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Want that FOIA request filled in Michigan? You might have to wait awhile

Dec 14, 2017

This week, Vice News released the results of a thorough, nine-month investigation into police shootings nationwide.

If you look at it in map form, you’ll see an empty gray box near the top-center, signifying “unknown.” That’s Detroit.

In other words: no data to share. In Vice’s own words, that’s because:

"The Detroit Police Department said it would take up to 3,120 business days and cost at least $77,532 to retrieve records that other departments made available online for free."

 

The same information is also shown in graph form for 47 of the nation’s largest metropolitan police departments, from 2010-2016. There you’ll see that, for Detroit alone, the data line tracking the rate of police shootings stops altogether in 2013.

The Detroit Police Department may not have the greatest record when it comes to transparency. But it’s far from the only one in Michigan that does this.

Perhaps that’s not a coincidence. Vice used a variety of sources to dig up these numbers, but the most important and powerful tool is the Freedom of Information Act. Each state has its own FOIA laws, and Michigan’s is notably awful. And when it comes to complying with the spirit of FOIA, public entities in Michigan often use legal hair-splitting and eyebrow-raisingly high cost and time estimates to put up a high, thick wall between the public and public information.

On that latter point, Attorney General Bill Schuette essentially said in a recent opinion: “It’s perfectly ok to take a long time to fill a FOIA request, so long as you’re making some sort of effort to actually do it.”

Schuette’s opinion came out this week in response to a letter from State Rep. Gary Glenn, which asked the Attorney General to clarify one particularly gray area of Michigan’s FOIA law: how long public institutions have to actually produce records once they’ve granted a FOIA request.

In terms of granting or denying a FOIA request, Michigan law is clear: the public agency is given five days to respond. But there’s a ten-day extension baked in there, so in practical terms there’s a fifteen-day window to grant the request, or give a reason for denying it.

But once the agency grants a FOIA request, the law is far murkier. All that’s required is a “best efforts estimate” about how long it should take. Here’s Schuette’s read on it, from his letter responding to Glenn:

“…under subsection 4(8), MCL 15.234(8), the public body is required to give a “best efforts estimate” as to the time it will take it to fulfill the request. But the public body’s best efforts estimate is “nonbinding.” MCL 15.234(8). Thus, there is no fixed deadline imposed under subsection 4(8) by which a public body must fulfill a request for records.

It is my opinion, therefore, that subsection 4(8) of FOIA does not impose a specific time by which a public body must fulfill a request for public records that it has granted. Instead, the public body is guided by, but is not bound by, the “best efforts estimate” the public body must provide in its response…

The term “best efforts estimate” is not defined within FOIA. Unless defined in the statute, each word or phrase in a statute should be given its plain meaning.”

In using the language that it did in subsection 4(8), the Legislature gave public bodies significant latitude regarding the time for fulfilling a public records request. You suggest, given that latitude, public bodies may delay in fulfilling 7 requests. But it is presumed that a public officer will perform his or her duties properly. [emphasis mine]

So what we effectively have here is the Michigan Attorney General saying: Public officials should be trusted to come up their own timeline, guided by the idea of a “best efforts estimate.” In other words, so long as they’re not totally putting this on the back burner or throwing up unreasonable roadblocks (and again, we need to take their word for it that they’re not), it’s totally legal.

So despite the effective stonewalling treatment Vice got, it’s fine for the Detroit Police Department to say it could take years to fulfill a FOIA request for information that’s typically contained in a standard police report (DPD already tracks all police use-of-force incidents). Again, this is information that many other police departments around the country were able to provide quickly and easily.

Here’s another recent example of why giving government agencies that benefit of the doubt might be a problem.

Earlier this year, I sent Macomb County a FOIA request asking for a bunch of information about the county jail. It included some pretty basic information: how many people were booked into the jail over the course of several years, and the category of crime they were charged with (felony, misdemeanor, etc.). This is all information they’re supposed to provide to the U.S. Department of Justice, (by the way that’s where Vice ended up getting its incomplete Detroit police use-of-force data).

Macomb County’s response: we book a lot of people in jail every year, some on multiple charges, and we don’t compile that information in the way you’ve asked for it. We could dig it up for you…but that would take about three months, require copying two million documents, and cost $631,000.

But here’s the kicker, it turns out that two years’ worth of the information the county claimed would be so costly and arduous to collect was already publicly available--ironically, from the Macomb County Sheriff’s Department itself, in its annual report. So clearly, that basic information was already being compiled, and was available in an easily-accessible format that didn’t require making millions of copies.

So we know that some public agencies in this state are dragging their feet when it comes making good-faith efforts on FOIA requests. But the law apparently allows them to do that, and Schuette’s opinion has now engraved a big chunk of that foot-dragging in legal stone.

Some see at least a small silver lining in Schuette’s opinion. That includes Patrick Wright of the Mackinac Center for Public Policy, who says the Center sends out about 2,000 FOIA requests every year. They recently settled cases with the University of Michigan and the Michigan Department of Environmental Quality over how long those agencies took to fill FOIA requests.

Wright believes this opinion at least suggests that public bodies have to give their “absolute best effort, some indication that the agency can’t essentially bury something. That they have to do their very best in order to try and get a timely FOIA response.”

Putting a hard deadline on fulfilling FOIA requests would have required Schuette “to legislate out of thin air,” Wright said. Nonetheless, the Attorney General’s guidance offers at least a “decent admonition to state agencies to not play politics with FOIA requests. But there’s probably a need for a legislative fix. A firm deadline would be far better.”

This may all sound academic, but it really isn’t. Think of the Flint water crisis. In that case, Virginia Tech researcher Marc Edwards and others submitted FOIA requests that revealed Flint was gaming the system when it came to testing for lead in the city’s water, and ultimately those test results. Without that information, it’s doubtful Michigan Radio and other news outlets would have been able to do the kind of follow-up reporting that ultimately blew the lid off the full extent of the crisis.

Or the case of Davontae Sanford, the Detroit teenager convicted and imprisoned for years for a 2007 quadruple homicide. FOIA is what allowed Michigan Radio reporter Kate Wells, and later other news outlets, to obtain the Michigan State Police investigation that cast serious doubt on whether Sanford committed those crimes—so much doubt that Sanford was exonerated and released from prison earlier this year.

In cases like these, lives can actually hang in the balance of timely responses to FOIA requests. More broadly, “[FOIA] is supposed to let us participate in the governmental process,” said the Mackiniac Center’s Wright. “When we don’t get a timely response to these requests, that doesn’t really allow us to do that.”

Schuette’s opinion may move the needle in a tiny way, but it’s hard to say whether that will be in the direction of greater transparency, or giving public officials more leeway to continue shielding information the public is entitled to know.

Either way, two things are clear: You may need to wait a very long time to get that FOIA request filled in Michigan, and that won’t change unless the state legislature decides to do something about it.