Significant FOIA Changes are Coming

Recent changes to Michigan’s Freedom of Information Act will go into effect on July 1 of this year. The MASB Legal Team recommends that districts start becoming familiar with these changes now, as some of them are quite significant:

  • FOIA requests must be fulfilled free of charge, unless doing so would result in “unreasonably high costs” to the public body.
  • FOIA guidelines detailing procedures and costs (if any) must be created, and a standard form must be developed that itemizes possible fees and other charges. The new law delineates six different fee components, such as the cost of the media used to provide the documents (CD, flash drive, etc.), several labor cost categories (“searching” versus “reviewing” versus “copying”), postage and so forth. Costs are capped at different hourly rates based upon the work being performed.
  • Public bodies must provide information regarding FOIA requests (how to make them, what they may cost) to the public free of charge, as well as post this information to their website (if they maintain one). Free copies of the FOIA guidelines must also be available upon request and must be provided as part of every FOIA response.
  • If the FOIA information requested is available on the public body’s website (i.e., agenda minutes), the requestor may simply be referred to the website link containing the information.
  • Public bodies are now allowed to require a 100 percent deposit, in advance, when responding to a FOIA request from an entity that has yet to fully pay the district for a prior FOIA request. A 50 percent deposit can be required for requests with an estimated cost of more than $50 (provided the costs are itemized as required).
  • Requestors can now demand that the documents/information be provided in an electronic form if the public body has this capability.
  • The rules regarding what to charge have become more stringent. No more than 10 cents per sheet can be charged as a copying cost. Labor costs are based upon minimum wage multipliers, with outside contractors allowed with respect to the review function (identifying relevant documents, redacting excluded information, etc.). Up to 50 percent of the labor costs can be added back into the total costs to cover employee fringe benefits.
  • The penalties for failing to comply with a FOIA request, as well as the costs of enforcement, have all increased. There are now mandatory punitive damages of $1,000, awarded to the plaintiff, in addition to a civil fine of $1,000 should a judge find that a public body violated FOIA in an arbitrary or capricious manner. Willful or intentional violations or FOIA rejections issued in “bad faith” can result in civil fines between $2,500 and $7,500. There are also cumulative penalties for missing deadlines.

There are additional details and nuances to these changes that all FOIA coordinators should be aware of. In the coming months, MASB will develop additional tools and references so that districts are fully prepared come July 1.