FOIA as Water Quality Tool

Federal and various state Freedom of Information Acts should be expanded, not diminished, as has often been the practice over the years. Such statutes are especially valuable in uncovering and tracking complex inter-governmental activities. That has been my experience in monitoring water quality issues. For example:

Several years ago, I had occasion on behalf of Sierra Club to investigate the NPDES violations of a large Midwestern wastewater treatment plant, its unexplained phosphorus overloading in particular.

By applying FOIA triangulation, the deceit of a plant manager in manipulating data was uncovered. I had found through initial, routine FOIA requests that two people at the plant depended on the same data for separate reports, each to state and federal regulators.

Wastewater Treatment Plant

I made further FOIA inquiries to the state and federal offices. Apparently, each month the regulators duly filed away the two municipal reports, ostensibly based on the same data, without the comprehensive review and/or comparative analysis that would have revealed the variations in the underlying data.

(Once exposed, the offending manager was returned to his previous post in a different department at the same plant. As a result of improvements in the treatment process, the phosphorus numbers eventually improved.)

The value of broadly applicable government transparency statutes is immeasurable. All of us should press for better access to government records through enhanced freedom of information legislation.

GLWA and DWSD Accountability

The Great Lakes Water Authority and its largest wholesale customer, the Detroit Water and Sewerage Department, presently are accountable only to a federal judge. But they need to be fully accountable to their ratepayers and the general public.

First, the GLWA and DWSD boards should be taking steps to facilitate the transition from disclosure of records pursuant to the Freedom of Information Act (FOIA) to Open Government or Open Data, whereby the government and parties acting on its behalf make public information (with very few exceptions) available proactively and put that information within reach of the public (online), without barriers for its reuse and consumption.

http://sunlightfoundation.com/opendataguidelines/

Second, the boards’ various constituencies (the other wholesale customer groups, for example) ought to be challenging the U.S. District Court gag order that prevents public disclosure of ongoing negotiations between GLWA and DWSD and, generally, any information even remotely related to those negotiations.

Last but certainly not least, citizens, the media, communities and their wholesale organizations should demand that the Michigan Legislature provide for the democratic election of GLWA board members.

Neither social media nor traditional mass media have done much to engage the public in these issues.  One can only wonder why.

You Have a Right to Know: FOIA and DWSD

Citizens have the right to know what their government is up to.  That includes the Detroit Water and Sewerage Department.  Michigan Freedom of Information Act (FOIA) requests can be directed to:

LaTanya Whitfield

Office of the General Counsel

City of Detroit-Water and Sewerage Department

735 Randolph Street

Detroit, MI 48226

Office: 313-964-9034

Fax: 313-842-6510

Email: whitfiel@dwsd.org

State and federal FOIA inquiries have a better chance of success when the request begins on an informed and rational footing.  If new to the process, it helps immensely to read a summary of the statute.  

In Michigan, the Attorney General’s office has posted a summary online. http://www.michigan.gov/documents/ag/FOIA_Pamphlet_380084_7.pdf   

In other states, a Google search or a stop at your local library should produce a useful document. To understand the federal FOIA process, a good place to start is http://www.foia.gov/  -- or your public or school library.

Before you embark on the formal FOIA process, you may be able to save time by making your request informally, either in person or by phone. Can’t hurt to try. And remember, you don’t have to give a reason why you want a particular record.

Although simplicity of application is usually a stated goal of FOIA legislation, you should take that ideal with a grain of salt.  Be as explicit about the subject of your inquiry as you can.  Details specifying who, where, what, why, when and how should be considered, but don’t overdo it.  Erroneous or superfluous details might throw the government searcher off the track.  Look for examples of successful FOIA request letters. Revise them to suit your circumstances.

I can’t emphasize too much the importance of staying on an even keel. Pursuing a FOIA disclosure while angry or frustrated can be self-defeating.  The same is true of self-righteousness and indignation.

Give careful consideration to suggestions that may improve your chances of success.  If things don’t go as well or as fast as expected, press for explanations (preferably in writing), but don’t assume that you’re being ignored or misled intentionally or that there is a conspiracy against you.   

The older the information you’re seeking, the longer it may take to recover it, especially if it predates digital storage.  (Indeed, agencies are authorized in some instances to destroy records after a specified period.)

Similar considerations apply to the quantity requested.  The more you ask for, the longer it is likely to take to assemble (and the more it’s going to cost).  Also, if you’ve made some false assumptions about the pertinence of records you seek, you could end up being charged for useless results.

Consider requesting records in smaller, separate batches, one at a time; for example, by calendar quarters instead of years.  This will prevent going too far down the wrong path.  A variation of this approach is to have a group of friends, associates or classmates each make a small request on your behalf.  It may save money, too, because some government agencies don’t charge for small orders.  

Remember, too, you probably have the option to view the requested materials and copy them yourself at a specified agency office.  Usually, this can be done at less cost or even for free.

A denial of your request, in whole or part, generally triggers a right to an administrative appeal, followed by court review, if so desired.  The term “denial” embraces a number of different circumstances, some explicit, some not.  It’s important to learn the various meanings.

Keep in mind the possibility that the information you seek may be found in other places, public or private.  In this day and age, for example, given the interaction between local, state and federal agencies, information originating at one level may very well have been sent to agencies at other levels, all subject to FOIA discovery.  

I can say from personal experience that identical or similar FOIA requests to inter-related agencies at different levels (local, state and federal) will occasionally reveal false or misleading information or omissions in the communications between agencies.

Also, if you suspect and want certified proof that an agency doesn't have a particular record that it might be expected to have, make a FOIA request in order to get written confirmation that the record doesn't exist.

Persistence pays off.  If necessary, there are non-profit, public service organizations that will help you.  At the national level, for example, try the Sunlight Foundation or the Center for Investigative Reporting.

DWSD Denies FOIA Request, Elusive O&M Savings, Gag Order

Prior to the Detroit bankruptcy settlement, it was represented that the proposed $50 million annual lease payment for water-related facilities, payable by the new Great Lakes Water Authority (GLWA) to the City of Detroit, would be offset partially by cost savings initiated by the Detroit Water and Sewerage Department (DWSD).

Veolia, the international water management and consulting firm, in a report to DWSD this past December, stated, "...Veolia understands that during the negotiations for the creation of the regional authority, the viability of the Lease charge was based on several sources of funds, including O&M cost savings estimated by DWSD in an amount between $10 million and $20 million annually. The details of these savings estimates were not provided to Veolia and, therefore, were not included in the assessment.” (p.ES-3)

Because parties to the ongoing negotiations concerning the transition from DWSD to GLWA are prohibited by a renewed federal gag order from discussing the details surrounding the lease payment, I submitted a FOIA request to DWSD for copies of exclusively internal records of O&M cost savings in the $10-20 million range, independent of the negotiations.

Last Friday, DWSD denied my request for the reasons that (a) no such record exists,and (b) even if it did exist, its release would be prohibited by the gag order.

It looks to me like DWSD's dissembling continues unabated.  Ironically, media outlets later this month will be celebrating Sunshine Week, extolling the virtues of open government.

I can make a pro forma appeal of the denial to Director McCormick, but we all know how much good that will do.  Sooner or later, somebody in a position of public responsibility will have to challenge in court the gag order and DWSD secrecy and obfuscation.

*****     *****     *****

OCWRC Denies FOIA Request (No Such Documents); Appeal

[The Oakland County Water Resources Commissioner's FOIA Coordinator denied my request for certain records having to do with construction site silt runoff (nearly identical to the one posted here November 21, 2014).  The following is my appeal of that denial.  

Bear in mind, however, that the main point is that there can be no rational justification for the double standard of erosion control enforcement being practiced in Oakland County municipalities.]

***   ***   ***

WR Commissioner Nash:

By letter via U.S. Postal Service dated December 2, 2014, your FOIA Coordinator...denied my FOIA request for certain records* with the statement that "The documents understood to be requested either do not exist or are not maintained by the Oakland County Water Resources Commissioner's office.  Therefore, your request for public documents...is denied."

Sorry to put so fine a point on it, but I requested records, not merely documents.  This is my appeal.

The FOIA statute begins, "AN ACT to provide for public access to certain public records of public bodies; to permit certain fees; to prescribe the powers and duties of certain public officers and public bodies; to provide remedies and penalties; and to repeal certain acts and parts of acts."  The statute further provides: 

15.232 Definitions.

(e) “Public record” means a writing prepared, owned, used, in the possession of, or retained by a public body in the performance of an official function, from the time it is created. Public record does not include computer software...

(h) “Writing” means handwriting, typewriting, printing, photostating, photographing, photocopying, and every other means of recording, and includes letters, words, pictures, sounds, or symbols, or combinations thereof, and papers, maps, magnetic or paper tapes, photographic films or prints, microfilm, microfiche, magnetic or punched cards, discs, drums, or other means of recording or retaining meaningful content.

The Michigan Attorney General wrote,

 http://www.michigan.gov/documents/ag/FOIA_Pamphlet_380084_7.pdf

(p.5) "It does not matter what form the record is in." 

For example (p.44):

Oakland County Treasurer v Title Office, Inc, 245 Mich App 196; 627 NW2d 317 (2001).

"Electronic records are writings as defined by the FOIA. Public bodies are required to provide public records in the format requested. If there is no explicit statutory language that provides fees for electronic records, the records must be provided using the FOIA fee requirements." 

I believe video and audio recordings are accessible as well.

Please grant my appeal, reverse the determination of your FOIA Coordinator and furnish me with copies of the requested records.

-- Jim Lang

(address and phone)

* Summarized as "...a copy of all records created or obtained by OCWRC within the timeframe of January 1, 2014 to present that contain a rationale for the difference between the strict water quality and erosion control enforcement in MEAs and the lax enforcement by OCWRC in its role as CEA, as that rationale relates to Michigan waters and the public trust." (See your file for the complete request.)