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Response Timelines for the New FOIA

Kacie Kefgen

By Kacie Kefgen, MASB Assistant Director of Labor Relations and Legal Services

DashBoard, May 20, 2015

Over the last few weeks, we have highlighted some changes to FOIA that will be coming in July thanks to Public Act 563 of 2014. This week, we will update and recap some of the timeline requirements school districts ought to keep in mind when responding to FOIA requests.

Initial Responses

In the updated statute, the timelines for responding to FOIA requests are largely unchanged (MCL 15.235, effective July 1, 2015). Generally, a public body must respond to a request within five business days. For school districts, it is especially important to note that business days are defined as “consecutive weekdays, other than Saturdays, Sundays or legal holidays, regardless of when the particular public body is open for public business” (Attorney General Opinion No. 7172, p. 20, March 17, 2005). The public body may respond by:

(1) granting the request;

(2) issuing a written denial notice;

(3) grant the request in part and deny it in part; or

(4) issue notice that extends the response time for not more than 10 business days.

Unlike the current statute, the updated FOIA states that if a written request is sent by email to the public body, and that request is delivered to a spam or junk-mail folder, the request will not be considered to be received until one day after the public body becomes aware of the request.

Appeals of Request Denials

If the public body denies a request, the requestor may appeal that decision to the head of the public body. For school districts, the head is the school board. Within 10 business days after receiving the appeal, the school board must either:

(1) reverse the denial;

(2) issue a written notice upholding the denial;

(3) reverse the denial in part and issue a written notice upholding the denial in part; or

(4) in unusual circumstances, issue a notice extending the response deadline no more than 10 business days.

For school boards and other public bodies that have boards as heads, the public body is not considered to have received the written appeal until the first regularly scheduled meeting of the board following the appeal’s submission. A requestor may also choose to file a civil action in court to compel disclosure of the requested information (MCL 15.240, effective July 1, 2015).

Fee Appeals

Under the updated FOIA, a requestor may appeal fees that are in excess of the amount permitted under the public body’s procedures and guidelines. (MCL 15.240a, effective July 1, 2015). There are timelines for a public body’s response to these appeals. Specifically, within 10 business days, the head of the public body must respond to a written appeal by either:

(1) waiving the fee;

(2) reducing the fee with explanation;

(3) upholding the fee explanation; or

(4) issuing an extension of no more than 10 business days.

In addition to appealing to the head of a public body, a person may also file a civil action for excessive fees when the public body does not provide for appeals, has not responded to an appeal or if the head of the public body has issued a determination to an appeal.

This is merely a summary of the timeline changes to the FOIA rules coming on July 1. For details, please consult the statute and seek guidance from your retained legal counsel as your district updates its FOIA policies. MASB is also offering a webinar to guide districts in FOIA compliance this Thursday, May 21; there is still time to register here.

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