Governor Whitmer's Executive Order Relaxes Certain FOIA Response Requirements

On Sunday evening, April 5, 2020, Governor Gretchen Whitmer issued her Executive Order 2020-38, entitled “Temporary Extensions of Certain FOIA Deadlines to Facilitate COVID-19 Emergency Response Efforts.” As its name suggests, the Order relaxes some, but not all, deadlines and requirements for responding to FOIA requests, effective from its issuance until June 4, 2020, unless extended.

The Order emphasizes that public bodies must continue to respond to FOIA requests as expeditiously as possible, but recognizes that during the COVID-19 emergency, it is not possible in many cases to be as expeditious as in a non-emergency situation. Thus, the Order establishes four different categories of requests:

1. If a request is received at a public body’s physical office by mail, hand delivery or fax, the public body now has 10 business days (as opposed to 5 business days) to respond – and the 10-day clock does not start ticking until an employee of the public body physically opens the envelope containing the request or takes the fax off the fax machine. The public body is not obliged to send someone to the office to retrieve mailed, delivered or faxed requests.
2. If COVID-19 or compliance with any of the related emergency orders, such as the Governor’s “stay home – stay safe order, “interferes with the timely grant or denial of a request,” the public body may issue a notice extending the time to respond “for as long as the public body deems necessary,” but no later than June 4 or the expiration of any order that follows EO 20-38. “Interferes” is not defined. Presumably, the provision would apply if the FOIA Coordinator or others otherwise capable of responding are hospitalized or quarantined due to COVID-19 and unable to respond. It might also apply when a public employee is required to go to the office to determine what types or quantity of responsive information exist, although that would make this category difficult to distinguish from the category identified below.
3. If a request requires “in-person efforts,” such as in-person searches, inspections, examinations or production of public records by the requestor or the public body, the public body may defer the portion of the request requiring in-person efforts until the expiration of EO 20-38 or any subsequent order. If only part of a request is deferred under this provision, the public body must explain the deferral, the reason for the deferral, and must inform the requestor of the right to amend its request to exclude the deferred portion to allow for more prompt processing of the request. Unlike under Section 14 of FOIA, requiring that when a request seeks both exempt and non-exempt information the public body must produce the non-exempt information, this section of EO 20-38 does not require a response to those portions of the request that can be responded to without in-person efforts unless the requestor withdraws the portion of the request that is subject to deferral.
4. Although not expressly mentioned in the Order, the fourth category of requests is those that are made entirely electronically – i.e., via email or the public body’s website FOIA page, if any – and can be responded to electronically, without in-person efforts. For those requests, the Order makes no allowances, and the standard time deadlines apply – i.e., response within five business days of when the response is deemed received, which can be extended by 10 business days. 

FOIA continues not to provide deadlines for the production of information responsive to a FOIA request; rather, the statutory deadlines, as partially relaxed by EO 20-38, apply only to responses to requests. Generally, then, responsive documents must be produced in a reasonable time, and what is reasonable will almost certainly be affected by the exigencies of the COVID-19 emergency.

If you have questions about this or other FOIA-related issues, please contact Mark McInerney at mmcinerney@clarkhill.com or (313) 965-8383, or another member of Clark Hill’s Education Law group.