Major amendments to the Freedom of Information Act require local government attention now
In late 2014, the Freedom of Information Act was amended, changing how information requests are charged. In order for a local government to be able to charge anything public bodies need to adopt FOIA policies and guidelines before July 1, 2015.
Significant changes were made to Michigan’s Freedom of Information Act (FOIA) at the end of 2014. These changes, which take effect July 1, 2015, will require all public body’s to take action prior to July 1.
“Public body” is defined in FOIA (MCL 15.232(2)(d)) and generally means any unit of state government including employees (except governor, lieutenant governor, the executive office of the governor or lieutenant governor); any unit of any county, city, township, village, intercounty, intercity or regional governing body, council, school district, special district or municipal corporation; any other body which is created by state or local authority or which is primarily funded by or through state or local authority (except the judiciary).
Procedures and guidelines
Section 4 of the FOIA (MCL 15.234(4)) requires a public body to adopt procedures and guidelines for how FOIA requests are to be handled. Starting July 1, 2015, if procedures and guidelines are not adopted, then that public body cannot charge anything for FOIA requests, but will still have to respond to and fulfill any requests.
The procedures and guidelines need to be in writing, easily understood by the public. At a minimum they should include the following content:
- How to make a FOIA request
- How to understand public body’s written response(s)
- What fees are, how they are calculated
- When deposits are required
- Fee appeals process
- Standard form to itemize FOIA charges
In addition the procedures and guidelines might also include the following information:
- Handling fee waivers
- Fee reduction for late responses
- What public records are posted on line (and where to find them: specific URL given)
- Explain local rules for how to determine a FOIA request is received
- How oral requests are handled
Once adopted, a copy or summary of the procedures and guidelines (1) must be made available as a handout at the public body’s office. These copies must be available without charge. (2) Also, the procedures and guidelines shall be posted on the public body’s website, if there is a website. It needs to be available to anyone as a free download, or directly published on the webpage. (3) Finally, a copy must be included with the delivery of any requested records.
The process for calculating and charging fees for FOIA requests after July 1 2015 must be done with much more detail. The FOIA also indicates what can and cannot be charged for, how fees are calculated and maximum amounts that can be charged.
Starting July 1, 2015 when preparing the bill, or estimates, for FOIA must be itemized in detail using a standard form. There are seven categories which are itemized and required to appear on the estimate or bill:
- Labor costs for searching, locating and examining public records
- Labor costs for redaction (separating exempt from non-exempt material)
- Actual and most reasonably economical cost to provide copies on non-paper media (computer disk, USB drive, other electronic forms)
- Actual total incremental cost to duplicate copies on paper (photocopy)
- Labor cost directly associated with duplication (#3 and #4)
- Actual cost to mail at a reasonably economical manner
- Discounted price for indigent or nonprofits and others
Labor cost limits
As a general rule labor costs billed for a FOIA request continue to be only for the cost of the lowest paid person who is qualified and capable to do the work in order to fulfill the request. After July 15, 2015, the work done to process a FOIA request has to be broken into different categories, and only the rate for lowest paid person in who is qualified and capable to do the work in each category can be used to calculate what can be charged for that part of the FOIA request.
The four labor rates for “actual labor costs for the lowest paid person” capable to do to the work in each category – even if the same person does all the work are:
- Search, locate, examine records (only charge if “unreasonably high costs” to public body)
- Redact (separate public from non-public) records (only charge if “unreasonably high costs” to public body)
- Duplicate/copy the public records
- Contracted out labor
For example, person “A” is capable of redacting and searching for records. So his or her hourly wage rate is charged for work in items one and two. Person “B”, at a lower hourly wage rate, is able to run the copy machine to reproduce the desired copies. So the FOIA requires that lower hourly wage rate to be charged for that part of the work. Even if person “A” actually does the photocopying work, the lower hourly wage rate is what is billed (and estimated) for the FOIA request.
When calculating labor costs it is done by hourly rate times number of hours, but can be computed by increments less than an hour (e.g. 15 minutes) rounded down. The hourly rate can include an employee actual cost of fringe, or 50 percent of hourly wage for fringe costs, whichever is less. Overtime charges cannot be charged, unless the requestor includes that in his or her request to rush the response. A public body can choose to charge less than these labor costs.
If the public body decides it is necessary to contract out labor to do the work for a FOIA request (e.g., an attorney or consultant) then the maximum that can be billed for a FOIA request is six times Michigan’s minimum wage rate. For example the Michigan minimum wage is now (March 2015) $8.15 per hour, so the maximum that can be billed for contracted out labor is $48.90 per hour.
However the fee for search (search, examination, review redaction, separation) continues to be something that cannot charged for, unless “failure to charge a fee would result in unreasonably high costs to the public body because of the nature of the request in the particular instance, . . .” Starting July 1, 2015 it is required “. . . the public body specifically identifies the nature of these unreasonably high costs” (MCL 15.234(3)).
Other cost limits
For non-labor costs (to provide copies on non-paper media [computer disk, USB drive, other electronic forms], or duplicate onto paper) one can only charge the actual cost of media, copying, or photocopying. A public body is not required to make electronic copies in a manner that the public body does not have the technical capability to do. For computing costs of copying on paper it is the actual incremental cost, itemized per sheet of paper times the number of sheets of paper, so long as the cost is not more than ten cents per letter (8½ by 11) and legal (8½ by 14) paper. If possible, duplication shall be done on both sides of the sheet of paper.
Only the actual cost to deliver, using the least costly method of shipping can be charged (unless the requestor person asks for use faster/more costly delivery).
Waiving or reducing fees
The public body may reduce or waive the regular fee if the public body decides furnishing the records would primarily benefit the general public.
The first $20 of the fee is not charged to a person making a FOIA request who is indigent. That fee reduction is limited to two FOIA requests per year. The indigent person does not get the reduction if they are making the FOIA request on behalf of another whom is not indigent.
The first $20 of the fee is not charged to a state-designated nonprofit for certain mental health issues making request for itself, and consistent with its mission. The request is accompanied by documentation the non-profit qualifies for the discount.
Deposits and Nonpayment of Fees
Some FOIA requests may be estimated to cost more than $50. (Calculating the estimated cost has to be done in the same way, in the same detail, itemization, on a standard form as a FOIA bill, above.) If the estimated cost of the FOIA request is more than $50 the public body can require deposit paid up front. The required deposit cannot be more than one half total estimated fee.
The public body may refuse to fulfill the FOIA request if deposit is not paid (Michigan Attorney General Opinion #6977). The public body may refuse to provide the records, after copies are made and ready to pick up, if full payment is not made “prior to actual delivery of the copies” (Attorney General Opinion #6977). However, the public body may not refuse to fulfill the FOIA request because he or she had previously obtained the same records (Attorney General Opinion #6766).
After July 1, 2015 the public body can require a 100 percent of the estimated fee paid up front if a previous fee was not paid by the requestor, if each of the following is true:
- Previous unpaid fee is not more than 105 percent of the estimated fee
- The prior requested copy of records still exist
- The prior request was done within the time required by FOIA
- Ninety or more days passed since the requestor was told the previously requested records are ready to pick up
- The requestor cannot show proof of payment
- The public body has done detailed itemization of an estimate
Further a 100 percent deposit cannot be required if any one of these is true:
- Requestor shows proof of prior payment made in full
- Public body was paid
- 365 days have passed
Records on the Internet
If a FOIA request is received by a public body, and the requested records are on the public body’s Internet web page then a fee cannot be charged for the record. Instead the requestor shall be informed the requested material is on the public body’s web page with URL information that directly links to the requested information.
Penalties, Appeals, and Other Items
FOIA requests can be made orally (not in writing), and the public body can respond to oral requests. The public body informs the oral requestor what they want is on Internet, and where (URL), or process the FOIA request.
The FOIA still has the same time requirements to respond to a FOIA request (deadlines). If a public body does not respond to FOIA request by the deadline then the amount billed is reduced five percent for each day past the deadline up to 50 percent reduction of total fee. These reductions apply if the late response was willful and intentional and the FOIA request was in writing and it is clear it is a FOIA request.
The fees established in the FOIA do not apply if another statute sets its own fees for items covered by that statute.
The public body may set up an appeal system for someone to challenge the fees charged and estimated fees. This appeals system is new. (An appeals system for someone challenging withholding records, etc. still exists) The appeal system can take a decision of the FOIA coordinator to the public body, or it can directly go to the local county circuit court (or state court of claims for state entities).
Penalties for violation of the FOIA have been increased, and penalties for charging more fee than allowed have been added to the FOIA.
Michigan State University Extension has training programs on complying with the Michigan Freedom of Information Act and the Open Meeting Act. These programs are a couple of many MSU Extension offerings for local government and community, economic development officials. Contact your local government and public policy Educator to sponsor such training in your county.
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