FOIA Friday: Dealing with FOIA abuse and restrictions on FOIA access
If you are a municipal administrator, you may be responsible for responding to citizen FOIA requests. Generally this is a routine matter, but at times there may be a political conflict that causes someone to use the Michigan Freedom of Information Act laws as a weapon to harass, bully, hector or intimidate you or your staff with overly frequent, poorly written, and badly timed FOIA efforts.
Or, perhaps, a citizen is trying to find something out, is frustrated with the municipal response and escalates his FOIA efforts until the two sides reach the point where they need to go to court to sort it out.
Here's a review of two cases in Michigan where city officials have dealt with this problem, and some of the solutions they have tried to put into place. It also includes suggestions for how to avoid the appearance that you, the upstanding and righteous citizen, are one of those people who abuse the system.
This column is part of the weekly FOIA Friday series.
We'll start in 2009 with the case of Jerry McNeely, who sent a large number of FOIA requests to the city of Kalamazoo. From Allegan News Online:
A circuit judge last April upheld Kalamazoo not responding to thousands of FOIA requests made by former NAACP chapter head Jerry McNeely, ruling McNeely didn’t follow proper procedures in filing them, including providing payment upfront for documents.
The Kalamazoo Gazette had more details in April 2009:
McNeely submitted 3,500 or more e-mail requests for up to 300 records with the city's FOIA coordinator, Deputy City Attorney Randall Schau, in a 180-day period, according to court records. The requests included trying to obtain information about racial-discrimination issues and police matters involving him and members of his family. More than 90 percent of the requests came under names other than his own -- including God, Sojourner Truth and Lady Luck. All, however, included McNeely's Alabama address. Shau repeatedly told McNeely that the city didn't respond to third-party requests.
With that decision in mind, we turn to the current situation in Saugatuck.
The Allegan News Online prints a story and a letter to the editor regarding the situation there. John Breen is said to have sent a large number of document requests seeking information about tax matters under his own name and under other assumed names. He sued Saugatuck for being non-responsive to requests; the city countered that he was abusive, failed to follow procedures and was harrassing. The case is in Allegan County Circuit Court, outcome pending.
You're the city manager, what do you do?
In a dispute like this, no one is likely to win. Your member of the frequent FOIA club has righteous anger, and your city council is likely willing to pass laws to frustrate them and support you, even if it subjects you to future further litigation.
One strategy for neutralizing FOIA opponents like those pesky newspapers is to release answers toÂ individual FOIA requestsÂ directly to the Internet. You can make that poor newspaper reporter lose a scoop by releasing public information simultaneously to your city website when you send it to them. Publication of responses in digital form gives you the upper hand on the appearance and actual fact of disclosure and transparency, and it makes it that much easier for a distant third party to see your reasonable and professional point of view.
Consider also routinely publishing your FOIA log - the record of requests that come in seeking information - directly to your site. Again, you win bonus points for transparency, though you may need to properly redact requests to protect individual privacy. The log can include a summarized record of requests, or it can contain the full scanned-in copy of the requests themselves. If there is an adversarial relationship, you again gain the upper hand by exposing to the public just how absurd your opponent's requests are. And they probably are absurd - people who don't know how to send FOIA requests often phrase them in a form that isÂ absurdly overbroad, or they may be trying to make a point and write things that are visibly hostile, angry, or impossible to answer without enormous expense.
Making it unnecessarily difficult
Saugatuck has taken the tack of asking individuals making FOIA requests to prove that they are persons eligible to make requests, including asking people for signed and notarized statements of identity for individuals and for copies of corporate papers establishing the existence of their company. This proof of identity presents liability for Saugatuck, since they now have in their possession records which could be used by some municipal employee or contractor for identity theft. It's not clear to me that this is in the spirit of open records acts, and the "papers please" language sends a hostile signal perhaps where one is not intended. The language for individuals reads
Written documentation that the individual exists, including, but not limited to, birth certificate, driver’s license, marriage license, governmental identification card, social security card, or passport.
Saugatuck also requires that requesters affirm that they are getting records on their own behalf, and not for the benefit of some other individual.
An original, signed affidavit from the principal officer, director or principal employee of the entity, association or organization, notarized in accordance with MCL 55.287, attesting that the entity, association or organization is (a) seeking the requested records in its own behalf, (b) is not making the request on behalf of or at the request of any third party, and (c) is not submitting the request in active concert or participation with any person who is prohibited by law or by judicial order from submitting the request to the City.
They include an exemption for licensed attorneys acting on behalf of their client, but on the face of it it would appear that they could reject FOIA requests for individuals who asked for records in order to donate them for publication to third parties like this newspaper or the Ann Arbor Area Government Documents Repository, or even for people to share resources to make requests for each other to avoid retaliation or intimidation.
Examples of how to do it right
There's a very small handful of organizations that have done an exemplary job of FOIA management.
The Carpentersville Community Unit School District 300 in Illinois has an online FOIA archive with a capsule summary of each request and a copy of the response. They have 555 requests online as of this writing, each carefully noted and labelled, and if someone has asked for something before you can look at it yourself.
The federal Postal Regulatory Commission has 10 years of FOIA responses online, the last two years with tracking numbers. This is about as transparent as it gets.
For most organizations, though, the FOIA logs are something you have to know how to ask for, and something that the online policy may not provide any hint that you can ask for. Â I wish I could give you dozens of examples.
AnnArbor.com FOIA requests in progress
I'm following up on two requests for information I sent to the City of Ann Arbor weeks or months ago, where I didn't get a satisfactory response. I did this by sending an email, clearly marked APPEAL to the City Administrator asking for a reconsideration of non-responsiveness to my request.
In one request, I asked for a log of all of the repairs made to the sign at the pedestrian refuge island at West Washington and South Seventh streets in Ann Arbor, which has been knocked down over and over again.
In a second request, I asked for information about pedestrian-bicycle crashes in the city, which a search of a State of Michigan traffic crash database returned no information about.
In both cases I was told that someone would get back to me promptly, and in both cases I've waited too long for a reply. Since I didn't get an answer, I'm asking again.Â
Edward Vielmetti walks past the "Danger Hard Hat Required" sign at City Hall for AnnArbor.com. Contact him at 734-330-2465.