by P.D. Lesko

The Ann Arbor Independent used the Michigan Freedom of Information Act to obtain eight months of County Administrator Greg Dill’s county-owned cell phone bills, as well as emails between Dill and former SafeHouse Executive Director Barbara Niess-May exchanged between the two in the space of 30 days. The County’s “Good Faith Estimate” came in at over $500 for both requests. The hourly charge to retrieve the Verizon phone records was calculated at $46.20, and to redact the phone bills, the County’s Good Faith Estimate quoted $156.65 per hour as the rate of the lowest paid employee capable of doing the redaction.

The A2Indy then appealed the FOIA officer’s estimate to Dill. The appeal also included Susan E. Shink, a lawyer who is the Chair of the Washtenaw County Board of Commissioners. Dill, in his response to the newspaper’s appeal, wrote, “Specifically, the charges of $46.20 per hour to ‘search locate and examine’ the requested records is that of the employee within the Information & Technology that handles the Verizon account.” Dill went on to write, “The $156.65 to review, separate and delete is Gregory Dill’s hourly rate.”

County records showed that in 2020 Gregory Dill’s hourly rate of pay was $104.44, not $156.65. The newspaper’s attorney Guy T. Conti contacted Michelle K. Billard, the Washtenaw County Corporation Counsel.

Dill’s appeal denial ended with, “I have reviewed your request and based on the above, I am denying your appeal and the Good Faith Estimate is in compliance with the [FOIA] Act.” Billard signed Dill’s January 5, 2022 letter in which he attempted to use high fees as a de facto denial of the open records request for his emails and phone records, and in which he misstated his hourly rate of pay.

Dill’s personal communications made using his county-owned phone are subject to the Freedom of Information Act. In 2008, The Detroit News and Free Press sued to gain access to text messages sent by former Detroit Mayor Kwame Kilpatrick related to “an $8.4 million settlement between the city and the mayor’s former bodyguards.” Detroit’s Corporation Council argued in 2008 Kilpatrick’s messages were not subject to FOIA. A Michigan judge ruled in favor of the newspapers. The newspapers used the 14,000 text messages, Kilpatrick’s public calendar and his credit card receipts to show Detroit’s mayor had lied under oath.

On January 13, Billard offered to “reduce down” the assessed fees to $145.94 for redaction. The offer was rejected.

The Michigan FOIA Statute is clear in its requirement that the governmental entity may charge requesters only the rate of the lowest paid employee “capable of doing the work,” not the lowest rate of the employee who usually does the work or, in the case of Dill’s phone records, “handles the Verizon account”:

Sec. 4. (1) The public body shall not charge more than the hourly wage of its lowest-paid employee capable of searching for, locating, and examining the public records in the particular instance regardless of whether that person is available or who actually performs the labor. Labor costs under this subdivision shall be estimated and charged in increments of 15 minutes or more, with all partial time increments rounded down. (b) That portion of labor costs, including necessary review, if any, directly associated with the separating and deleting of exempt information from nonexempt information as provided in section 14. For services performed by an employee of the public body, the public body shall not charge more than the hourly wage of its lowest-paid employee capable of separating and deleting exempt information from nonexempt information in the particular instance as provided in section 14, regardless of whether that person is available or who actually performs the labor. https://www.michigan.gov/documents/ag/FOIA_Pamphlet_380084_7.pdf

On January 20, 2022 the County agreed to provide the requested public records and charge The A2Indy a total of $38.01 for the phone records. The charge for retrieval was dropped from $46.20 to $11.23 and the charge for redaction was dropped from $156.65 to $35.70 per hour.

In its suit, the newspaper was prepared to ask the Circuit Court to order that the County enact a FOIA policy whereby it would remove its Administrator from the FOIA appeal process when it was the Administrator’s own public records being requested.