Mackinac Center Sues Michigan Liquor Control Commission Over FOIA Fees

State agency attempts to charge $1,550 for copying spreadsheet data that already exists onto a flash drive

For Immediate Release
Jan. 22, 2015
Ted O'Neil
Media Relations Manager

MIDLAND — The Mackinac Center for Public Policy today filed a Freedom of Information Act lawsuit in Midland County Circuit Court against the Michigan Liquor Control Commission over illegal fees the government agency attempted to charge the Mackinac Center for copying spreadsheet data onto a flash drive.

“This is information that an MLCC employee had already told us existed electronically,” said Derk Wilcox, senior attorney for the Mackinac Center Legal Foundation. “It would be like trying to charge for making photocopies when the photocopies already exist.”

On Nov. 7, 2014, Fiscal Policy Director Michael LaFaive visited the MLCC offices to do research on the issue of “post and hold” rules for alcohol prices. He was told that 2.5 months’ worth of data he was seeking existed on a spreadsheet and that he could have that data if he could provide a USB flash drive.

“I asked if I could mail them a flash drive and obtain the information and we agreed I would submit an official FOIA request,” LaFaive said. “I even offered to return in person with a flash drive to obtain the information.”

LaFaive was eventually told by the MLCC’s FOIA coordinator that his request would require a cost estimate and a deposit before it could be processed. LaFaive responded via email, asking “MLCC must do an estimate to ascertain the cost of sticking a thumb drive in your computer?” LaFaive also reiterated that the only data he was seeking was that which he’d already been told existed electronically.

The MLCC responded, stating LaFaive’s request had been granted, and that the estimated cost of processing the request would be $1,550.22. A 50 percent deposit was required before the MLCC would proceed. The Mackinac Center chose not to pay. An attached invoice stated the costs included $50.22 for 1.5 hours of an employee’s time (an hourly rate of $33.48) for “locating and duplicating” the requested data, and $1,500 for copying 6,000 pages at 25 cents per page.

“First off, FOIA only allows a public body to charge no more than the hourly wage of its lowest paid employee capable of the task,” Wilcox said. “A full-time employee with an hourly wage of $33.48 would have an annual salary of $69,638.40. It defies belief that the lowest paid employee at the Liquor Control Commission capable of this task makes nearly $70,000 a year.”

Wilcox also said FOIA only allows government bodies to charge the actual incremental cost of duplication or publication.

“They can’t charge hypothetical or comparable costs for electronic documents that are similar to what they could charge for physical photocopying,” he said. “They can only charge for the actual incremental cost, which for copying a spreadsheet onto a flash drive is negligible or zero.”

Wilcox noted that even if the MLCC could charge a fee equivalent to a hypothetical paper photocopy, 25 cents per page is excessive.

“Private businesses, that are presumably aiming to make a profit, only charge 10 cents a page at most.”

The Mackinac Center is asking that the court order the MLCC to pay attorneys’ fees and $500 in damages.

“When government entities adopt these kinds of policies that are far in excess of the law, it becomes obvious they are designed to put up roadblocks to the public’s access to information,” Wilcox said. “They constitute a constructive denial of a FOIA request and are illegal.”


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