By Zachary Gorchow
President of Michigan Operations
Posted: August 1, 2024 3:20 PM

Michigan's Freedom of Information Act doesn't work for the public.

Yes, I know. In other news, the sun rose this morning and water is wet.

But we at Gongwer News Service recently experienced another reminder of FOIA having loopholes big enough for a truck to drive through, along with a few cars, a couple boats on trailers, a flotilla of SUVs and some minivans.

Last November, we filed a FOIA request with the Department of Attorney General for all communications between the two leaders of the Flint water criminal investigation, Fadwa Hammoud and Kym Worthy. With the investigation having failed in court and officially ended, we hoped to shed light on what went wrong. That's important for the residents of Flint who were disappointed by the result, the defendants who had their lives upended with years under criminal charges and the public that funded the investigation.

On March 5, the department issued a partial grant and partial denial of our request. The documents we received contained some revelatory information and helped us produce some stories. But the department redacted – that's a fancy word for refused to provide – dozens of emails and documents.

FOIA has an appeals process. The next day, we sent our appeal to Attorney General Dana Nessel via U.S. mail (yes, the department requires appeals to go out in the U.S. mail). Under FOIA, all appeals go to the head of the public body. Stay with me here on the timeline, because that's the whole point of this missive.

FOIA allows a public body 10 business days to respond to an appeal.

On March 27, the department informs us via email it received our appeal on March 13. FOIA allows a public body a single extension of 10 business days. The letter from the department indicates it is exercising that extension.

On April 10, at the conclusion of the extension, we received an email from Linus Banghart-Linn, the department's chief legal counsel, informing us: "While the Department is not reversing the partial denial at this time, based on your reasons for the reversal of the partial denial, the Department has determined that it will conduct a further review of the records at issue. A follow-up written notice will be issued to you within 10 business days after the date of this notice."

Our response to this email could be summarized as "waitaminute."

Nowhere in FOIA is there a provision for a public body, after the expiration of its 10-business day extension, to conduct further review for 10 business days, five business days or two business hours.

On April 24, the department's FOIA coordinator informs us the department needs another five business days to complete its additional review. Again, there's no apparent legal authority for such a move.

In fact, the Department of Attorney General's own FOIA handbook says, when answering the question of what a public body must do upon receiving an appeal, that one option is to "issue a written notice extending for not more than 10 business days the period to respond. This extension can only be taken because of unusual circumstances and only once for a particular written appeal."

Finally, on May 1, the department completed its work on the appeal and provided a considerable new tranche of documents that led to further stories from staff writer Ben Solis.

All's well that ends well, right? Well, I'm not so sure.

People filing FOIA requests have 180 days to go to court from the time of the first denial. That means the clock on going to court was running during the appeal, lawful extension and questionable extension.

I personally had never seen a public body take this course on an appeal. I asked a few legal eagles who work in the FOIA space, and they were shocked with what I described.

I contacted the department's communications office, with Banghart-Linn and the FOIA office cc'd, with a question: "Under what legal authority did the department execute a second extension for 10 business days and a third extension for five business days?"

Department spokesperson Kim Bush provided an answer, and it's concerning.

"There is no provision among the remedial provisions of the FOIA that bars a public body from remanding the matter to its FOIA coordinator to process a post-appeal grant of records within a reasonable period of time," she wrote. "This is particularly the case, where the records are not readily available and, as acknowledged under MCL 15.234(1) and MCL 15.244(1), processing a given request requires the FOIA coordinator to conduct a search for and retrieval of responsive records, to examine and review the records, and, where applicable, to delete and separate exempt from nonexempt information. Finally, the courts have recognized that the FOIA is subject to a standard of reasonableness."

In short, the answer is, the law doesn't prevent us from taking more time, as long we call it a remand and not an extension.

Now, to the department's credit, they didn't exploit this apparent loophole. They did provide a lot more records. They did not run out the 180-day clock on going to court. But a bad actor – and yes, there are definitely bad actors out there when it comes to how they handle FOIA – could take advantage. They could run out the clock. They could make a requester wait for months, determine only additional document should be released and stick it to the requester.