(Source: MIRS.news, Published 06/08/2022) Anyone filing Freedom of Information Act (FOIA) requests from Michigan's various state agencies will notice the blotted information returned can vary from department to department.
Depending on the request, names, addresses, phone numbers and birth dates can be blacked out on the argument that it's “unwarranted invasion of privacy.”
The most recent batch of FOIA requests republished by FOIA Services found media outlets and law firms asking for information typically don't have their information redacted. However, regular private citizens asking for a copy of everyone else's FOIAs can find the name and address of the person requesting a FOIA blacked out by those requesting those documents by one department, but not by another.
Mackinac Center for Public Police Director of Transparency and Open Government Steve Delie said the center submits a couple hundred FOIAs a year.
“Something that’s been consistent throughout my practice has been seeing different agencies redact material in inconsistent ways,” Delie said.
Chris DeWitt, with FOIA Services Michigan, said he has also seen the redactions vary between departments.
“I think the FOIA coordinators overall do a great service, but some of them are a bit heavy on redactions and others use a much lighter touch,” DeWitt said.
Javon David, a lawyer with the Michigan Press Association, said he frequently advises reporters about how to push back on redactions.
David said he has seen a lot of over-redactions made lately under attorney-client privilege.
“I typically advise the reporter to remind the public body that the attorney-client privilege is narrow and to request supplemented, non-redacted invoices,” he said.
Delie gave an example of the inconsistent redactions after submitting a request to see what FOIAs were filed to the various state departments and the names of some of the people submitting the FOIAs were redacted, but some were not.
“There’s not really a rhyme or reason that we can tell for why one agency would treat it one way and why another would treat it differently,” he said.
President of the National Freedom of Information Coalition David Cuillier said it isn’t something that is only a problem in Michigan but can be seen across all FOIA redactions across the board.
“You’ll see this from the same agency. Sometimes you’ll see it with the same records officer. One day they’ll take a file and redacted it up for someone. A month later someone else will ask for it and they’ll redact it differently,” Cuillier said.
He said the discretion of the FOIA coordinators is the most common reason for the inconsistencies in the information redacted.
“It’s just everywhere,” Cuillier said.
Cuillier recommends anyone trying to get information to file FOIAs from different agencies, because what is returned could be used to piece together a fuller picture.
Various state department public relations officers said each department has standards by which redactions are made, but none MIRS talked with said they could talk about what standards other departments used for FOIA redactions.
Delie, who is also the executive director of the Michigan Coalition for Open Government, said he would like to see some consistency brought to how FOIA redactions are handled.
He pointed to the possible creation of a public board that handles FOIA requests, like one used in Iowa, but said there were less overarching tweaks that could be made.
“I think it would be a good thing to have some kind of annualized training, at least offered to FOIA coordinators,” he said. “To enable everyone to get on the same page so that ordinary requesters know what to expect.”
Cuillier and Delie said there has been a shift in the past several years about the way FOIAs have been treated.
“The most common theme is that the redactions of material seem to redact everything that is possible under the law,” Delie said. “I think the better attitude is to go ahead and take a look at the exemptions and only apply those when the purpose of those exemptions is necessary.”
He said there are obvious things that need to be redacted, such as information about national security, health records and social security numbers.
Cuillier, who is also a professor at the University of Arizona School of Journalism, said FOIA laws are essential to a transparent government and they are used by every state, the federal government and 130 nations around the world.
He said with newsrooms being cut, the pushback on redactions to FOIA has been becoming less and less, because they don’t have the time to go after the agencies in court or take them to task.
“Without people to keep the pressure on, the government’s going to become more and more secretive, which is happening. Every year it’s worse and worse,” he said. “It’s really important, otherwise, we’re going to go down the tubes here as a county.”
