Was FOIA violated by DTMB and ORS?

Originally posted December 21, 2013; updated February 11, 2014

In my quest to find out what happened to the SERS and MPSERS 13th check, I got little help from the people closest to the issue: the state Department of Technology, Management and Budget (DTMB) and its Office of Retirement Systems (ORS).

In September 2013, I sent a FOIA request to DTMB that said

Section 38.20g of the State Employees' Retirement Act, Act 240 of 1943 directs the department of management and budget to calculate and distribute a yearly supplemental payment to state pension recipients. Section 38.1404a of the Public School Employees Retirement Act of 1979, Act 300 of 1980 does the same for retired public school employees.

 

For the years 1982 to the present, I would like the following information for each system (SERS and MPSERS) regarding the calculation of the supplemental payment: 

1. The rate of investment return earned on retirement system assets during the past fiscal year. 

2. The actuarially determined present value of retirement allowances to be paid after the end of the fiscal year to retirants and retirement allowance beneficiaries in receipt of retirement allowances at the end of the fiscal period. 

3. The costs of post retirement adjustments paid during the fiscal year. 

4. The distribution income at the end of each state fiscal year.

In a letter dated October 8, the DTMB FOIA coordinator denied my request saying:

Your request does not describe records sufficiently to enable the department to determine what records you are seeking. It is hereby certified that, to the best of the undersigned's knowledge, information, and belief, records do not exist within the department under the description you provided or under another name reasonably known to the department.

I immediately sent off an appeal to DTMB director John E. Nixon. I said

The laws cited in my request make it clear that it is the responsibility of the Department of Management and Budget to calculate and distribute the supplemental payment, and the four figures I requested are elements of that calculation. It is difficult for me to believe that in the process of these legislatively mandated calculations, the figures were not written down and kept on file to justify either the distributions or the determination that no distribution was needed.

In a letter dated October 30, Mr. Nixon replied saying part of the FOIA request denial had been reversed: item 1, the rate of investment return earned on retirement system assets during the past fiscal year for the years 1982 to the present. Enclosed were sheets for each of those years for each of the two pension systems. He said, however, that the records requested in items 2-4 do not exist. No explanation.

I decided to try another route. Back in 2007, when I first looked into this matter, I directed a FOIA request to Phil Stoddard, director of the Office of Retirement Systems. He is still director of ORS. On November 9, I sent him a FOIA request, this time asking only for the calculated distribution totals for each system for the years 2003 to the present. In a letter dated November 15, the ORS FOIA coordinator denied my request saying

It is hereby certified that, to the best of the undersigned's knowledge, information, and belief, records do not exist within the department under the description you provided or under another name reasonably known to the department.

Not quite ready to give up, I sent another letter to John Nixon on November 24. I said this is not a FOIA request. All I want, I said, is assurance that no more supplemental or 13th checks go to state and MPSERS retirees, along with an explanation of why there is no possibility of that happening. He has not responded.

Not long after I sent my plea to Nixon, it occurred to me that some of the information I was looking for would be in the annual actuarial valuations for the two systems, which just might be on the ORS website. And indeed they are, as part of the Comprehensive Annual Financial Reports (CAFRs), which are there for the years 1997-2012 (SERS here, MPSERS here). Item 1, the rate of investment return is there as "Yield on Average Book Value" in the Investment Section. Item 4, distribution income - which I assume is the same as the distribution total - is there as "Supplemental Check" under Schedule of Benefit Expenses by Type in the Statistical Section.

FOIA violated?

And this means that in regard to the "distribution income" I requested in my FOIA request, DTMB violated the FOIA when they claimed that "records do not exist within the department under the description you provided or under another name reasonably known to the department." The supplemental check is the same as the distribution income, and they, of all people, should know it. And ORS violated the FOIA when they said they didn't have the calculated distribution totals for the years 2003 to the present. The total was zero for each of those years, but they still had to do the calculation. That is two violations, and that doesn't count the response to my appeal, in which DTMB again denied having any documents showing the distribution income.

It appears to me that I have a good case for a lawsuit. If there are any lawyers out there who'd like to make some easy money, please get in touch at stevenrharry@gmail.com.

From the very beginning, all I wanted was a little information. Is that too much to ask of our civil servants? I wanted to know if any supplemental checks had been issued since 2002 and whether there was any chance of them being issued in the future. I had no ill intentions. Considering the impact of 13th check on the Detroit bankruptcy, I think my concern was legitimate. Maybe I didn't use the right words in my FOIA requests, but it should have been clear what I wanted. These agencies could have been helpful instead of stonewalling. They could have at least pointed out that some of the information I requested was on their website, in the CAFRs. But no.

I finally did get a genuine attempt at explaining the situation from the Office of Retirement Systems. In a letter dated January 16, Steve Crippen of ORS assures us that no further 13th checks are likely to be issued - ever. I'm afraid I still don't understand how this all works, but I guess it doesn't matter.