The Freedom of Information Act—Carry a Big Stick


by Martha A. Churchill

What will 33 cents buy these days?

  Plenty, if used as postage1 on a Freedom of Information Act (FOIA) request. The scope of information available to the public, upon request, is nothing less than staggering. The FOIA is a tremendous tool for anyone involved in legal matters with local, state, or federal government.2 Under Michigan3 and federal4 FOIA laws, anyone can request information, and obtain costs and attorney fees if the government fails to produce the goods. Any fourth grader, working on a project for school, has a legal right5 to ask the Board of Pharmacy for a copy of the local druggist’s college transcript. No reason need be given, except when asking for certain internal government memorandums.6 If information is kept in any type of records, and should be public information, it must be provided, no matter what the requester’s motive.7

WHO AND WHAT IS SUBJECT TO FOIA?

The Michigan law applies not only to city councils and county commissioners, but to licensing boards, the prosecutor’s office,8 domestic violence shelters,9 historic commissions, nonprofit economic development organizations,10 and a host of private corporations that receive substantial tax dollars. The federal law, similarly, covers the waterfront for any agency with its roots in Washington, D.C.

Not only are the publicly-funded entities open to the FOIA, but large chunks of financial, actuarial, and even certain medical information from private sources are readily available to anyone with the imagination to ask for it. Contractors who bid on road jobs, and must offer financial information to a department of public works, are providing that same information to potential FOIA requesters.11 Those who sue the government for personal injury are probably placing their medical records in the public eye.12

A nonprofit foundation was found subject to the FOIA as a "public body" since it received tax dollars through a state university.13 All its computerized donor lists, therefore, became public records.14 Candidates for any job in the public sector, such as fire chief, can count on public scrutiny under the FOIA the moment they accept a job interview,15 although candidates for president of a public university are exempt.16

When considering FOIA requests, do not feel limited to paper documents. Would you like sex films used in a human sexuality class from a local community college?17 Just ask. Audio tapes—such as a city attorney’s taped interview with a controversial employee—could also be subject to information requests.18 E-mail is another type of record open to FOIA requests.19

WHERE TO BEGIN

If your client could benefit by an FOIA request, and you don’t want to fight city hall, have your client send the letter. To get started, simply send a letter to the government agency, and mention the phrase "Freedom of Information Act" somewhere in the letter. There is no need to specify whether the state or federal law is invoked. No special language is necessary.

Numbered paragraphs are not required, but it helps to avoid confusion both for the requester and for the public body trying to answer the questions. Ask for manageable bits of information. For example, here is a letter to a school district, inspired by the suspension of a mentally impaired child:

Dear FOIA Coordinator:

Please send me records containing information about suspensions and expulsions:

1. How many students were suspended for 10 days or more, or expelled, between August 1, 1998, and January 31, 1999, from Ourtown Middle School?

2. For each student suspended or expelled, state the student’s gender, race/ethnicity, the length of the suspension, whether the student was in a special education program (including gifted), and a brief description of why that student was expelled.

3. Send me a copy of the Ourtown suspension policy, as it relates to special education students.

4. Please supply me with the name, address, and phone number of the individual responsible for Freedom of Information Act requests in the Ourtown school district, in case I have any follow-up questions.20

Sincerely,

Sally Q. Citizen

A letter such as this actually yielded a wealth of information about the racial composition of students suspended from a certain school, and pointed to problems for disabled students. The FOIA works fast; under the Michigan law, a public body must provide this type of material within five business days after receiving the request, and 10 days under the federal law.21

Be sure the client signs the original request letter, not the attorney. An attorney who represents himself or herself may lose the right to collect attorney fees at the conclusion of a successful FOIA lawsuit.22

If the public body refuses to provide the records as requested, the attorney can step in and start the clock running for future attorney fee demands, or can bring in another lawyer, who feels more comfortable with controversy, solely to litigate23 the FOIA matter.

CAN MY REQUEST BE DENIED?

What if the school district does not normally keep a single document with the particular information about gender, ethnicity, and special education? The public body can ask for up to 10 extra days to gather a group of documents from various locations within the agency.24 The district may provide actual suspension records,25 with the names of students redacted so as to preserve their privacy; they cannot avoid supplying the information just because they don’t have it in the format requested.

The school district may not avoid a request by charging exorbitant photocopy fees. According to Michigan law, a public body is limited regarding how much it can charge FOIA requesters for clerical time and photocopies. For requesters who cannot afford to pay, the first $20 worth of copies are free.26

The school district might object to this request, on privacy grounds, since student records are confidential. The Michigan FOIA contains a special exemption for "personal" material constituting a "clearly unwarranted invasion of an individual’s privacy."27 In this case, though, such an objection would be without merit, because the request does not seek the names or any identifying characteristics of the children involved. The school district may redact a student’s name, for example, but it is not allowed to redact excessive amounts of information from the records.28

When it comes to privacy and the FOIA, remember that a request is designed to cast light on what the government is doing, not to snoop on the private affairs of one’s neighbors. Ask about the mayor’s phone bill;29 do not ask about the mayor’s underwear.

ATTORNEY FEES

A request under the FOIA does more than attract the government’s attention to your client’s favorite issues. It mandates payment of compensatory damages, plus the attorney’s reasonable fees and costs, if the request for information was denied and the requester brought suit.30 In addition, the Michigan law provides for a $500 payment of punitive damages against the public body for refusing to supply the information.31

Chances of success with an FOIA lawsuit are excellent if the original request was reasonable. The Michigan statute says specifically that the public body has the burden of showing why it may withhold the information.32

Depending on the situation, consider the possibility that a circuit judge may be reluctant to enforce the law against local public servants. One way around that problem is to represent a group of requesters, so that at least one of them resides in another county, or has a principal place of business in another county. The Michigan FOIA provides for venue in the county where the public body is located, or where the requester resides.33

If an FOIA lawsuit must be decided in a circuit court on the public body’s home turf, the practitioner should prepare for an appeal. The good news is that attorney fees through the appeal ought to be covered.

If the public body is a federal agency, or receives federal money, consider filing suit in U.S. District Court for violation of the federal FOIA. That law contains similar provisions for payment of the requester’s costs and attorney fees.34

FOIA AND SOCIAL SECURITY

The FOIA is not just a game for nosy neurotics, nor does it require any specialized legal skill. The results can be astonishing.

I was responsible for stopping unfair practices by a federal administrative law judge (ALJ) by filing an FOIA lawsuit in U.S. District Court.35 The judge had a regular practice of denying Social Security benefits to anyone with a mental illness, on the ground that the person’s symptoms were "subjective" Having practiced Social Security law in Roswell, New Mexico, for several years, I noticed the pattern of bias by this particular ALJ.

A class action36 to re-open all the cases decided by a biased ALJ is a difficult and time-consuming project. An attorney ought to have substantial evidence of bias before undertaking such a mammoth task. So, it seemed reasonable to ask the Social Security Administration to provide the evidence, through the FOIA.

The first FOIA request asked for the judge’s statistics, specifically, the number of cases granted or denied each month during a certain period, as compared with other judges based in the Albuquerque office.37 The request was denied on the ground that the Social Security Administration does not keep statistics in that form. Apparently, the government was not keen on supplying me statistics that could be used against it in a class action.

If the agency supposedly does not have the numbers, why not ask for a copy of all the judges’ decisions,38 and count them up myself? I sent more FOIA requests, asking for the final agency decisions39 as issued by the ALJ. To reduce photocopy expenses, I offered to accept an electronic version of the decisions, with the names of Social Security claimants redacted so as to protect their privacy.40 I also promised not to disclose any names of claimants, but to use the information only for statistical research, a procedure specially allowed by the statute.41

Under the federal FOIA, every ALJ decision should be open to public inspection, along with whatever documents were relied upon by the judge in reaching a decision.42 Theoretically, a claimant’s medical records should be open to public scrutiny, except that the name of the individual should be removed for privacy reasons. As a practical matter, no sane person would want to wade through huge stacks of medical records, but the FOIA does provide for that if requested.

My requests covered only the decisions themselves, not the medical records. The agency still refused, so I filed suit in the U.S. District Court of New Mexico. The FOIA lawsuit finally brought attention to the problem of judicial bias from the ALJ’s supervisors. At the same time, an abrupt change in behavior took place on the part of the ALJ who prompted my FOIA odyssey—ever since the lawsuit was filed, he has been granting benefits to a much higher percentage of disabled applicants.

When my FOIA case ended, I had plenty of statistics about ALJ decisions, plus attorney fees. On the basis of past experience, future lawsuits against the Social Security Administration ought to prove fruitful. The federal agency stubbornly clings to its culture of secrecy, making it vulnerable to FOIA litigation.

Where Social Security is concerned, the FOIA should be renamed the "Full Offer of Income for Attorneys" law.

Footnotes

1 Save the postage, and send your request by e-mail. This is specifically authorized by the statute, at MCL 15.232(i). Be sure to print out the e-mail and keep a copy for your records.

2 The Act contains an exemption for information related to litigation between the requester and the government. MCL 15.243(w). If John Doe has litigation pending with the zoning board, he can avoid problems with this exemption by bringing the issue to the attention of his friends or relatives, and appealing to their sense of civic pride. Eliminating government secrecy is every good citizen’s public duty.

3 MCL 15.231 et seq.; MSA 4.1801(1) et seq. The statute covers nearly all governmental entities except the governor’s office. The judicial branch is also exempt.

4 5 USC 552(a)(2)(A). Because of similarity between state and federal statutes, Michigan courts often look to federal decisions for guidance. Newark Morning Ledger Co v Saginaw County Sheriff, 204 Mich App 215, 514 NW2d 213 (1994).

5 See "Who has standing to seek access to agency information under Freedom of Information Act," 82 ALR Fed 248.

6 MCL 15.243(n). See also, "What constitutes preliminary drafts or notes provided by or for state or local governmental agency, or intra-agency memorandums, exempt from disclosure or inspection under the state Freedom of Information Acts," 26 ALR4th 639.

7 State Employees Assoc v Dept of Management and Budget, 428 Mich 104, 404 NW2d 606 (1987).

8 In re Subpoena Duces Tecum v City of Detroit, 205 Mich App 700, 518 NW2d 522 (1994).

9 Any entity primarily funded with tax dollars is a "public body," MCL 15.232(b)(iv). Domestic violence shelters perform a governmental function. Therefore, any shelter receiving substantial financial support from taxpayers would fit the definition of a "public body" for FOIA purposes. Even a towing company could be a "public" agency, if it has a significant contract with a city; Fox v News-Press Pub Co, 545 So 2d 941 (1989, Fla App D2). See "What constitutes an agency," 27 ALR4th 742, and 57 ALR Fed 295.

10 Buffalo News, Inc v Buffalo Enterprise Dev Corp, 578 NYS2d 945 (1991).

11 Nicita v City of Detroit, 216 Mich App 746, 550 NW2d 269 (1996).

12 Register Div Of Freedom Newspapers, Inc v County of Orange, 158 Cal App 3d 893, 205 Cal Rptr 92 (1984, 4th Dist). See also, "How to get patient records from federally-assisted substance abuse education and rehabilitation facilities," 30 Tenn BJ 30 (1994).

13 Jackson v Eastern Michigan University Foundation, 215 Mich App 240, 544 NW2d 737 (1996).

14 Farrell v City of Detroit, 209 Mich App 7, 530 NW2d 105 (1995).

15 Herald v City of Bay City, 228 Mich App 268, 577 NW2d 696 (1998).

16 Federated Publications, Inc v Board of Trustees of Michigan State University, 460 Mich 75, 594 NW2d 491 (1999).

17 Russo v Nassau County Community College, 603 NYS2d 294, 623 NE2d 15 (1993). However, the college did not have to provide the film, since it was commercially available elsewhere. See "What are ‘records’ of agency which must be made available under state Freedom of Information Act," 27 ALR4th 680.

18 Herald v Ann Arbor Public Schools, 224 Mich App 266, 568 NW2d 411 (1997).

19 MCL 15.232(e) defines "public recor" as any writing. Section 15.232(h) elaborates the word "writing" to include pictures, sounds, maps, films, microfiche, and computer discs.

20 Attorney Mike Shpiece of the Michigan FOI Committee generally ends his FOIA letters with "I look forward to receiving these records within five business days, as required by statute" or words to that effect.

21 MCL 15.235(2) (Michigan five-day rule). 5 USCA 552(a)(6)(A)(i) is the federal 10-day rule.

22 Laracey v Financial Institutions Bureau, 163 Mich App 437, 414 NW2d 909 (1987); Schinzel v Wilkerson, 110 Mich App 600, 313 NW2d 167 (1981).

23 See 50 Am Jur Trials 407, "Litigation under the Freedom of Information Act."

24 MCL 15.235(2)(d).

25 Defendant may not use a subterfuge, that it has no one document that contains the requested information. The public body has a duty to provide whatever documents do contain the information, and redact any information exempt as personal. Herald v City of Bay City, 228 Mich App 268, 577 NW2d 696 (1998).

26 Tallman v Cheboygan Area Schools, 183 Mich App 123; 454 NW2d 171 (1990). MCL 15.234 specifies free photocopies, or a reduced charge, when the requester is on public assistance, or submits an affidavit showing an inability to pay, or where the request would benefit the general public. As for the federal FOIA, see "When is federal agency justified, under FOIA, in refusing to furnish documents without charge or at reduced charge for search and duplication, pursuant to USCS 552(a)(4)(A)," 50 ALR Fed 552.

27 MCL 15.243(1)(a). See also, "Personal matters exempt from disclosure by invasion of privacy exemption under state Freedom of Information Act," 26 ALR4th 666. Mager v State of Michigan, 460 Mich 134, 595 NW2d 142 (1999).

28 Bradley v Saranac Community Schools, 455 Mich 285, 565 NW2d 650 (1997).

29 Detroit News v City of Detroit, 204 Mich App 720, 516 NW2d 151 (1994) (phone bills from mayor’s office and home are public documents because tax dollars are involved).

30 MCL 15.240(6). Some attorneys have been awarded tens of thousands of dollars in attorney fees from FOIA defendants, and occasionally the award could go into six figures.

31 MCL 15.240(7). The federal FOIA provides for attorney fees along with the usual taxable costs, plus photocopy costs, postage, exhibits, transportation, and even parking fees. Kuzma v IRS, 821 F2d 930 (1987).

32 Herald Co, Inc v Ann Arbor Public Schools, 224 Mich App 266, 568 NW2d 411 (1997).

33 MCL 15.240(4).

34 See 36 ALR Fed 530, "Construction and application of Freedom of Information Act provision (5 USCA 552(a)(4)(E)) concerning award of attorney fees and other litigation costs."

35 Churchill v Apfel, filed August 5, 1997, case number 97-1030 MV/LCS.

36 For an example of such a class action lawsuit due to a biased ALJ, see Kendrick v Sulivan, 784 F Supp (SDNY 1992).

37 I also asked how many of the cases decided by this ALJ were appealed to the Appeals Council, and, of those, how many were either reversed or remanded for a new hearing.

38 Final agency decisions must be made available for public inspection, according to 5 USC 552(a)(2)(A).

39 When a Social Security claimant is denied after a hearing before an ALJ, the claimant may appeal to the Appeals Council, and then may file for relief in federal court. The Appeals Council is the last step of the administrative process, but it is not the "final agency decision" except in rare circumstances when it reviews a case. The rest of the time, the ALJ decision is a "final agency decision." See 20 CFR 404.981, and Browning v Sullivan, 958 F2d 817 (CA 8, 1992).

40 The privacy exemption is found at 5 USC 552(b)(6).

41 5 USC 552a(5) allows a governmental agency to release confidential information to a recipient who has "provided the agency with advance adequate written assurance that the record will be used solely as a statistical research or reporting record, and the record is to be transferred in a form that is not individually identifiable." This eliminates the cost of redacting names. See also "Legitimate research justifying inspection of state or local public records not open to inspection by general public," 40 ALR4th 333.

42 Even exempt documents lose their exempt status, and become public records, if relied upon in reaching a final agency decision. See NLRB v Sears, Roebuck & Co, 421 US 132, 44 L Ed 2d 29, 95 S Ct 1504 (1975).



Martha A. Churchill
Martha A. Churchill, a former newspaper reporter, is a solo practitioner in Milan. She belongs to the Michigan Freedom of Information Committee. She was admitted to the Michigan bar in 1979, followed by Illinois in 1990 and New Mexico in 1995.


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