Recent Changes to the Freedom of Information Act may Impact Local Communities

On December 19, 2014, the state legislature passed HB 4001, a bill significantly amending the Freedom of Information Act’s (FOIA) charging requirements and penalty provisions. The new rules are set to take effect on July 1, 2015. These new statutory rules will require most public bodies to revisit their FOIA policies and guidelines. The following is a brief summary of these statutory changes.

Changes to FOIA Charging Policies

FOIA has always provided a means for the public bodies to recoup some of the costs involved in responding to FOIA requests. The recent amendments alter the way those fees may be recouped, and, in some instances, caps the amounts that may be charged.

MCL 15.234(1)(d) provides that a public body may charge the actual costs of making paper copies, but the cost per sheet may not exceed $0.10/page, if the copies are made on standard 8 ½” by 11” or 8 ½” by 14” paper. Under MCL 15.234(1)(c), if the requestor asks for the records to be provided in non-paper format, such as on CD-rom or other digital format, and the public body has the capabilities, it may charge the actual cost of reproduction, so long as those costs are reasonably economical.

A public body may charge for certain labor costs incurred in responding to FOIA requests. MCL 15.234(1)(e) allows the public body to charge for labor incurred to make copies or create other digital media. MCL 15.234(1)(a) allows the public body to charge the cost of labor incurred to search for and locate public records in order to respond to a FOIA request. MCL 15.234(1)(b) allows the public body to charge for labor incurred to separate and delete exempt from non-exempt materials. Under this section, a public body that does not have an employee capable of making those deletions and/or separations may contract those services to an outside individual or firm (such as outside legal counsel), and pass of those labor costs. Charges for labor costs for the outside individual or firm may not exceed 6 times the state minimum wage. Currently, the minimum wage is $8.15, meaning the most a public body may charge for its outside legal counsel to separate and delete exempt from non-exempt materials is $48.90. Labor costs associated with searching, separating and deleting must be calculated in 15 minute increments, and must be rounded down. Labor costs for making copies, however, may be calculated in whatever increment the public body chooses. Just as under the previous version of FOIA, the public body must show that a failure to charge for labor associated with searching, examination, separation and deletion would result in unreasonably high costs to the public body before it may charge for those costs. The public body may charge for labor costs associated with making copies without such a showing.

Under MCL 15.234(4), the public body must establish procedures and guidelines to implement its charging policies. A public body may not charge for responding to a FOIA request unless it has already established and published these guidelines. Further, the public body must include a copy of its charging procedure and guidelines whenever it responds to a FOIA request. If the public body has posted its procedures to its website, it may simply provide a link to that website in its FOIA response. All charges must be identified on a detailed itemization. The public body is required to either create its own standard itemization form as part of its policies and guidelines, or use a standard form created by the Michigan Department of Technology, Management and Budget.

For every day that a public body is late in responding to a FOIA request, the total amount of labor it is able to charge must be reduced by 5%, up to a 50% total reduction. A public body may require a 50% deposit if the estimated costs exceed $50.00. If the requestor fails to pay after a request has been made, and the total fees did not exceed 105% of the original estimate, the public body may require a 100% deposit from that particular requestor for its next FOIA request.

Electronic Requests

The new amendments take into consideration the fact that many FOIA requests are sent by e-mail. A public body is not considered to have received a FOIA request send by e-mail or other electronic means until the next business day. Further, if the request is filtered into the public body’s junk or spam folder, it will not be considered received until one day after the public body actually becomes aware of the request.

Appeals, Civil Actions and Penalties

A requestor that is not satisfied with a FOIA response may either file an appeal to the head of the public body, or file a suit in circuit court. The new amendments increase the potential civil fine for a public body that acted arbitrarily and capriciously from $500 to $1,000, which is paid directly to the state treasury. The public body must also pay $1,000 punitive damages award to the successful litigant.

The new amendments also provide for procedures to challenge the fees a public body charges. MCL 15.240a provides that the requesting person must first file an appeal to the head of the public body identifying how the requested fee exceeds the amount allowed under the statute. If the public body denies the appeal, does not respond to the appeal, or its procedures do not allow for fee appeals, the requester may file a civil action challenging the fee. The civil action must be filed within 45 days of receipt of the appeal decision, or if no appeal procedure is available, receipt of the itemized statement. If the requesting person prevails in the action by receiving a reduction of 50% or more of the fee, the court may award attorney fees. If a public body is found to have acted arbitrarily and capriciously, it shall be ordered to pay a fine of $500 to the state treasury. The court may also award $500 in punitive damages to the individual.

MCL 15.240b provides for further penalties if a court, in any FOIA action, determines that the public body willfully and intentionally failed to comply with the statute, or otherwise acted in bad faith. In such a case, the public body shall be ordered to pay a civil fine of between $2,500 and $7,500 for each occurrence, which shall be deposited into the state treasury.

One of the only amendments that appears favorable to public bodies, at least on its face, is the venue provision for civil actions. Under the prior version, a requester had the option of filing suit in either the circuit court where he or she resided, or where the public body was located. Under the amendment, all FOIA suits must be brought in the jurisdiction where the public body resides.

Conclusion

With these new amendments scheduled to take effect on July 1, 2015, it is important that public bodies familiarize themselves with the changes, as well as prepare and implement new FOIA fee charging policies and guidelines. Without new policies and guidelines in place, public bodies may not charge for responding to FOIA requests. Further, without policies and guideline. Mmmkkkmms in place that strictly comply with the statutory requirements, a public body risks increased civil fines and penalties.

Andrew Brege is a partner in our Grand Rapids office.  He may be reached at (616) 975-7470 or abrege@cmda-law.com.