Foia

"The description of the desired information must be such that it is sufficient for someone familiar with the subject matter of the requested information to locate them but not so general that the request is overly broad. For example, a request to the CIA for all the information it has on Nicaragua would be overly broad. A request for information on the kidnapping of an individual in Beirut would be specific enough."

This article s a practical guide for those seeking government records under the Federal and Michigan Freedom of Information Acts (FOIA). The similarities and differences between the federal and state FOlAs are mentioned throughout this article.

Use of the FOIA is often necessary to get information from a public body. For example, an article in The Ann Arbor News about University of Michigan mailing lists said that it was the University's policy not to sell mailing lists. However, later in the article it said they would be released under provisions of the FOIA. The FOIA is also an effective means for obtaining personal information, such as your police file, university file, or medical file.

Both the Federal and Michigan FOlAs apply only to the executive branches of government (excluding the governor's office). Although the Federal FOIA includes the executive office of the President, requests submitted to that office have been unsuccessful.

Simply write a letter  Fortunately, making a FOIA request is easy. Simply write a letter to the public body which possesses the information sought. A letter should specify whether the request is made under the federal or state FOIA, that you agree to pay the search and copying fees, and which records are sought.

Both federal and state FOlAs allow public bodies to charge for direct costs of searching for and copying records. The Michigan FOIA sets the maximum search fee to be that of the hourly wage of the lowest paid full-time, permanent clerical employee. Federal agencies each have different rules that set out the search and copying fees. The fees are waived if the public body determines that the release of the information can be considered as primarily benefiting the general public. A statement asking for a waiver of fees which explains why the release will primarily benefit the general public may be included with a FOIA request.

It is also wise to include a statement such as "If the search and copying fees are estimated to exceed $10, please inform me of the estimated cost so that I can decide if I want to reduce the scope of my request." This will protect you from receiving a charge you cannot afford. You may also request that you be allowed to inspect the records in person rather than having the public body copy them for you. Courts have ruled that no fees can be charged for such inspections unless the public body would be unreasonably burdened.

The description of the desired information must be such that it is sufficient for someone familiar with the subject matter of the requested information to locate them but not so general that the request is overly broad. For example, a request to the CIA for all the information it has on Nicaragua would be overly broad. A request for information on the kidnapping of an individual in Beirut would be specific enough.

The results vary  The results of a request vary depending on the public body from which the information is sought. With a few exceptions, Federal agencies usually ignore FOIA time limits. On the other hand, FBI requests processed entirely in Detroit are generally prompt. But if an FBI request is forwarded to Washington, a nine-month delay is normal. The CIA regularly says that it takes two to three years to process a request, a far cry from the 10 days the FOIA allows. (The Federal Court in Ann Arbor awarded me about $650 in legal costs because it ruled my filing suit against the CIA had a substantial effect on its releasing information in a timely manner.) State agencies are nearly always prompt with a response. The Michigan FOIA provides for $500 in punitive damages in addition to legal costs if agencies are not prompt.

Neither a prompt nor late reply guarantees that the requested information will be released. If the information is basic and does not reflect poorly on the public body to which the request is made, e.g. police, hospital, and university files, there should not be any problem. If the requested information is not exempt but the public body would prefer to keep it secret, expect the "runaround." If you get the run-around, make your description of the records more specific and try again. If the public body is being totally unreasonable, consider taking court action to compel their compliance with the FOIA.

The FOIA allows anyone to make a request for any reason. You do not have to tell the public body why you want the information. Except for explaining why a waiver of fees is in order, I would not recommend explaining why you want the information. It will not help the processing the request but only might give the public agency reasons it might want to withhold the information.

There are exemptions  Significantly, the FOIA requires that any information requested be released. There are, however, a number of exemptions that a public body may invoke to justify withholding certain types of information. The FOIA does not require a public body to withhold exempted information. Moreover, all records or portions of records which are not exempted must be released.

Information which can be withheld includes information that would invade the privacy of an individual, endanger national security, interfere with law enforcement activities, or disclose the identity of informants. The FOIA requires that the exemptions be narrowly construed, and if a court action is undertaken, the public body has the burden to prove the information was properly withheld. A public body may not withhold evidence of wrongdoing or illegal activities.

There are three common methods the exempted information is withheld: the black out, white out and cut out. Exempted information is rarely cut out of a released document. It is preferable that exempted information be blacked, not whited out since it is sometimes difficult to discern whether or not information has been whited out if the white out method is used.

Additional Differences in the State and Federal Acts  The Michigan FOIA was patterned after the Federal FOIA. In fact, Michigan Courts have ruled that Federal case law applies to the state's FOIA. Nonetheless, there are a number of important differences between the two acts.

The Michigan FOIA requires that a request be replied to within five working days; the Federal act within ten working days. The Federal act provides for an administrative appeal if a request is denied. A court action can be brought if a request is not processed within the time limits under the Michigan FOIA or after an administrative appeal or final decision to deny the request under the Federal FOIA.

The types of information exempted from release under both acts are similar. However, the Michigan act has additional exemptions: test questions and answers, scoring keys, and other examination instruments; medical, counseling or psychological facts or evaluations (f an individuals identity would be disclosed by the release); and academic transcripts of an institution of higher education (if the records pertain to a student who is delinquent in payment of financial obligations to the institution.)

The Michigan Act also allows the agency to require a deposit of 50% of the estimated search and copying fees if the estimated cost exceeds $50. It also waives the first $20 of the fee for persons on public assistance or who are indigent. If court action is taken, the Michigan FOIA allows damages to be awarded to the requester. Five-hundred dollars in punitive damages shall be awarded in cases where the public body acted arbitrarily and capriciously in refusing or delaying the disclosure of information. One provision of the Michigan FOIA which is not of much use is the ability to make oral requests. When oral requests are made they are usually either ignored, or the public body will ask you to put the request in writing.

Glenn Roberts is President of Capitol Information Association and Publisher of the Ann Arbor based monthly, Full Disclosure. FOIA fill-in-the-blank request forms are available for free from Full Disclosure; send a SASE to Box 8275-AG3, Ann Arbor, Ml 48107. Subscriptions to Full Disclosure are $15/year and available from the same address.

Addresses of several public bodies:  

Ann Arbor Police 100 N.Fifth Avenue Ann Arbor, MI 48104

Univ. of Michigan Office of General Counsel Administration Building Ann Arbor, MI 48109

FBI Attn: John Anthony, III P.O. Box 21 18 Detroit, MI 48231 and/or Attn: James K. Hall Washington, DC 20535

CIA Washington, DC 20505

National Security Agency Washington, DC 20755

State Department Washington, DC 20520

Defense Department Washington, DC 20301

Nuclear Regulatory Commission Washington, DC 20555