Local Government Law Bulletin March 12, 2015 Ronald M. Redick

Amendments to Freedom of Information Act Require Prompt Action by Municipalities

Under the Michigan Freedom of Information Act (“FOIA”), public bodies are currently permitted to charge fees for responding to FOIA requests, and may require an advance good faith deposit of 50% in circumstances where total costs are expected to exceed $50.00. This is an important aspect of FOIA because it ensures that public bodies do not incur overly burdensome expenses as a result of responding to requests for public records.

The right to recoup FOIA costs could be lost, however, if a public body does not take prompt steps to comply with the new requirements of Public Act No. 563 of 2014 (“Act 563”), which amends the FOIA statute, effective July 1, 2015.

The stated purpose of the Act 563 amendments is to facilitate better public understanding of how to submit a proper FOIA request, to allow members of the public to better understand how public bodies compute the fees that may be charged for responding to a FOIA request, and to reduce the public’s overall cost for obtaining public records. To that end, the amendments impose the following principal requirements, which all public bodies must comply with on or before July 1, 2015:

  1. FOIA Procedures and Guidelines Manual. Each public body is required to establish and maintain written procedures and guidelines to implement the FOIA statute. The procedures and guidelines manual must include a standard form that is to be used for detailed itemization of any fee that is charged in response to FOIA requests. The detailed itemization is required to clearly list and explain the allowable charges for each of the fee components that can be charged under FOIA. A public body may incorporate and use the itemization form created by the State Department of Technology, Management and Budget.
  2. Summary of FOIA Manual. Each public body is required to create a written public summary of its procedures and guidelines manual. The summary document must explain (a) how to submit a FOIA request to the public body; (b) how to understand a public body’s written responses, deposit requirements, and fee calculations; and (c) the procedures to challenge and appeal a public body’s response to a FOIA request and/or the public body’s fee requirements.
  3. Website Posting. If a public body maintains a website, it is required to post and maintain the procedures and guidelines manual and the summary document on its website.
  4. No Charge for Manual or Summary. Copies of the procedures and guidelines manual and the summary document must be provided to the public free of charge whether requested in writing or verbally.
  5. No Fee for Website Records. If a public body maintains a website, any public records that are posted on the website must be provided to the public free of charge.

There is a direct monetary consequence for failing to comply with the above requirements. The Act 563 amendments state that a public body is not permitted to charge a fee or require a deposit for responding to a FOIA request, unless and until it is in compliance with all of the above requirements. In order to avoid this consequence, it is important that each pubic body adopt a FOIA procedures and guidelines manual and a written summary of the manual, on or prior to the July 1, 2015 deadline.

The Act 563 amendments also include other revisions to the FOIA statute. These other amendments do not require action prior to July 1, 2015, but will impact how public bodies administer FOIA, and how they calculate FOIA fees and deposits after July 1, 2015. The following is a general description of these other amending provisions:

  • There are more detailed limitations on how labor costs can be calculated and charged for responding to a FOIA request. For example, labor costs are generally limited to the hourly wage of the lowest paid employee capable of performing the task, plus a charge for fringe benefits, not to exceed 50% of the applicable labor charge. An outside contractor may be used to separate and redact exempt records (if needed), but the maximum hourly rate cannot exceed six (6) times the State minimum wage. No overtime is allowed, unless the requesting party stipulates to this.
  • The cost of paper copies is limited to a maximum of ten cents per page, for 8-1/2 by 11 inch or 8-1/2 by 14 inch copies. Charges are limited to the actual cost for other sizes of paper. Double-sided copies must be provided, if cost effective and available.
  • If public records are provided on non-paper media (e.g., a computer disc), a public body may charge only the actual and most reasonable economical cost for that media.
  • If a public body fails to timely respond to a FOIA request, the amount of the allowable fee shall be reduced by 5% per day, up to a maximum 50% reduction, but only if (a) the late response was willful or intentional, and (b) the request included certain words making clear that it was a request for public records.
  • If a person requests records that are on a public body’s website, the public body’s FOIA coordinator must notify the person in writing that the records are available on the website and the website address where they can be found.
  • If an e-mailed FOIA request is directed to a public body’s spam filter or junk folder, the public body is not considered to have received the request until one (1) business day after the public body actually becomes aware of the request. The timeline for responding would not begin to run until that point.
  • If an individual has failed to pay the full fee for a prior FOIA request, a public body may require that same individual to pay a deposit of 100% of the estimated fee, prior to fulfilling a subsequent FOIA request. This rule is subject to certain limitations.
  • An individual may appeal and/or judicially challenge the amount charged by a public body for responding to a FOIA request, and may be awarded attorney fees if they prevail in court.
  • Increased monetary penalties may be imposed for a public body’s failure to comply with FOIA.
  • New standards for fee waiver are provided, with respect to persons who are indigent and non-profit organizations.

All public bodies that are subject to FOIA should consult with their attorney to ensure that they understand and are prepared to administer the new Act 563 requirements prior to July 1, 2015. Most important, all public bodies should promptly begin to prepare a FOIA procedures and guidelines manual, along with the related summary document, so that there is adequate time to review, finalize and have these documents posted on their website on or before the July 1, 2015 deadline.

We recommend that you contact your principal municipal attorney at Mika Meyers to discuss the process for complying with the Act 563 amendments, so that your public body retains the ability to charge FOIA fees and to require FOIA deposits in proper circumstances.

Let’s start a partnership worth keeping.