City Rationing Of Open Records Requests May Be A Legal Stretch

Elected officials in the city of Inkster, a suburb of Detroit, plan to take up a series of what it calls “protective rules” for governing its responses to Freedom of Information Act requests. The changes would limit the number of document requests an individual could submit, and they would allow the city to charge attorney fees to a requestor who is also engaged in litigation against it.

The proposed rule change, scheduled for consideration by the Inkster City Council on Dec. 7, is “an egregious attack on open government and clearly illegal,” according to a FOIA specialist at the Mackinac Center for Public Policy.

Michigan’s FOIA law is designed to make public records broadly accessible, said Mackinac Center attorney Steve Delie. “You can’t shut off the public access to information because someone is asking for too much. The purpose of FOIA is to provide access to public records. It may be burdensome to the city ... but it’s the law.”

Inkster’s proposal limits FOIA requests to three within a 10-day period and allows the city to charge applicants for two hours of attorney time, or $280, per request. It also requires requesters to submit an affidavit affirming their identity.

“It won’t pass legal muster,” Delie said.

The Michigan Freedom of Information Act permits cities to charge a person requesting documents enough to cover the cost based on the the salary and benefit expenses of the individuals who compile and review the records, plus copying costs.

Charles Blackwell, a Detroit resident who has filed many FOIA requests with Inkster this year, believes the rules changes are aimed at him. Blackwell describes himself as an advocate for government transparency.

He said his FOIA requests in Inkster have focused on a variety of issues. They include the alleged delinquent property taxes owed by the mayor, water bills owed by the public works director, and body camera video of police officers. Other subjects include the daughter of a city council member, who appeared to have back taxes on a home she bought from the city; and a local state representative, who also worked as a reserve police officer in the city.

The latter request, for records related to the legislator’s police service time, eventually became the subject of a lawsuit Blackwell filed in July.

He said his interest is in making government officials accountable.

“I keep up with matters that kind of pique my interest — local news, police incidents etc.” Blackwell said. “When public officials know citizens are inquiring about things, then they know they have to act appropriately.”

Blackwell admits that he is persistent.

He has followed up with emails and phone calls to determine the status of Inkster’s response to his FOIAs. He said he has been mostly ignored.

“But I think it is reasonable to infer that (the proposed rule changes) are aimed at me,” he said. “I don’t believe any other (unit of government) has a cap on the number of requests ... or is imposing a minimum fee for attorney review.”

Michigan’s FOIA law generally limits the cost a public office may impose on an applicant to the expenses involved in having a clerical official locate and duplicate the records.

While a litigant cannot use FOIA to circumvent the rules regarding the discovery process in a lawsuit, Delie said, the mere fact that litigation exists cannot be used to thwart the use of the open records act when the request is unrelated to the lawsuit.

Michigan Capitol Confidential requested comment from Inkster Mayor Patrick Wimberly and City Attorney David Jones. Neither responded.