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.

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.

FOIA officer lies to justify husband's no-bid contract

In Illinois recently, the husband of a bi-county agency FOIA officer was awarded a no-bid $124,000 contract with his wife's agency.  A local newspaper made a FOIA request to the agency for a copy of the agency's procurement rules.

The FOIA officer responded that “per consultation with legal counsel" there were no such rules.  Subsequently, however, the board chairman of one of the counties discovered that, indeed, there were procurement rules, including provisions for competitive bidding.

A second FOIA request revealed that the agency's administrator (the FOIA officer's boss) and the agency's attorney conspired to evade disclosing the pertinent rules.  

The administrator told the FOIA officer to deny the existence of procurement rules and, with knowledge that the rules did exist, the FOIA officer complied.

The county board chairman admonished the FOIA officer, “You have a duty to answer to the public in an honest fashion, and you didn’t do that. This is a bold-faced lie.”

This stuff happens, folks, and more often than most of us would like to think.  I don't know what, if anything, will come of this incident, but one thing is clear.  When people like the FOIA officer in this case, her boss and the agency's attorney spend some time behind bars for their criminal (this is classic RICO) deceit, these types of abuses will be less frequent.

UPDATE (9-19-13):  It is reported that the FOIA officer in question has announced that she will step down 9-27-13.  Also reported, there may have been other instances of fraud in the bi-county health department under scrutiny.  A forensic audit is anticipated.  
http://www.paxtonrecord.net/news/health/health-care/2013-09-17/health-department-foia-officertobacco-coordinator-resigns.html

FOIA Reform Scams

I have an issue with the way news media present such rosy prospects for FOIA each year during Sunshine Week.  Year after year, optimism is based, not on new ideas to improve FOIA being enacted into law, but merely on a new bill with a short shelf life being introduced or reported out of committee.  

The ballyhoo over the Issa-Cummings FOIA implementation bill taken up by the U.S. House Oversight and Government Reform Committee just in time for this past Sunshine Week comes to mind.  Publicizing that is like awarding a soldier the Congressional Medal of Honor for telling what he might do in combat someday.

Just as bad or worse, news organizations downplay or ignore efforts to inhibit open government.  A recent example would be proposals put forward by the Michigan State Court Administrative Office.

In RICO cases, the cast of characters consists of three types: (1) racketeers, often con artists, (2) dupes exploited as false fronts and (3) victims.  Sunshine Week works in a similar fashion.  Legislators, press and public.

Let’s hope that annual celebrations by the press of wobbly legislative hints of reform haven’t become a meaningless ritual.  If next year’s Sunshine Week is going to be any different, now is the time to start planning for it.

More evidence that AG Eric Holder neglects FOIA

Earlier this month, the Washington Free Beacon reported that the U.S. Department of Justice “...has not challenged a single instance of a federal agency withholding records from Freedom of Information (FOIA) requestors since 2009.”

The story, written by C.J. Ciaramella and published June 11, quotes a deputy assistant attorney general as saying that while DOJ’s “...Office of Information Policy gives guidance to other agencies on proper applications of FOIA exemptions, it has not determined that any of those exemptions were improper in four years.”

Citing George Washington University’s National Security Archive as a source, Ciaramella goes on to report that, since Attorney General Holder’s 2009 directive to agencies to employ a presumption in favor of disclosure, most agencies have ignored it.

http://freebeacon.com/doj-hasnt-found-one-improper-foia-exemption-since-2009/

The changing role of big city papers

Smaller news outlets seem to poke vulnerable or secretive government officials with a sharper stick than do the bigger ones.  One reason may be that large news organizations assume a greater role as "player" in big city politics.

In Detroit, for example, the big papers are invited to send representatives to public panels, roundtables and TV talk shows (sometimes as guests, sometimes as hosts) where  policy is influenced if not made.  As a result, objectivity begins to slip away.  Readers sense it.

Smaller news organizations may be closer to the rumors, outrage and skepticism heard on the street that fuel FOIA inquiries.

In January, the Free Press exposed a water department “integrity” officer on pension from Ann Arbor who was simultaneously employed in what were supposed to be full-time jobs in both Flint and Detroit.

http://www.freep.com/article/20130110/NEWS06/130110041/Detroit-Water-s-security-chief-Barnett-Jones-resigns-2nd-job-Flint-amid-questions

But after the Kilpatrick guilty verdict on March 11, that kind of scrutiny appears to have shifted.  

On March 21, it was a small paper that exposed how the water department was paying multiple consultants hourly fees ranging from $75 to $330, plus huge bar, restaurant and hotel tabs, not to mention airfare, parking fees at distant airports and car rentals.

http://michigancitizen.com/dwsd-pays-tab-for-wine-steaks-airfare-while-cutting-workforce/

Similarly, on April 21, Crain's had a scoop about the city foregoing millions in revenue for years.  Seems that the water department had neglected to collect a city-imposed tax on impervious surfaces (like roofs and parking lots), intended to discourage stormwater runoff, but now was demanding payment of those millions.

http://www.crainsdetroit.com/article/20130421/NEWS/304219970/surprise-runoff-fees-roil-detroit-biz

(If you haven't guessed by now, one of my interests is cataloging waste, misappropriation, bid rigging, bribery and extortion in the water department.  Those activities don’t necessarily end simply because one set of officials is headed for federal prison.  A prominent school district emergency manager who should know observed that, where unrepentant organizational culture clashes with a strategy of reform, culture always wins.)

Detroit's major papers, post-Kwame, seem to be pulling their punches in an effort to shore up the city's flagging image.  You can watch boosterism wax as investigative reporting wanes.  Boosterism (some would say propaganda)  doesn't require much from FOIA.

Ordinarily, we’d expect the high circulation papers in Detroit to take the lead in real FOIA reform, but don’t hold your breath.  It will take a concerted effort by all the other news outlets to offset the diminished interest of the large Detroit dailies.

Initiating dialogue with legislators about truly open access to public records would be a good start.

Energize Sunshine Week

We know the Grinch stole Christmas.  Now we have to figure out who took the "umph" out of Sunshine Week.

Used to be, newspapers would honor the occasion with extensive coverage. There would be salutes to stalwart individuals, many journalists among them, who had, against all odds, patched together information pulled from uncooperative government sources to expose waste, fraud, theft, cronyism, indecision and bad ideas.

For instance, a review of the story last year about the Partnership for Civil Justice Fund extracting Department of Home Land Security documents concerning the department's monitoring of the Occupy Movement would have been commendable.

Closer to home, a summary of Progress Michigan's investigation utilizing FOIA requests for information about Michigan Rep. Roy Schmidt's machinations in changing his party affiliation would have been instructive.

Just a week ago it was reported that the Michigan Chapter of Americans for Prosperity was told it would have to pay the Michigan State Police about $19,600 for copies of a few hours of video tape recorded last December.  That, too, would have been a worthy subject for discussion during Sunshine Week.

Also during past Sunshine Weeks, there would have been a recounting of the year's efforts to strengthen Freedom of Information statutes to make it easier for the public to acquire the records their tax dollars had paid for; and especially, to expose corruption and ineptness in government.

What happened this year?  I suppose editors could have pointed out that last September Rep. Mike Shirkey introduced in the Michigan House a watery bill, intended as an improvement on Michigan's outdated statute, to speed up FOIA compliance, reduce costs and increase fines against government offices that failed to comply.

Unfortunately, the bill expired in December.  But wait!  Shirkey reintroduced the bill in January.  It continues to languish.  Wow.  There's a scoop. 

Herz: Place all non-exempt government records on the web.

Federal Freedom of Information legislation was signed into law by President Lyndon B. Johnson in 1966.  State imitations were enacted in the years following.  Since then, exemptions have expanded dramatically, but legislative updates and reforms have been few and far between.

Even worse, secretive bureaucrats have found ways to avoid, delay and/or overprice disclosure.  There are few meaningful sanctions in the legislation to discourage bureaucratic evasions.

It's time to update FOIA to take advantage of improved technology, encourage proactive archiving online and put some teeth in compliance requirements.

Prof. Michael Herz of the Cardozo Law School concluded in a 2009 treatise that in actual practice, innovations in the disclosure of public records by federal agencies have outpaced legislation.

Herz wrote:

"The federal government is making unprecedented amounts of information available to the public. To the extent this transformation has occurred, it is the result of societal and technological changes--in particular, the overwhelming movement of society, and government along with it, on line. The law has had very little to do with it. The law lags. (p. 2)

"FOIA falls miles short of being a complete window into the government. A great deal of information is unavailable, in theory or in practice...the basic model is that a record is released only if and when someone requests it. Agencies need not be forthcoming...
requiring the government to provide records only on request is a hobbling and increasingly unjustifiable limitation. (p. 9)

"Not only is the request-driven approach contentious and time-consuming, it is inherently limited by the fact that the requester, by definition, does not know what the agency has and so does not know what to ask for. Some requests will be unfounded and inappropriately broad. Others will be self-defeatingly narrow, failing to say the magic words to obtain a non-exempt, valuable record that the requester just did not know how to ask for... (p.10)

"...[A]gencies have increasingly placed information on their websites. But they have not yet taken the bold but no longer unthinkable step: simply place all non-exempt records on the web... Nothing is stopping them." (p. 22)

Cardozo Public Law, Policy and Ethics Journal, Vol. 7, No. 3, 2009

Many government officials have been boasting about speed and transparency in making records available to the public, while in reality their agencies have become slower and more secretive.

U.S. Attorney General Eric Holder made bold promises in recent years, most notably in 2009, about greater government transparency.  A number of studies since then, however, dispel the hope that followed those promises.

We need to bring FOIA into the 21st century.