Michigan EGLE new Lockdown FOIA Procedures

Asked by Robert Potocki on March 23, 2020.

1 answer from Russ Kick.

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Robert Potocki

Anyone have advice how to deal with the new EGLE FOIA enforcement?

Have had two very recent FOIA requests come back with invoices of $181 and $103 for search of records and then further scanning for sensitive information/redaction.

Both involved seeking basic information about PFAS contamination site and potential site.

EGLE Staff privately advises they are no longer able to answer simple question outside this procedure.

Some of the problem is the request to inspect files. I am looking for basic reports that may or may not include actual testing for the hazardous chemicals.

Believe may be influenced by Members of State Legislature who have concealed, and avoided testing at sites over time.

Also, as retiree——not about to pay for access to documents I am already taxed to maintain.

Anyone else having problems with EGLE? Any suggestions how this new barrier can be overcome?

Thanks!

Bob P

Russ Kick

Hi Bob—

There are two ways you can argue with the records officer about the fees (and you can do both at the same time).

Under Michigan’s open records law (the Freedom of Information Act), agencies can charge for search/retrieval and review/redaction only when failing to charge those fees “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.”

The law also says that agencies have the discretion to waive or reduce fees if “furnishing copies of the public record can be considered as primarily benefiting the general public.” So you should make the case that, because of what you’ll do with these records, releasing them will benefit the public.

If the records officer won’t budge, you can file an appeal over the fees to the EGLE. The law is silent about whether appeals can be made on the basis of fees, rather than denial of records, but it’s worth a shot. In practical terms (though not in legal terms), high fees amount to the same thing as a denial.