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State streamlines Freedom of Information Act requests
A new law that was signed by Gov. Rick Snyder in January will ensure local governments cannot charge excessive fees for requests under the state’s Freedom of Information Act.
The bill, which was introduced by Michigan Sen. Mike Shirkey, limits the per-page amount a municipality or other public body can charge for documents requested under the act, or FOIA, to 10 cents.
It also adds provisions on how and when labor costs can be charged.
Prior to the bill’s passage, a municipality could charge a fee for photocopying documents, with most of them typically charging 10 or 15 cents per page, according to Mark Nettleton, an attorney at Mika Meyers Beckett & Jones’ Grand Rapids office.
Nettleton said the new law places a greater burden on already cash-strapped municipalities, by not allowing them to charge for the true cost of fulfilling FOIA requests.
Nettleton said just producing the fee schedule — a new requirement of the law — places a financial burden on municipalities.
“It imposes an obligation on a municipality to provide a requesting party with a summary of the fees and how they are going to be calculated and an estimate on what the fees are going to be to search, retrieve and copy and deliver the document,” he said.
“That is an upfront cost that will have to be addressed, and does (the fee schedule) comply with the requirements of the statute? So time and cost in formulating the policy, but also having it reviewed, and that policy also has to be distributed with every FOIA request and you can’t charge for that.”
Another obligation placed on municipalities is that if somebody requests a document and the document is online, the municipality must tell the requesting party the online address where it can be found.
Spam folder messages
Nettleton does think there are a couple of ways municipalities will benefit under the law.
“It deals with the question of what if somebody emails a FOIA request to the FOIA coordinator and that FOIA request gets caught in the spam filter and you don’t discover it until days later,” he said. “Under the statute as it was, you have five business days to respond to the request.”
So the question was when did those five days start — from the date the email was sent or the date it was discovered?
The law clarifies that if the FOIA coordinator finds a request in their spam folder that was sent three days prior, those five business days begin on the day the email was discovered.
The law also allows for the passing on of some attorney fees in cases when a city needs its outside counsel to review court documents for privileged information that would not be subject to a FOIA request.
“An example would be invoices for legal services, which may contain attorney-client privileged information,” Nettleton said. “That determination, whether or not its privileged information, is often made by a municipality’s legal counsel. . . . And there is a cost involved for that review.
“This amendment puts in a provision that allows for recovery of some but not all of outside legal counsel time with review and determination as to exempt and nonexempt (information).”
A "sunshine law"
Nettleton said during his many years of experience representing municipal clients, he has never had to advise one that its fees were too high or had a municipal client suggest it could raise its fees to prevent someone from making a FOIA request.
Overall, Nettleton said the law places a greater financial burden on municipalities.
“The intention of FOIA is a sunshine law — to provide openness and transparency as to what government is doing,” Nettleton said. “This statute amendment helps in that transparency by saying municipalities have to identify the costs up front, but it keeps that tension between the openness, transparency and the right to know and what is the cost to produce those records and the behind-the-scenes costs.”