Courtesy Boomerang

Ask again later if records do not yet exist

If you are looking for records from a government body related to an event, and if you ask immediately after that event, there is a good chance that some of the records you are asking for do not yet exist. It takes a while for reports to be compiled, forensic tests to be completed, tests to come back from laboratories and other typical bureaucratic and technical delays.

Your request may be returned with the phrase "no records exist which satisfy your request." The FOIA law does not obligate the agency to repeat a search for records after your initial request. If there is reason to believe that the records will be created subsequent to your request, then you must either file an appeal or issue a new request to get copies. My earlier quest for missing minutes of the Ann Arbor Historic District Commission illustrates this process.

If you repeat a request with changes, the agency is obliged to treat it as a brand new request and evaluate it again according to current conditions. If, for instance, an incident has been closed because it is no longer under investigation, a FOIA request which would have been initially rejected might now be processed.

Challenge generic claims

It is not atypical for FOIA requests to police agencies to be met with a simple, single one line response, stating without proof or justification that release of records would "interfere with law enforcement proceedings" (MCL 15.243(1)(b)(1)). In many cases, this is the only reason given, with no explanation and not detail provided.

In the case Evening News Association v. City of Troy, 339 NW 2d 421, heard by the Michigan Supreme Court in 1983, the court found that the City of Troy withheld "without particularized reasons" information which the Detroit News had requested about a case where an officer shot and killed a man in the course in the investigation of a robbery. The newspaper had asked for specific information contained in police reports, and the court found that the city did not provide a "bill of particulars" describing why this specific information would interfere with law enforcement.

It is always useful when facing a blanket rejection by an agency for records to find ways to make your request more narrow, and to insist upon greater detail in a reject as to why the specific information you are asking falls under one of the exemptions claimed. It is relatively easy for an agency to say "no" to a question that would generate hundreds of pages of records. It is much more difficult to give the same blanket "no" when the records requested are specific and narrow and when you are prepared to insist upon a particular reason why these particular records fall under an exemption.

Ask the agency to separate of exempt and nonexempt material

The FOIA requires that a public body shall separate the exempt and nonexempt material and make the nonexempt material available for examination and copying. This is commonly used in cases where records contain a mix of materials, some of which are exempt under the statute, and others which must be released.

If you get a blanket rejection with nothing returned, it is always worthwhile considering how to phrase an appeal asking the agency to go back to the materials that it has identified and to separate out any records or parts of records which could be released. You see this in many cases where agencies use redaction, blacking out portions of the text while releasing other parts as is.

Redaction can be dangerous if done wrong, as my column of December 2009 on redaction and how not to do it describes. Properly done, it allows an agency to release records while maintaining privacy and confidentiality specific to an investigation under progress.

Apply a public interest balancing test

In Herald Co. v Kent County Sheriff's Department, the Michigan Court of Appeals found in 2004 that there must be a balancing of the public's interest in disclosure against any harm caused by disclosure. The case involved records associated with a county sheriff department's internal affairs investigation into the alleged misconduct of one of its deputies.

Michigan FOIA law recognizes that the interests of the public are to be considered when looking at the release of records, and that records which shed light on the official acts and workings of the government are protected by FOIA. In this case, the court ruled that a portion of the records were to be released, and that other portions should be redacted.

Refine your request with the help of records staff

If your request for records is denied, it may be because you asked for records which are not indexed by the words or categories that you used to make your request.

Last summer, I was turned down in a request to the City of Ann Arbor for records of bicycle-pedestrian crashes, on the grounds that those records do not exist because the state does not mandate that the standard UD-10 form be filled out when no motor vehicle is involved in a crash.

In retrospect, there may have been another query that would return results; e.g., if I had asked for citations issued for reckless driving of a bicycle, some of those tickets involve
interaction with a pedestrian, even if they do not show up in the police codex as a "crash".

Before you prepare a written request, you may find it worthwhile to talk to the records clerks to help you identify how the data you are looking for is indexed, coded, stored and recorded. FOIA is the worst possible search engine in the world, and if you need to interactively refine your query a cooperative records clerk who can help you pinpoint search terms or broaden your search to incorporate all relevant categories can be enormously helpful.

Ask in writing

The Michigan FOIA law specifies that a request for records must be made in writing.

If you call looking for information and are ignored or rebuffed, you have not made a request for records under FOIA. It is only when your request is written that it must be processed and handled under FOIA law.

This is not to say that it's not useful to talk to people, and every police agency has someone in a role as a Public Information Officer who is designated to speak to the public about information of police interest. This person is not obliged to answer your questions, no matter how persistent you are, and the agency is not obliged to formally address your request unless it is provided in writing.

Ask for help if you are repeatedly turned down

In Richmond, Va., an anarchist group called the Wingnut Collective requested and received copies of police procedure manuals from the Richmond Police Department. After they published the materials, the police realized who they had given these materials to and sued to get them back. Facing an outcry from First Amendment and public records advocacy groups, the police dropped their lawsuit.

Even anarchists fill out forms.

According to the Richmond Times-Dispatch, the Wingnut Collective has announced that they plan to ask for more police procedures manuals under the Virginia FOIA laws. The ACLU of Virginia there has offered to give them help if they run into any further problems. If your FOIA request is a matter of public interest, and you have been turned down for records which you believe are in the public interest to disclose, there may be a group willing to advise you both on the language of your appeal and on any lawsuits that might be necessary to get the records which you are entitled to.

Edward Vielmetti fills out his FOIA request forms in neat, legible handwriting for AnnArbor.com. Email him at EdwardVielmetti@AnnArbor.com.