- Graphic by Zach Bergson
By Stephanie Steinberg, Editor in Chief
Published December 7, 2011
Under Michigan’s Freedom of Information Act, a public body like the University may give requested records to the media at no cost or a reduced charge if the information benefits the general public. 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.
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The requests included information about University employees who use purchasing cards, or PCards, to pay for University-related expenses and information regarding number of parking tickets given each day for one year by the University’s Department of Public safety. The FOIA Office responded that PCard information would cost thousands of dollars — no definitive amount was named — and the parking ticket information would total $1,240. But when the Daily requested similar data from other Big Ten universities, the majority of schools sent the data free of charge.
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.
“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,” LoMonte said.
Chief FOIA Officer Lee Doyle and FOIA Coordinator Pat Sellinger have run the University’s FOIA Office, located in the Fleming Administration Building, since 2004. Sellinger’s full-time job includes responding to FOIA requests within five business days as required by law. Doyle, who also serves as the University’s director of communications administration and policy, dedicates about a quarter of her time helping Sellinger devise cost estimates for FOIA requests and hunting down information.
Since 2007, the FOIA Office has received more than 400 requests each year, according to a 2010 FOIA Office report. Of the 436 requests received in 2010, the office granted 45 percent in full, 35 percent in part and denied 11 percent — either because the record didn’t exist or the information was exempt under the Michigan Freedom of Information Act. Nine percent, or 41 requests, were withdrawn after the requester didn’t pay a deposit fee.
In an interview Tuesday, Doyle explained that since the University is a public body, the FOIA Office plays an important role in ensuring the University’s spending and decision-making remain transparent.
“The whole ethos of the University of Michigan is to share knowledge and to share information, and it’s something that we take very seriously here,” she said.
REQUEST FOR PCARD TRANSACTIONS
In April, the Daily submitted a FOIA request for records of PCard transactions of all University of Michigan-Ann Arbor employees during fiscal year 2010.
Out of roughly 42,000 University faculty and staff, about 6,100 possess a PCard, according to Rowan Miranda, associate vice president for finance. The cards can be used like credit cards, and employees use them to pay for travel, research expenses or supplies for departments. Most University employees with a PCard have a spending limit of $5,000, and total PCard expenses for the University average $105 million to $115 million per year, according to Miranda.
The University implemented the PCard system, which stores expense reports electronically, in 1995 to better track employee spending and reduce the cost of small-dollar purchases.
“The modern business practice is to use PCards because the cost of processing the transaction when used appropriately can be so much less,” Miranda said.
Upon receiving a phone call from Sellinger that the Daily’s request for PCard transactions would cost thousands of dollars, the Daily narrowed the request to employees in the Office of the President and upper level administrators including: University Provost Philip Hanlon, Athletic Director Dave Brandon, Executive Vice President for Medical Affairs Ora Pescovitz, Executive Vice President and Chief Financial Officer Timothy Slottow, Vice President for Development Jerry May, Vice President for Research Stephen Forrest, Vice President and General Counsel Suellyn Scarnecchia, Vice President for Student Affairs E. Royster Harper and Executive Director of Research Communications David Lampe.
On May 27, the FOIA Office responded that the information would cost $1,800.
A subsequent attempt to narrow the request to University President Mary Sue Coleman — instead of her entire office — and six of the nine aforementioned administrators yielded an $870 fee.
An appeal submitted to Gary Krenz, special counsel to University President Mary Sue Coleman, to lower the cost of the PCard FOIA request is pending.
Under section 15.234 of the Michigan Freedom of Information Act, institutions may only charge for the cost of producing records, which often means the cost of printing and mailing documents. However, a public body may charge a fee in order to pay an employee to review content — such as students’ transcripts or private information like Social Security numbers — that may be exempt from the law. The law states that public bodies may only impose a fee if a request “would result in unreasonably high costs to the public body because of the nature of the request.”
In this case, Lisa Mikalonis, an intellectual property and media attorney based in Southfield, Mich., said the Daily’s request is “more of a usual request which arguably would fall under the that part of the definition where (the Daily) shouldn’t have been charged anything at all.”
To gauge whether the cost of retrieving PCard data at the University of Michigan was reasonable, the Daily sent FOIA requests over the past three months to each Big Ten school asking for all PCard transactions of university employees who possessed a PCard in fiscal year 2010. Northwestern University and Pennsylvania State University are exempt from FOIA laws because Northwestern is a private school and Penn State is protected by Pennsylvania’s Right-to-Know law, which doesn’t require universities to grant public access of their information.
Of the schools that responded, Ohio State University, University of Illinois at Urbana-Champaign and University of Nebraska-Lincoln sent the records free of charge. Purdue University requested $500 for the six months of data it had on file. Michigan State University requested $200 for 10 hours of labor to compile records of more than 140,000 transactions. The University of Iowa requested $181.50 for three hours of labor to gather records for more than 2,500 employees who totaled 275,000 PCard transactions.
Each state has different open records laws with various fee regulations, but LoMonte said it doesn’t make sense that the University of Michigan would charge thousands of dollars to retrieve the same information other universities offered for free or at a lower cost.
“If Michigan is like most schools, that data is all computerized, and it’s the kind of thing that ought to be retrievable by a skilled IT person in a matter of hours and not days or weeks,” he said.
At the University, the FOIA Office charges for requests if more than two hours of labor are required to obtain the information. The office calculates charges of requests based on what it would cost to pay the hourly salary of the lowest-paid employee capable or authorized to find the requested material.
Section 15.234 of the Freedom of Information Act states that a public body must identify the nature of “unreasonably high costs” — meaning that a body must provide a cost breakdown if it imposes a fee. The Daily asked for a cost breakdown of the $870 fee on Sept. 15, 2011 and did not receive the estimate until Nov. 11, 2011.
The cost breakdown to generate PCard transactions indicated that it would cost $72.50 per hour to retrieve PCard transactions for Coleman and $346.63 per hour for Pescovitz.
In an interview Tuesday, Sellinger explained that the cost is so high because, due to privacy concerns, each administrator named in the request would have to review his or her PCard transactions and redact any information for individuals whose identities could be revealed in the PCard statement.
“It is our obligation to make sure we don’t provide information that we shouldn’t,” she said.
Despite the disparity in fees charged by the Big Ten schools, Doyle said the University of Michigan doesn’t use cost to deter requests, and fees are always “very carefully calculated.” She added that the sheer number of people at the University makes it difficult to keep costs down for large requests like PCards transactions for all employees.
“I think the thing that happens here that other institutions don’t experience is the large number of people that are involved around the University when you give a request like that,” she said. “We just have a larger population of people with PCards.”
REQUEST FOR PARKING TICKETS
On Sept. 16, 2011 the FOIA Office notified the Daily via a written letter that it would cost $1,240 to respond to a Sept. 11, 2011 request for the number of parking tickets given out by the Department of Public Safety each day from Sept. 1, 2010 to Sept. 1, 2011. When the Daily inquired about the expense, Sellinger responded that parking ticket reports are stored in separate computer files for each day, and $1,240 is what it would cost to pay one person to download every file in one year.
An appeal submitted to Krenz to lower or waive the cost of the FOIA request was denied last month.
University Department of Public Safety spokeswoman Diane Brown confirmed it would take several hours to look up parking ticket data because the information is stored by day and not month or year. She explained that the system doesn’t pose record-keeping problems for DPS officers because the city of Ann Arbor handles disputes and payments of parking tickets.
However, LoMonte pointed out that parking ticket reports are the kind of data a school should be able to generate in a matter of minutes or “with the push of a few buttons.”
“If the institution is well-managed, they ought to be able to put their hands on their own records easily, and if they can’t — if various obvious records are kept in a disorganized way or non-searchable way — you really have to ask yourself if that university has management problems,” LoMonte said.
University spokesman Rick Fitzgerald said some data at the University can be accessed in a few minutes with a computer, while other records are still kept on paper.
“There’s an enormous range of how information is stored, and I can well imagine that that’s the case in any large decentralized institution like the University of Michigan,” he said.
After requesting similar parking ticket information from the 10 other Big Ten schools subject to open records requests, eight of the schools sent the information at no cost. Of those, three sent the monthly — instead of daily — breakdown of parking tickets. The only other school to charge a fee was MSU, which charged $250 to provide a daily breakdown for how many of the 115,684 tickets given last year were handed out by the Michigan State Police Department.
Upon submitting a FOIA request to the city of Ann Arbor for the number of parking tickets administered by the Ann Arbor Police Department in the same time period, the city provided data for 90,925 tickets at no cost.
An Oct. 6 response to a separate FOIA request to the University’s FOIA Office indicated that DPS issued 43,078 parking tickets from Sept. 1, 2010 to Sept. 1, 2011.
When comparing MSU’s cost to the University of Michigan, Mikalonas, the attorney, said both schools could be following the state’s FOIA guidelines and calculate different fees. However, she said it’s suspicious that the University would charge hundreds of dollars more when it gave out fewer tickets than MSU.
“A $1,000 discrepancy, to me, suggests that somebody was making the calculation incorrectly because I can’t imagine that those two departments would be that different in terms of their hourly wages for the lowest-paid employee to find the amount of … parking tickets (given each day),” Mikalonis said.
A COST TO COMPUTE A COST
In addition to the PCard transactions and parking ticket data requests, the Daily submitted a request on Nov. 13 asking for all reports and/or documents that mention the Native American Graves Protection and Repatriation Act from March 26, 2010 to the present. In a phone conversation last month, Sellinger said the request was so large that the office may have to charge a deposit in order to calculate the cost estimate of the FOIA response.
In an interview this week, Sellinger said it would take more than two hours to contact every University employee encompassed in the request and produce a cost estimate.
“When a request is that broad, it’s difficult for us to proceed if the time to prepare the cost estimate exceeds the time that we would normally charge,” Sellinger said.
But LoMonte and Mikalonis said charging a deposit to calculate an estimate is not permitted under the law.
“They’re supposed to charge you only for directly responding to the request, not for some incidental or tangential cost,” LoMonte said.
However, the University typically requires a requester to pay half the fee of a FOIA cost before the office starts to collect data, which Mikalonis said complies with the law.
“(A FOIA officer) can’t say, ‘I need a deposit to determine the fee,’ ” Mikalonis said. “But she can say, ‘Here is what the fee is going to be. I need 50 percent of the fee before I then go through it.’ ”
THE HIGH-COST FOIA TREND
In 2010, the University received $7,878 from FOIA request fees as well as $11,841 in 2009 and $22,184 in 2008, according to the 2010 University FOIA report.
LoMonte explained that schools cannot legally make a profit off FOIA requests, and they cannot use large fees as a way to deter requests. However, that doesn’t mean it doesn’t happen.
“We definitely see from time to time that there are schools that are marking up the cost and grossly overestimating the actual cost for what we think are deterrent motives,” LoMonte said. “They just don’t like people poking into their business, and charging a jackpot fee is a way of denying their request without denying a request in function, if not in word.”
Doyle emphasized in an interview Tuesday that this is not the case with the University of Michigan.
“It’s never our goal to deter a FOIA request because we really hold it extremely essential,” Doyle said. “It’s that democratic value of FOIA that we hold kind of sacred in our office. ”
Of the 436 requests to the University last year, 111 came from the media, 105 came from private entities and 55 came from attorneys. Personal records — including employment agreements and compensation information for Athletic Department officials — have been the most requested documents since 2007, according to the report.
In an interview with The Michigan Daily on Tuesday, University President Mary Sue Coleman said the University tries to comply with as many requests as possible.
“We make a very sincere effort because, ultimately, I believe that we need to be as transparent as we can,” Coleman said. “There are some things that either we don’t have records or we can’t comply with, but we try to comply because we don’t have things we’re trying to hide. This is good for society. I think it builds trust.”
But Mikalonis said even if public institutions don’t mind sharing information, they often charge expensive fees because they don’t want to be bothered.
“In today’s economy, public bodies are very understaffed,” she said. “So you’re asking somebody to stop what they’re doing and respond, and that could be another basis for coming up with what are arguably unreasonably fees to deter you — not necessarily because they don’t want it public — but because they just don’t want to take the time to get you that information.”
Additionally, LoMonte said though the media often acts in the public’s interest when requesting records, many institutions get away with charging exorbitant fees because few news organizations have the money to challenge fees or denials of open records requests in court.
“Government agencies have figured out that they can get a way with a lot of concealment knowing that the odds of being challenged are in their favor,” LoMonte said.
However, there are instances of professional and student journalists challenging institutions of higher education about their open records requests. In October, a student journalist at The Campus Ledger — the student newspaper of Johnson Country Community College — and the Student Press Law Center brought a lawsuit against the Kansas college for charging the newspaper $47,426 to obtain e-mails exchanged between two administrators during a seven-month period. The school also estimated it would cost $9,745.96 to obtain just one day of e-mails.
Last week, the former student journalist won the lawsuit, and the cost for the records was lowered to $450.
In LoMonte’s opinion, the media has to “really need the record” to be motivated enough to take an institution to court over a denial or fee.
“There are very few news organizations that are willing to spend tens of thousands of dollars chasing public records in this economy,” LoMonte said. “That’s just the sad reality.”
— Daily News Editor Joseph Lichterman contributed to this report.