Cox demands $143,000 to fulfill Brewer FOIA request

On April 8, after controversy over Attorney General Mike Cox using funds from the settlement of a mortgage fraud case against Countrywide to fund park projects in the Grand Rapids area, Michigan Democratic Party Chairman Mark Brewer filed a Freedom of Information Act request seeking documents related to the distribution of funds from all such settlements Cox had been involved with since taking office. The AG’s office has now responded to that request, saying that Brewer can have those documents — if he pays $143,000 for the cost of fulfilling the FOIA request.

In its response to the FOIA request, the AG’s office calculates the number of hours it will take to search, retrieve and copy all of the documents Brewer requested and multiplies those hours by the hourly wage of the person who would do the searching; the figures are staggering. In the Alcohol and Gambling Enforcement Division alone, they estimate the cost at over $38,000. The agency concluded that Brewer must provide a deposit of $71,926.44 — half of the total estimated fees — in order to begin the search.

Michigan’s FOIA law — technically, MCL 15.231-15.246 — does allow public agencies to charge a fee for fulfilling a FOIA request, based upon the labor cost of complying with the request. But it also provides for a waiver of those fees if the release of the documents is deemed to be in the public interest. Brewer had asked for a waiver of any such fees because “providing copies of of the requested public records primarily benefits the public.” In the AG’s response to Brewer’s FOIA request, that argument is rejected:

The FOIA does not require the taxpayers to subsidize a requesting person’s FOIA processing costs. Section 4(1) of the FOIA, MCL 15.234(1) does not require a fee reduction, unless the requester demonstrates indigency.

They are correct that the law doesn’t require that the fee be waived if the request is in the public interest; the law allows that determination to be made by the agency. Here is that section of the law:

(1) A public body may charge a fee for a public record search, the necessary copying of a public record for inspection, or for providing a copy of a public record. Subject to subsections (3) and (4), 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. A search for a public record may be conducted or copies of public records may be furnished without charge or at a reduced charge if the public body determines that a waiver or reduction of the fee is in the public interest because searching for or furnishing copies of the public record can be considered as primarily benefiting the general public. A public record search shall be made and a copy of a public record shall be furnished without charge for the first $20.00 of the fee for each request to an individual who is entitled to information under this act and who submits an affidavit stating that the individual is then receiving public assistance or, if not receiving public assistance, stating facts showing inability to pay the cost because of indigency.

Brewer hand delivered a response to the AG’s letter, arguing that the agency is significantly overestimating the costs of fulfilling the FOIA request. His reply argues that the agency has already done most of the searching in order to make much of the material he requested available on their website, where every settlement in every case over the last few years is available.

He also notes that not all files need to be searched because his initial request specified only cases involving “corporate, commercial or business defendants” and specifically exempted all cases where the AG was the defendant or was representing a defendant and all cases involving child support, tax liens, food stamps, welfare, student loans and driver responsibility fines. He asks that the fee determination be reversed.

In a press release, Brewer said, “For a man who has been claiming for years that he supports open government, it is pure hypocrisy for Mike Cox to hide behind these obscene fees. What is he hiding? Michigan taxpayers have a right to know how their money is being spent.”

He further charged that the fee determination was made solely to prevent public scrutiny of the AG’s actions, saying, “Cox’s office has already located and reviewed the public records containing much of the requested information to create the self-promoting settlement ‘summaries’ and press releases on his website. The only reason to charge such an outrageous fee is to prevent the public from discovering the real facts for themselves by seeing those public records.”

The AG’s office was closed by press time and could not be reached for comment. Any statement forthcoming from that office will be duly reported.