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.

No More Excuses on FOIA Reform

I just read an editorial dated February 9, 2014 with the caption, "No more excuses on FOIA reform."  Here are a few excerpts:

"[A state legislator] said the bill will establish uniformity in charges to the public, including copying. There have been instances where citizens attempting to ferret out public information have been presented bills for thousands of dollars to make copies."

"Indeed, some governments require an FOIA request for the most mundane information - information that should be readily available to the public online. In those instances the FOIA is being used by pettifoggers to thwart the spirit of open government."

"As public officials, legislators should be committed to transparency in government."

"To that end, accountability starts with a strong Freedom of Information Act."

"One with teeth."

OK, so the editorial was in the Charleston, SC, Post and Courier.  You didn't really expect to see language like that in a Michigan newspaper, did you?

Reviewing Government Spending in Real-Time

Developing a website to make government records, especially financial records, transparent can be a monumental and expensive task.  That’s why I’m impressed by the pains taken by New York City to make its innovative Checkbook software available to all.

In January, 2013, an open source platform based on New York City’s Checkbook NYC 2.0 was introduced on YouTube by Comptroller John C. Liu.

The application is available now to any state or local government.  It enables the public to search easily from a dashboard and review government spending in real-time.  

Government contracts and underlying sub-contracts are absorbed and integrated into the website, so overspending can be observed as soon as it begins.

www.youtube.com/watch?v=sb98yCJPFSw

Karl Fogel of Open Tech Strategies, LLC wrote, “...the release of the Checkbook NYC code...is significant because of a larger initiative that accompanies it. Long before the code release, the Comptroller's Office started a serious planning process to ensure that the code could be easily adopted by other municipalities, supported by other vendors, and eventually become a long-term multi-stakeholder project...”

“Most cities run an internal financial management system (FMS) of some kind. The FMS manages the city's expenses, revenue, contracts, payroll, and budget, and naturally allows authorized access only. New York City's FMS just exports its non-sensitive data fields on a regular basis to Checkbook NYC—the export is filtered so that any sensitive data never even goes into the public-facing Checkbook system.”

New York’s Comptroller asked FMS vendors “...to contribute in-kind resources to Checkbook maintenance and development—especially to smooth the Checkbook deployment process. That way you'd lower the bar to Checkbook adoption for many cities at one stroke, and at the same time get multiple vendors involved in the code base.”

http://opensource.com/government/13/6/open-source-checkbook

Rebecca Williams of the Sunlight Foundation reported, “...in addition to the spending and expenditure information most similar platforms display, [NYC’s Checkbook] includes information about other essential financial datasets (including budgets, revenue, contracts, and payroll), as well.”

“...this might be the first instance of city officials proactively and premeditatively building civic applications with the intent of having other cities -- and cities with varied software vendors at that -- use and contribute to making that software better.”

http://sunlightfoundation.com/blog/2013/06/10/the-future-of-civic-software-reuse/

We should encourage adoption of Checkbook NYC 2.0 in state agencies, counties and municipalities throughout the country.

Coordinating FOIA and Open Government

The importance of coordinating the Freedom of Information Act (FOIA) and Open Government (OpGov) initiatives is reflected in a recent article from the Philippines.  Perhaps I was too quick in the preceding post to accept and approve the separation of OpGov from FOIA.

Excerpts:

“ ‘The primary goal of data.gov.ph is to foster a citizenry empowered to make informed decisions, and to promote efficiency and transparency in government,’ it says on its website.”

“[Gladys Regalado, deputy national coordinator of the Computer Professionals’ Union] added, ‘It is too early to tell if the open data web portal will enhance transparency, accountability and citizen engagement.’ “

“Regalado also stressed that, ‘open data initiatives should not be a substitute to a Freedom of Information Act,’ which she pointed out, ‘can mandate what kind of data will be 'open' to the public to ensure transparency.’ ”

" ‘With the current culture of corruption...where information is hidden purposely, it would be difficult to find data that can actually help in transparency and good governance. We should have an (sic) FOIA and more patriotic whistleblowers and not just a repository website,’ Regalado said.”   http://www.interaksyon.com/article/79278/only-foi-not-ph-data-portal-can-guarantee-transparency---computer-experts

Stateside, a recent op-ed piece put it succinctly:  “The state... and our biggest municipalities* should build on the state's FOIA law and adopt comprehensive open data policies. All public records, save those that would violate privacy laws or undermine security, should be proactively made available to the public for free on the Internet in a structured, sortable, downloadable format.”

http://www.arktimes.com/arkansas/the-open-data-revolution-is-coming/Content?oid=3187194

*As I pointed out in the preceding post, the mandate mentioned above should apply to small municipalities, as well.

       

The Gap Between FOIA and Open Government

In view of the widening gap between FOIA (disclosure on request), which is too much about politics and trying without much success to update legislation, and Open Government (proactive disclosure), which is mostly about technology, perhaps we should devote less time to the former and concern ourselves more with the latter.

Open Government technology is being implemented in progressive cities throughout the country without waiting for legislative FOIA upgrades.  The drive to grow and prosper, including competition for new businesses, will compel communities to improve transparency.

I wanted to learn about less expensive technology available to smaller communities, so I asked Rebecca Williams at the Sunlight Foundation for help.  She compiled the following list of suggestions:

• Just putting data up on the government website for download! [in open formats like csv please]
• Ideascale (and other social media outlets) for citizen engagement
• Hosting data on GitHub
• Hosting data via Google Fusion tables
• CKAN data portals are free and open source, but you have to pay for the server
• Civic Data provides a free portal option via Accela (this is new and I [Rebecca] haven't seen it used yet)

If you know a village, township or small city council person, supervisor, mayor or manager wrestling with transparency issues, please pass along this list and let me know what feedback you get.

Michigan's FOIA problems and the solution

Pending bills to amend FOIA in Michigan would do little more than apply a few flimsy patches to an antiquated, tattered statute long overdue for a major overhaul.

The Michigan statute mandating public access to government records is flawed because it requires that written requests be made to an agency official with the de facto power to deny, delay or overprice the record requested.

Support FOIA reform that provides greater transparency through application of the latest records search technology, enabling information seekers to obtain records directly, i.e. without the assistance (or obstruction) of a government gatekeeper.

Many public officials, especially at the local level, complain about the cost and inconvenience of responding to FOIA requests. What those officials overlook (or hope we will overlook) is that, upon making a relatively small investment in software, most public records can be made available without cost or inconvenience simply by posting all non-exempt records online in searchable archives the moment they are created or acquired.

I suspect that it's not cost and inconvenience that raises the ire of some public officials so much as the fear that open access to government records will reveal foolishness, incompetence, wastefulness and crime. Perhaps an air of superiority and a sense of entitlement on the part of some public "servants" add to their aggravation.

The City of South Bend, Indiana, assisted by the Sunlight Foundation, has established a gold standard in transparency. It has enabled free, easy and direct public access to a remarkable catalog of city records.

This could be a model for open government, both at the local level and in state agencies. Take a close look at this outstanding achievement. It's worth considering for application across Michigan and throughout the country.

Crowd Fact-Checking, a Lesson from India

Rural and seasonal workers across India are guaranteed (as needed) 100 days a year of manual labor at minimum wage.

Years ago, some local officials claimed they were assigning work and paying workers, all the while embezzling funds and keeping the records secret.  Workers complained they were getting neither work nor pay.  They brought pressure under India’s Right to Information Law and eventually were allowed to view (but not have copies of) work and pay records.  

Some workers were able to copy the records surreptitiously. The records, purporting to show that specific individuals had worked and been paid, were revealed at public meetings and shown to be false.

Today, such government ledgers are painted on village walls where workers can determine for themselves the accuracy of the records.  Officials are fined if records are not made public on time.

In one Indian state where state officials support them, activists get local records and go through their village door to door to verify payments made, services rendered and the like.

Such social audits have uncovered instances where as much as 95 percent of funding had been embezzled from government programs.

Why couldn't a variation of this concept be applied just as successfully in more advanced countries, using the Internet?

 http://www.onthemedia.org/story/indias-right-information-law/transcript/

South Bend: Gold Standard in Transparency

The City of South Bend, Indiana, assisted by the Sunlight Foundation, has enabled free, easy and direct public access to a remarkable catalog of city records.   

By its mayor’s executive order last month (August, 2013), South Bend created an open data portal online.

South Bend’s policy implements and expands concepts in Indiana’s open records statutes.

This advance makes an extremely wide (and still expanding) range of information available in a user-friendly format.  It refrains from exemptions common in other jurisdictions.  The executive order also specifies the nature of the technology to be employed. 

The city’s IT specialists are directed to apply “best practices.”  The format is required to be “...any widely accepted, nonproprietary, searchable, platform-independent, machine-readable method...”

The city’s announcement quoted the software vendor (in part), “South Bend is joining an elite group of open data pioneers who are using the latest technologies to make public data more accessible and streamline collaboration between internal departments.”

This could be a model for open government everywhere, both at the local level and in state agencies.  Take a close look at this outstanding achievement.   I think it's worth endorsing for adoption throughout the country.

https://data.southbendin.gov/

http://sunlightfoundation.com/blog/2013/08/29/south-bend-indiana-signs-open-data-policy/

GAO says Fed FOIA hobbled by OGIS deficiencies

Government Accountability Office: Four years after it was established, the "Office of Government Information Services Has Begun Implementing Its Responsibilities, but Further Actions Are Needed" (GAO-13-650, Sep 10, 2013)

[Excerpt]

 

“Since its establishment in 2009, the Office of Government Information Services (OGIS) has provided comments on proposed Freedom of Information Act (FOIA) regulations for 18 of 99 federal agencies that administer FOIA, as well as a number of Privacy Act system of records notices. While OGIS has suggested improvements to a number of those regulations and notices, it has not performed the reviews of regulations and notices in a proactive, comprehensive manner, and has not conducted any reviews of agencies' compliance with the law. In addition, since it was established 4 years ago, the office has not developed a methodology for conducting reviews of agencies' FOIA policies and procedures, or for compliance with FOIA requirements. OGIS is in the early stages of developing a methodology for conducting such reviews, but has not established a time frame for completion. Until OGIS establishes a methodology and time frame for proactively reviewing agencies' FOIA policies, procedures, and compliance, the office will not be positioned to effectively execute its responsibilities as required by the act.

“OGIS is providing mediation services and is resolving disputes that might otherwise go unresolved or lead to litigation, although not all of its efforts have been successful. OGIS has achieved positive results for about two-thirds of the cases reviewed by GAO where mediation services were provided. For example, in several cases, one or both parties took action or modified their position after OGIS's intervention. Nevertheless, the office lacks quantifiable goals and measures for its mediation activities, as required by law. For example, it does not have goals to measure timeliness or success. Without these important management tools, OGIS cannot determine how effectively its mediation services are in improving the implementation of FOIA.”

http://www.gao.gov/products/GAO-13-650