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New Amendment Presents Challenges to FOIA Administration

By Marshall W. Grate / Jan 22, 2015

On January 11, 2015, Governor Snyder signed into law Public Act 563 which extensively amended Michigan's Freedom of Information Act ("FOIA"). The Amendment is designed to further restrict the cost that public bodies, such as a municipality and/or public school district, can charge for responding to FOIA requests. The changes apply to FOIA requests beginning July 1, 2015. Some key features of the Amendment include the following:

  • When a public body estimates charges for complying with a FOIA request, the total fee cannot exceed the sum of the hourly wage of its lowest paid employee capable of searching for, locating, and examining the public records in the particular instance, regardless if that person is available or is the one that actually performs the labor. Labor costs are to be estimated in increments of 15 minutes or more and rounded down for partial time increments.
  • If the public body contracts the service of separating exempt information from non-exempt, then the total labor costs calculated for contracted labor services cannot exceed an amount equal to six times the state minimum hourly wage rate ($8.50) which equals $51.00. 
  • The person requesting public records can stipulate how the records are to be provided - on non-paper, physical media, electronically mailed, or otherwise electronically provided to him or her in lieu of paper copies. 
  • The public body's per page copy fee cannot exceed $0.10 per sheet of paper for copies of public records made on 8½ x 11 inch paper or 8½ x 14 inch paper. A public body must utilize the most economical means available for making copies of records, including using double-sided printing and can only charge for the least expensive form of postal delivery when mailing FOIA responses. 
  • The public body can only add up to 50% of the applicable labor charge amount to cover or partially cover the cost of fringe benefits and then only if it clearly notes the percentage multiplier used to account for benefits in the detailed itemization that is required. Unless the FOIA requester agrees, the public body cannot charge for overtime costs. 
  • The Amendment expanded the provisions relating to discounting FOIA response costs for indigent FOIA requesters.
  • A nonprofit organization designated by the State to carry out activities in support of Developmental Disability Assistance and the Bill of Rights Act of 2000 and advocacy groups for individuals with mental illness are entitled to a discount or reduced fee.
  • The public body must establish procedures and guidelines to explain how to submit written FOIA requests and how to understand the public body's written responses, deposit requirements, fee calculations and appeal procedures. The procedures and guidelines shall include a standard form for detailed itemization of any fee amount. The public body must post its procedures and responses on its website. 
  • If a public body has not established procedures and guidelines, then the public body is prohibited from requiring deposits or charging fees otherwise permitted until it is in compliance with the requirement of establishing procedures and guidelines. 
  • A public body can still require a good faith deposit that does not exceed one-half of the total estimated fee, but the public body's request for a deposit must include a detailed itemization. If a public body fails to respond in a timely manner to a request, it is not relieved from its requirements to provide proper fee calculations and timeframe estimates in any tardy response. 
  • If a public body fails to respond to a written request in a timely manner, then the public body must reduce the charges for labor costs otherwise permitted by 5% for each day that the public body exceeds the time permitted for the response with a maximum of 50% reduction if (1) the late response was willful and intentional and (2) the written request included language that indicated it was a request for information or submitted under FOIA.
  • Subject to certain conditions, if the public body has not been paid in full for responding to a request, then the public body may require a deposit of 100% of the estimated fee before it begins a full public record search for any subsequent requests from the same individual. 
  • If a written request is delivered to the public body's spam or junk mail folder, the request is not received until one day after the public body first becomes aware of the written request. 
  • If a recipient appeals the fee charged by the public body, the head of the public body has 10 business days after receiving the appeal to (1) waive the fee, (2) reduce the fee, or (3) uphold the fee.  A board or commission that is the head of the public body is not considered to have received a written appeal until the first regularly scheduled meeting of that board or commission following the submission of the written appeal.

Legal action and penalties:

  • Previously, the person requesting information could file a legal action in the circuit court for the county in which he or she resided or his or her principal place of business was located. Now, venue for an action against a local public body is proper in the circuit court for the county in which the public record or an office of public body is located. 
  • If a court determines that a public body has arbitrarily and capriciously violated FOIA by refusing or delaying in disclosing or providing copies of a public record, then the fines have been raised to $1,000.
  • If a public body requires an excessive fee, then the requesting person may commence a civil action in civil court provided (1) if the public body does not provide an appeal, (2) if the head of the public body fails to respond to a written appeal, or (3) if the head of the public body issued a determination to a written appeal as required that was unsatisfactory. In other words, if the public body has enacted an appeal process for reviewing fees, a requesting person must pursue the internal appeal process before challenging the fee in a court proceeding.
  • In the case of a civil court action challenging the fee, the burden is on the public body to establish that the required fee complies with its publicly-available procedures and guidelines. If the requesting person prevails in an action by receiving a reduction of 50% or more of the total fee, the court may in its discretion award all or an appropriate portion of reasonable attorney's fees, costs and disbursements. If the court determines that the public body has arbitrarily and capriciously violated the Act by charging an excessive fee, the court may order the public body to pay a civil fine of $500 in addition to actual or compensatory damages or punitive damages in the amount of $500 to the person seeking the fee reduction. If the court determines that the public body has willfully and intentionally failed to comply with the Act or otherwise acted in bad faith, the court shall order the public body to pay in addition to any other award or sanction a civil fine not less than $2,500 or more than $7,500 for each occurrence. 

The most important task for public bodies is to revise existing and/or create the necessary procedures and guidelines described in this Amendment. These procedures should be in place by the date the Amendment becomes effective, July 1, 2015. The procedures and guidelines should include an appeal procedure to the head of the public body, which can be the board or commission. Municipalities and public school districts should probably anticipate and budget for increased FOIA administration costs for fiscal years after July 1, 2015.

If you have any questions regarding Public Act 563 and its implementation, please contact Marshall W. Grate at mgrate@clarkhill.com | (616) 608-1103 or your Clark Hill PLC attorney.