Happy Sunshine Week 2024!

The liberties of a people never were, nor ever will be,
secure, when the transactions of their rulers
may be concealed from them.
~Patrick Henry

A popular government, without popular information,
or the means of acquiring it, is but a prologue
to a farce or a tragedy; or, perhaps both.
~James Madison

Publicity is justly commended as a remedy for
social and industrial diseases.
Sunlight is said to be the best of disinfectants;
electric light the most efficient policeman.
~Justice Louis D. Brandeis

Sunshine Week was established in 2005 and is an annual opportunity for the press to educate members of the public about how important it is to fight for and maintain an open government – and conversely, to remind us how dangerous it is when the government engages in unnecessary secrecy. Whether they are called Freedom of Information Acts (FOIA), Freedom of Information Laws (FOIL), Open Records Acts (ORA), or by some other variation, these statutes are all intended to do the same thing – to throw open the files of government to public view and let the sunshine in.

I’ve worked with the FOIA for – gulp – over 20 years now. I use it as a tool to learn things about government (and not just Clarkston). I also loved working with the FOIA from the government side. Do you like gossip or getting the inside scoop on what’s going to happen before it becomes general knowledge? Follow the FOIAs! For example, I knew that a certain mayor who had been removed from the ballot because of a problem with the timing of his residency was going to jump back in as a write-in – before it was announced and before the story hit the press. How? Well, most candidates for public office use research firms to send FOIA requests for opposition research on their opponents (no surprise there) and also on themselves (to find out what others will eventually learn). I was working with my internal client on a FOIA request for this candidate, when poof! We received an email withdrawing the request. Within hours, the candidate withdrew from the race. A short time later, we received an email from that same requester asking to reinstate the FOIA request. I knew the instant the request was reinstated that the candidate was back in the race – and I was right. Within hours, the candidate announced he would run as a write-in. I also know first-hand that a multi-year grand jury investigation, criminal convictions, and the end of a few careers can all begin with a simple FOIA request. You just never know what will happen when you start looking at public records. Though most FOIA requests aren’t that exciting, behind each of them is someone proactively trying to learn about his or her government. It’s something to be celebrated and one of the many things that makes this country great.

So, for this Sunshine Week, I thought I’d talk briefly about how to make a FOIA request in Michigan. Please remember that I’m only talking about the Michigan FOIA. While there may be some similarities, each state (and the federal government) has its own statute establishing the rules for making FOIA requests. And please remember that whatever I say here, it should not be intended as legal advice. (If you want that, you should hire a lawyer.)

Now that the disclaimers are out of the way, let’s go.

You can only ask for records from a public body. If the place you’re sending the request to is not part of the government in some way, the person receiving your request can throw it in the circular file and ignore you. (So, requests to Clarkston are OK because it’s a city government, but requests to General Motors are not because it’s a private company.) I’ll refer to “public bodies” and “the government” interchangeably.

Anyone – except for a person serving a sentence of imprisonment in a federal, state, or county facility – can make a FOIA request for records from any Michigan government entity. (People incarcerated while awaiting trial can still make FOIA requests.)

You don’t have to tell the public body why you want the records – or how you plan to use them. You don’t have to be a resident of the community that keeps the records you want. You don’t even have to be a resident of the State of Michigan to make a FOIA request from a Michigan public body.

The records you seek must be public records. That means they are prepared, used, owned, retained, or possessed by a public body in the performance of an official government function. If the record pertains to an expenditure of tax dollars or an action of a public official performing his/her official duties, you should have no problem getting it. If you are trying to get an email that a public employee sent to his wife about dinner plans, that email is not a public record (though it could become one if the employee is disciplined for sending a lot of personal emails on a government email system and the emails are the evidence used to support the discipline – because disciplining public employees for misconduct is an official function of government).

All FOIA requests must be in writing. You can call or walk into your local government office to ask for information, and they might give it to you, but that’s an example of a nice staff person. It’s not a FOIA.

FOIAs can be hand-delivered, faxed (does anyone do that anymore?), mailed by U.S. Mail, or emailed. I prefer sending my FOIA requests by email because it’s more convenient, it arrives immediately, and I have a time-stamped record of when it was sent. Speaking of “receipt,” FOIA requests sent using electronic methods such as email are not technically received by the public body until the next business day, meaning a FOIA emailed on Monday isn’t officially received until Tuesday. And FOIA requests sent on a weekend aren’t received until Monday (unless Monday is a holiday, in which case your request isn’t legally received by the public body until the next business day, which would usually be a Tuesday). Even though Clarkston has decided to close its offices on Friday, that’s an operational choice and doesn’t change the amount of time it has to answer a request (if it were otherwise, a public body could theoretically be open one day a week and take months to respond to every FOIA request.)

A public body has five business days to respond to your FOIA request from the official “received” date. That response can grant your request, deny your request, grant/deny your request in part, or it can extend the time to respond by up to ten business days (though they need to tell you why they need the extra business days and when they will respond).

Your FOIA request should be addressed to the FOIA Coordinator. Most of the time, you can find this information by going to the public body’s website. If a link or contact information isn’t on the home page, try searching for the word “FOIA.” You may not be told the name of the person filling the FOIA Coordinator role (so they don’t have to update the website every time the information changes), but you will almost always be provided with a mailing address, email address, and phone number for someone who is designated to receive FOIA requests without having to call and ask. If you send the request to the wrong person, they are required to promptly forward it to the FOIA Coordinator, but it’s more efficient if you take a few minutes and get it right in the first place.

Some public bodies have a webform they’d like you to fill out to make a FOIA request. You don’t have to do that if you don’t want to; they are still required to answer your FOIA request. (I don’t remember ever using a webform because I find them to be cumbersome.) My FOIA request emails are sent to the FOIA Coordinator’s email address with the subject line “FOIA request.”  While you don’t technically have to use the word “FOIA” when making a request, I always do that to make it clear I’m using the FOIA statute to get whatever information I’m asking for because the statute provides a lot of protection to a FOIA requester.

Next, you must describe the public records you want. Be specific. You are only required to sufficiently describe the records you want in a way that the FOIA Coordinator can understand. For example, “please provide me with a copy of all tree-cutting invoices, from any vendor, paid by the city in 2023.” No wiggle room there. And notice the time frame. If you ask for “all tree-cutting invoices,” the public body could interpret that as “all tree-cutting invoices for as long as we have records” and can avoid providing you any records until you pay them a fee to search every record they have in the storage room. While most public bodies aren’t trying to hide things, if you try to write your request like a Boston lawyer and the public body wants to keep the records from you for some reason, too much verbiage can provide too much wiggle room for a clever public body to avoid giving you the records you really want. Sending a request that’s too complicated or without date ranges can also lead to honest confusion about what you’re really looking for. Try to make it as easy as possible on the person reading your request, since they probably have other job duties.

You don’t really have to say much more than that, though I confess I have added things to my Clarkston FOIAs because of my history with Clarkston. To make sure I get records kept by anyone in the city to include the city attorney (if I think it’s possible he may have any records), I usually add a paragraph saying something like: “This request seeks copies of all responsive Clarkston records, regardless of their location or form, including records that may be located in the Office of the City Attorney.” I do that because my five-year FOIA lawsuit concerned Clarkston records the city attorney was actively trying to hide from the public by keeping them in offsite files in his private office. The Michigan Supreme Court held that our city charter created the Office of the City Attorney, and it is part of Clarkston government. Adding that text requires the city attorney to also search his files for responsive records (because I honestly don’t trust him to do it unless he’s specifically asked).

I always ask that all records be sent in electronic form to my email address, no matter where I’m sending the FOIA request. It’s faster, and it avoids having to pay for copy paper (the cost for which can be passed along to you up to $.10 per page). If you’ve asked for electronic records and the public body has the ability to send them to you electronically, they are required to do so. They’re not allowed to charge you a per page paper fee for an electronic record. (The previous Clarkston clerk tried that – once.)

I always also add a sentence that says if any part of my request is unclear, please let me know and I will restate the request. They aren’t required to do that and can simply deny your request because you haven’t sufficiently described the records, but most public bodies caring about transparency will briefly follow up with you if they have a question about which records you want. And, if you end up suing the public body under the FOIA, I suspect a judge isn’t going to look too kindly upon a public body claiming it wasn’t legally obligated to follow up over a minor detail, especially since you asked them to do it and they had your contact information.

I almost always keep my FOIA requests to one subject. For example, if I wanted records for Clarkston’s 2023 Depot Park fees and the mandatory election filings for Clarkston city council candidates for 2023, I would make two separate FOIA requests. It’s not required, but I think it’s cleaner and more courteous to the person receiving and trying to fulfill the requests. I can tell you from personal experience that nothing is worse than getting a 26-part request for records involving five different subject areas with no delineation between subjects. Mega FOIAs like that can lead to erroneous partial denials simply because it wasn’t reasonably clear to the person reading it which subject a particular request pertained to.

You must include your name, address, and phone number or email address in the request, and your request can be denied if you don’t. A post office box address is fine if you don’t want your street address to become part of the public record. (And yes, someone can FOIA the FOIAs if they want, so keep that in mind as you’re writing your FOIA requests.)

And then you wait. The FOIA is not a fast process. Sometimes, you might get your answer in five business days or less, but more often, you’ll have to wait for up to fifteen business days, and your answer might be a request for a fee deposit. If that happens, you have to pay first, wait a reasonable amount of time for the request to be completed, and pay the balance once the records are retrieved – before you get any records. Sometimes, the answer to your request might be a denial of all or part of your request because the public body uses what are called “exemptions” to keep part of the information from you. Some of it makes sense; for example, I think everyone can agree that social security numbers should be blacked out before a record is sent out. Other exemptions are not so straightforward, and you may not agree that they were appropriately taken.

You don’t have to take the public body’s word for how much to charge you if you receive an invoice for FOIA record fees. You can appeal the amount of a fee to the “head of the public body,” and if you aren’t happy with the answer, you can sue. (The public body is supposed to explain your right to appeal and/or sue in its response. It’s also supposed to post its procedures and guidelines, with a summary, on its website and provide you either with a copy of these documents or a website link in its written response to you.)

If a public body doesn’t respond to your request within the required timeframe, or if it refuses to give you the information you want because it claims an exemption applies to some or all of the records, you can appeal or sue immediately.

There is a lot more to the Michigan FOIA, but this should get you started. If you want to know more, the FOIA statute is easy to read and linked here. The Michigan Attorney General has published a FOIA handbook that I’ve linked here.

If the government wants to slow things down and play games with the FOIA statute, there are ample opportunities to do so. See Bisio v Clarkston, for example. It took me five years from the time I made that FOIA request until the time the records were provided, and the city’s attorneys did everything possible to drive up my fees and costs. It was a very simple case, but because the city received “free” lawyers under its insurance policy, it had every incentive to fight, obstruct, and delay. I honestly believe the only reason that my lawsuit lasted so long was because the city had nothing to lose. The city’s legal fees were paid by the Michigan Municipal League’s Liability and Property Pool (MMLLPP), so the city was happy to “keep fighting.” Why not? They were able to avail themselves of the services of nine lawyers and two law firms to help them keep the records hidden, and they didn’t care a whit that the overall attorney billing in the case likely exceeded $700,000 even though the case involved only one easily defined legal issue. (There were exceptions – mayor Sue Wylie, former mayor Steve Percival, and former council members Rick Detkowski and Scott Reynolds were/are very pro-transparency and didn’t agree with the city’s position in my FOIA lawsuit.)

That’s why I would suggest that any lawyer bringing a FOIA lawsuit in Michigan avoid asking for anything beyond reimbursement for reasonable attorneys’ fees and allowable legal costs and skip any request for damages. Most public bodies in Michigan are insured through the MMLLPP. Presuming their municipal liability policies have similar wording, any request for damages triggers the policy coverage.  If the lawyer limits the requested relief to only attorneys’ fees and legal costs, the public body won’t get a “free” insurance-funded attorney that would allow it to fight a FOIA lawsuit by throwing frivolous defenses up and causing delay. Without a “free” lawyer, the public body will have to write its own checks not only to pay for its legal fees, but also to pay for your legal fees and litigation costs if they lose. This will affect their budgets and cause financial pain, forcing them to be reasonable about resolving a FOIA lawsuit. This is as it should be, because what happened to me should never happen to anyone else.  (If you want to see a public body’s insurance policy to confirm the coverage before filing a FOIA lawsuit – make a FOIA request for it. 😉)

I’m often asked if I can handle FOIA cases. At the moment, I’m not set up in active practice and can’t handle your FOIA case. But should you find yourself in need of a FOIA attorney, one way to find one is to go to the Michigan State Bar’s website and type in “freedom of information act” in the “type of lawyer” box. A list of lawyers who have included FOIA as a specialty will come up. When you click on their links, be sure to look for lawyers who aren’t representing government entities as they aren’t likely to take your FOIA case. A FOIA lawyer may or may not charge you by the hour to handle your case (they may wait to collect at the end of the case), but most lawyers will at least provide you with an initial consultation, sometimes at no charge.

Now go forth and learn more about your government.

(And enjoy the sunshine.)