This week’s Sunshine Activist interview is with Chetly Zarko, who lives in the Clawson/Troy area of Michigan.
Zarko takes jobs consulting with political campaigns, so in that sense he does not qualify as the amateurs or regular citizens we are featuring in this year-long series. On the other hand, Zarko has been filing FOIAs in Michigan for 15 years, the great majority of which were unrelated to a political campaign. He has repeatedly won lawsuits and his work has been featured or discussed in a number of newspapers, including the Wall Street Journal.
Zarko blogs at Power, Politics, & Money and now also at a new blog covering Oakland County, Oakland Politics. He welcomes questions and feedback from novice and seasoned FOIAers alike, and can be reached here.
This interview is long, and rich with very useful information and insights that will help FOIAers of all political persuasions. Thank you, Chet.
- What year did you file your first open records request?
- What documents were you looking for?
“Computer conferences” at the University of Michigan. The technology was a nascent form of “bulletin board” or even interactive type of blog that had “items and responses” and was multi-user across-time. Think pure text linear blogs and response areas, or “Lotus Notes” with almost no features. In 1992, these were popular on U-M’s campus and existed both in large-scale (40,000 person potential access) public forums, and down to as little as two (or even one person “diaries”) participants with account level password restriction on access. I sought access to several quasi-social “private conferences” that were operated by employees on public time and taxpayer resources. The impact of these conferences among mostly mid-level employees was relatively low-level “misuse of taxpayer resources,” and not major news, but it was interesting because it was breaking new ground in electronic records.
- Did you get those documents?
- Charles Davis of the National Freedom of Information Coalition has talked about having “a FOI moment”. Have you had “a FOI moment” and can you describe it?
Yes, when I received leaked transcripts of the records I had requested under FOIA describing how participants – literally across the nation – lobbied to prevent my FOIA request from being honored and changed the University’s FOIA officer’s position that the records were probably subject to disclosure and should be released to a denial based on arcane and twisted interpretations of law.
- What is the worst (or funniest or most obstructionist or most outrageous) reply you’ve ever received?
A response to a “FOIA for other FOIA requests” to the University of Michigan. To avoid high costs, I narrowed the request solely to the electronic files and database the FOIA officer maintained of only the FOIA response letters. They proceeded to try to recover costs to “examine and review” the FOIA response letters for FOIA requestor home addresses, which they claimed were “private,” and they estimated that this would take many hours at the FOIA officer’s hourly rate of $57 dollars an hour. It’s a complete twisting of Michigan law – and humorous that they would apply it to FOIA requests themsleves – both on the hourly rate and the issue of address privacy. If anyone out there wants to finance litigation on this one – or is a Michigan lawyer – this one is a winner.
- How quickly do you generally receive replies to a request?
In Michigan, half within the 5 days “first level” requirement – half within the 10 day “extension-in-broad-requests” exemption granted to public bodies. That’s the reply letter – not all produce records in that time, and I’m pretty cooperative with public bodies in voluntary extensions if they are cooperative with me.
- About how many open records requests have you filed?
Over a hundred.
- How do you let your friends, neighbors or the local media know about the documents you get?
Depending on my editorial judgement 1) blog 2) press releases 3) active promotion
- Have you run into any trouble as the result of filing open records requests?
During my first lawsuits in 1994, I received some mild, but strange phone calls. I have also occasionally been subtly threatened, but never anything tangible or provably connected to a FOIA, although if I examined my records closely that may be otherwise. I once was served a summons as a witness in a criminal assault case for being allowed into a courthouse to file papers for a FOIA after hours (because I had partially filed during business hours and walked to my car to get a second, necessary copy of the complaint). Another activist on a trespass case had tried to barge into the Clerk’s office as the Clerk allowed me back in through the locked door, claiming she was being discriminated against. I believe she was convicted of assault.
I strongly suspect that my early use of FOIA – because it made the press and was sometimes quite public – while I was employed full-time in a non-political job and because FOIA sometimes is associated “whistleblowing” and “trouble-maker” – limited my advancement with that employer and even generated some “fear”. I sensed this when a boss once jokingly told me he wasn’t appreciative of seeing my face (in the newspaper) next to his coffee one Saturday morning. On the other end though, media coverage has opened other doors.
- What’s the most significant political outcome that has resulted from the work you do?
In 2003, through a combination of FOIA and research in partially-open historical archives at the University of Michigan, I found (through FOIA’ing the closed portion of the archives) an “Executive Summary” of a scientific study that contradicted the University of Michigan’s scientific claims (that “diversity” has “educational benefits”) in expert testimony that eventually was part of oral arguments before the Supreme Court in the admissions cases. I found it literally 4 days before the oral arguments (after much delay by the University), so I couldn’t do much with it. A second FOIA “follow-up” for the raw data underpinning the FOIA was denied, and between oral arguments in April and the decision in June, I issued press releases and actively promoted the issue of the denial and contradictory content in the Executive Summary. In May 2003, the Wall Street Journal carried an op-ed I wrote on the piece, and several statisticians reviewed other material I was able to produce in part of a larger file, agreeing with my conclusions. It’s impossible to know how this impacted the Court, obviously, and it clearly didn’t result in a “win” for my view on the issue, but the ruling was a “split decision” (two cases going different ways throwing bones to each side) and written in such a way that it never mentioned the researchers name and danced around the issue of the research’ accuracy altogether. The long-term political effect of this work could also be to frame this research in a context that might affect future cases or even allow the Court to write future rulings in such a way as to account for changing research without technically “overruling” this case, which Courts do not like to do or at least appear to do.
- Has your local newspaper ever commented on the work you do? Favorably or unfavorably?
Never had an mainstream media negative (plenty of negativity on websites) comment on FOIA (the closest was disagreement with me on the issue of affirmative action, but agreement with me that U-M’s refusal to provide raw data backing its scientific claims to the Supreme Court was questionable and hurt its case), although they have opined that way on the larger subtext of what my work implied. In 1994, the Detroit Free Press and Ann Arbor News threatened in open court to join a FOIA lawsuit against U-M on my side (for “computer conferences” the Board of Regents used), and U-M immediately produced everything (eventually having to pay my legal fees), and both editorialized for me. In 2003, the Detroit News in an op-ed condemned U-M’s refusal to provide scientific data related to the admissions lawsuit even while reiterated support for U-M in the lawsuit. In 2007, the Detroit News also condemned the Michigan Education Association for suing the Howell School District in a “reverse FOIA” to stop Howell from producing the e-mail of local union leaders to me following a FOIA.
- What’s your best advice for other “Sunshine Activists”?
Persistence and patience. Public bodies will use delay, deception, and dispersion (passing the buck). A lawsuit may occasionally be necessary, but regrouping and asking for different stuff, narrowing your requests after high cost estimates, and even explaining the law with use of case history (so seriousness, raises the specter of the risk of loss or a PR issue if they are sue), can cause small victories or even changes of heart. Try to be polite when appropriate, but firm and willing to get down to devilish details. They count on the fact that delay either results in 98% of people quitting, or through sheer force of time creates victory for them (and sometimes, like in my Wall Street Journal – Supreme Court case analysis, the delay, even though illegal, was victory for them since they were able to get a Supreme Court ruling before the final FOIA results could be used against them). You can’t win them all – they ultimately control the records – but even the ones you lose through attrition reflect poorly on the public body if they are hiding something they shouldn’t simply because they are hiding. Remember that too – a “No” is often more worth a press release than the content of documents.
- What do you know now that you wish you had known when you started?
The raw power public bodies will use to thwart you – and the people I now know that will help fight through that power.
- If you could change your state’s open records law just one way, what would that change be?
Tough. Eliminate the exemption of legislators, the Governor’s immediate staff, and the judiciary that almost all FOIA laws have in them (which is how they got passed without vetoes). That would be radically transformative. Second to that, I’d reform the fee provisions to make it harder for bodies to overcharge or delay through overcharge attempts.
- Do you participate in any formal way in organizations that promote the freedom of information cause?
No if you mean organizations that exclusively do that, though there is a limited pool of those. Yes if you mean organizations that have it as one of their missions. I’m open to ideas on this front.
- Are you willing to have other “sunshine activists” from your state get in touch with you?
Most definitely yes.