One of the things you'll get if you send in FOIA requests is rejections. The agency that you ask for records can reject or delay your request, either in whole or in part, for any of a number of reasons.

Some of these reasons are reasonable enough that they will stand up in court, if you want to pursue it that way. Other causes of rejection should be seen simply as delays, where a well-written appeal will result in what you want.

One thing you must do (if you are going to pursue the path of asking for records from an agency that doesn't want to give them to you) is keep track of your rejection letters. Study them carefully, because for each rejection reason there is generally an effective appeal strategy.

Strongly worded requests are more effective

There are two ways to ask for public records. One is with a letter that's nice and polite and asks for what you are looking for. The other is to invoke state law and refer to the legal rights to the information you are seeking, with a tone that's forceful and direct.

A 2007 Metro Times audit of metro Detroit area FOIA practices showed that only 76 percent of the agencies complied with the law regarding FOIA requests. In the article, attorney Dawn Phillips Hertz notes "If you really sound serious, it may get the attorney [of the government agency] involved who may say, 'You've got to give them the information.'"

Note that verbal requests, under Michigan law, are not considered FOIA requests; if you want to trigger an institution's formal process, put it in writing. I'd recommend being as sweet and kind and accommodating as you can in person and over the telephone, and as formal, explicit, unambiguous and forceful as you can in writing. Many times a conversation with the right person will get you what you want quickly and efficiently and the FOIA process only gives you the slowest possible response. Balance the two techniques.

Publishing your rejection letters

Requests by the public for public records are themselves public records. Some very small number of agencies publish their FOIA logs online, with all of the requests and copies of all of the responses. The Federal Postal Regulatory Commission is one of those agencies. That's about as transparent as it gets.

If you get turned down, your rejection letter is a public record. Congratulations! You have provoked an official response. It may be that other people who share your interest in transparency can make use of the information, either to help you construct an appeal or to document a practice of unreasonable obstruction to legitimate requests.

The Ann Arbor Area Government Documents Repository has collected some set of rejection letters. You can read that the Historic District Commission didn't have meeting minutes and thus rejected a request for them, a that was rejection subsequently overturned on appeal when the minutes were produced. You'll also see a successful appeal for unredacted purchasing card records.

Dealing with rejections when the documents you want don't exist

The most interesting rejections to study are the cases where the agency says it doesn't have any records relevant to your request.

Some of these rejections are because they simply did not understand what you were looking for. If your request is long, wordy or embedded in a rant or diatribe about some failing or injustice that you were subjected to, it can be hard to understand and difficult to fulfill.

If you don't know what format the records are in, or who at the agency is responsible for keeping them, then you may make a request for a specific thing which doesn't exist even though the information you want is held by the agency. Remember that Michigan FOIA law covers government records, not government information, and that the agency is not obligated to compile a report or create a new record to satisfy your request.

In some cases the record you want should exist, but does not. Meeting minutes are the most recent example I've had to deal with regarding appealing a rejection to a higher authority within the agency. That does not compel them to create those records for you, but you may find that once the right municipal attorney or city administrator is aware that something is amiss, they'll deal with it expeditiously rather than risk producing an overly long paper trail documenting what's missing.

Refining "absurdly overbroad" requests

A recent FOIA rejection letter from the Michigan Commission for the Blind that I inspected included this language, which I quote:

"Please be advised that this must be denied pursuant to MCL 15.233, Sections 3(1), 3(4), & 3(5) of the FOIA. Section 3(1) provides that written requests sufficiently describe a public record to enable a public body to find it; and Sections 3(4) & 3(5) provide that a public body is not required to make a new compilation, summary, or report of information not already in existence. Your request is very broad; lacks reasonable timelines and specificity for the Department to conduct a reasonable search for requested records/information, some of which may involve other public/private entities; and , aside unreasonably high labor costs for records search, examination and review, would require the compilation of information/records and new reports not currently existing in the Department.

This denial of disclosure is supported by the following Michigan Appellate Court determinations applicable to this request:

Kincaid v Dep’t of Corrections, 180 Mich App 176; 446 NW2d 604 (1989) which, in part, opined that a request for disclosure of information under the FOIA must describe the requested records sufficiently to enable the public body to find them; when a request is denied because of an insufficient description, the requesting person may (1) rewrite the request with additional information, or (2) file suit in circuit court where the sole issue would be the sufficiency of information to describe the records desired.

Capitol Information Ass'n v Ann Arbor Police Dep’t , 138 Mich App 655; 360 NW2d 262 (1984) which opined that plaintiff’s request seeking “all correspondence” between local police department and “all federal law enforcement/investigative” agencies was “absurdly overboard” and failed to sufficiently identify specific records as required by the FOIA, section 3(1)."

If you're going to ask for everything, be prepared to get nothing. Effective large scale information gathering with FOIA has to start with an approach more reminiscent of fly fishing than of gill-net fishing. You can't cast a wide net and expect to gather everything that happens to come past it; it's better to make a very, very specific request for one particular document that you know should be there, and adjust your repeated queries until you catch just what you want.

Requests in the queue

I have a few FOIA requests to pick up at Ann Arbor City Hall.

I'm also planning a field trip there to introduce a couple of our summer interns to city staff, and to help them understand what parts of public data are already available in the city's public data catalog and how to use that as a start for exploration and to better understand what's available to review online before heading into a construction zone.

Edward Vielmetti writes the FOIA Friday column for AnnArbor.com. Contact him at edwardvielmetti@annarbor.com.