Officials Charge High Fees for Public Records Relating to Alleged Retaliatory Dismissal of City Employee
ANN ARBOR CITY Administrator Steve Powers, hired in 2011, has sent an email to a City Council member claiming that high fees assessed for providing public records are justified because “…there is a direct benefit provided to the requestor, including media outlets, that requires the expenditure of time paid for by the taxpayers of Ann Arbor.”
The Council member, Ward 4 Democrat Jack Eaton, said he found the City Administrator’s response “unacceptable.” Eaton, who ran for Council on the issue of making local government more responsive, open and transparent, talked in his August 2013 primary election victory speech about reshaping the city’s FOIA policy so that it is less cumbersome and easier to access public records.
News outlets use FOIA to educate the public about the workings of government. On the federal level, there are categories for those who submit FOIA requests and the media have their own category. While Ann Arbor officials such as the City Administrator seek to charge the media for searching, retrieving and redacting public records, on the federal level news media are charged only for copying, in most instances.
On March 27 and April 3, respectively, this newspaper submitted two FOIA requests relating to the alleged retaliatory firing of a city employee after his partner decided to run for City Council to represent Ward 5. Leon Bryson is challenging incumbent Council member Chuck Warpehoski, whose 2012 candidacy enjoyed the support of the city’s mayor, among others.
After Leon Bryson’s prospective candidacy was made public, Terry Holman alleges that his supervisor, Craig Hupy, began harassing Holman—asking why he was attending City Council meetings. Then, Holman was given a four question test. One of the questions on the test asked how many parking tickets an individual may have before her/his car can be towed. Holman says his answer was four tickets—the correct answer.
Holman alleges Hupy and other city employees corrected the test and marked that answer as incorrect. City staff then immediately escorted Holman out of city hall in front of his colleagues and any members of the public who may have been present.
The Ann Arbor Independent filed a Freedom of Information Act request for a variety of public records including Mr. Holman’s personnel file, Mr. Hupy’s personnel file, the test given Mr. Holman, emails Mr. Hupy may have sent which mentioned Mr. Holman or his partner, City Council candidate Leon Bryson.
In response to the March 27 FOIA, officials demanded $321.84 to produce the records. In response to the April 3 FOIA, officials demanded $385.17. A request for the proposed fees to be broken down, revealed that city officials are attempting to claim the lowest paid employee capable of retrieving and copying the records earns $170,000 per year. The state’s FOIA statute calls for the lowest paid employee capable of doing the work to retrieve and examine the requested public records.
The following calculations were provided for each of the two FOIA requests:
FOIA 14-117
3.5 hours X 84.84 = 296.94 – fully loaded rate for Nancy Niemela
500 copies x .05 = 25.00
FOIA 14-127
3 hours x 95.11 = 285.33 – fully loaded rate for Craig Hupy
1 hour x 84.84 = 84.84 – fully loaded rate for Nancy Niemela
300 copies x .05 = 15.00
The fully loaded rate indicates that not only do city officials want to charge for the staff members’ salary, but also for the two individuals’ benefits. Nancy Niemela is a city attorney and city officials want The Indy to pay Niemela to review all of the records prior to their release.
While each FOIA request made to the city of Ann Arbor must be provided one hour of free labor, these FOIA calculations violate the city’s own FOIA policy by demanding payment without deducting the free hour.
In both instances, Council member Eaton has said he believes a city clerk could be trained to do the work.
A government entity may choose to waive fees associated with FOIA requests, and in many instances prior to the present requests for records concerning the abrupt dismissal of Terry Holman, The Ann Arbor Independent has been provided public records free of charge by the city.
In fact, emails show that the AnnArborChronicle.com, an online site that provides notes of public meetings, among other information, is routinely charged by city officials for public records, often the same records which have been provided free of charge to others.
Failure to adhere to FOIA statutes along with attempts to charge exceedingly high fees are common tactics adopted when a government entity wishes to keep from turning over records. The Indy submitted an appeal to the City Administrator to have all fees for the records waived.
In 2011, The Michigan Daily published a piece in which it was revealed the University of Michigan wanted thousands of dollars to provide information about employees using P-Cards, or purchasing cards. The Daily reported: “Yet several records requests from The Michigan Daily to the University’s FOIA Office have resulted in fees of hundreds—and sometimes thousands—of dollars to obtain records to be used in news articles that benefit the public.”
When a university charges thousands of dollars to retrieve a public records request, it raises questions about how the school is managing its information, says Frank LoMonte, executive director of the Student Press Law Center—a non-profit that advocates for student journalists’ First Amendment rights.
LoMonte told The Daily: “When we see these jackpot prices quoted…either the school just doesn’t want the records seeing the light of day, or the school’s record-keeping is a disaster.”
The University of Michigan processes just over one FOIA request per day. The City of Ann Arbor processes anywhere from 3-5 requests per day, according to records. In an email, City Administrator Steve Powers revealed that during the first quarter of 2014, 22 percent of FOIA requests submitted to the city were from the news media. Residents and individuals submitted 27 percent of requests while private businesses submitted 37 percent of public records requests.
The city’s FOIA policy was most recently changed by resolution of City Council in November 2009.
In August 2009, the power of the Freedom of Information Act (FOIA) manifested itself locally. Powerful Ward 3 City Council member Leigh Greden lost his seat to Stephen Kunselman in a six-vote squeaker. After a group of concerned citizens used FOIA to get emails sent by Council members during open meetings, the former Ann Arbor News used FOIA to get some of the same emails and blew open a City Council email scandal. Council members, including two still on Council—one of whom is running for mayor—were lambasted by the newspaper for rigging votes, conducting secret deliberations and insulting citizens in emails exchanged during open meetings.
Greden, a lawyer who managed the judicial campaign of his fellow Council member Christopher Easthope, spent time during open meetings swapping emails with Easthope about his campaign for a 15th District Court judgeship. It was a move critics decried as an alleged campaign finance act violation perpetrated by two lawyers who certainly should have known better.
At the last City Council meeting he attended—and was allowed to lead thanks to the absences of the mayor and mayor pro tempore, Leigh Greden presented a resolution to make the city’s FOIA policy more expensive and burdensome. The change reduced the number of hours of free labor provided by city staff when responding to records requests by two-thirds.
In the meantime, Council member Eaton, along with Ward 5 Council member Mike Anglin have plans to revise the FOIA ordinance after the passage of the city’s 2015 budget.
“These are public records,” said Anglin. “We don’t want to make people jump through all these hoops to get public records. It’s ridiculous.”
Eaton concurs: “We want transparency.”
While the City Administrator will not come out and openly disagree with the two Council members, his May 13 email attempts to justify charging the front-loaded rate of $170,000 to provide public records. City Attorney Stephen Postema was included in the email exchange between Eaton and Powers concerning the city’s FOIA policy. Whether Stephen Postema composed the City Administrator’s email to Eaton is unclear. It is also unclear whether it was City Attorney Postema or City Administrator Powers who decided to attempt to impose over $700 in fees for public records which may shed light on the alleged retaliatory dismissal of city employee Terry Holman.