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.