The public’s right to all public records in Michigan is a clear matter of law and backed by court precedent.
On Oct. 12, 2020, I filed a Freedom of Information Act (FOIA) request with the Michigan Department of Health and Human Services (MDHHS). As of today, those records have not been released, pending my efforts to reduce an exorbitant charge of $1,168.44 for “labor” in processing my public records request. I will be appealing this charge.
My requests for records included all communications and documents that referenced:
- The petitioner, me, with either my original, adoptive, or later changed legal name (now Rudolf Scott-Douglas Owens)
- My book on the U.S. adoption system and my decades-long denials for records, including from the MDHHS (You Don’t Know How Lucky You Are: An Adoptee’s Journey Through the American Adoption Experience),
- My websites (www.howluckyuare.com; www.rudyowens.com), and
- Any article written by the petitioner.
All of these requested items are, by statute, public records and have to be released by law in a short time period.
This is not just an issue of an adoptee wanting to know what adoption officials think and say about them.
This request highlights a larger matter of policy. The records requested provide the clearest insight into the systemic way lawful adult adoptees are treated by adoption records-keeping officials — all with no regulatory and legislative oversight and with almost no media and public interest.
Only by obtaining and then sharing public records that document the workings of state public health officials can the public begin to understand the treatment countless tens of thousands of adoptees have experience over decades in the Untied States trying to answer life’s most basic question, “Who am I?”
That is why this matters. That is why I made this request. That is why I am doing this — to help other adoptees and perhaps the public who care about equality and fairness.
In other words, this request is about what happens behind the scenes when public health and state adoption officials deny, obstruct, and challenge adoptees’ requests only because of their status as adoptees.
My FOIA request asked for records generated by former MDHHS Director Nick Lyon and current MDHHS Director Robert Gordon.
Why MDHHS Records Documenting Communications About Adult Adoptees Matter
The MDHHS is the state agency that manages Michigan’s large adoption system. The MDHHS also oversees all decisions concerning the release of adoptees’ records. Because of statutory authority, it also is charged with providing information about the state’s laws that, by statute, restrict Michigan adult adoptees from accessing their original birth records. (See my FAQs about this poorly organized and managed system).
I have been dealing with the MDHHS since 1987, when I first requested my limited adoption records I was legally allowed to receive.
Since then, the state’s adoption records agency, now housed at MDHHS, have been tenaciously obstructionist and, I would argue, intentionally hostile in denying me assistance for decades now. It took a court fight and a judge’s order in June 2016 to finally compel the MDHHS to release my original birth certificate, 27 years after I had already found my birth kin and knew my biological family identity and ancestry. Not once have I received any assistance that members of the public might expect for something as simple as their vital record and most important identity document — their original birth certificate.
Since 2016, I have published a book on the MDHHS’s oversight of adult adoptees’ records. My book examined the decision-making of its senior staff and the state’s outdated laws that treats literally thousands of lawful Michigan natives as second-class citizens only because they are adopted.
Shortly after publishing my book in May 2018, I directly lobbied dozens of lawmakers in Lansing in June 2018, to replace the state’s outdate adoption secrecy laws and to implement reforms to address the poor treatment of adoptees.
I also have published multiple articles on the state’s laws, including an op ed on Michigan’s denial of equal rights to adoptees, published by the Detroit Free Press on Jan. 4, 2020. This past August, I also made repeated efforts to obtain my adoptive parents’ adoption study records, which are perhaps the most protected of all adoptees’ original adoption records.
My FOIA request also requested records from current MDHHS officials Elizabeth Hertel, Chief Deputy Director for Administration (left), and JooYeun Chang, Senior Deputy Director, Children’s Services Agency.
The MDHHS claimed they did not have a copy of those records, which I can never confirm with any third party. The MDHHS also refused to provide any assistance after more than a dozen emails to multiple senior officials, even though their assistance could have been made with a phone call in support at no cost to the state. They told me to “try again” and ask my successor adoption agency for these now more than 55-year-old records about my adoptive mom and dad. I had made a request in 2017 that was rejected through an incorrect interpretation of law.
Given the state’s latest reluctance to assist me in my lawful request for records that lawfully belong to adoptees, I filed my FOIA request to determine how MDHHS officials have been documenting my advocacy and my many requests for records.
How FOIA Should Work In Michigan
The state’s Freedom of Information Act, Mich. Comp. Laws Ann. 15.231-.246, for public records, compel the state to release those records to the public in five business days, or in some cases after 10 additional days after a formal request is made.
The state’s FOIA law is a critical tool for the media and the public to hold state officials accountable. This is one of the most important functions of public records legislation at the state level. In Michigan, the law provides transparency how state officials carry out their duties and fulfill legal requirements, such as treating all residents equally and fairly, as required by the state’s Constitution. This is, ultimately about a constitutional issue of fairness that only records can shed light on.
What’s more, as a matter of policy and court precedent, Michigan courts throughout the state’s history have both expressed and implemented the fundamental principle that the records of government belong to the public and not to the government officials who manage said records. The public’s access and ability to inspect are a matter of fundamental right. What’s more, the public does not have the burden of justifying the requested inspection, and the custodian bears the duty to justify any exemptions, restrictions, or delays in providing public records.
This is the invoice MDHHS sent to me, for $1,168.44 for generating public records, despite the law’s requirement that records can be provided with no fee upon request if the petitioner documents the release is in the public interest. I provided that documentation and my fee waiver request was denied.
The reply and charge I received a week after my request sent a clear message that the state had little interest in having records it has been creating about me and without my knowledge should be released. The invoice claimed that I would have to pay $1,168.44 for the labor of preparing these records. This charge came despite my clearly documented case that, by law, I should be granted a fee waiver.
I argued I was entitled to the waiving of fees allowed by the law for the following reasons:
- My request concerns public my reporting, public stories and scholarly work, and media coverage that may involve my advocacy work on Michigan’s management of vital records. They were all matters of important public policy, and my reporting intended to inform policymaking and legislation, which are fully in the public’s interest.
- My request focuses on policies concerning the management of vital records of adoptees, which is public policy matter debated widely in Michigan and all 50 states by elected and public bodies.
- Adoptees number in the millions in the U.S. population, and debates over the management of sealed and original birth records and the way adoptees’ legal requests are treated by public bodies remain major political topics that are in the public spotlight and are of substantial local, state, and national interest. As a matter of public policy, records issues have been in the public interest and debated by public bodies now since the 1930s.
- My request concerns furnishing copies of the public record showing how state bodies and their officials deliberate on journalists and those who report on public policy issues. Shedding light on how public bodies make internal decisions to manage those public records is therefore beneficial public information that will only serve the public good and the people of the state of Michigan.
Groups supporting open records strongly document the state has an overarching legal responsibility to provide records and waive fees. What’s more state’s law specifically states: “A public body shall utilize the most economical means available for providing copies of public records. A fee 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.”
I my case, the state did not identity its “unreasonably high costs,” and it’s impossible to tell that any economical means were used, with the charges at more than $1,100 for a member of the public.
What is clear, given these charges, is that the MDHHS and its officials likes have amassed a lot of records about me. It would be impossible to conclude otherwise. My FOIA request from 2016 unearthed documents how the state’s former State Registrar, Glenn Copeland, failed to correctly interpret state law and Deputy State Registrar Tamara Weaver told a subordinate to start tagging me in their system and further claimed that I had “an agenda” in asking for my original birth certificate — which I was on record asking for as far back as 1987.
My 2016 FOIA request charge came to $173 for 198 pages of emails. My charge now is nearly seven times as much, indicating officials have been writing a lot about me. It’s time for the state to release those records, follow the law, and not punish a member of the public requesting public records fully entitled to a fee waiver required by the state law.
On Nov. 17, 2020, I received a reply to my request that the Michigan Department of Health and Human Services (MDHHS) waive its wildly excessive fee for requesting public records that, by court precedent and statute, should be released at the lowest charge or without cost when done in the public’s interest.
In a clearly worded statement on the interpretation of fee charges within the state’s FOIA statute, former Michigan Attorney General Frank Kelley clearly told the state in 1996 that costs for any means of reproduction, if they were charged, were to be applied at the most cost-effective means possible for the petitioner. He noted: “Section 4 of the FOIA is very specific in authorizing charges, regulating those charges and permitting deposits.” Attorney General Kelley stated: “In calculating the costs under subsection (1), a public body may not attribute more than the hourly wage of the lowest paid, full time, permanent clerical employee of the employing public body to the cost of labor incurred in duplication and mailing and to the cost of examination, review, separation, and deletion. A public body shall utilize the most economical means available for providing copies of public records. A fee 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. A public body shall establish and publish procedures and guidelines to implement this subsection. [ Emphasis added.]”
