Michigan's FOIA is (Still) Broken

Why do efforts to reform the state's transparency law keep falling flat?

A redaction found in public records obtained via the Michigan FOIA in 2021.

MICHIGAN’S FREEDOM OF INFORMATION ACT has made headlines more than a few times since the start of the year, but the state’s transparency law remains broken, even after the close of yet another disappointing Sunshine Week in March.

From standoffs over FOIA reform legislation to political groups desecrating the spirit of the statute by using it to dig up dirt on political opponents, calls for reform from bipartisan politicians, newspaper editors and reporters seem to have fallen on deaf ears yet again in a state that is frequently criticized for its poor ethics and government transparency, which has lagged behind other states for more than a decade.

In the wake of a bizarre years-long FOIA lawsuit and the failure of more proposed FOIA reform bills earlier this year, I decided to reflect on some of my experiences with the state’s transparency law over the last half-decade. While this article isn’t legal advice (I’m not an attorney, obviously), it does seek to answer an age-old question from the perspective of a freelance journalist: where, exactly, does the state’s transparency law get things wrong — and what would it take to get it right?

1. No deadlines to deliver public records

Long delays for obtaining credible information about the government’s activities can impede reporting, kill good stories and allow public confusion and anger about important issues to proliferate. But much like the federal FOIA, Michigan’s transparency law doesn’t include language about the government’s obligation to deliver public records within a specific timeframe.

Although the state FOIA imposes a five-day deadline for the government to respond to a public records request, with the option to extend its response by 10 days, the Michigan Court of Appeals ruled in 2016, in Cramer v. Oakley, that the response times mentioned in the statute did not refer to the fulfillment of a FOIA request but rather to a public body’s response either granting or denying a request, or issuing a 10-day extension to make a determination.

In 2017, after the portion of Cramer v. Oakley that clarified the distinction was vacated by the state Supreme Court on appeal, some attorneys raised questions about whether the statute could be reinterpreted — sparking debate among lawyers and government officials, who all seemed to have different opinions.

In response to the confusion, former Michigan Attorney General Bill Schuette issued Opinion No. 7300 of 2017 later that year, reasserting the distinction between a public body’s mandatory response time and the actual fulfillment of a FOIA request. In addition to a detailed legal analysis of the statute’s language, the opinion noted:

“It is my opinion, therefore, that subsection 4(8) of FOIA does not impose a specific time by which a public body must fulfill a request for public records that it has granted. Instead, the public body is guided by, but is not bound by, the ‘best efforts estimate’ the public body must provide in its response required by subsection 5(2), MCL 15.235(2).”¹

Although the opinion drew criticism from news outlets and transparency advocates when it was issued in 2017, it remains in place today. In 2023, the opinion was cited in the most recent update to the Michigan Freedom of Information Handbook, issued by current Michigan Attorney General Dana Nessel’s office, on page 33:

“The FOIA does not impose a specific time by which a public body must fulfill a request for public records that it has granted. The public body is guided by, but is not bound by, the ‘best efforts estimate’ the public body must provide under subsection 4(8) of the FOIA.

“The ‘best efforts estimate’ must be a calculation that contemplates the public body working diligently to fulfill its obligation to produce the records to the requester; it must be comparable to what a reasonable person in the same circumstances as the public body would provide for fulfilling a similar public records request; and it must be made in good faith, that is, it must be made honestly and without the intention to defraud or delay the requester. OAG 2017-2018, No 7300 (December 12, 2017).”²

Although a future requester could, theoretically, come along and challenge that interpretation through a FOIA lawsuit, it’s possible — and maybe likely — that the Court would take the same position it did in Cramer v. Oakley, due to the statute’s language. A more effective way to fix the potential for long delays for public records, perhaps, could be for the Michigan Legislature to simply amend the law.

2. Exorbitant, and sometimes seemingly arbitrary, fees

The state FOIA requires public bodies to provide itemized fee estimates for every FOIA request, including labor costs limited to “the hourly wage of the lowest paid employee capable of searching, locating, and examining regardless of whether that person is available or actually performs the labor.”³

Unfortunately, that hasn’t stopped agencies from providing sky-high estimates for public records — a problem that was highlighted by a FOIA request I submitted to the Michigan Department of Health and Human Services in June 2021, seeking two months of communications about a short-lived $9 million government-funded field hospital in Detroit that was shut down less than a month after opening, after treating only 39 Covid patients.

The State’s estimate for those records? A cool $284,541.48 — enough to buy myself a four-bedroom home in Michigan and pay off the rest of my student loans. While the agency acknowledged the number was high and offered to let me narrow the request, it’s important to note that the fee was over seven times higher than an estimate I’d received from the same agency for a much broader FOIA request earlier that year, seeking a year’s worth of data and communications — raising questions about how public bodies calculate FOIA fees to begin with.

I wasn’t the first person in Michigan to be quoted high fees for public records, and I wouldn’t be the last. Last year, reporters at the Detroit Free Press were reportedly quoted a fee of $17,000 after seeking three months of email correspondence from a specific public official related to a mural project that sparked controversy among local artists and was allegedly completed without proper approval from the city.

Because the FOIA is for everyone, steep fees for public records feel deeply unfair — especially in a state where 41% of households live in poverty or struggle financially, according to a report published last year by the Michigan Association of United Ways in partnership with United For ALICE, Consumers Energy Foundation and local United Ways throughout the state. It should go without saying that people living in poverty still deserve access to information, just as much as anyone.

Excessive FOIA fees also put newsrooms in a precarious position. The media, and investigative journalists especially, have frequently been recognized as a deterrent to corruption, but many local newsrooms have struggled to stay in business and pay reporters since the pandemic. For most outlets and freelancers, shelling out thousands — or, in my case, over a quarter of a million dollars — for a single FOIA request covering a couple months of data isn’t realistic.

A local press that is forced to choose between keeping the lights on or paying exorbitantly high fees for government records isn’t a free press — but it could be, if the FOIA were reformed to include fee waivers for media and low-income requesters, as well as guidelines for the consistent calculation of fees to keep costs reasonable for everyone.

3. Misapplied exemptions

Readers of this newsletter are likely familiar with the saga of Miller v. MDHHS, the seemingly eternal FOIA lawsuit I (sort of?) won against the state health department in March, in which I argued the government had inappropriately redacted over 1,000 pages of public records related to its work with a government contractor in 2020.

But my problem in that case wasn’t new — and it wouldn’t be the last time a requester would question the State’s application of FOIA exemptions.

In 2016, the issue of misapplied FOIA exemptions came front-and-center in Michigan after a troubling trend was revealed during the Flint water crisis investigation: state employees had labeled communications “not subject to FOIA” even as they were written, regardless of whether the contents actually met the legal standards for exemption.

More recently, the Michigan Department of Technology, Management and Budget drew criticism from The Detroit News after the newspaper’s reporters received heavily redacted documents in response to a FOIA request seeking information about “daily occupancy reports of state buildings, aggregated from employee key card swipes, for five random days last year.”

The newspaper’s subsequent appeal was reportedly denied last month, with the agency citing the state FOIA’s security exemption as the reason for the redactions — despite the fact that the paper had asked only for aggregated numbers from just a few random days throughout the year.

While filing a lawsuit is always an option for disputing potentially misapplied exemptions, FOIA cases can take time to wind through the court. In my opinion, it’s a pernicious loophole that works against the public interest by delaying reporting beyond the news cycle and effectively killing important stories on the vine.

4. Technical difficulties

In another lesser-known water crisis in Benton Harbor, Michigan, an email from a consultant to a key advisor in the governor’s administration included several sentences in a symbols font — a phenomenon that effectively concealed that portion of the email from a FOIA search due to technical limitations.

The coded passage, according to reporting by The Detroit Free Press in 2023, read: “Hot off the presses. As I warned there are some major red flags. It seems like we are back at square one having not learned from Flint.” The rest of the email was reportedly written in plain English.

Although the consultant who wrote the email later claimed the symbol font had been the result of a glitch from copying and pasting text from another document into the email — a phenomenon reporters at The Detroit Free Press said they were able to reproduce in 2023 — the incident still revealed a critical weakness in the technology used to search for public records.

In response, Senate Bill 467 was proposed in 2023. The FOIA amendment would have penalized any government body that “prepares, or knowingly possesses or retains without correction, a public record that, for the purpose of avoiding disclosure of the record pursuant to this act, uses code words or phrases, symbols, foreign language or non-English letters or characters, or any other content not readily associated with the true subject of the record by one who reads only English or, if created or maintained electronically, not readily discoverable by an automated search in English,” or which failed to disclose or explain concealing content in public records. It didn’t pass.

5. Top officials shielded from the FOIA

Government secrecy — especially when it’s unnecessary but legal — can create obstacles for reporters seeking credible information about important issues that are in the public interest.

In Michigan, the Legislature is exempt from public records requests. The state is also one of only two in the U.S. where the governor’s office is exempt from the FOIA (the other is Massachusetts — although in California, which is currently experiencing its own transparency crisis, provisions in the Government Code preempt the Public Records Act and effectively exempt the correspondence of the governor and their staff from public records requests).

Last year, the Michigan Senate approved a plan to reform the state FOIA and subject the Legislature and governor’s office to public records requests — an important moment after years of stonewalling similar efforts. But despite the brief possibility of more transparency, the bills didn’t survive in the House of Representatives.

Those bills were reintroduced earlier this year, but were soon declared dead in a public standoff between lawmakers that left local citizens and journalists right back where they started.

6. Lots of talk, but little action from lawmakers

Disagreements in the state Legislature over FOIA reform earlier this year shouldn’t surprise anyone who’s familiar with Michigan’s transparency issues.

Improving the state’s ethics and transparency record has been a hot topic among politicians on both sides of the aisle since at least 2015, when a study from the Center for Public Integrity and Global Integrity ranked Michigan dead last for transparency and ethics laws and safeguards.

Despite all the talk, though, efforts to fix the FOIA over the last decade have consistently stalled or died in the state Legislature. Neither last year’s failed reform bills, nor this year’s short-lived push for more transparency, were anything new. Still, they were disappointing for anyone who believes in good governance.

The FOIA is a valuable tool that was intended to encourage government transparency and deter corruption and abuses of power. It was enacted to promote democratic values and provide citizens and journalists with a way to understand the activities of their elected officials and identify areas to improve public policy.

But without serious reforms to let more sunlight in, the local press — and, more importantly, the people — will continue to remain in the dark about all of those things in Michigan.

1. State of Michigan, Department of Attorney General. OAG 2017-2018, No. 7300: https://www.ag.state.mi.us/opinion/datafiles/2010s/op10379.htm. Retrieved May 2, 2025.

2. State of Michigan, Department of Attorney General. Freedom of Information Handbook, Jan. 2023. Pg 33: https://www.michigan.gov/ag/-/media/Project/Websites/AG/FOIA/FOIA-Handbook-January-2023.pdf?rev=1e665e0ce0de400386fd327310c13598. Retrieved May 4, 2025.

3. Michigan Freedom of Information Act. MCL 15.234(1)(A). https://legislature.mi.gov/Laws/MCL?objectName=MCL-15-234. Retrieved May 4, 2025.