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April 6 2020

Client Alert - New Executive Order Extends FOIA Deadlines

By: James F. Scales

Last evening, Governor Whitmer issued Executive Order number 2020–38, extending deadlines for response to Freedom of Information Act requests.  The Order specifically overrides contrary local FOIA policies.

Under the Order, a FOIA request made by hand delivery, mail or fax is not considered to have been received until “an employee of the public body physically opens the envelope containing the request or physically takes the faxed request from the fax machine.”  Employees are not required to go to the municipal office to check for FOIA requests, unless they are otherwise properly in the office.

The Order does not change the rules concerning receipt of FOIA requests by email, which are considered received one business day after being sent.  Municipalities and officials need to continue to check their email accounts for FOIA requests, and respond within the deadlines in the Order.

The time for initial response is extended from five business days to 10 business days after receipt.  Within that time, as long as COVID-19 emergency orders or mitigation  recommendations remain in effect, the FOIA coordinator may extend the time for response by written notice for as long as “the public body deems necessary,” up to the June 4, 2020 expiration of the Order.

If the request requires in person efforts to search for, inspect, prepare, or produce documents, the public body may defer response to that portion of the request until expiration of the Order.  If it does so, it must inform the requestor of the reason for the deferral, and the let the requestor know that they may amend a request to do away with the portion requiring in person response.

In summary: 

  1. FOIA requests by mail, drop off, or fax are not considered received until actually physically received by officer or employee. 
  2. The Order does not change the date a request is considered received by email, so it is still necessary to monitor email accounts.
  3. It is still necessary to respond to requests in writing, but the deadline is now 10 business days after receipt.
  4. Within that time, the public body may issue a notice extending the time to respond until as late as June 4, 2020[JFS1] .
  5. If the public body chooses to respond within the permitted extension period, the Order relaxes the requirements for fulfilling the request if it requires “in person” work.  But for many communities, issuing an extension notice until June 4 may be the simplest and best option.

Our local government attorneys are available by email or phone to answer questions, and assist with this Order or any other questions.  Our labor attorneys are also available to assist with questions about the CARES Act, Payroll Protection Act, unemployment benefits, and other employment questions.