Column: FOIA Friday: How to delay a FOIA request

Children cross Ann Street at North Fourth Avenue after being evacuated from the Hands-On Museum because of a gas line break a the Ann Arbor City Hall construction project on July 30, 2010. Records held by the City of Ann Arbor which document the location of gas lines are exempt from mandatory disclosure under Michigan FOIA laws under exemption (1)(y), which protects records associated with the safety of public works protected by the Michigan anti-terrorism act.

Angela Cesere | AnnArbor.com

Discourage FOIA requests

The best way to slow down a Freedom of Information Act request is to set things up so that people never make any requests at all. The question not asked is the question not answered.

Don't inform the public about how to make FOIA requests. Search the Lodi Township web site for FOIA information and you will get back exactly zero results - no contact information, no procedures to follow, no schedule of fees and no forms to fill out.

Slow down the process by refusing to accept FOIA requests by electronic mail, like the City of Chelsea site directs. Paper mail and facsimile are the approved methods in Chelsea, but electronic mail is not.

Accept FOIA requests by electronic mail, but don't open the inbox that contains those requests. If FOIA requests are directed to an individual, and that individual is not working every single day, then requests can be silently slowed down. You may not realize when filling out the Washtenaw County FOIA form online that your electronic data entry really generates an email to an individual.

A properly tuned spam filter will send requests for records sent by electronic mail to a junk folder, where the agency representative won't see it.

Keep limited hours of operations for FOIA coordinators. If the person who processes those requests works part time, or if they are out sick, your request directed at them may be delayed.

Papers please

Ask for identification, as the Washtenaw County Sheriff's Office FOIA form does. Incarcerated felons are ineligible to file FOIA requests in Michigan, so ensure that the citizen is not jailed before processing the request.

Require a notarized affidavit of intent, as per the City of Saugatuck FOIA policy, which asks for a notarized affidavit in conjunction with each request certifying that the individual is making requests on his own behalf and not for a third party.

Require that the requester go through a security checkpoint, like the City of Ann Arbor police records desk at the new Justice Center. Cameras, computers and crying children are not allowed beyond the checkpoint.

Require FOIA requests

Requiring that citizens go through the FOIA process for every single request for records that they make - or, if not every request, then at least the requests which the agency does not wish to answer immediately. There's no better way for a bureaucrat to slow down a citizen than with the magic words "You'll have to FOIA that."

Exercise all possible delays

Always request an extension in your records response, even if the records have already been prepared. Agencies in Michigan get 5 business days to respond to a request, and an automatic 10 day extension upon notifying the requester.

Return the records at the very end of the request period, even if you already possess them. There is no reason to ever give out a document without letting it properly age.

Require a deposit

Request a deposit for every FOIA request where the total fee to be charged is likely to exceed $50.00.

Anticipate all possible costs before preparing the cost estimate, and always estimate high. The more administrative review that you can add to the system, including multiple levels of reviews by multiple attorneys, the higher the costs that you can reasonably anticipate for any request.

Charge the maximum allowed by law

Charge the maximum allowed by custom for copying fees, drawing your inspiration from the Washtenaw County Trial Court which just raised its copy fees from $1 per page to $2 per page. "Two dollars is the top of the range and we charged it," said director of court services Barry Joseph when explaining the new fee structure.

Charge both for copies and for the labor associated with making the copies, like the City of Ann Arbor.

Charge for all labor costs, including an appropriate calculation for the cost of fringe benefits for salaried employees, as Michigan State University's FOIA policy states.

Don't continue your work on a FOIA request until all fees have been paid. Policies that require a certified check for payment of fees can slow things down just a little bit more.

Store your records badly

Store your records in such a form that a search for information requires an exhaustive examination of every single record in the agency's possession. Paper is an excellent format for difficult to search records, and paper in off-site storage controlled by a contractor who charges a fee for document retrieval is even better.

Put your records on an electronic system which is not indexed and searchable by ordinary humans untrained in its arcane ways. The more complex the search language, and the more esoteric the skills needed to unearth records in response to a request, the higher the costs and the less likely it will be that you can fulfill a request.

Prepare an index to your records which does not assign a unique code to the requests that are being requested. Classify dog barking complaints variously as barking complaints, disturbing the peace, general animal complaints, neighborhood disputes, welfare checks and noise disturbances, ensuring that any comprehensive search will be prohibitively expensive and that any easy search will be incomplete.

Convert everything to paper before releasing it

Whenever possible, provide records in paper format. Paper increases legally allowable duplication costs, is harder to search through, is harder to analyze, and is heavier to carry. It can also be stored off-site at a contractor, adding a retrieval delay.

Print out your records in a font that is difficult to scan in or use optical character recognition on - consider keeping an old dot-matrix printer around for request printouts.

Deny everything

Classify the request as "absurdly overbroad", as it would create an "intolerable administrative burden" for a "wholesale request" of information, citing Capitol Info. Association v. Ann Arbor Police Department (138 Mich. App. 655 (1984), 360 N.W.2d 262) in your denial.

Interpret the "unwarranted invasion of personal privacy" clause broadly, invoking it whenever possible to not release records or to heavily redact them whenever any record which contains any personal information is subject to release. Remember that a determined citizen can re-identify partially redacted information, so wield your Sharpie with abandon.

Interpret the "communications of an advisory nature" clause broadly, invoking it whenever possible to shield internal debate, discussion, or preliminary copies of reports before their final release.

Interpret the exemption for records associated with the "security or safety of persons or property" as broadly as possible, using it to redact or reject requests for every record which could possibly give a terrorist any information about water, fuel, transportation, or supply networks. Exemption (1)(y) in the Michigan FOIA law is underappreciated, and it carries with it the force of post-9/11 Federal counterterrorism laws. Even a humble sidewalk replacement project might disclose information about gas mains that would be of use to terrorists, or contractors with backhoes.

Cloak as many records as possible under the "attorney-client privilege" exemption, by adding a layer of legal review to the system. Having an attorney make notes on a printed copy of a text can trigger the need to redact those notes, thus adding delays.

Punitive damages for delay

Michigan state law provides for damages if a public body "arbitrarily and capriciously" violates the FOIA laws by "refusal or delay" in disclosing or providing copies of a public record. The penalty is $500 and is assessed to the public body, not the individual responsible for the delay. Avoid this penalty by delaying all requests equally, not just those coming from news organizations, municipal activists, and anti-government think tanks.

Edward Vielmetti waits and waits and waits for public records for AnnArbor.com. Reach him at EdwardVielmetti@annarbor.com.