Understanding the Freedom of Information Act (FOIA)

Jon Crail

Understanding the Freedom of Information Act

A popular Government without popular information or the means of acquiring it, is but a Prologue to a Farce or a Tragedy or perhaps both. Knowledge will forever govern ignorance, and a people who mean to be their own Governors, must arm themselves with the power knowledge gives. -- James Madison[1]

Presently, both federal and state Freedom of Information Acts protect our right to review, copy, and question government information. The Freedom of Information Act (FOIA), a federal act, became law in 1966, and had two subsequent amendments, in 1974 and again in 1996 with the addition of the Electronic Freedom of Information Act, which updated the law to include newer electronic forms of information. “The Freedom of Information Act, establishes a presumption that records in the possession of agencies and departments of the executive branch of the U.S. Government are accessible to the people.”[2] The FOIA was revolutionary because it shifted the burden of proof from the individual to the government, who now has to prove its right to withhold information form citizens. The Privacy Act of 1974 works with FOIA by establishing an individual’s right to access to Federal agency records about themselves. The Privacy Act also forces the government to keep and provide access to “accurate, complete, relevant, and timely”[3] information upon request. Both acts provide citizens with legal redress in the event that the government fails to comply with their requests for information or if they believe the information to be incorrect.

Under the FOIA and the Privacy Act, the government reserves the right to restrict the disclosure of some information such as information relating to national defense, foreign policy and criminal investigations. The laws also limit the disclosure of personal information to others “when disclosure would violate privacy interests.”[4]The public body is legally required to inform citizens both if and for what reason the information they requested is unavailable to them. The individual must also be informed of their right to appeal the decision.

The Michigan Freedom of Information Act (Act 442) of 1976, together with the Open Meetings Act (Act 267) of 1976 help to protect the individual’s right to government information on both the State and local levels, much as the federal FOIA does for federal governmental information. The Open Meetings Act requires that “certain meetings” of “certain public bodies”[5] be open to the public. Citizens are entitled to ample prior notice of such meeting and to the right to review the minutes from these meetings. The Open Meetings Act also provides citizens with legal redress and appeal power in the event that the government were to deny them these rights. The Michigan FOIA applies to a wide variety of public bodies including but not limited to: “all state agencies, county and other local governments, school boards, other boards, departments, commissions, councils, and public colleges and universities.”[6] Because the MFOIA applies to only public bodies, private and non-profit corporation’s records are not included. However, all government records not specifically cited as exceptions are available to the public under the MFOIA. These records include but are not limited to: “minutes of open meetings, officials’ voting records, staff manuals, final orders or decisions in contested cases and the records on which they were made, and promulgated rules.”[7] The form in which these records are kept is irrelevant: “the act applies to any handwriting, typewriting, printing, photostating, photographing, photocopying and every other means of recording… [including] letters, words, pictures, sounds or symbols, or combinations thereof, as well as papers, maps, magnetic or punched cards, discs, drums, or other means of recording or retaining meaningful content. It does not include computer software.”[8] The MFOIA basically ensures the public’s right to inspect, copy and question the vast majority of the information of all federal, state and local public bodies.

Records that may be withheld from public disclosure under the Michigan FOIA include but are not limited to;

Specific personal information about an individual if the release would constitute a clearly unwarranted invasion of that individual's privacy.
Investigating records compiled for law enforcement purposes, but only to the extent that disclosure as a public record would do any of the following:

interfere with law enforcement proceedings;
deprive a person of the right to a fair trial or impartial administrative adjudication;
constitute an unwarranted invasion of personal privacy;
disclose the identity of a confidential source or, if the record is compiled by a criminal law enforcement agency in the course of a criminal investigation, disclose confidential information furnished only by a confidential source;
disclose law enforcement investigative techniques or procedures; or
endanger the life or physical safety of law enforcement personnel.

Public records which if disclosed would prejudice a public body’s ability to maintain the physical security of custodial or penal institutions occupied by persons arrested or convicted of a crime or admitted because of a mental disability, unless the public interest in disclosure under this act outweighs the public interest in nondisclosure.
Records which if disclosed would violate the Family Educational Rights and Privacy Act of 1974 (primarily student records).
Records specifically exempted from disclosure by another statute.
A public record or information which is furnished by the public body originally compiling, preparing, or receiving the record or information to a public officer or public body in connection with the performance of the duties of that public officer or public body, if the consideration originally giving rise to the exempt nature of the public record remains applicable.
Trade secrets or commercial or financial information voluntarily provided to an agency for use in developing governmental policy.
Information subject to attorney-client privilege.
Information subject to other privileges such as counselor-client and those recognized by statute or court rule.
Pending public bids to enter into contracts.
Appraisals of real property to be acquired by a public body.
Test questions and answers, scoring keys and other examination instruments.
Medical, counseling or psychological facts which would reveal an individual’s identity.
Communications and notes between and within public bodies of an advisory nature to the extent that they cover other than purely factual materials and are preliminary to a final agency determination of policy or action. This exemption shall not apply unless the public body shows that in the particular instance the public interest in encouraging frank communication between officials and employees of public bodies clearly outweighs the public interest in disclosure.
Law enforcement communication codes and employment plans unless the public interest in disclosure outweighs the public interest in nondisclosure.
Information which would reveal the location of archeological sites.
Product testing data developed by agencies buying products where only one bidder meets the agency’s specifications.
A student’s college academic transcript where the student is delinquent on university loans.
Records of any campaign committee including any committee that receives moneys from a state campaign fund. (These records are open to the public under Public Act 388 of 1976).
Public records of a police or sheriff's agency where disclosure would identify an informer, or undercover agent, or reveal the home address, telephone number of an officer or agent, or disclose personnel records of law enforcement agencies.
Records pertaining to an investigation of a health care professional conducted by the Department of Consumer and Industry Services pursuant to the Public Health Code before a complaint is issued.
Records of a public body's security measures.
Records relating to a civil action in which the requesting person and the public body are parties.
Records that would disclose the social security number of an individual.
Applications, including letters of recommendation and references, for president of an institution of higher learning if the records could be used to identify the candidate. However, records pertaining to persons identified as finalists, except letters of recommendation and references, are not exempt.[9]

To solicit information under the Michigan Freedom of Information Act, a written request must be made to the FOIA coordinator of the public body responsible for the information. There are multiple methods by which information can be accessed, the individual can copy the information, inspect the information, or the public body can be asked to provide the individual with a copy of the information. The only restriction of who can solicit information from public bodies under the MFOIA is that federal, state, or county correctional facilities inmates are not entitled to make requests. After such a request for information is made, the public body has a maximum of five business days after receiving a request to respond. It is possible for the agency to delay meeting the request for an additional ten business days provided they contact the requester in writing, notifying them of the delay within five days of receiving the request. The MFOIA also affords individuals the right to subscribe to future issuances of public records created on a regular basis. This subscription is valid for a maximum of six moths and is renewable. The public body may charge a fee covering only the costs of locating and copying the requested information. Also the first twenty dollars of the fee must be waived if the requester is on welfare or can show an inability to pay.

If a request for public information is denied, the public body must provide a full explanation of the reason for the denial. The public body must also explain the requester’s right to appeal the decision to the head of the public body in question or to seek judicial review. This notification of the right to judicial review legally must include notification of the individual’s right to receive legal fees and to collect damages. Once an appeal has been submitted to the head of the public body they have ten business days to respond. If the requester wishes judicial review of the denial, the suit must be filed within 180 days of the public body’s final decision to deny the request. If the court decides that the public body has “arbitrarily and capriciously violated the Freedom of Information Act,” the individual will be awarded the actual or compensatory damages, a maximum of five hundred dollars of punitive damages and the information in question.

[1] Letter to W.T. Barry, Aug. 4, 1822, in G.P. Hunt, ed., IX The Writings of James Madison 103 (1910).

[5] The term “public body” referees to “a state officer, employee, agency, department, division, bureau, board, commission, council, authority, or other body in the executive branch of the state government, but does not include the governor or lieutenant governor, the executive office of the governor or lieutenant governor, or employees thereof. It also includes: an agency, board, commission, or council in the legislative branch of the state government; a county, city, township, village, inter county, inter city, or regional governing body, council, school district, special district, or municipal corporation, or a board, department, commission, council or agency thereof; or any other body which is created by state or local authority or which is primarily funded by or through state or local authority.” http://www.ag.state.mi.us/foia_and_open_meetings/foia.htm