1. law, govt and politics

Changes to the Freedom of Information Act
PA 563 of 2014 (HB 4001)
2015 Capital Conference
March 25, 2015
Steven Mann, Senior Principal
UNITED STATES
CANADA
CHINA
POLAND
MEXICO
Recent Headlines
“Changes to Michigan’s FOIA drops cost of public
records”
– John Wisely, Detroit Free Press, Freep.com, Jan. 18, 2015
“What changes to Michigan’s public records law
mean for you…”
– “the most significant revision to Michigan's Freedom of Information Act
since it was originally written almost 40 years ago.”
– Craig Currier, Petoskey News-Review, Petoskeynews.com, Jan. 20,
2015
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Presentation Outline
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Requirement for Procedures and Guidelines
Responding to a Request
Records on Website
Charging and Calculating Fees
• Fee Waivers
• Deposits
• Appeals
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Requirement for
Procedures and Guidelines
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Procedures and Guidelines
• All public bodies must establish procedures and guidelines to
implement FOIA.
• Must create a written public summary of the specific
procedures and guidelines regarding how to submit written
requests and how to understand responses, deposit
requirements, fee calculations and avenues for challenge and
appeals.
• Must include a standard form for detailed itemization of any
fee in responses to written requests. This form must clearly
list and explain detailed and allowable charges for each of the
6 fee components.
– May use form created by the Department of Technology,
Management, and Budget.
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Procedures and Guidelines
• Must provide free copies of procedures and guidelines and its
summary upon request at the public office. Must provide free
copy with responses to written requests or include the website
link to the documents.
• Must post the procedures and guidelines on the public body’s
website (if public body directly or indirectly maintains an
internet presence).
• The public body may NOT charge a fee or deposit if it has not
established procedures and guidelines, created a summary,
made those items publicly available without charge, or fails to
follow the procedures and guidelines.
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Responding to a Request
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Responding to a Request
• Timeliness
– If the public body fails to timely respond to a request,
it must reduce the labor costs by 5% per day up to a
maximum 50% reduction, but only if:
• The late response was willful and intentional; OR
• The request included language requesting information
within first 250 words of the body of the correspondence
or the front of the envelope or subject line of the email,
letter, or fax included the following words, characters or
abbreviations, or recognizable misspellings: “Freedom of
Information”, “Information”, “FOIA”, “Copy”, or legal code
reference to the act.
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Responding to a Request
• When Notice is Received
– A written request by fax, email, or other electronic
communication is still considered received 1 business day after
the transmission is made.
– If a request by email goes to the Public Body’s spam or junk
mail folder, the request is not considered received until 1 day
after the Public Body first becomes aware of the request.
– Must keep a log of when request is delivered to the junk mail
folder and when the Public Body becomes aware of it.
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Responding to a Request
• Failure to Respond
Current Statute
Amendments
• Failure to respond Failure to respond only constitutes a denial
constitutes a denial if:
of the request.
• Failure was willful and intentional, OR
• The request included language requesting
information within first 250 words of the body
of correspondence or the front of envelope or
subject line of the email, letter, or fax
included the following words, characters or
abbreviations, or recognizable misspellings:
“Freedom of Information”, “Information”,
“FOIA”, “Copy”, or legal code reference to the
act.
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Records on Website
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Records on Website
Written Requests
• If the requested documents are available on the public
body’s website at the time the request is made, the
amendments prohibit the public body from charging for
them.
• If the FOIA Coordinator knows or has reason to know
that all or a portion of the requested information is
available on the website, he or she must notify the
requesting person in writing, including to the degree
practical, reference to the specific webpage address.
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Records on Website
• On the detailed itemization, the public body shall
separate the requested public records that are available
on its website from those that are not available on the
website and shall inform the requestor of the additional
charge to receive copies of the public records that are
available on its website.
• If the requestor subsequently requests the documents in
a different format, the public body may charge for
providing the documents and may charge more than the
50% fringe benefit multiplier (not to exceed actual cost).
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Records on Website
Verbal Requests
• If a verbal request for information is for information that a
public body believes is available on the public body’s
website, the public employee shall, where practicable
and to the best of the public employee’s knowledge,
inform the requestor about the public body’s pertinent
website address.
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Charging and Calculating
Fees
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Calculating Fees
The Amendments break the charges into the
following 6 Fee Components:
1. Labor Costs – Searching, Locating, and Examining of
Records*
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–
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Shall not exceed the hourly wage of the lowest paid employee
capable of performing the task. Itemize hourly wage and
number of hours.
Charged in increments of 15 minutes or more, with partial time
rounded down.
May add up to 50% of the applicable labor charge for fringe
benefits. Itemization must note percentage multiplier used.
No overtime unless stipulated by requesting person.
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Calculating Fees Continued
2.
Labor Costs – Redacting Records*
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–
–
–
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If performed by Public Body Employee, shall not exceed the hourly
wage of lowest paid employee capable of performing the tasks.
May charge for Contracted Labor if the Public Body does not employ
a person capable of redacting records as determined by the FOIA
coordinator. Must list the name of the person or firm contracted.
Contracted labor may not exceed 6 times the State minimum wage.
Itemize hourly wage and number of hours. Charged in 15 minute
increments or more, with partial time rounded down.
May add up to 50% of the applicable labor charge for fringe benefits.
Itemization must note percentage multiplier used.
No overtime unless stipulated by requesting Person.
If the Public Body knows or has reason to know the record has
previously been redacted and the redacted version is in Public Body’s
possession, it may not impose a charge.
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Calculating Fees Continued
*Labor Costs – May Not Charge Unless Unreasonably High
–
A fee shall not be charged for the cost of search,
examination, review, and redaction, unless failure to
charge a fee would result in unreasonably high costs to
the public body because of the nature of the request in
the particular instance, and the public body specifically
identifies the nature of these unreasonably high costs.
–
What are unreasonably high costs? See Bloch v Davison
Cmty Schools, No. 296003 (Mich.App. Apr. 26, 2011), 2011
WL 1564645.
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Calculating Fees Continued
3. Non-Paper Physical Media
–
For public records provided on non-paper physical media, the
actual and most reasonably economical cost of the computer
discs, computer tapes, other digital or similar media.
–
The requestor may stipulate the records to be provided on
non-paper physical media, emailed, or otherwise electronically
provided.
–
Only applies if Public Body has the technological capability
necessary to provide records in the requested electronic
format.
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Calculating Fees Continued
4.
Paper Copies
– Not to exceed the actual cost of duplication, not including labor.
– May only charge $0.10 per sheet for 8 ½ by 11 inch or 8 ½ by 14
inch paper.
– May only charge the actual cost of all other types of paper.
– Must use most economical means available, including double sided
printing.
– Itemization must express both the cost per sheet and the number of
sheets provided.
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Calculating Fees Continued
5.
Labor Costs – Duplication or Publication
– Cost of labor directly associated with making copies (paper or digital),
transferring digital records to non-paper physical media, or providing these
documents electronically.
– Shall not exceed the hourly wage of the lowest paid employee capable of
performing the task.
– Fee may be charged in any time increment established by the Public Body,
but all partial increments must be rounded down. Itemize hourly wage and
number of hours.
– May add up to 50% of the applicable labor charge for fringe benefits.
Itemization must note percentage multiplier used.
– Overtime wages may only be included if stipulated by requesting person.
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Calculating Fees Continued
6. Mailing
– Actual cost of mailing in a reasonably economical and justifiable
manner.
– May only charge for expedited shipping or insurance if stipulated
by the requesting person.
– May charge for the least expensive form of postal delivery
confirmation.
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Fee Waivers
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Fee Waivers
• Fees may be waived for Indigence or specific Nonprofit
Organizations.
Current FOIA Waiver
Amended FOIA Waivers
Indigence- shall furnish
record without charging
for first $20 of fee if
individual submits an
affidavit:
• that the individual is
receiving public
assistance, or
• stating facts showing
inability to pay due to
indigency.
Indigence- shall furnish record without
charge for the first $20 of fee for each
request if the individual submits an affidavit:
•
•
that the individual is indigent and receiving
specific public assistance, or
stating facts showing inability to pay due to
indigency.
Must notify the requestor if ineligible.
Ineligible if:
•
•
Previously received discounted records from
the public body twice in the same calendar
year, or
Requests information in conjunction with
outside parties who are offering remuneration.
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Fee Waivers Continued
• Fees may be waived for Indigence or specific Nonprofit
Organizations.
Current FOIA Waiver
Fee waived for
Indigence only.
Amended FOIA Waivers
Nonprofit Organization that is formally designated by
the state to carry out activities under subtitle C of
the Developmental Disabilities Assistance and
Bill of Rights Act of 2000 and the Protection and
Advocacy for Individuals with Mental Illness Act
shall receive records without charge for the first $20
of the fee for each request if the request:
• Is made directly on behalf of the organization or its
clients;
• Is made for a reason wholly consistent with the
mission and provisions of Sec. 931 of the Mental
Health Code; and
• Is accompanied by documentation of its
designation by the State, if requested by the
Public Body.
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Deposits
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Deposits
Current FOIA Statute
Good Faith Deposit – if the
authorized fee exceeds $50, may
require deposit not to exceed ½
the total fee.
Amendments
Good Faith Deposit – if the entire
fee estimate or authorized
charge, based on a good-faith
calculation, exceeds $50, may
require deposit not to exceed ½
the total estimated fee.
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The request for deposit shall
include a detailed itemization.
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Deposits
Current FOIA Statute
Amendments
-
The request must also include
a “non-binding” “best efforts
estimate” regarding the time
frame it will take the Public
Body to provide the public
records to the requestor.
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A deposit required by a Public
Body under the act is a fee.
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Deposits
• 100% Deposit The Public Body may require a deposit of 100%
from an individual who has not paid a previous FOIA fee in full to the
Public Body, before the Public Body begins another search for that
individual.
• May only require this deposit if:
– Prior final fee was not more than 105% of estimated fee.
– Records made available contained the information being sought in prior
request and are still in the Public Body’s possession.
– Public Records were made available to the individual subject to payment
within the time frame estimate.
– 90 days have passed since written notification to the individual that the
records were available.
– Individual is unable to show proof of prior payment to the Public Body, AND
– Public Body calculates a detailed itemization of the current request.
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Deposits
• Public Body shall no longer require an increased deposit
due to failure to pay if:
– Individual can show proof of prior payment in full;
– Public Body is subsequently paid in full; OR
– Three hundred sixty-five (365) days have passed since the
individual made the written request for which full payment was
not remitted.
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Appeals
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Appeals for Denial of Records
Current Statute
Amendments
Appeals to the Head of the Public
Body
Appeals to the Head of the Public
Body
•
•
Head of Public Body has 10 days to
respond
Head of Public Body has 10 Business
Days to respond
Appeals to Court
Appeals to Court
Venue• Commence action in a Circuit Court.
Venue
• Commence a civil action in the Circuit
Court OR if a decision by a state public
body in the Court of Claims.
•
Circuit Court for the County in which
complainant resides or has his or her
principal place of business or the
circuit court for the county in which the
public record or an office of the public
body is located.
•
Circuit Court for the County in which the
public record or an office of the public
body is located.
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Appeals for Denial of Records
Current Statute
Amendments
Fines and Damages
Fines and Damages
Arbitrary and Capricious- If court
determines public body arbitrarily and
capriciously violated FOIA by refusal
or delay in disclosing or providing
records, court shall award:
• Actual or compensatory damages;
• Punitive damages of $500 to
requesting person.
Arbitrary and Capricious- If court
determines public body arbitrarily and
capriciously violated FOIA by refusal or
delay in disclosing or providing records,
court shall order the public body to pay:
• A civil fine of $1,000 to be deposited
in state general fund;
• Actual or compensatory damages;
• Punitive damages of $1,000 to
requesting person.
Excessive Fee
Excessive Fee
Does not expressly provide for appeal
of an excessive fee.
Excessive Fees exceeding amount
permitted under Procedures & Guidelines
or Section 4 of the act may be appealed (if
provided for in Procedures) to the Head of
the Public Body or in a Civil Action.
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Appeals- Excessive Fee
• Head of Public Body- written appeal containing the word “appeal”
and identifies how the required fee exceeds the amount permitted.
– The Head of the Public Body shall within 10 business days respond
as follows:
• Waive the fee;
• Reduce* the fee;
• Uphold* fee; OR
• Extension- issue notice extending response time for up to 10
business days and detailing reason(s) why the extension is
necessary.
*In reducing or upholding the fee, the head of the public body must
provide a written determination indicating the specific basis that supports
the fee amount, and shall certify that the statements therein are accurate
and that the fee amount complies with procedures and guidelines and the
act.
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Appeals- Excessive Fee
• Civil Action- must file within 45 days after receiving
notice of the fee or after a determination of appeal to
Head of Public Body is received, but only if:
– Public Body does not provide for appeals to Head of Public
Body, or
– Head of Public Body failed to respond to written appeal, or
– Head of Public Body issued a determination to a written appeal.
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Appeals- Excessive Fee
• Civil Action
– If a civil action is commenced, Public Body does not need to
complete the request until it is resolved.
– The court shall determine the matter de novo.
– The burden is on the Public Body to establish that the fee
complies with the procedures and guidelines and the act.
– The court shall assign for hearing and trial or for argument at the
earliest practicable date and shall expedite the case in every
way.
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Appeals- Excessive Fee
• Civil Action
– If the court finds the fee exceeded the amount permitted under
the Public Body’s procedures and guidelines or FOIA, the court
shall reduce the fee to the permissible amount.
– If the court reduces the fee by 50% or more of the total fee, the
court may in its discretion, award all or an appropriate portion of
reasonable attorneys’ fees, costs and disbursements.
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Appeals- Excessive Fee
• Civil Action
– If the court determines the Public Body arbitrarily and
capriciously violated FOIA by charging the excessive fee,
the court shall order the Public Body to Pay a civil fine of
$500 which shall be deposited in the general fund of the
State Treasury.
– The court may also order the Public Body to pay
actual or compensatory damages, and punitive
damages of $500 to the person seeking the fee
reduction.
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Appeals- Excessive Fee
• Civil Action
– If the court determines the Public Body willfully and
intentionally failed to comply with FOIA or acted in bad faith,
the Public Body shall be ordered to pay (in addition to other
sanctions and awards):
• Civil fine of $2,500-$7,500 for each occurrence, which shall
be deposited in the general fund of the State Treasury.
• In determining the civil fine, the court shall consider the
budget of the Public Body and whether the Public Body has
previously been assessed penalties for violations of the act.
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Steven Mann is a senior principal with Miller, Canfield, Paddock and
Stone, P.L.C. practicing in the area of public finance and municipal law.
Steve specializes in complex issues related to the Freedom of
Information Act (FOIA) and the Open Meetings Act (OMA).
Steve co-authored the Sunshine Laws and Local Government
(OMA/FOIA) chapter of the Michigan Municipal Law handbook
published by the Institute of Continuing Legal Education in 2012.
Steve has served as counsel for several amicus curiae briefs in both the
Michigan Court of Appeals and the Michigan Supreme Court, arguing on
behalf of the Michigan Municipal League, the Michigan Townships
Association, the Public Corporations Section of the State Bar of
Michigan, and other municipal associations and their constituents.
Steve served twelve years on the Charter Township of Plymouth Board
of Trustees (2000-2012), including one term as Township Supervisor
and two terms as Trustee. He received his law degree, cum laude, from
Thomas M. Cooley Law School in Lansing, and his B.B.A., summa cum
laude, from Cleary University.
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Questions?
Steven Mann
(313)496-7509
[email protected]
UNITED STATES
CANADA
CHINA
POLAND
MEXICO