News Story

Schools, Agencies Use Prohibitive Charges To Shut Down Access To Public Records

People's right to know dies in swarms of government lawyers

In 2021, a group of parents filed a Freedom of Information Act request with the Forest Hills Public School District in Kent County, seeking materials associated with specific terms, such as "critical race theory" and “CRT.”

District officials informed the parents they could have the documents when they turned over payment, estimated at $409,899.

The parents’ request may have been short on specifics. But the district’s response revealed the extent to which school districts and other units of government have made the law’s promise of government transparency increasingly a dead letter — at least for regular people who lack deep pockets.

Local governments have become creative about prohibitively inflating the costs they charge to provide open records to the public. The stunning $409,899 demand to provide records included $244,540 to pay for a qualified employee who would separate out items that may fall into categories state law exempts from disclosure.

The state FOIA law states, “The public body shall separate the exempt and nonexempt material and make the nonexempt material available for examination and copying.”

The law describes examples of what may be considered exempt, with details subject to interpretation. They include:

1. Information of a personal nature, if public disclosure of the information would constitute a clearly unwarranted invasion of an individual’s privacy.

2. Information that would interfere with law enforcement proceedings.

3. Business trade secrets, under certain circumstances.

But in some municipalities, officials are requiring that attorneys review all requested records for such exemptions, and they are charging high rates for the lawyers’ reviews.

In another example, the Mackinac Center for Public Policy requested emails between the state health department and a contractor about state government responses to the COVID-19 pandemic. Officials demanded $12,420, of which more than $10,000 was to pay legal staff to review them.

The state FOIA law also allows municipalities to include 50% of the fringe benefit costs incurred by the employees who collect and review requested records. In the case of that demand for $12,420 to fill a Mackinac Center records request, $4,140 went to cover the cost of those government employees' benefits.

Michigan Capitol Confidential is the news source produced by the Mackinac Center for Public Policy. Michigan Capitol Confidential reports with a free-market news perspective.