"As governor I'm not, I'm never going to tell you, 'File a FOIA request,'" Whitmer said. "I'm going to make sure that my communications director gives you the information you need to do your job because you have an important role in our democracy."

Malewitz said that soon after Whitmer was sworn in, he followed up on that pledge and asked Brown for copies of Whitmer's emails from her first two days on the job. Despite a couple of follow-ups, he never received them.

"It was admittedly a hugely busy time for the governor as she was setting up her administration, but fulfilling a request for a couple of days worth of emails would have been a nice way to show she was serious about her transparency promises," he said.

Brown said she does not recall receiving the request.

Contact Paul Egan: 517-372-8660 or pegan@freepress.com. Follow him on Twitter @paulegan4. Read more on Michigan politics and sign up for our elections newsletter.