Paul
Bohn, Esq.
New
legislation passed in the last lame-duck session in Michigan will take effect
July 1, 2015 (PA 563 of 2014). Municipalities should begin preparing for
the significant changes as to how they can charge for responses to Freedom of Information Act (FOIA) requests now.
While
the changes are meant to shed some sunlight on government and increase
transparency, the FOIA amendments place many requirements on public bodies.
The
changes require local governments to establish specific written procedures and
guidelines for FOIA requests, including a separate written summary informing
the public on how to submit FOIA requests, how to understand the responses to
FOIA requests, deposit requirements, fee calculations, and avenues for
challenging and appealing a potential denial of a request.
Note,
these written guidelines must be in place in order for a public body to collect
deposits and charge fees allowable under FOIA.
If
your municipality has a website, which many now do, then it is required to post
the procedures, guidelines, and written summary on the website. In addition, it
is required to provide free copies of the procedures, guidelines, and written
summary upon request, and to include a free copy, or a website link to the
policies, in all FOIA responses.
The
procedures and guidelines must include a standard form to detail the
itemization of any fee the municipality estimates or charges under FOIA. The
itemization must clearly list and explain each of the six fee components authorized
under the new legislation.
There
are a bevy of other changes just around the corner in 2015, including a 10-cent
ceiling on charges for paper copies of public records. Municipalities may also
provide public information on the website, and, instead of providing paper
copies (unless requested) they can direct a FOIA requestor to that specific
website link.
Perhaps
the most notable amendments relate to the significant increase in penalties for
public bodies failing to comply or violating the act. The new changes:
- Increase mandatory punitive damages to be awarded to a plaintiff from $500 to $1,000, and mandates a new $1,000 civil fine which a court must award if it finds the public body has arbitrarily and capriciously violated the act.
- Require a court to impose an additional civil fine of $2,500 to $7,500 if it finds the public body willfully and intentionally failed to comply with the act or otherwise acted in bad faith.
Luckily,
some municipalities already have some of these new requirements in place.
However, now is the time to translate those practices into written guidelines
for the public, in addition to other house-keeping items to come into full
compliance with the FOIA amendment by July 1.
This
blog is meant only as a brief summary of what is a policy-wonk piece of
legislation. Fausone Bohn, LLP attorneys work with several municipalities
across southeast Michigan and western Wayne County. Please don’t hesitate to contact
us for consultation.
