Nuisance and Unduly Burdensome FOIA Requests

Here’s an example of FOIA gone all wrong.  After receiving hundreds of requests for records under the Michigan Freedom of Information Act (FOIA) from a resident, Kim Orlich, city officials in Belding, MI, northeast of Grand Rapids, were exasperated. Searches for records and hearing appeals in response to Orlich’s requests were consuming huge amounts of time, distracting staff and city council from other business, at no small expense to the community’s budget.

Belding officials discovered that a warrant had been issued for Orlich’s arrest in a civil debt case pending in St. Ignace, just the other side of the Mackinac Bridge.  Belding police volunteered to deliver Orlich free of charge, after authorities in St. Ignace declined to drive down to pick her up.

With Orlich in jail, Belding officials theorized, they could deny her most recent requests because the city had no duty under state law to meet the requests of an inmate.

There are at least two ways to ameliorate the Orlich dilemma.  The first, previously addressed on this blog, is to utilize technology available now to post all non-exempt records online in a searchable archive as soon as they are created or acquired.

The other way is to take on the issues of nuisance or burdensome requests in the statute itself.  For example, among other provisions, the Illinois legislation (5 ILCS 140/1)  states:

Section 2 (g) "Recurrent requester", as used in Section 3.2 of this Act, means a person that, in the 12 months immediately preceding the request, has submitted to the same public body (i) a minimum of 50 requests for records, (ii) a minimum of 15 requests for records within a 30-day period, or (iii) a minimum of 7 requests for records within a 7-day period. For purposes of this definition, requests made by news media and non-profit, scientific, or academic organizations shall not be considered in calculating the number of requests made in the time periods in this definition when the principal purpose of the requests is (i) to access and disseminate information concerning news and current or passing events, (ii) for articles of opinion or features of interest to the public, or (iii) for the purpose of academic, scientific, or public research or education...

Section 3 (g) Requests calling for all records falling within a category shall be complied with unless compliance with the request would be unduly burdensome for the complying public body and there is no way to narrow the request and the burden on the public body outweighs the public interest in the information. Before invoking this exemption, the public body shall extend to the person making the request an opportunity to confer with it in an attempt to reduce the request to manageable proportions. If any body responds to a categorical request by stating that compliance would unduly burden its operation and the conditions described above are met, it shall do so in writing, specifying the reasons why it would be unduly burdensome and the extent to which compliance will so burden the operations of the public body. Such a response shall be treated as a denial of the request for information.    Repeated requests from the same person for the same records that are unchanged or identical to records previously provided or properly denied under this Act shall be deemed unduly burdensome under this provision...

Section 3.2 (a) Nothwithstanding any provision of this Act to the contrary, a public body shall respond to a request from a recurrent requester, as defined in subsection (g) of Section 2, within 21 business days after receipt. The response shall (i) provide to the requester an estimate of the time required by the public body to provide the records requested and an estimate of the fees to be charged, which the public body may require the person to pay in full before copying the requested documents, (ii) deny the request pursuant to one or more of the exemptions set out in this Act, (iii) notify the requester that the request is unduly burdensome and extend an opportunity to the requester to attempt to reduce the request to manageable proportions, or (iv) provide the records requested.    

(b) Within 5 business days after receiving a request from a recurrent requester, as defined in subsection (g) of Section 2, the public body shall notify the requester (i) that the public body is treating the request as a request under subsection (g) of Section 2, (ii) of the reasons why the public body is treating the request as a request under subsection (g) of Section 2, and (iii) that the public body will send an initial response within 21 business days after receipt in accordance with subsection (a) of this Section. The public body shall also notify the requester of the proposed responses that can be asserted pursuant to subsection (a) of this Section.   

(c) Unless the records are exempt from disclosure, a public body shall comply with a request within a reasonable period considering the size and complexity of the request. (Source: P.A. 97-579, eff. 8-26-11.)

Public Information and the Generational Divide

Older folks seeking public records via the Freedom of Information Act (FOIA) look to a government official and ask, “May I have...?”  They wonder how long they must wait for a response and how much it will cost.

Millennials seeking public records, expecting proactive disclosure, look at their tablets and ask themselves, “Where can I find...?”  More and more the information will be at their fingertips. They don’t worry about cost, knowing the information will be free.

Older folks wishing to improve FOIA can beseech their legislators, but are often ignored.

Millennials, determined to exploit new technology, look to people like Derek Dobies of Jackson, Pete Buttigieg of South Bend, John Lui of New York and Dr. Clifford Lampe at the University of Michigan for guidance.

It's almost as if the two groups occupy parallel universes. The older group seems to dwell on tinkering with the clunky model of information by request to a government gatekeeper, for all appearances oblivious to the fast, easy and free access available online through proactive disclosure.

Communities with governments that resist proactive disclosure will decline.

Communities with governments that practice openness will thrive.

How do I know? I read tarot cards.

Independent State Agency Reviewed 3400 Open Government Issues Last Year

Take my word for it, I don't obsess over Illinois open records and meetings issues, although my last two blog posts might suggest otherwise.  And now comes the third.

By coincidence, Illinois Attorney General Lisa Madigan just released some interesting Freedom of Information Act (FOIA) and Open Meetings Act (OMA) statistics.

It was reported yesterday (Friday, 3-14-14) that the Illinois AG's Public Access Bureau (PAB) handled 3400 open government cases last year. Can anybody show me an independent government office in Michigan with a record anything like that?

PAB also conducted 35 training sessions for the public and government personnel during 2013.

These activities are examples of major reforms adopted in Illinois in 2009.  Attempts at reform in Michigan have been stalled for years.

FOIA: A Few Highlights of Illinois' Statute

Compare this with bills pending in the Michigan Legislature to upgrade our Freedom of Information Act (FOIA).

Bear in mind that relying on sketchy descriptions of a statute is risky.  It’s best to read the whole thing, together with related court decisions.  Among the subjects glossed over in this review are various response time limitations and FOIA requests for commercial purposes.

Illinois legislators drafted and passed a major overhaul of their FOIA in 2009, effective January 1, 2010.  In the preamble, legislators acknowledge that technology might outpace their ability to keep up, but the Act’s principles are to apply as much as possible.

Of particular interest to me, the statute defines and delineates categories of “recurrent requester.” Remember the saga of Kim Orlich and the City of Belding?  Wouldn’t happen in Illinois.

The statute applies to a long list of public bodies, including executive and legislative bodies  

(but not the General Assembly itself).  A public body may not require an information seeker to use a standard form.

Access to records is presumed open.  The burden is on the government to overcome the presumption.  Proof must be clear and convincing.

If the response of a public body to a request for records is late, no fee may be charged for the records.

There are provisions for requests that are unduly burdensome to the public body.

Requests for commercial purposes are treated separately.

The highest hourly rate that staff can charge is $10.00, but the first eight hours are free.

The statute creates the position of Public Access Counselor (PAC) under the Attorney General (AG).  The AG is empowered to subpoena public records.

The PAC may issue (ex parte) advisory opinions at the request of a public body, but such opinions are neither final nor subject to administrative review.

A person whose request for records has been denied may go directly to the circuit court for the county in which he or she resides or seek a less formal review by the PAC.

In reviewing denials of FOIA requests, the PAC makes findings of fact and conclusions of law. The PAC is required to issue an opinion within 60 days.  The opinion is binding, subject to administrative and/or circuit court appeal.

If the matter goes to circuit court, it’s heard de novo (or “anew”), which I take to mean the court can draw its own conclusions from any statements or other evidence already accepted in earlier proceedings.

The statute establishes (reaffirms?) the circuit court’s contempt powers to compel public body personnel to comply with the court’s orders.  The court is authorized to award a successful information seeker reasonable attorney fees.  Civil penalties against a public body may range from $2500 to $5000.

Illinois’ FOIA can be found at:

http://www.ilga.gov/legislation/ilcs/ilcs3.asp?ActID=85&ChapterID=2

FOIA Beyond Our Borders

 

The states with the most media coverage of their FOIA activity in recent months are Illinois, South Carolina, Virginia and Connecticut.

ILLINOIS:  Most of the news about FOIA results from municipal denials of FOIA requests which citizens appeal to a special section of the state’s Office of Attorney General.  When the Assistant AG in this section rules in favor of the appellant, the AAG usually fires a shot across the municipality’s bow.  If the warning isn’t heeded, the AAG can compel compliance.  The Illinois statute has real teeth.

SOUTH CAROLINA:  The legislature floats a lot of trial balloons about tinkering with FOIA.  Notable among them are proposals for legislative transparency.

VIRGINIA:  Much of the activity here concerns partisan political bickering over FOIA adjustments, reflecting transition turmoil prominent in the state over the past couple of years.  There was an uproar when the legislature banned out-of-state FOIA requests.

CONNECTICUT:  The  increased volume of FOIA news in this state can be attributed to privacy issues arising from the Sandy Hook Elementary School tragedy.

On the international scene, Ireland, India and Nigeria have had frequent news coverage of FOIA events.

Bermuda and the Philippines are struggling with initial FOIA legislation.  (Better late than never.)

CELEBRATE SUNSHINE WEEK !

Small City To Make Data Accessible Online

The City of Jackson, MI  (population approximately 33,500) has teamed up with the University of Michigan and the Sunlight Foundation to establish an open data portal online similar to the one pioneered by the City of South Bend, IN last year. The Jackson Chamber of Commerce has joined in the effort.
  

The new system is expected to benefit residents and businesses alike by simplifying and speeding up information acquisition and reducing the cost of acquisition.  City government will achieve more efficient inter-departmental data sharing, as well.

Making vast amounts of information accessible online reduces substantially the costs to the city of responding to Freedom of Information Act (FOIA) requests.  (The city would continue to expend employee hours redacting partially exempt records, for which information seekers could be billed.)

Dr. Clifford Lampe of U-M's School of Information leads the university's contingent in the collaboration.  “He researches the social and technical structures of large scale technology mediated communication...” and “...has also been involved in the creation of multiple social media and online community projects...”

Last year, Lampe told Jackson Citizen Patriot reporter Will Forgrave that  “the three-year project will have graduate students develop mobile and social media apps designed to streamline communication between Jackson citizens and their leaders.”

As the software gets better and more widely applied year by year, the cost will come down, putting the technology within reach of even smaller communities.  Municipal budget planners should take a close look at this kind of cost-cutting innovation.

A Case of Extreme FOIA Abuses & the Solution

After receiving hundreds of requests for records under the Michigan Freedom of Information Act (FOIA) from a resident, Kim Orlich, city officials in Belding, MI, northeast of Grand Rapids, were exasperated.  Searches for records and hearing appeals in response to Orlich’s requests were consuming huge amounts of time, distracting staff and city council from other business, at no small expense to the community’s budget.

Belding officials discovered that a warrant had been issued for Orlich’s arrest in a civil debt case pending in St. Ignace, just the other side of the Mackinac Bridge.  Belding police volunteered to deliver Orlich free of charge, after authorities in St. Ignace declined to drive down to pick her up.

With Orlich in jail, Belding officials theorized, they could deny her most recent requests because the city had no duty under state law to meet the requests of an inmate.

The point of this post is not to insist that Orlich had every right to seek all the information she wished, nor to criticize Orlich for being a nuisance, nor accuse her of harassment.

The point of this post is not to charge the City of Belding with retaliation, nor to accuse it of abuse of process or violation of Orlich’s civil rights.

The point of this post is that technology is available today to post all non-exempt government records online in easily searchable archives the instant the records are created or acquired.  It’s called proactive disclosure or open data, and it’s being practiced all over the country, at the federal level and in state agencies and municipalities, large and small.  The information seeker simply goes to the government’s website and follows the prompts.  Unless a question of exemption comes up, the public can view and copy records for free without distracting any government employee from his or her work. 

Public officials, please explore these opportunities.  Government at all levels should make the information we all paid for available to us online, directly and easily accessible and without cost to either the information seeker or the government.