Most public bodies are aware by now that the legislature passed significant amendments to the Freedom of Information Act (FOIA) at the close of their 2014 legislative session. These amendments are scheduled to take effect on July 1, 2015. The primary goals of the amendments were to put in place regulations requiring public bodies to make the FOIA process more transparent and to control the fees charged by public bodies in responding to FOIA requests. The following is a summary of the changes to the FOIA that every public body should be aware of. The end of the article addresses the steps that should be taken by public bodies to implement these changes.
- Procedures and Guidelines
The amendments to the FOIA will require amendments to existing FOIA policies to incorporate the amendments to the FOIA. These policies should also be retitled “Procedures and Guidelines,” and should include a description of the procedure for submission of a FOIA request, responding to a FOIA request, deposit requirements, fees, and how to challenge a response or charged fee. In addition, the amendments require the creation of a (1) clearly understandable summary of the public body’s procedures and guidelines and (2) form allowing for a detailed itemization of the fees charged in responding to requests. The Procedures and Guidelines and the public summary must be available to the public, provided with any FOIA response, and must be published on a public body’s website if they maintain one.
If a public body fails to establish procedures and guidelines or a public summary or fails to follow its procedures and guidelines, it MAY NOT charge a fee or deposit in responding to a FOIA request.
- Response to Requests
The timelines for responding to a request under the FOIA remain the same. However, the amendments require a public body to reduce the allowable fee by 5% per day for each day the public body is late in responding to a properly filed FOIA request. Failure to timely respond is still a denial under FOIA as long as the request was clearly designated as a FOIA request or, if not clearly designated, the failure to respond was willful or intentional.
- Electronic Records
The amendments to FOIA require a public body to inform a requester if the public records being requested are available on the public body’s website regardless of whether the request is received in writing or verbally. In responding to a written request, the public body is required to notify the requester that a portion of the records are available on the public body’s website, provide a link to the records if possible, and let the requester know that, if they would like the records in any other format, a fee will be charged for such records. A public body is prohibited from charging for records provided in response to a FOIA request if the records were otherwise available on the public body’s website unless the request specifically requests that the records be supplied to the requester in a different format.
- Requesters may ask for the records to be provided in electronic form. Public bodies are required to provide electronic records in a form that is as economical as possible. However, the amendments make clear that if the public body lacks the technology to provide the record in a particular electronic form requested, the public body is not required to provide the requester the record in that form.
- Deposits and Fees
As under the current FOIA, a good faith deposit of one-half of the total estimated fee may be required if the entire fee estimate exceeds $50.00. However, the request for a deposit must include (1) the detailed itemization form, (2) the public body’s procedures and guidelines, (3) the public summary, and (4) a “best efforts estimate” of how long it will take the public body to provide the records to the requester.
Under the amendments, a 100% deposit may be charged if the FOIA request is from a requester who has not paid for a previous FOIA fee in full to the public body. However, this 100% may be charged only if all of the conditions are present:
- The prior fee was not more than 105% of the estimated fee.
- The records from the prior request both contain all of the records requested in the prior request and are still in the public body’s possession.
- The records were offered to the requester by the public body subject to payment of the fees.
- At least 90 days have passed since the records were offered in writing to the requester.
- The requester cannot show proof of prior payment and continues to fail to pay for the prior request.
- A detailed itemization form has been prepared for the current request.
- Not more than 365 days have passed since the requester made the request for the request that has not been paid.
Under the amendments, the public body has the burden to demonstrate that the fees charged are compliant with FOIA. The bar set by the amendments to FOIA for charging a 100% deposit is quite high. Not only is the public body required to show that the current fees are allowable, but the public body will have to show that the prior fees were allowable, the prior response was complete, and that the 100% deposit is being charged within the narrow window of between 90 days from completing the prior request and 365 days from receiving the prior request.
As under the FOIA prior to the amendments, a public body may charge labor costs for (1) searching for, locating, and examining the records requested, or (2) the labor costs associated with duplication and publication of the requested records. Also, the labor costs may still not exceed the hourly wage of the lowest paid employee capable of performing the task. The amendments do, however, provide more specificity and detail with respect to what labor costs may be charged.
Labor costs for searching, locating, and examining the records must be charged in increments of 15 minutes, but rounded down. For example, if it takes 26 minutes to fulfill a FOIA request, only 15 minutes of labor may be charged. Labor costs associated with duplication and publication may be charged in an increment established by the public body, but also must be rounded down. Any labor fees must be itemized on the fee itemization form and demonstrate the hourly wage charged, the number of hours, and the percent added (not to exceed 50% of the labor charge) to cover the cost of fringe benefits. No overtime may be charged unless the requester specifically agrees to pay for overtime charges.
Remember that, as before, the labor costs for searching for, locating, and examining the records requested may only be charged if the failure to charge a fee for these costs would result in unreasonably high costs to the public body. This means that the cost to the public body to search, locate, and examine the public records requested exceed the usual or typical costs incurred by the public body in responding to FOIA requests. See Bloch v Davison Community Schools, No. 296003 (Mich App, April 26, 2011). As stated above, the public body has the burden to demonstrate that fees charged are compliant with FOIA. Thus, any public body should carefully consider whether labor fees for searching, locating, and examining the records meet this standard before charging these fees.
A bright spot in the amendments for public bodies, however, is that public bodies now may charge the labor costs incurred for redacting records by contracted labor under certain conditions and up to a certain amount. This cost recovery ability is most helpful where public bodies need their outside counsel to review their public records for appropriate redactions. Under the existing FOIA, public bodies have not been able to charge for these costs since Coblentz v City of Novi, 475 Mich 558 (2006) where the court held that only the labor costs incurred for employees could be charged under FOIA.
The “hard” costs for paper copies and mailing costs may still be charged. However, the charge for standard or legal size paper is limited to 10 cents per sheet and the most economical means must be utilized, including double-sided copies, if possible. Mailing must be done in the most economic manner. Expedited shipping or insurance charges may only be charged if the requester agrees. The public body may, however, charge for postal delivery confirmation if the method is the least expensive available.
The amendments expand the class of person entitled to fee waivers and provide further criteria for determining whether an individual is entitled to a fee waiver.
As under the existing FOIA, the first $20 of any fee must be waived for persons who are indigent. Under the amendments, an indigent is entitled to this waiver if the individual submits an affidavit specifying that the individual is indigent and receiving some type of public assistance, or otherwise demonstrates their inability to pay. Even if the indigent can demonstrate one of these two requirements, the requester is ineligible for a fee waiver if they have received a fee waiver twice in the same calendar year or the individual is requesting information on behalf of someone that is paying them to do so.
New in the amendments, the first $20 of any fee must also be waived for a very limited class of nonprofit organizations. These included only nonprofit corporations that are either designated by the state to carry out activities under subtitle C of the Developmental Disabilities Assistance and Bill of Rights Act of 2000 or the Protection and Advocacy for Individuals with Mental Illness Act. Even if the nonprofit corporations are so designated, the request must meet certain requirements under the amendments.
The amendments have made some changes to the denial appeals process and added a process for appealing the fees charged by a public body. The changes made to the appeal procedures for a public body’s denial of a records request include (1) extending the time for the head of the public body to respond to an administrative appeal from 10 days to 10 business days; (2) adding a civil fine of $1,000 to be deposited in the state general funds as a remedy for a successful court action; and (3) increasing the punitive damages allowable to $1,000 from $500.
As stated above, the amendments also added a process for appealing the fee charged by a public body. The procedure allows an “excessive fee” to be appealed either to the head of the public body or in court. The appeal to the head of the public body must be in writing and identify how the fee charged exceeds the amount permitted under FOIA. There is no timeline indicated in the amendments within which the appeal must be filed by the requester. The head of a public body must respond within 10 business days by waiving the fee, extending the time to respond for up to 10 more business days, or either reducing or upholding the fee. If the fee is reduced or upheld, the head of the public body must specifically detail how the fee complies with FOIA and certify that the statements are accurate and the fee complies with FOIA.
A court action may only be utilized after the requesting person exhausts his or her appeal of an excessive fee to the head of the public body. It must be filed within 45 days of receiving the notice of the fee if no appeal to the head of the public body is available or within 45 days from the determination by the head of the public body. The burden is on the public body to show that the fee is not excessive and complies with its procedures and guidelines. If the court finds the fee was excessive, the following remedies are provided:
- The fee shall be reduced to the amount permitted under FOIA.
- If the fee is reduced by 50% or more, the court may award attorneys’ fees and costs.
- If the court finds that the fee was charged in excess “arbitrarily and capriciously,” the court shall order a civil fine in the amount of $500 to be paid to the state general fund.
- If the court finds that the fee was charged in excess “arbitrarily and capriciously,” the court may also award punitive damages in the amount of $500 to the requester.
In order to implement these changes, each public body should review their existing FOIA policy and amend it in order to comply with the changes. A public body should prepare a document entitled “Freedom of Information Act Procedures and Guidelines” to describe in detail procedures and guidelines for submission of a FOIA request, responding to a FOIA request, deposit requirements, fees, and how to challenge a response or fee charged. Depending on the form of a public body’s current FOIA policy, the current FOIA policy may be amended to comply with this requirement. A public body must also prepare a written public summary of its “Freedom of Information Act Procedures and Guidelines.” This needs to be written in a manner that is easily understandable by the general public. Finally, a public body must prepare a detailed itemization for containing all of the information regarding fees required by the amendments. A public body may use a form created by the Department of Technology, Management and Budget or create their own. As of this writing, there is no form available from the Department of Technology, Management and Budget.
We would be happy to assist you with creating all or some of these required documents. This office will have available generic Procedure and Guidelines, Public Summary, and Itemization Form documents for purchase to be customized by your public body. We can also provide you with these documents customized to meet your public body’s needs. Please contact governmental law attorney Karrie Zeits for more information and details.