Robin Luce Herrmann on Changes to FOIA
By Steve Thorpe
Legal News
In January, Gov. Rick Snyder signed into law changes in the state’s Freedom of Information Act that will make public records easier and less expensive to access. Government agencies will no longer be allowed to charge more than 10 cents per page and can face increased fines for delays. The changes take effect July 1. Robin Luce Herrmann is head of Butzel Long’s Media group. Representing a broad array of clients, both as plaintiffs and defendants, Herrmann concentrates her practice in the areas of media law, particularly defamation, privacy, and access issues commercial litigation. She also serves as General Counsel to the Michigan Press Association, the official trade association for newspapers in Michigan.
Thorpe: How big a role does FOIA play in monitoring government in Michigan? What are some of the success stories?
Herrmann: It plays a huge role. Just pick up your paper or listen to the evening news – every day you will hear stories that had their beginning with obtaining information under FOIA. The Detroit News recently had a great series of stories on arson that were based on records obtained under FOIA. The News created a database that allows searches of arsons by zip code. And, of course, Kwame Kilpatrick’s deeds became known as a result of FOIA requests. There has also been a tremendous series of stories relating to the use of police “reserves” in Oakley Township – those stories started with FOIA requests and raise important issues with respect to the qualifications of police reserves and their powers. Using FOIA, the Battle Creek Enquirer found emails of evidence that a veterans advocate sought payments/gifts from those seeking help with benefits; a criminal investigation is now under way. FOIA is critical to citizens’ understanding of how government operates and contributes directly to participation in the democratic process.
Thorpe: Over the years, governmental entities became adept at skirting the law. What were some of their methods?
Herrmann: Especially in recent years, the biggest recurring issue is the use of excessive fees as a way to deter obtaining information — a requestor asks for certain records and the public body says that it will cost hundreds (sometimes thousands) of dollars for the requestor to get the information. And the public body will not break down the fees so that the requestor can refine their request. Some public bodies charge $10 for a CD for requested electronic information. In addition, the per page cost for copying varies widely across the state. The result is that citizens are discouraged from obtaining information about the workings of government due to the cost.
Another tactic that is commonly employed is imposing extensions of time so that it takes 3 or more weeks to get simple information. This is particularly true with applications for positions with government. We see a consistent pattern of trying to prevent the public from knowing anything about candidates until the interview of finalists. We also see it with reporters working on a hot story – too often, the public body delays providing the information for no good reason.
There are additional recurring practices we see, but these are the most prevalent.
Thorpe: Reducing delays is a big part of the changes and penalties will be leveled when they occur. What will those be?
Herrmann: Under the new FOIA Amendments, if a public body fails to respond in the time frame mandated under FOIA, any permitted labor costs can be reduced by 5% for each day the public body is late, up to a 50% reduction in those labor costs.
The legislature has also increased the penalties when a public body arbitrarily and capriciously refuses to disclose information or delays in doing so. In addition, FOIA now requires a court to impose an additional penalty when a public body willfully and intentionally fails to comply with FOIA or acts in bad faith.
Thorpe: The new rules also address the format in which the information can be received. Tell us about that.
Herrmann: For the first time, FOIA addresses situations in which the requested information is available on the public body’s website and allows the public body to direct the requestor to that in lieu of providing copies, although copies can still be obtained. Also new is a provision that requires a public body to charge only the actual and most reasonably economical cost for non-paper media (for example, computer discs) when the requestor seeks information in that format. It also expressly allows responsive information to be emailed to the requestor. All of these changes should result in the public obtaining information in a more timely and cost effective manner.
Thorpe: Citizens and organizations will now be allowed to sue if they consider the fees to be exorbitant. How will that work and what effect do you think that change will have?
Herrmann: Previously, there were lawsuits challenging fees, but even if you successfully challenged the fees you could not recover attorney fees. This was a real problem because filing a lawsuit challenging the fees is almost always going to be more expensive than simply paying the excessive fees. Some public bodies recognized that it was highly unlikely that they would face a lawsuit that simply challenged the fees.
The amendments to FOIA allow for the recovery of fees in certain circumstances where the fees are challenged. This change should have a very positive impact. First, it should encourage public bodies to be very judicious in their imposition of fees because they now recognize that they are much more susceptible to lawsuits challenging them and that they face the possibility of having to pay the requestor’s attorney fees. Second, it means that requestors now have far fewer obstacles to challenging excessive fees. Combined with the new requirements that public bodies itemize the component costs of the fees charged, the result should be far fewer instances of excessive fees.
Thorpe: What, if any, other changes do you think might be on the horizon for FOIA in Michigan?
Herrmann: I am not sure what might be on the horizon. Personally, I would like to see a limit on a public body’s ability to assert an exemption for the first time after a lawsuit is filed. Currently, a public body can assert that material is exempt, for example, under 1 or 2 provisions when it first responds; if the requestor things that those exemptions are not applicable, they can sue and then the public body could assert 1 or 2 or even 5 new exemptions in the lawsuit. That’s not only unfair, it is inefficient.
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