In the wake of citizen Teresa Blundell’s objections to a portion of the fees she was charged for a Freedom of Information Act request (see here for background), city attorney Mike Nolan researched and proffered a 7-page letter to the Lapeer City Commission. Attorney Tim Turkelson presented on the matter during the April 2 commission meeting.
“It’s one of those issues… that kind of strikes right at the heart of government….” said Turkelson. He pointed out to the commission, “You’re not required to bill under a FOIA request… You may.”
The firm’s research on the matter confirmed Blundell’s information that this is certainly not the first time the matter has been pressed. Turkelson referred to previous challenges in the courts where expert witness testimony was heard even from Office Depot on the cost of making a copy. He noted they can make a profit at 10 cents per page. Turkelson said the Attorney General’s office charges 25 cents per page.
Nevertheless, Turkelson said, “The city’s well within their discretion to charge an amount that’s reasonable.” He said his firm felt that the $1.00 per page charge was “a hair high,” and would recommend removing the 10 cent janitorial cost that was part of the incremental costs the city included in Blundell‘s billing. Still, Turkelson made clear, it was up to the commission to determine whether they would charge, and how much under the “actual costs” test. “It’s a policy decision.”
Blundell’s actual issue was what she referred to as “unlawful charges,” that portion of the bill she got that included fees for gas, electrical and janitorial. It was only the latter of those three overhead costs that Nolan’s firm suggested might fall into a grey area of allowed actual incremental costs.
Ultimately, however, in his letter, Nolan suggested that the definitions on the topic are simply vague and subject to interpretation. He concluded, “Considered in the analysis of the terms of FOIA, the interpretive Attorney General Opinions and court decisions (of which there are many more than addressed here), it is our considered opinion that the per page charge of $1.00 per page is too high and should be revised, if a fee is to be charged at all.” Suggesting exclusion of the janitorial cost, Nolan said, “…we believe that an appropriate rate for per page copy charges to be 90 cents per page.”
The commission did not reflect a cohesive stance on the topic, nor did it delve too far into the matter before Commissioner Mike Robinet proposed tabling the issue until absent commissioners Marquardt and Bostick-Tullius were again on the dais. Citizen Blundell was also unable to be in attendance at the April 2 meeting.
Commissioner John Lyons supported the idea of only charging for FOIA requests over $20. He also supported excluding all three overhead costs.
Mayor Bill Sprague said that people should pay for their FOIA requests. “We are a very transparent government,” said Sprague. In light of that transparency, he said other taxpayers should not have to foot the bill for people who want documents. Still, the mayor acknowledged, “The gas, electric, janitorial – those might have to go away…. The actual labor it takes is what it is.”
Lyons looked at the transparency issue another way. “If it’s transparent and we’re transparent, it should be free,” Lyons said. At least if it’s less than $20.
That led to concerns about voluminous requests, or repeated requests if the city elected not to charge for requests under $20.
Expect the matter to come back before the commission on April 16.
lapeer clik 
Thank you Nancy for sharing this information. As you stated I was unable to be at the April 2nd meeting. I will be attending the April 16th meeting. I have never tried to shirk my responsibility to pay for lawful charges for a FOIA request. I do refuse to pay for unlawful charges. Michigan law states that “actual duplicating costs”, along with labor and mailing are lawful charges. Overhead costs, such as, utilities and janitor are not “actual duplicating costs”.
When I presented written information to the City Council on March 19th, I cited two federal examples that specifically state that utilities are not “actual duplicating costs”. The reason that I used federal guidelines is because the Michigan law is purposefully vague in order for governing bodies to meet their actual costs. At the same time, the State law defers to Federal guidelines due to the similarity in the laws.
I never disputed the labor costs. I did dispute the cost for certified mailing ($6.00) as the invoice stated that I would pick up the information requested. My phone number was sent with my request so mailing was not necessary. Further, I received a follow-up letter to my requests for information. That was also sent by certified mail. In response to that letter I asked that the City of Lapeer save itself some money and refrain from using certified mail. I promised that I would respond to any correspondence from the City. After that, all correspondence was sent by regular mail and I have responded as promised. The cost of those two certified letters was $12.42. That is $0.20 more than Mr. Kerbyson has stated that I owe the City and has threatened me with collections if not paid.
So in my effort to comply with information that I have found in Federal and State laws and court cases and has been shared with me by the State Attorney General’s Office, I paid what was lawful. I further tried to saved the City of Lapeer money by suggesting that certified mail not be used as it is not required by law. And in response I am threatened with collections. I wonder how many other people have been threatened with collections for not paying an invoice for a FOIA request from the City of Lapeer?
So I will be there on the 16th to pursue this matter. As I told the City Council at the meeting on March 19th – this is not just an issue about unlawful charges demanded from me but also my concern that the City may be setting itself up for lawsuits for unlawful charges. Lawsuits for violation of FOIA requests are permitted by State law. I do not know why such matters cannot be resolved directly and lawfully, which I also shared with the City Council. Why have we become a society that requires lawsuits and threats of collection in order to do what is lawful? It is a sad commentary on how people who are trying to act in accordance with the law are treated or forced to resort to in order to meet lawful obligations.