Deyar Jamil is a former TCAPS board candidate and a leading member of the TCAPS Transparency Movement. In the wake of what I’m now calling the Ann Cardon didn’t fire herself transparency movement, Jamil submitted a FOIA request to TCAPS presumably for documents relating to Cardon’s departure and the mystery complaint against Cardon in the days leading up to her ouster.
TCAPS responded by demanding $1,903.44 to fulfill the rest.
This is what Jamil posted that she received from the school in response to her FOIA request:
$739.20 of that $1903.44 is supposedly for “Reviewing the material including separating exempt from non-exempt material.” They want 20 hours of labor time at a rate of $39.96 per hour.
Is TCAPS’s $1903.44 demand legal? Can TCAPS charge for separating exempt from non-exempt material in a FOIA request?
can a Michigan public body charge a fee for “separating exempt from non-exempt material” in a foia request?
So glad you asked, TCAPS. Let’s talk about it.
Michigan compiled law MCL 15.234 has this to say about attorney fees for FOIA requests:
(1) A public body may charge a fee for providing a copy of a public record. Subject to subsection (3), the fee shall be limited to actual mailing costs, and to the actual incremental cost of duplication or publication including labor, the cost of search, examination, review, and the deletion and separation of exempt from nonexempt information as provided in section 14.
(3) A fee as described in subsection (1) shall not be charged for the cost of search, examination, review, and the deletion and separation of exempt from nonexempt information as provided in section 14 unless failure to charge a fee would result in unreasonably high costs to the public body because of the nature of the request in the particular instance, and the public body specifically identifies the nature of these unreasonably high costs.
In other words, TCAPS can’t routinely charge for separating out exempt and non-exempt information. If they elect to charge for that, they need to give an explanation of why there are extraordinary costs in that one, particular request.
There is a Michigan Attorney General opinion stating that charging for separation of exempt and non-exempt information as a matter of course is illegal. 2001 Op. Att’y Gen. No. 7083 (2001). Jennifer Granholm drafted the attorney general opinion. To be legal, TCAPS needs to explain how the costs associated with Jamil’s request would be unreasonable as compared to a typical FOIA request. A specific, unique, individual FOIA request must itself produce unreasonable costs in order to charge to separate out exempt and non-exempt information. Furthermore, the public body must identify what about that particular request is producing extraordinary costs.
There’s nothing in what Jamil posted that indicated that TCAPS gave a reason that her FOIA request would produce unusual costs for the task to separate out exempt and non-exempt material. So the $739.20 charged for that purpose appears to be invalid on its face.
what happens when a government body takes intentional actions that make foia expensive?
The next question is what happens when the government body takes steps to produce records that are unFOIAable. For example, what if a public board member cloaks the document as an “HR record,” in order to make sure that it needs separating out of exempt and non-exempt information in order to create costs to FOIA? Should the actions of the public officials to cover their own tracks from public disclosure prevent them from charging “unusual” separation costs?
a public body must produce records in the most economical way possible
The public body must choose the most economical means to provide copies. Tallman v. Cheyboygan Area Schools, 183 Mich. App. 123, 454 N.W.2d 171, 174-75 (1990).
In other words, if it’s more economical to throw the records on a CD or flash drive rather than printing paper records at 10 cents each, that’s what the government body has to do. Even at that, is 10 cents per page the actual cost? Did they calculate that based on the typical life of a printer, the cost of paper and toner, or is it just a number that sounds good? Because I’m pretty sure 10 cents per page was what it cost to make copies at the public library in 1985. Staples can do printing & copies for 4 cents/page and that includes a profit margin. Why does it cost TCAPS more than twice as much? What does TCAPS charge to a department or a teacher for making copies in their work?
If Jamil wants to challenge the amount of the FOIA costs, she has 45 days from the date of notice of the costs to file an action in the 13th Circuit Court. MCL 15.240a. If she wins, TCAPS could be fined and have to pay attorney fees. However, the challenge would go to the 13th Circuit Court, where local powerful people (in this case, both the TCAPS board members and 13th Circuit Court Judge Elsenheimer purport to be Republican) could protect each other which could result in a fine for Jamil.