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					       Michigan’s
Freedom of Information Act

                       Tips for
                 Smooth Sailing
                              Catherine Mullhaupt
                      Member Information Liaison
         Michigan Townships Association     2006    1
          Freedom of Information Act
              Public Act 442 of 1976
                MCL 15.231-15.246
“It is the public policy of this state that all persons,
 except those persons incarcerated in state or local
 correctional facilities, are entitled to full and complete
 information regarding the affairs of government and the
 official acts of those who represent them as public
 officials and public employees, consistent with this act.
 The people shall be informed so that they may fully
 participate in the democratic process.”


                                                              2
It’s the same here …




                       3
… and here ...




                 4
… and here.




          5
            Checklist
Designate FOIA Coordinator
Establish fee schedule
Have forms available
Train employees
Know the deadlines
Have records available
Make it easy to separate
Expect to receive a request

                               6
   Who is the FOIA coordinator?
Township board designates “public body’s” FOIA
 coordinator — one per township
FOIA Coordinator may designate others to accept and
 process requests and approve denials
                     Compensated as board
                     designates: could be
                     per request or lump sum



                                                       7
          FOIA Coordinator
Accepts and processes requests for township’s
 public records
Responsible for approving denials
Must keep a copy of all written requests for
 public records on file for at least 1 year



                                                 8
    The 4 “R”s
Request
Redact (What   … ?)
Respond
Recover


                       9
               Request
   Is it really a FOIA request?

Must be written
Paper, fax, email or electronic
Must describe specific record(s)
Don’t confuse with other laws*
     * Federal FOIA deals with federal agencies
     * Other laws may control fees charged


                                                  10
                 Request
         What are they asking for?
A FOIA request must describe “…a public record
 sufficiently to enable the public body to find the public
 record.”

The public record must be “…prepared, owned, used, in
 the possession or control of, or retained by the public
 body in the performance of an official function, from the
 time it is created.”

                                                             11
             Request
     What are they asking for?

You are not required to make a
 compilation, summary or report of
 information
You are not required to create a new
 record

                                        12
              Request
      What are they asking for?
To inspect record(s)
To receive a copy of record(s)
To receive a certified copy of a record
To subscribe for up to 6 months to future
 public records created, issued and disseminated
 on a regular basis — renewable


                                                   13
                 Redact
        (50-cent word for “Edit”)
Separating exempt from nonexempt information, such as
 removing or blacking-out the following information exempt
 from disclosure by Michigan Election Law:

       1)   Driver’s license/state ID number
       2)   Birth day/month *(can be viewed, not printed)
       3)   Phone number
       4)   Office where person registered to vote
       5)   Information on refusal to vote

                                                            14
                          Respond
                          Deadlines
Deadline #1: You MUST respond
 within 5 business days*
Deadline #2: See Deadline #1
But …
See Deadline #1
 *unless requestor agrees in writing

                                        15
                Respond
         Why respond in 5 days?

If you fail to respond within 5 business days, the
 lack of action is viewed as a final denial of a
 request.
If the denial is successfully challenged in Circuit
 Court, the court will assess damages against the
 township for failure to comply.

                                                   16
                            Respond
You have four* options for how to respond
         within 5 business days:
Grant the request
Deny (in writing)
Grant and deny (in writing)
Extend (in writing)
 *Practical suggestion—“Negotiate” on large requests…
  do they want to see records first and decide on actual
  copies to be made (and total cost)?
                                                           17
                   Respond
             Denial of all or part
Written notice must include:
   Legal reason that record or portion of record is
    exempt from disclosure, OR
   Certificate that public record does not exist, OR
   Description of public record or information that was
    separated or deleted, PLUS
   Explanation of right to either appeal or seek judicial
    review

                                                             18
                 Respond
                 Extension

You may issue a notice extending response
 time up to 10 business days

The notice must specify the reasons for the
 extension and the date by which the township
 will respond.

                                                19
             Respond
       What may be denied?
            “Short List”
Section 13: Lists “types” of items that may
 be exempt from disclosure
Exemptions to be narrowly construed — just
 because a record fits a type, it’s not
 automatically exempt


                                               20
            Respond
      What may be denied?

Even records “exempt from disclosure”
 may be disclosed, if the public interest in
 disclosure outweighs the public interest in
 nondisclosure
When in doubt, consult township attorney


                                               21
                Respond
          What may be denied?
Records “may” be exempt from mandatory disclosure
Township has discretion to disclose public records
 exempt from mandatory disclosure under the FOIA
Township bears burden of proving its refusal to
 disclose complies with FOIA
When in doubt, consult township attorney




                                                      22
              Respond
        What may be denied?

Records or information exempted from
 disclosure by the FOIA,
 Section 13
Example: “Information or records that would
  disclose the social security number of any
  individual.”
  [MCL 15.243(1)(w)]

                                               23
                     Respond
               What may be denied?
 Records or information specifically described and exempted from
  disclosure by statute
Examples:
Michigan Election Law (Some             voter registration information)
General Property Tax Act
   (Personal property tax statements)
Crime Victims Rights Act
   (Autopsy and crime scene pictures)
Bullard-Plawecki Employee Right to Know Act
   (Identifies how personnel records may be used, disclosed, exempt from
   disclosure, and destroyed.)

                                                                           24
               Respond
           Appealing a Denial
Requesting person may:
1) Appeal the denial to the head of the public
 body—township board
 (MCL 15.240)                  AND/OR
2) Commence action in Circuit Court
 (MCL 15.240)
Consult township attorney
                                              25
                Respond
      If requestor appeals denial
           to township board

Written appeal must specifically state
 “appeal” and identify reason(s) for
 reversal of denial


                                          26
                   Recover
             (Costs, that is…)

If you want to …
You don’t have to, if the board deems it in the
 public interest




                                                   27
                     Recover
              Costs, and only costs
 “… a public body is not to make a profit on information retrieval,
  nor is it to suffer a loss.”
  Attorney General Opinion 7017 of 1999

 The [FOIA] contemplates only a reimbursement to the public body
  for the cost incurred in honoring a given request—nothing more,
  nothing less.
  Tallman v Cheboygan Area Schools,
  183 Mich App 123


                                                                  28
               Recover
      Actual, incremental costs

A township’s fees for postage and duplicating
 must be limited to the actual mailing costs
 and incremental duplicating costs.
 Grebner v Clinton Charter Twp,
 216 Mich App 736


                                                 29
               Recover
             Copying costs
You can charge what it costs you to
 copy – over and above your normal
 costs if you had not received the
 request
If it costs you 10 cents
 per copy, that’s what
 you can charge
                                       30
                    Recover
                  Copying costs
For “necessary copying” of a public record, even
 if the person has asked to INSPECT (MCL
 15.234):
   1) To make it possible to separate exempt from
     nonexempt material, or
   2) To protect a public record from loss, alteration,
     mutilation or destruction during public inspection
     (including records on computer, microfilm, microfiche,
     etc.)
     (Attorney General Opinion 7083 of 2001)
                                                              31
                                     Recover
                                      Fees
FOIA Section 4 covers setting of fees
If no other law explicitly provides fees for copies or sale
 of specific records,
 then follow FOIA — actual, incremental costs
Some laws do require specific fees for specific records:
  Transcripts and Abstracts of Records Act
  (sets fees for transcripts and abstracts from county treasurer’s office)




                                                                             32
             Recover
           Labor costs

You must establish written
 procedures and guidelines to
 implement a labor charge.


                                33
             Recover
           Labor costs

No more than the hourly wage of
 the lowest paid employee capable
 of retrieving the information
 necessary to comply with request


                                    34
         Recover
       Labor Charge

For making copies
 (duplication/publication)




                             35
                   Recover
                 Labor Charge
To search, examine, review and delete or separate
 exempt from nonexempt information, ONLY…
If failure to charge would result in “unreasonably
 high costs to the public body” AND
Public body specifically identifies those
 unreasonably high costs


                                                 36
                 Recover
   Enhanced Access to Public Records Act
            MCL 15.441-15.445

There’s always an exception…!
You can charge more than just actual,
 incremental costs to provide access to:
A geographical information system or GIS
 output, OR
Enhanced access to digital records

                                            37
                Recover
  Enhanced Access to Public Records Act
           MCL 15.441-15.445

“Enhanced access” means a public
 record’s immediate availability for public
 inspection, purchase or copying by DIGITAL
 MEANS. Enhanced access does not include
 transfer of ownership of a public record.


                                              38
                  Recover
    Enhanced Access to Public Records Act
             MCL 15.441-15.445

“Reasonable fee” means a charge calculated
 to enable a public body to recover over time
 only those operating expenses directly related
 to the public body's provision of enhanced
 access


                                                  39
         What’s the worst
       that could happen?
Nothing
Circuit Court action — Court may
 assess actual, compensatory and punitive
 damages against township
Court of public opinion …


                                            40
            Checklist
Designate FOIA Coordinator
Establish fee schedule
Have forms available
Train employees
Know the deadlines
Have records available
Make it easy to separate
Expect to receive a request

                               41

				
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