State records and FOIA: Law allows 15 days; then real wait often begins

LANSING, MICH. - Obtaining state records that shed light on how the State of Michigan falsely accused tens of thousands of its citizens of fraud has not been quick or easy.

The state or local agency has five business days to respond to a public records request, or it can request an extension of "not more than 10 business days."

But complications can arise before the combined 15 business days even begin to count down. In many cases, the receipt of a state response after the 15 business days have elapsed is when the real and sometimes indeterminate wait for the production of public records actually begins.

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A Detroit Free Press quest for records related to the Michigan Unemployment Insurance Agency's MiDAS (Michigan Integrated Data Automated System) -- the $47-million computer used to generate at least 27,000 false fraud determinations against citizens -- began more than three months ago, with a FOIA request dated Feb. 10.

That request sought:

  • All internal reports and/or memoranda that were sent to the Unemployment Insurance Agency director and/or acting director between Dec. 1, 2013, and Aug. 31, 2015, about the number of claimant fraud and/or potential claimant fraud cases being identified by the Michigan Integrated Data Automated System (MiDAS).
  • All internal reports and/or memoranda that were sent to the Unemployment Insurance Agency director and/or acting director between Dec. 1, 2013, and Aug. 31, 2015, which expressed concerns or discussed concerns about whether the MiDAS system was functioning properly and/or being operated properly by Michigan UI staff.
  • All correspondence sent by the Michigan Unemployment Insurance Agency to (MiDAS vendor) Fast Enterprises and/or its representatives or subcontractors from Jan. 1, 2015, to present that express concerns about the performance of the MiDAS system.
  • All responses the Michigan Unemployment Insurance Agency has received from Fast Enterprises and/or its representatives or subcontractors to the correspondence described above.

Readers can judge for themselves whether the Free Press adequately described the records it was seeking.

After waiting five business days, then taking the 10 business day extension the law allows, FOIA Liaison Ivory Bennett said in a March 6 response that the requests "fail to describe public records sufficiently" for the department to find the records, and contain terms that are "vague and ambiguous."

"For example, a review of records that 'express concerns' is a qualitative evaluation, one where documents will have to be reviewed, regardless of whether the word 'concern' is included in the document or not."

The Free Press, after rejecting an appeal as too time-consuming, opted for a series of more limited FOIA requests.

On March 17, the Free Press requested all status reports sent to the agency director within a specified time frame by consultant Patrick McDonnell, who was working with the agency on issues related to MiDAS.

The agency deemed the e-mailed request as having been received on March 20, then took the statutory five-day response time, plus the 10-day extension, to April 10.

But on April 10, when production of the records might be expected, the agency said it required an additional 10 business days to process the request, which involved 48 pages of responsive documents. The agency turned those records over to the Free Press on April 24.

Similarly, when the Free Press on March 31 requested reports referencing MiDAS that were sent to Talent Investment Agency Director Wanda Stokes within a specified time frame, the agency first took the statutory 15 days, then said it required five days to process the records, after which it said it required an additional five days to process the records, before turning them over to the Free Press last Monday.

The Freedom of Information Act doesn't specify how much time the state has to turn over records once the statutory 15 business days has passed and all required fees have been paid.

Courts have said that the processing time must not be unreasonable, given the nature of the request, and the reasons for any delay must not be arbitrary or capricious.

The example of the Michigan Unemployment Insurance Agency's handling of the MiDAS requests is by no means an extreme one in terms of how long it takes to obtain state records through FOIA. Many records requests take longer.

Also, the agency charged no fees for providing the records. It's not infrequent for agencies to quote hundreds of even thousands of dollars in labor costs for compiling and reviewing public records.

In terms of how long it takes agencies to respond, the boilerplate response from the Michigan Department of Licensing and Regulatory Affairs specifies an estimated processing time of 60 business days, after a 50% deposit of any FOIA fees is paid. That's 12 calendar weeks.

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© 2017 Detroit Free Press


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