Michigan’s Open Records Law Needs Additional Firm Deadlines

The Mackinac Center Legal Foundation filed a lawsuit concerning documents about the Flint water crisis, and one likely result is that state employees will be quicker to process Freedom of Information Act requests. Still, legislation is probably needed to improve the situation further.

The lawsuit began after the Michigan Department of Environmental Quality took over 105 days to provide documents that it said would take four and one-half hours to compile. The request covered emails from two department officials. We wanted to determine if they had been transferred or reassigned as a consequence of their actions related to the water crisis.

The department sought to have the case dismissed, but Court of Claims Judge Cynthia Stephens rejected the attempt. She noted that there was sufficient evidence that the department engaged in arbitrary and capricious conduct, leading to an inordinate delay.

While this lawsuit was proceeding, Rep. Gary Glenn, R-Midland, requested an official opinion from Michigan Attorney General Bill Schuette. Glenn asked him when state agencies must turn over documents requested via FOIA. The FOIA statute is unclear on this issue. Courts that have interpreted the law have said a government agency must “respond” to a FOIA by sending a cost estimate within 5 to 15 business days. They have also said that when agencies send a cost estimate, they must also send a nonbinding estimate of how long it will take to provide the documents. But, courts have said, there is no statutory deadline for when the actual documents themselves must be provided to the requestor.

Seeking an official opinion from the attorney general has several advantages over filing a lawsuit. First, the process is faster. Second, an opinion would bind the entire state government, unlike a lawsuit, whose resolution would be limited to the particular facts of the case and the agency being sued. Further, while a court can impose fines on a government agency for malfeasance, these fines are mostly symbolic since they are deposited in the state government’s general fund. Because the attorney general will not issue an opinion on a matter under litigation, on Nov. 8, 2017, the Mackinac Center agreed to dismiss its FOIA suit.

On December 12, 2017, Schuette issued Opinion No. 7300, which stated that government officials must act diligently in fulfilling FOIA requests and without the intent to unnecessarily delay a response:

[A] public body’s “best efforts estimate” . . . as to the time it will take to fulfill a request for public records, must be a calculation that contemplates the public body working diligently to fulfill its obligation to produce the records to the requestor. The estimate must be comparable to what a reasonable person in the same circumstances as the public body would provide for fulfilling a similar public records request. In addition . . . the best efforts estimate must be made in “good faith,” that is, it must be made honestly and without the intention to defraud or delay the requestor.

While it is better to have this opinion rather than complete uncertainty, a statutory fix would be preferred. A hard deadline would let both the government and public know when documents must be provided. Further, a statute would apply to all state and local governments as opposed to an attorney general opinion, which is only binding on state entities.

The Mackinac Center has sued both environmental quality department and the University of Michigan over FOIA matters recently. Our goal is to have the stated purpose of the law fulfilled: “The people shall be informed so that they may fully participate in the democratic process.” That purpose is thwarted when government officials bury FOIA requests. If the Legislature fails to fix this matter, we’ll continue to do our best to keep those officials in line.