To FOIA, or not to FOIA? That is the question

Although FOIA may sound like some exotic fungi, it is simply the acronym for the Freedom of Information Act. The Feds enacted this legislation first and then most states followed along in the 1970’s. Michigan revised their FOIA a few years ago with some user-friendly features meant to simplify and facilitate your right to know what your government is really doing behind closed doors.  Most bodies supply simple FOIA requests at no charge. That is the clear intent of the law. It is a Cheboygan County Watchdog’s and any concerned citizen’s best way to sniff around to uncover the truth, however smelly.   

Any of us are empowered to use FOIA and it is not rocket science.  Most government bodies will have a FOIA form you can fill out. A few strictly enforce use of a form, although the FOIA law does not mandate it. You can make a request verbally or in writing making sure you identify your inquiry is a FOIA request.  The trick, and it is a trick, is that the only information you can seek already exists as a created or recorded document. You cannot ask a simple question: “how much did you get paid in 2015?” You may ask, “Please provide a copy of your W-2 as submitted to the IRS for 2015”. It helps to know exactly what you are looking for and sometimes “No such document exists” is the answer needed.

A recent FOIA inquiry sought to substantiate public statements made by Cheboygan County Community Development Director Steve Schnell demonstrates the power this tool offers any private citizen. Mr Schnell commented at a public meeting that complaints about “vacation rentals”, short-term rentals of waterfront homes, were becoming an issue that would require enforcement. It is a widespread long-standing practice and people took Mr Schnell’s comments as truthful. In fact, Mr Schnell had already used “enforcement letters” advising people they were breaking the law and to cease renting within 30 days. Mr Schnell knew one local resident was going to seek redress with a use variance before the Zoning Board of Appeal. This action brought the issue to public view. ZBA Chairperson Chuck Freese made the correct decision, accepted the request to table the variance, sending the issue to a Planning Commission meeting. Protesting property owners filled the room.

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I sought any records of written complaints and enforcement letters with a FOIA. Mr Schnell responded with a FOIA worksheet requesting $27.22 for a labor fee. That was supposedly for 85 minutes of time. He provided no clue to how many documents were included.  Mr Schnell was not in the building on the Friday when I appealed in person to County Administrator Jeff Lawson for a timely release of the information. What was Mr Schnell’s record of complaints? Screenshots of Vacation Rental by Owner (VRBO) webpages, a multi-page record of enforcement records, six actions in total, threatening enforcement letters sent to innocent homeowners, and no proof of any written complaints.

There was also one email from Mr Schnell to Cheboygan County legal counsel asking counsel’s opinion on the legality of enforcement. Mr Schnell falsely told legal counsel in the email: “We have recently begun to receive more and more complaints about neighbors renting their homes thru vrbo.com on a very transient basis. This is going to be a big effort to do enforcement on this.” Mr Schnell did eventually forward one written complaint. A resident in Beaugrand Estates, where deed restrictions restrict rentals, attempted to add to the threat of an attorney’s letter. Mr Schnell, always helpful even when less than honest, sent a letter falsely stating “It has come to our attention that a home on your property is being used as a tourist home and rented on a transient basis on your property located at XXXX Nicolet Drive in Beaugrand Township. This is not consistent with the use of single-family home and, in addition, is not a permitted use in the Lake and Stream Protection zoning district (Article 10) in which your home is located.” 

The illegality was renting in violation of a deed restriction. Mr Schnell has no power to enforce a deed restriction. The second FOIA request was for complaints in the last three years. Mr Schnell answered, ”In fulfillment of your FOIA request there are no additional materials which meet your criteria. Since I began in 2007 I only remember very few complaints regarding these matters.” That was not the “more and more complaints about neighbors renting their homes thru vrbo.com on a very transient basis” told legal counsel or the public. 

Steve Schnell argues his rules here...trust him??

The total cost for two FOIA requests, $27.22. The value of finding the truth behind a closed door is priceless.