SIGNIFICANT CHANGES TO MICHIGAN’S FREEDOM OF INFORMATION ACT (“FOIA”) WILL TAKE EFFECT IN 2015
If you regularly deal with FOIA, July 1, 2015 should be circled on your calendar. That is the day significant changes to FOIA go into effect. Those changes affect the information that public bodies must provide to the public about FOIA requests; fines associated with requests; and the penalties for failing to comply with a request or unsuccessfully challenging a request denial.
Public bodies that receive and must respond to FOIA requests will be impacted and should begin planning now to deal with these changes. In addition, those who regularly deal with governmental agencies and make FOIA requests should be aware of the changes to this legislation. These changes will require public bodies to establish written procedures and guidelines for FOIA requests, including a separate written summary informing the public on how to submit FOIA requests, how to understand the public body’s responses to FOIA requests, deposit requirements, fee calculations, and avenues for challenging and appealing the public body’s denial of a request.
Some highlights of the changes to FOIA that will take effect July 1, 2015:
- Public bodies must provide info about FOIA requests to the public free of charge. Any public body with a website is required to post the information on its website. Public bodies must also provide free copies of procedures, guidelines, and a written summary upon request, and must include a free copy, or a website link to the policies, in all FOIA responses.
- The procedures and guidelines must include a standard form itemizing any fees the public body estimates or charges under FOIA. This itemization must clearly list and explain the six fee components authorized under the new legislation, including several categories of labor costs associated with producing public records; costs of non-paper physical media used to produce public records (for example, CDs, DVDs or flash drives); copying costs; and postage costs.
- FOIA requestors can demand that the public body provide records on non-paper physical media, by e-mail, or otherwise produce public records electronically, as long as the public body has the technological capability necessary to provide records on the particular media requested.
- Charges for responding to requests are more heavily regulated. For example, a public body cannot charge more than $0.10/sheet for paper copies of public records (excluding labor costs). In addition, public bodies will be able to add costs for hiring outside contractors to separate exempt from non-exempt material, and may augment labor costs associated with responding to FOIA requests by up to 50% to cover the cost of employee fringe benefits.
- Public bodies can now require a 100% upfront deposit when it receives a request from an individual who has not paid the public body for records requested in the past.
- If information requested is available on the public body’s website, the public body may simply refer the requester to the website location in lieu of producing records. Also, if a public body receives a verbal request for information contained on its website, it must provide the requester with the relevant website address/location.
- The costs of enforcement of FOIA, and the penalties for non-compliance, have increased. Mandatory punitive damages awarded to a plaintiff are increased from $500 to $1,000, and the law creates a new $1,000 civil fine which a court must award if it finds the public body has arbitrarily and capriciously violated FOIA. Courts are required to impose an additional civil fine of $2,500 to $7,500 if it finds the public body willfully and intentionally failed to comply with the act, or otherwise acted in bad faith.
Those who regularly deal with FOIA requests should review the upcoming changes to FOIA and take steps to prepare for them now. The experienced attorneys of the Loomis Law Firm’s Municipal & Governmental Law practice group can assist you in getting ready for these changes. Please feel free to contact us any time to discuss these matters further: Kevin J. Roragen, Michael H. Rhodes, Warren H. Krueger III. or Colin W. Maguire.
