Asked and Answered . . .


Robin Luce Hermann on FOIA

By Steve Thorpe
Legal News

Fifty years ago, on July 4, 1966, President Lyndon Johnson signed a law guaranteeing the public’s right to obtain government information: the Federal Freedom of Information Act. The act has played a major role in revealing government overreach and negligence. It has even proven a vital tool for scholars seeking to correct the historical record. But FOIA has its problems including frustrating delays, big fees and outdated technology. Federal agencies also routinely use loopholes to deny legitimate requests. Robin Luce ­Herrmann is a shareholder based in Butzel Long’s Bloomfield Hills office and is a Practice Department Chair of Butzel Long’s Litigation practice, as well as head of Butzel Long’s Media group. Herrmann serves as General Counsel to the Michigan Press Association, the official trade association for the newspapers of Michigan, with more than 300 members throughout the State.

Thorpe: Happy birthday, FOIA! Is she a healthy, happy 50-year-old, or is she starting to show her age?

She is perhaps a little like the Statue of Liberty – still regal, still stately, still inspiring, albeit in need of occasional refurbishing. About a month ago, shortly before July 4th, President Obama signed into law the FOIA Improvement Act of 2016. Among other things, this “refurbishment”: makes permanent the presumption that all government records are public; requires the government to turn over documents shielded by several broad exemptions after 25 years; requires the government to automatically post frequently requested documents, meaning materials could be accessible to a much wider audience; and institutes a new central website designed to handle records requests that should make it easier for citizens to use FOIA. This is a much needed face lift – but more could certainly be done.

Thorpe: What are some of FOIA’s notable success stories?

There are so many! Pick up your newspaper and chances are excellent that you will see multiple stories based on information obtained from public records that were obtained through FOIA. FOIA was used to obtain data about air quality at Ground Zero after the September 11 attacks and shed light on the Vietnam War. The United States Congress has noted that FOIA has led to the disclosure of waste, fraud, and wrongdoing, as well the identification of unsafe consumer products and harmful drugs. Stories we see every day should remind us that strong and enforceable public records and public access laws allow citizens and journalists alike to inspect government documents with the result that we are all better informed. Information on the workings of government is absolutely necessary in our democratic society.

Thorpe: Where does FOIA come up short in its role of informing the public? Are those shortcomings getting better or worse as we communicate in different ways?

The exemptions to FOIA and the length of time it can take before documents are provided are both frequent obstacles to informing the public. Most people would agree that some exemptions are necessary. Unfortunately, exemptions are overused with the result that a lot of information is shielded from public view. In addition, although the law requires a presumption that the records are public, there is a tendency for public bodies to invoke exemptions by default, even when the application of the exemption is questionable. The shielding of information is especially concerning when the material relates to an issue of public concern or controversy. One troubling recent trend is that because some information is more widely disseminated on the Internet, both public bodies and some courts have a tendency to shield more information than is necessary.  In addition, it often takes far too long to obtain information. In some cases, requestors have waited years. On the other hand, some public bodies maintain websites and provide more information there than ever; but that’s the exception not the rule. Hopefully, by requiring the government to automatically post frequently requested documents and instituting a central website to handle requests, the FOIA Improvement Act of 2016 will remedy some of these problems. Moreover, technology generally should be a means to provide more information more quickly – government needs to use technology to make this happen.

Thorpe: In 2015, Human Rights Watch requested identical information from each branch of the armed forces. The Air Force demanded $168,316 in processing fees; the Army asked for $1,584. Similar discrepancies occur all the time. What can be done to stabilize the fee problem?

The Federal FOIA might benefit from adopting some of the improvements to state FOIA laws, which were originally modeled on the Federal FOIA, but have been updated much
more frequently. The Michigan Legislature implemented some changes in Michigan’s FOIA law in 2015 with the intent that the changes would lead to more consistency in the fees charged. Those changes included setting a per-page copying cost and requiring an itemized statement of charges. Although it’s too early to tell whether these changes will have a substantial impact, they certainly could be considered for inclusion in the Federal FOIA. In addition, the 2015 Amendment to Michigan’s FOIA law allows for lawsuits to challenge fees, and in some circumstances, if the challenge is successful, the challenger may recover attorney fees and costs. If Federal FOIA were to allow for the recovery of attorney fees when requestors are found to have been wrongly denied access to records or overcharged for records, the government would have an incentive to charge consistent and appropriate fees.

Thorpe: What are the biggest misconceptions about FOIA?

Too often, the public sees FOIA as merely an investigative tool for journalists. That simply isn’t true. FOIA was envisioned as a tool for citizens to hold government accountable. FOIA is a means by which a citizen can find out how their taxpayer money is being spent in their schools, determine the qualifications of applicants for public employment or candidates for office, or find out how members of the local, state or federal government voted on an issue. Citizens need to be vocal about their support for openness in government, and tell candidates for public office that they demand transparency, accountability, and access to information. If citizens were more vocal about the importance of these issues and indicate that they affect their vote, we would likely see access to more information more quickly.

Thorpe: Looking ahead, what kind of role can FOIA play in the fast-changing information landscape?

FOIA will remain a necessity for certain types of information – i.e., information that is highly specialized, historical or technical. And although technology provides a means of providing more information to more people more quickly and at a low cost, many government bodies do not have websites, technical support, and/or the protections necessary to use technology to disseminate the information to the public. Nevertheless, the FOIA Improvement Act of 2016 contains some provisions that give a good indication of what lies ahead. Aided by technology, governments should be able to provide frequently requested documents electronically by posting them on a website or providing copies quickly and at low cost. For this kind of information, a FOIA request would not be necessary. We will also likely see more centralized websites to handle requests and also provide tools for requestors to obtain information efficiently and in a short period of time. Proper use of technology could greatly reduce the necessity of filing a FOIA request to obtain information.