Michigan Court of Appeals Clarifies When Documents Produced Under FOIA Are Due
Michigan's Freedom of Information Act ("FOIA") has, from its enactment, expressly provided that a public body must respond to a proper request for documents within five business days of when the request is received (subject to an extension of up to ten business days when circumstances require). But FOIA has never clearly established when the requested documents need to be produced. Some requesting parties, along with an occasional court, have argued that the deadline for producing documents is the same as that for responding to a request, even though the statute contains no such provision.
In Cramer v Village of Oakley, a published Michigan Court of Appeals opinion issued on June 23, 2016, the Court rejected the notion that documents are to be produced under the same schedule as for FOIA responses. In Cramer, the plaintiff submitted six FOIA requests to the Village, which timely responded that the requests were granted and that the documents would be produced after a search of Village records. The plaintiff promptly filed suit, taking the position that the Village had denied the request by failing to produce the records when it responded to the request, and seeking sanctions, including attorney fees, for an improper denial. The Circuit Court accepted this position, and assessed sanctions of $6,000 against the Village.
The Court of Appeals reversed, holding that FOIA "does not mandate that a FOIA recipient, upon granting a FOIA request, deliver the requested documents within the time period specified for responding to the FOIA request." The Court drew a distinction between the "granting" of a request and the "fulfillment" of the request, concluding that the public body could comply with the statute by "granting" a request within the statutory time periods and then "fulfilling" the request by producing documents at a later date.
The Court cautioned that this decision should not be read as giving a public body "carte blanche not to produce responsive documents," although it declined to set any sort of firm deadline. The Court observed that nothing prevented a plaintiff faced with an "inordinate delay" in producing promised documents from filing suit claiming that the delay in making production amounted to a denial of the request, and further noted that Section 10 of FOIA permits punitive damages for an arbitrary and capricious "refusal or delay in disclosing." Under Section 4 of FOIA, a public body is required to provide with its response a good faith estimate of when documents will be produced, and the implication is that if such an estimate is given and then missed by a large margin relief may be available to the party making the request.
This decision may be appealed to the Michigan Supreme Court, and thus may not be final until the Supreme Court either declines to take the case or rules on it. Until then, the Court of Appeals' decision is binding throughout the state.
If you have questions about this or other FOIA issues, please contact Mark McInerney at (313) 965-8383 | firstname.lastname@example.org, or another member of Clark Hill's Education Law group.
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