Transcript 2014 FOIA Winter Conference Program by King and Forbush

Michigan Freedom of
Information Act
2014 MACP Mid-Winter Conference
Presented by the Michigan Municipal League’s
Audrey Forbush, LEAF Legal Advisor,
Plunkett Cooney PC
Gene King, LEAF Coordinator
" FOIA LAW"
Michigan Freedom of Information
Act (FOIA or the Act), Public Act 442
of 1976; MCLA Sections 15.231 15.246
FOIA – Purpose
 FOIA focuses on the citizens’ right
to be informed of what their
government is up to.
FOIA - 2 Questions
 Do we have to produce records?
 How do we respond?
Guiding Principles
 “FOIA'" favors full disclosure
 Exceptions to full disclosure will be
narrowly construed
 Courts look to plain language in
statutes to interpret intent
Compliance with FOIA
 Identify and designate FOIA
coordinator
 Make sure FOIA coordinator has
education on the requirements of
FOIA
 Have an attorney/counsel selected
to obtain answers on Act
FOIA Request Requirements
 Must be in writing (No Matter What
Form!) and provided to the Public
Body who should get it to the FOIA
coordinator ASAP to respond.
 Must describe record(s) requested
sufficiently enough to identify what
they are seeking.
FOIA Request Requirements:
Response
 Coordinator must respond within
five business days of the original
request.
 Failure to respond is a denial of
access to the record.
FOIA Request Requirements :
Response
 The municipal body, in writing and for
stated specified reasons, can notify the
requester the deadline is being extended
for an additional ten business days.
 By end of the extended period the
requester must be notified, in writing,
whether the request is granted, denied,
granted in part or denied in part.
FOIA Request Requirements:
Public Record
 A writing prepared, owned, used, in the
possession of, or retained by a public
body in the performance of an official
function, from the time it is created.
 Include computerized data but not
computer software.
FOIA Request Requirements:
Public Record
 For a document to be a record, it must
have been stored or retained by the
public body in the performance of an
official act, which could include a private
document depending on its use by the
public body even if held on an officials or
employees privately owned electronic
device. Include computerized data but
not computer software.
FOIA Request Requirements:
Public Record
 The Act separates public records into the
following two classes:
 (i) Those that are exempt from
disclosure under section 13, and,
 ii) those that are subject to disclosure
under the Act.
FOIA Request Requirements:
Public Record
 Howell Educ. Ass'n v Howell Bd. of Educ.,
-- N.W.2d --, 2010 WL 290515 (Mich. App. 2010)
 Documents that are in the possession
of a public body are not a record
unless the use or retention of the
document is in the performance of an
official function.
If Record Exists But Not In Format
 MCL 15.233 (4): public body does not
have to create a compilation, summary or
report that does not already exist.
 Herald v City of Bay City, 228 Mich App 268,
577 NW2d 696 (1998),
 Public body may not avoid compliance
because no single document contains the
requested information. The public body has a
duty to provide whatever documents do
contain the information, and redact any
information exempt as personal.
 If requested, the public body is required to
provide a certified copy of a record.
If Record Exists But Not In Format
 Federated Publications, Inc. v. City of
Lansing, 467 Mich. 98, 102; 649 NW2d 383
(2002)
 If the request is denied in any manner,
including redaction or separation, the
public body must provide the requester
with a written response stating the
reason for the denial, including an
explanation of the basis for any claimed
exemption from disclosure.
MCL 15.235(4) (a)
Privacy and Exemption
 Midwestern Audit Services, Inc v
Department of State Police, No218066,
Unpublished, (2000)
 “The core purpose of the FOIA is not fostered by
disclosure of information about private citizens
that is accumulated in various governmental files
but that reveals little or nothing about an agency’s
own conduct.”
 Baker v. City of Westland (Michigan Court of
Appeals, 2001)
 FOIA privacy exemption shielded auto accident
victims’ personal information (names, addresses,
and injury details) from disclosure.
Not Really FOIA, But Kinda!
 PA 218 & 219 (2013), Change In Michigan
Law beginning January 1, 2014
 Establishes 30 day grace period for direct
solicitation to provide a service to individual or
immediate family members involved in an accident.
 Requires statement to LE agency that receiver of
accident report acknowledges they can not commit
the prohibitive activity.
 Violation a Misdemeanor and Fines are hefty
 First Conviction $30,000 fine
 Second or more Conviction $60,000 and/or 1 yr.
jail
 Contact Entity Legal Advisor for guidance.
Privacy and Exemption
 Mager v Department of State Police, 460
Mich 134; 595 NW2d 142 (1999)
 The information must be of a personal nature,
and
 The disclosure of the information must
constitute a clearly unwarranted invasion of an
individual’s privacy.
 Family Educational Rights and Privacy Act
of 1974, (Title IV, Public Law 90-247, 20 U.S.C.
1232g)
 restricts the release of student record
information
Privacy and Exemption
 Sutton v City of Oak Park No.229640 (May 14,
2002)
 Newark Morning Ledger co v Saginaw
Co Sheriff, 204 Mich App 215, 223; 514 NW2nd
213 (1994)
 Federated Publications v City of
Lansing, No. 218331, Unpublished (November 14,
2000)
 Bradley v Saranac Community Schools
Bd of Education, 455 Mich 285, 565 NW2d 650
(1997)
Privacy and Exemption
 MCL 15.243, Sec 13
 Commonly Cited by Law Enforcement:
 (a) Invasion of a person’s privacy,
 (b) Investigating records compiled for law
enforcement purposes (i) through (vi),
 (o) Records of a law enforcement agency,
codes and deployment,
 (t) Public Records of Law Enforcement (i)
through (x)
Privacy and Exemption
 Evening News Association v City of
Troy, 417 Mich 481 (1983), reh den
 Set the guidelines that the public body
must use to support using the
Investigating Records exemption.
 A public body seeking to claim the
exemption must show how disclosure
of the particular requested document
would interfere with proceedings.
 Set 6 Rules to follow.
Comply With Redaction, Separation
or Deletion
 If the decision is to redact or deny,
the Coordinator must provide the
requester with written
documentation that the request is
denied in part and describe the
information that is separated,
deleted or redacted.
 Use the language as described in
Sec 13, Exemptions.
Protect Records
 Municipality can make "reasonable"
rules necessary to protect records
and to prevent excessive and
unreasonable interference with
discharge of its functions. MCL
15.233(3).
Protect Records
 Requester can view the redacted or
non-exempt record, at facilities
provided by the public body during
normal designated business hours.
 Can be supervised.
 Certain documents may view but not
touch them.
 Requester can ask for hard or
electronic copies.
Payment Obligations
 May charge a fee for search and
copying of records
• Actual mailing costs
• Actual incremental costs of
duplication or deletion and
separation of exempt from nonexempt information
Payment Obligations
 Public body may require a "good
faith" deposit at the time the request
is made, if the fee exceeds $50.
Payment Obligations
 Deposit cannot exceed one half of
the fee. MCL 15.234(2).
 Charge may not exceed lowest
hourly wage level paid to employee
of public body capable of retrieving
information
 Fees must be uniform
Payment Obligations
 Fee shall not be charged for cost of
search, examination or review,
unless failure to charge the fee will
result in unreasonably high costs
 Public body must establish and
publish procedures and guidelines
 May require that the fee be paid in
full prior to providing documents
Payment Obligations
 May not use failure to pay on prior
occasions as basis for refusing to
process a subsequent request. Atty
General Opinion No. 6977 (1998).
Compliance with Request
 Possible Responses:
• Grant request
• Issue written notice denying request
• Grant in part, deny in part (in
writing)
Compliance with Request
 Written notice denying request must
contain:
• Explanation of basis for denial
(tied to statute)
• Certificate that record does not
exist under name provided by
requestor, or by any other name
reasonably known to public body,
if that is the basis for the denial
Compliance with Request
 Description of records or
information separated or deleted
from the records provided;
 Full explanation of requesting
person's rights to either appeal
decision to head of public body or
to seek judicial review, and notice
that requestor may get damages and
attorney fees if requestor prevails in
lawsuit
Compliance with Request
 Signature by FOIA coordinator
 Coordinator- city, village, county designated by public body
 Chief Administrative Officer is FOIA
Coordinator for all other public
bodies
Compliance REMINDER
• Coordinator must provide, in writing, a
full explanation of the requester’s right to
file a written appeal to the head of the
public body or to seek judicial review.
• Requester must be notified that he or she
has the right to receive attorneys’ fees
and damages if the court determines the
public body did not comply with the law
and orders disclosure of all or part of the
public record.
FOIA Civil Action
MCL 15.240
 180-day limitation period (after
public bodies' final determination)
 Court - Can order disclosure, shall
award reasonable attorney fees and
costs, if requesting party prevails
 If the public body prevails, court
may award attorney fees and costs
FOIA Civil Action
MCL 15.240
 If court determines the public body
acted arbitrarily and capriciously in
violation of the Act, it can assess
punitive damages.
LEAF NEWSLETTERS
MML Law Enforcement Action
Forum Newsletters at:
http://www.mml.org/insurance/shared/risk
_resources/leaf_newsletters.html
OR GO TO:
mml.org, click Insurance, click Pool or
Fund, Left side of screen are Risk
Resources, Scroll down to Law
Enforcement Newsletters.
Thank you!
Michigan Municipal League’s
Law Enforcement Action Forum
AUDREY FORBUSH, LEAF LEGAL ADVISOR,
www.plunkettcooney.com/people-175.html
GENE KING, MML LEAF COORDINATOR
[email protected]