June 9th, 2015

Counties, cities, villages, townships, school districts, and all other Michigan public bodies will be required to comply with a complex set of new regulations under Michigan's Freedom of Information Act beginning July 1, 2015.

The new FOIA regulations require municipalities to itemize fees for fulfilling FOIA requests into 6 components. The rules for each component are intricate, including varying rules for charging increments of time for finding, redacting, and copying public records. A fringe benefit multiplier (up to 50{351e402fef7ca055ab1ee0cd533e29a1cb516f8e9859f56b3541f03029888404}) may now be included in the public body's labor charges. The fee components also include actual mailing costs, actual paper costs (but no more than 10 cents per page for letter and legal size copies), actual nonpaper media costs if records are provided in nonpaper formats such as DVDs, CDs, and flash drives, and actual mailing costs.

Under the new law, requesters are authorized to mandate the type of nonpaper media they would like the public body to utilize for providing the requested public records. Public bodies must honor the requester's mandate unless they lack the technology to do so.

The new regulations also include an entirely new process for appealing a FOIA fee. The law also includes new rules for requests from the indigent, requests from certain nonprofit organizations, and requests from individuals who are delinquent in paying for previous requests. In addition, municipalities must reduce their fees by 5{351e402fef7ca055ab1ee0cd533e29a1cb516f8e9859f56b3541f03029888404} for each day a FOIA response is late, up to a maximum of 50{351e402fef7ca055ab1ee0cd533e29a1cb516f8e9859f56b3541f03029888404}.

The new law requires every public body to create specific written procedures and guidelines for processing FOIA requests, including how fees will be calculated and itemized, as well as a written "public summary" of those procedures and guidelines. If the public body has an official internet presence, the procedures and the summary must be maintained online. Every FOIA response must now include a reference to the website link where the procedures and the summary can be found. Communities without an internet presence will be required to include free copies of their procedures and public summary with every FOIA response.

Penalties for noncompliance by public bodies have been increased. For arbitrary and capricious violations, punitive damages of $1,000 will be awarded to the requester, as well as a civil fine of $1,000 to be paid by the municipality into the State Treasury. For bad faith or willfully/intentionally failing to comply with the law, the court will impose an additional civil fine of $2,500 to $7,500.

Any county, city, village, township, or school district in need of personalized training on all of the new law's requirements should contact Donald DeNault, chairperson of the firm's Municipal Practice Group.

Categories: Municipal