2014 MACP Mid-Winter Conference
Presented by the Michigan Municipal League’s
Audrey Forbush, LEAF Legal Advisor,
Plunkett Cooney PC
Gene King, LEAF Coordinator

Michigan Freedom of Information
Act (FOIA or the Act), Public Act 442 of 1976; MCLA Sections 15.231 -
15.246

 FOIA focuses on the citizens’ right to be informed of what their government is up to.

 Do we have to produce records?
 How do we respond?

 “FOIA'" favors full disclosure
 Exceptions to full disclosure will be narrowly construed
 Courts look to plain language in statutes to interpret intent

 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

 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.

 Coordinator must respond within five business days of the original request.
 Failure to respond is a denial of access to the record.

 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.

 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.

 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.

 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.

 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.

 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.

 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)

 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.

 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.

 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

 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)

 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)

 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.

 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.

 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).

 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.

 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

 Public body may require a "good faith" deposit at the time the request is made, if the fee exceeds $50.

 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

 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

 May not use failure to pay on prior occasions as basis for refusing to process a subsequent request. Atty
General Opinion No. 6977 (1998).

 Possible Responses:
• Grant request
• Issue written notice denying request
• Grant in part, deny in part (in writing)

 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

 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

 Signature by FOIA coordinator
 Coordinator- city, village, county designated by public body
 Chief Administrative Officer is FOIA
Coordinator for all other public bodies

• 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.

 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

 If court determines the public body acted arbitrarily and capriciously in violation of the Act, it can assess punitive damages.

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.

Michigan Municipal League’s
Law Enforcement Action Forum
AUDREY FORBUSH, LEAF LEGAL ADVISOR, www.plunkettcooney.com/people-175.html
GENE KING, MML LEAF COORDINATOR gene.king@meadowbrook.com