What FOIA Is and Why It Still Matters
The Freedom of Information Act was first launched in 1967, designed to put information about elected officials into citizens’ hands so they could make informed decisions and speak up against wrongdoing. Michigan adopted its own version in 1976. Regardless of the program’s age, FOIA requests remain vital. They are a critical tool for journalists doing their jobs and an important mechanism for citizens to enforce government accountability.
It is often suspected that agencies place high costs on FOIA requests specifically to discourage people from obtaining records. Even though by law they are required to maintain them and therefore have to fund them already. My experience did nothing to make me doubt that suspicion.
The Request Timeline
I submitted a FOIA request to the Michigan State Police on July 25, 2022. It took 6 business days to receive a reply beyond the automated response. They then informed me they needed 10 more business days to review and quote my request. I have since learned that is pretty standard.
I received the quote one day before the MSP’s due date. When I opened the attachments, my jaw involuntarily dropped.
This was for 30 minutes of body camera footage and what would probably be a 2-page report at most, for an event that had happened less than a month prior. I still didn’t even know how many pages or what the file size of any of it would be because I hadn’t seen any of it yet. Needless to say, I was gobsmacked.
The Actual Cost Breakdown
First of all, can we stop and appreciate their need to find a better deal on their flash drives? Take note, MSP: it pays to shop around, especially when you’re spending taxpayer money. At the time of writing, I effortlessly found bulk packages of 8 GB flash drives for under $3.00 each.
Second, I am just one lone investigative criminal justice advocate. How much are government agencies charging newspapers and media outlets for information that is supposed to be accessible by and for the public?
How Labor Fees Are Calculated — and Why It’s Maddening
The flash drive is almost a punchline. The real issue is labor, and the way Michigan law allows agencies to charge for it:
“Labor costs for the search, location, and examination of public records which will be calculated using the hourly wage of the department’s lowest paid employee capable of conducting the search, location, and examination, whether or not they are available or perform the labor. Such labor costs shall be estimated and charged in increments of 15 minutes with all partial increments rounded down. The hourly wage will be based on the department’s payroll records for the applicable fiscal year. Labor costs shall also include up to 50% of the hourly wage to partially cover the cost of fringe benefits, not to exceed the actual cost of fringe benefits.”
What this means in plain language: the MSP can charge you the going rate for an Assistant FOIA Coordinator to pull the request, but an intern could theoretically do the entire thing unpaid, minus the flash drive and postage. In theory, MSP could turn a profit on certain FOIA requests. And given that private companies already submit FOIA requests and repackage the information for profit, why would we assume government entities aren’t doing something similar?
Follow the Money: The MSP Budget
In a Michigan House Budget report for fiscal year 2020-2021, the Michigan State Police was expected to receive $145,079,300 in state funding alone. Among its major functions, the budget funds records and information management, which includes FOIA processing. It was vindicating to confirm that FOIA requests do generate revenue for the Michigan State Police.
Budget for 155 FTEs. Handles FOIA requests, criminal record maintenance, and information sharing.
42 FTEs assigned to executive direction, with an undisclosed portion dedicated to the Records Resource section.
Criminal Justice Service Center fees from fingerprinting, CPL, criminal record checks, and FOIA requests combined.
So with all of this revenue and dedicated taxpayer funding already in place, why is it still so expensive to access records you already paid for?
Why FOIA Requests Are So Expensive
Government agencies are bad at managing money. Look at the flash drive. That is a small example, but it reflects a broader pattern: agencies do not shop around for the best price because they know they can pass the cost to the requestor anyway. Extend that logic to paper, computers, staffing, and administrative overhead, and it keeps going.
Inefficient processes. Much of the FOIA process could be automated. Business rules could be created to limit the amount of human intervention required for standard requests. Government agencies do not typically focus on process improvement because leadership is more worried about maintaining or increasing budgets than improving taxpayer value.
Revenue. Clearly, there is money to be made by charging people twice: once through taxpayer funding and again through subsequent fees. It is another place where the criminal justice system takes advantage of the accused and victims alike.
What You Can Do If the Fee Is Excessive
Request a fee waiver based on indigency
Under MCL 15.234(4), a public body must waive fees if you demonstrate indigency and inability to pay. Include a written statement with your original request or in response to the quote. The agency may ask for documentation of your financial situation.Narrow your request to reduce labor time
The more specific your request, the less search and review time the agency can bill. If you know the date, the officer’s name, or the incident number, include it. Requesting a specific date range or a specific file type rather than “all records” can significantly reduce the quoted fee.Request an itemized breakdown of the fee
You are entitled to a detailed explanation of how the fee was calculated. If the labor hours seem inflated or the supplies seem overpriced, you have grounds to challenge specific line items in your appeal.File a formal appeal
Under MCL 15.240, you have the right to appeal an excessive fee. For state agencies including the Michigan State Police, the appeal goes to the head of the department. Submit your appeal in writing and document every step. If the appeal is denied, you can file suit in circuit court, where a judge can award attorney fees and damages if the agency is found to have arbitrarily violated the FOIA.Contact your state representatives
Excessive FOIA fees are a policy problem, and policy problems require legislative pressure. Contact your state house rep and state senator about FOIA reform. The system is not going to fix itself.If a public body fails to respond to your FOIA request within the required timeframe (5 business days, with a possible 10-day extension), Michigan law may require them to provide the records at no charge. If the agency misses its own deadlines, document it. That failure has consequences under MCL 15.235 and is worth raising explicitly in any appeal or legal action.
If you can’t pay an exorbitant FOIA fee right now, gritting your teeth and filing the appeal is exactly the right next step. And in the meantime, keep writing to your representatives asking for the criminal justice reform we badly need in Michigan and across the country.
Michigan FOIA Statute — MCL 15.231 et seq. — legislature.mi.gov →
MCL 15.234 — Fee Waiver for Indigency — legislature.mi.gov →
MCL 15.240 — Appeal Rights — legislature.mi.gov →
MSP FOIA Request Policy and Fee Schedule — michigan.gov →
Budget DocumentsMichigan House Fiscal Agency — MSP Budget Briefing FY 2020-21 — house.mi.gov →
Michigan House Fiscal Agency — MSP Line Item Summary FY 2021-22 — house.mi.gov →
FOIA Context and ReferenceFOIA.gov — Frequently Asked Questions — foia.gov →
Unredacted — How to File a FOIA Request — unredacted.com →
Unredacted — FOIA Fee Categories — unredacted.com →
Detroit Free Press — Michigan FOIA Guide — freep.com →
Inc. — How Companies Profit from FOIA — inc.com →
