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.
The unsigned communication by the agency, which oversees Michigan’s adoption system and manages its vital records, ignored my reasonable request.
The reply stated: “MDHHS does not provide for fee appeals in it’s [SIC] publicly available procedures and guidelines. MCL 14.240a(1)(a).”
The state’s Freedom of Information Act (FOIA) law as written does not prevent any state agency in Michigan from negotiating an appeal.
The legal office of the Michigan Department of Health and Human Services did not sign its communication to me, in which it rejected my lawful appeal that the agency waive its exorbitant fees it wrongfully charged for a FOIA request. The reply was sent on Nov. 17, 2020.
The law states: “If a public body charges a labor fee, it is supposed to limit the charge to the hourly rate of the lowest paid employee capable of doing the work. So, for example, a public body isn’t allowed to charge a lawyer’s hourly rate for copying work that can be done by a clerk at a lower rate.” What’s more, the law further states: “A public body may not charge a fee for the cost of its search, examination, review and the deletion and separation of exempt from nonexempt information, unless failure to charge a fee would result in unreasonably high costs to the public body.”
On Nov. 6, 2020, I filed an appeal to MDHHS that it’s charge of $1,168.44 for preparing copies of public records referencing my writings, book, and other communications examining the state’s adoption laws and discriminatory practices against adoptees born in Michigan. I had originally filed my FOIA request, in compliance with the sate’s FOIA statute, on Oct. 12, 2020.
In my appeal, I again documented my request was made in the public interest, and I even referenced how I have shared findings of a previous FOIA request by publishing my book on public policy issues surrounding adoption decision-making by state officials, whose records are by law and by multiple court precedents open to inspection by the public in Michigan.
Requested public records must be released without fees when their release is in the public interest. The statute is clear on this matter. My original request clearly met that test, which I outlined in my appeal again.
My appeal documented in detail that the agency’s arbitrary and capricious charge of the records preparation fee was not consistent with the state’s law and even with legal guidance provided in 1996 to the state by the state’s Attorney General’s office. I even included with my appeal a copy of that legal guidance.
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.]”
Facts, legal guidance from the state’s top law officer, and Michigan state law as written have been discarded with the same degree of regard that the agency has demonstrated to me over my more than three decades engaging it and its staff in seeking my original identity documents. MDHHS has little interest in demonstrating that it respects the rights of ordinary people to whom it is legally accountable or the basic rights of people whose public records it hold.
As someone who does not have the money, time, and resources to fight in an appeals court what is so clearly an incorrect legal interpretation and intentionally calculated effort to avoid releasing public records, I have really two choices. I can pay this unjust fee to get what should be released without a fee by law or abandon a request to make public what already are by statute public documents. Both are bad options.
In the end, MDHHS remains what it has always been: an agency that is driven by institutional interests that frequently ignores the rights of those born in Michigan.