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Posted on Fri, Aug 13, 2010 : 8 a.m.

FOIA Friday: Information versus records and constructing your appeal

By Edward Vielmetti

Two recent interactions I had regarding FOIA requests got me thinking about the difference between information and records, and why it's so important to talk to a live human before shooting off a written appeal.

One of the ongoing challenges of locating information about the actions of local government is finding the right balance between being pleasant and helpful in your requests for information and being direct and concise in your requests for public records.

Here are a few examples of the questions I've had recently about what is going on in Ann Arbor, illustrated through the lens of a combination of informal conversations with people who have a lot of information. This includes framing your original Freedom of Information Act request for records only after getting all of the easy information out of the system, and structuring any appeals of FOIA requests so that you don't trigger legal time requirements until the last possible moment.

Michigan FOIA law does not require that a public body disclose any information. It does, however, require that a public body disclose the records it holds. The text of the law:

"This act does not require a public body to make a compilation, summary, or report of information, except as required in section 11."

Understanding this fine point of distinction will help you figure out how to deal with the questions that come up when you want to find something out from a public body and you don't know where to start. An illustration by example follows.

I was looking for records earlier this week, held by the Ann Arbor Police Department, of calls for service related to storms which caused flooding along a number of streets in the Allen Creek floodplain. I was certain someone called 911 to report a road covered with water, but wasn't exactly sure how that information would be coded in the CLEMIS system that holds AAPD's records.

There are really two ways of constructing a FOIA request in this case. You could write one that says essentially:

"Please provide a copy of all records held by the Ann Arbor Police Department relating to the flood of August 11, 2010."

It's quite possible that with enough staff time, someone could read through every single record in the system from that date, compile a copy of each record, ask the city attorney to read and redact each one, and then withhold some portion of those records because they had to do with incidents under investigation. The cost would be substantial and it would take a lot of time for such a short FOIA request.

The second approach is the interactive one, where you talk through the question of how those records are stored in CLEMIS with the records clerk (the flood calls were mostly classified as "traffic hazard" calls, I discovered), and then in person work through how to refine the search. One of those records I found - for the flooding under the Ann Arbor Railroad viaduct on Huron Street - appeared to be useful enough to be worth the $0.05 necessary to see it. The FOIA then would be written like this:

"Please provide a copy of report 10-40023."

Search time is zero, since you have located the information that you need to identify the records that you seek. The records still need to be redacted, but that should be fast, and I have blanket permission to spend a nickel on something relevant.

Note that the agency is not obligated to provide any information, only records. You could run a government where every single agency and individual interacted with the public only via written FOIA requests, and where no one ever answered the phone and told you anything.

Adding options to your appeal process

If your FOIA request is denied in whole or in part, or if the agency is non-responsive, you have the right to appeal:

("1) If a public body makes a final determination to deny all or a portion of a request, the requesting person may do 1 of the following at his or her option: (a) Submit to the head of the public body a written appeal that specifically states the word "appeal" and identifies the reason or reasons for reversal of the denial. (b) Commence an action in the circuit court to compel the public body's disclosure of the public records within 180 days after a public body's final determination to deny a request."

The law fails to state a very useful third option when contemplating an appeal: contact the head of the public body in person or via telephone, identify the nature of written appeal and the details of it, and determine if you can resolve some portion of your differences before putting them in writing. This gives you an added level of flexibility in refining the appeal to only consider matters of substance and not simply things that are overlooked or ambiguous or non-controversial.

Again, an illustration by example. I submitted a FOIA request for records related to the sidewalk in front of the Embassy Hotel. Those records were originally priced at more than $150, even though my cover letter for the FOIA specifically stated that I wanted to be contacted directly before more than $10 was spent. I contacted the Ann Arbor City Attorney in person and by telephone to negotiate down that part of the request, without ever making a formal by-right appeal in writing. The final tab was $3.75.

As with almost every FOIA request I've ever sent in, some portions of that $3.75 pile of paper were redacted and other portions which I had specifically asked for appeared to be missing. Again, rather than write and send an official formal written appeal to the city regarding the errors and omissions in the city's response, I had a phone call with the city attorney where I went through my list of objections and we sorted through what could be answered without a formal written request. We'll whittle down the list until there's either nothing on it or until there's an impasse that can't be resolved easily.

You have a long time - 180 days - to make a written appeal to a rejected FOIA request. Depending on how much time, patience, and money you have, it may be possible to get what you want without ever going through the formal route. Be prepared to write an appeal, but also be prepared to keep it out of writing until you have exhausted your other options.

Edward Vielmetti is [redacted] for Contact him at