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Michigan Freedom of Information Act

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The Michigan Freedom of Information Act is a series of laws designed to guarantee that the public has access to public records of government bodies at all levels in Michigan. The first version of the law was enacted by the state legislature in 1977. The provisions of the law are included in MCL (Michigan Compiled Laws) Sections 15.231 -15.246.

The Michigan Open Meetings Act (OMA) requires that governmental meetings be conducted in public, with certain exceptions. It governs the procedures by which the public must be notified of meetings. It is enacted in MCL 15.261, et seq.

To learn more about how to make a public records request in this state, please see Michigan FOIA procedures.

Relevant legal cases

See also: Court cases with an impact on state FOIA and Michigan sunshine lawsuits

Here is a list of relevant lawsuits in Michigan (cases are listed alphabetically; to order them by year please click the icon to the right of the year heading).


Lawsuit Year
Booth Newspapers Inc. v. Muskegon Probate Judge 1968
Booth Newspapers Inc. v. University of Michigan Board of Regents 1993
Bradley v Saranac Community Schools Board of Education
Breighner v. Michigan High School Athletic Assoc. 2004
Burton v. Tuite 1889
Detroit Free Press v. City of Allen Park 2005
Detroit Free Press v. City of Detroit 2005
Detroit Free Press v. Michigan Attorney General 2005
Detroit News v. Policemen and Firemen Retirement System 2002
Federated Publications, Inc. v. Board of Trustees of Michigan State University 1999
Herald Co. v Ann Arbor Public Schools
Herald Co. v Bay City
Howell Education Association v. Howell Board of Education 2010
Jackson v. Eastern Michigan University 1996
Kubick v. Child and Family Services of Michigan Inc 1988
Mullin v. Detroit Police Dept. 1984
Nowack v. Auditor General 1928
Proctor v. White Lake Police Dept. 2001
State Defender Union Employees v Legal Aid & Defender Association of Detroit 1998
State Employees Association v. Dept. of Management and Budget 1987
Swickard v. Wayne County Medical Examiner 1991


Proposed changes

2013

We do not currently have any legislation for Michigan in 2013.


2011

See also: Proposed reforms in state sunshine laws, 2011


We do not currently have any legislation for Michigan in 2011.


2010

See also: Proposed reforms in state sunshine laws, 2010


We have no current bill pages for Michigan from 2010. This may be due to incomplete research.


Proposed bills, 2009

See also: Proposed reforms in state sunshine laws, 2009

House Bill 4043 would create a searchable database of state expenditures. Referred to Committee on Oversight and Investigations on January 22, 2009 and reassigned to the Committee on Urban Policy on February 4, 2009.[1]

House Bill 4121 would require certain budget expenditures to be posted on the state website and provide a penalty for non-compliance. Referred to the Committee on Oversight and Investigations on January 27, 2009.[2]

House Bill 4150 would create a searchable database of state expenditures. Referred to the Committee on Oversight and Investigations on February 4, 2009.[3]

Proposed bills, 1996

The state legislature amended the law in 1996 to exclude oral requests for public records.

Transparency report card

A 2008 study, BGA - Alper Integrity Index, conducted by the Better Government Association and sponsored by Alper Services, ranked Michigan #24 in the nation with an overall percentage of 52.20%.[4]

A 2007 study, Graded state responsiveness to FOI requests, conducted by BGA and the NFOIC, gave Michigan 75 points out of a possible 100, a letter grade of "C" and a ranking of 6 out of the 50 states.[5]

A 2002 study, Freedom of Information in the USA, conducted by IRE and BGA, ranked Michigan's law as the 13th best in the country, giving it a letter grade of "C."[6]

History

Although the first official freedom of information legislation in Michigan was enacted in 1977, court rulings in the state going back as far as 1889 express the idea that the records of government belong to the public and not to the government officials who are their custodians. The 1889 ruling in Burton v. Tuite includes the comment, "I do not think that any common law ever obtained in this free government that would deny to the people thereof right of free access to, and public inspection of, public records."

Other court rulings that promote the access of citizens to the records of their government prior to 1977 include:

Features of the law

Sunshine variations Compare States: Sunshine variations
Click on the heading to compare your state's law to other state's transparency laws.

Declared legal intention

See also: Declared legal intentions across the U.S.

The enacting legislation states, "It is the public policy of this state that all persons, except those persons incarcerated in state or local correctional facilities, are entitled to full and complete information regarding the affairs of government and the official acts of those who represent them as public officials and public employees, consistent with this act. The people shall be informed so that they may fully participate in the democratic process."[7]

What records are covered?

See also: Defining public records

The Michigan law defines "public record" to mean a writing which encompasses "handwriting, typewriting, printing, photographing, photocopying, and every other means of recording, and includes letters, words, pictures, sounds, or symbols, or combinations thereof, or other means of recording or retaining meaningful content) prepared, owned, used, in the possession of, or retained by a public body in the performance of an official function, from the time it is created."[8]

Exemptions

Exceptions include:[9]

  • Computer software
  • Personal information that would result in an invasion of privacy (15-243.1.A)
  • Law enforcement investigations (15-243.1.B, S)
  • Information that would jeopardize security at prisons (15-243.1.C)
  • Trade secrets (15-243.1.F)
  • Information given in the confidence of attorney client privilege (15-243.1.G)
  • Medical records (15-243.1.H, L)
  • Appraisals for potential property acquisitions (15-243.1.J)
  • Examination information (15-243.1.K)
  • "Communications and notes within a public body or between public bodies of an advisory nature to the extent that they cover other than purely factual materials and are preliminary to a final agency determination of policy or action. This exemption does not apply unless the public body shows that in the particular instance the public interest in encouraging frank communication between officials and employees of public bodies clearly outweighs the public interest in disclosure." (15-243.1.M)
  • Information that would jeopardize security of individuals or infrastructure (15-243.1.N, U, Y)
  • Archaeological information (15-243.1.O)
  • Academic transcripts and personal information of students (15-243.1.Q, X)
  • Social security numbers (15-243.1.W)

Deliberative process

See also: Deliberative process exemption

What agencies are covered?

See also: Defining public body

These agencies or government bodies are subject to the state's FOIA law:

  • A state officer, employee, agency, department, division, bureau, board, commission, council, authority, or other body in the executive branch of the state government.
  • A county, city, township, village, inter-county, intercity, or regional governing body, council, school district, special district, or municipal corporation, or a board, department, commission, council, or agency.
  • Agencies, boards, commissions, or councils in the state legislature.
  • ."..any other body which is created by state or local authority or which is primarily funded by or through state or local authority."[10]
  • In Detroit News v. Policemen and Firemen Retirement System, a 2002 ruling, it was determined that a municipally chartered retirement system of a public body is subject to the state's FOIA.
  • The President's Council of State Colleges and Universities, which is wholly funded by state universities and colleges, has been determined to be subject to the FOIA law.
  • Any body that is "primarily funded" or receives at least 50% of its funding by or through state or local authority. See Jackson v. Eastern Michigan University.

Agencies not subject to the law

These agencies or officials are not subject to the law:

Legislature

See also: Legislatures and transparency

Legislative committees and groups are explicitly subject to the Michigan Freedom of Information Act under Michigan Statute 15-232. However, individual legislators are exempt under an attorney general ruling.[13]

Privatized governmental agencies

See also: Private agency, public dollars and Private agency, public dollars-Michigan

In Michigan, a number of factors can be present for a private entity to be considered a public body. If private entities receive public funding (50% of funds), were created by a public agency or are both controlled by a public entity and perform a public function, they are considered public bodies and subject to the law.

Public universities

See also: Universities and open records

The definition of public body presumably includes public universities within the state. However, examination information is explicitly exempted at Michigan Statute 15-243.1.K.

Who may request records?

See also: List of who can make public record requests by state

Any person other than incarcerated felons may request public records in Michigan. "It is the public policy of this state that all persons, except those persons incarcerated in state or local correctional facilities, are entitled to full and complete information regarding the affairs of government."[14]

  • MCL 15.232 defines a "person" as an "individual, corporation, limited liability company, partnership, firm, organization, association, governmental entity, or other legal entity."[15]
  • "Person," for the purposes of requesting access to public records, does not include "an individual serving a sentence of imprisonment in a state or county correctional facility in this state or any other state, or in a federal correctional facility."[16]
  • This law was challenged in Proctor v. White Lake Police Dept. in 2001 as being an unconstitutional deprivation of rights. The law was upheld.

Are oral requests permitted?

No. However, oral requests were permitted up until 1996, when the law was altered to exclude them.

Must a purpose be stated?

See also: States requiring a statement of purpose

No. A person who asks for access to public records is not required to justify his or her request. The purpose of the request is irrelevant and the requestor is not required to reveal it.

How can records be used?

See also: Record use restrictions

The use to which a person puts public information is not restricted by the law: "The initial as well as future uses of the requested information are irrelevant."

Time allowed for response

See also: Request response times by state

Michigan allows five days for FOIA requests. The agency can get an additional 10 day automatic extension.

Fees for records

Copy costs

See also: How much do public records cost?

Michigan law allows for charging fees that include the actual cost of duplication, mailing and other costs. Waivers may be issued if the search is for the public interest or for fees under $20 if the requestor can prove his or her inability to pay for the records.[17]

Search fees

See also: Sunshine laws and search fees

Public bodies in Michigan may charge for the labor associated with search, examination for approval and labor involved in duplication. They may only charge up to the hourly rate of the lowest paid salary employee who would be qualified to perform the work. Fees may not be charged for the separation of exempt from non-exempt material unless failure to charge would result in a high cost for the public body.[18]

Role of the Attorney General

See also: Role of the Attorney General

There is currently no provision within the state open records law that empowers the State Department of Law to enforce the right of the public to access governmental records.

Open meetings

According to MCL 15.263, "All meetings of a public body shall be open to the public and shall be held in a place available to the general public. All persons shall be permitted to attend any meeting except as otherwise provided in this act. The right of a person to attend a meeting of a public body includes the right to tape-record, to videotape, to broadcast live on radio, and to telecast live on television the proceedings of a public body at a public meeting."[19]

Notable requests

Major fees

Kathy Hoekstra of the Mackinac Center submitted a request to the Michigan Department of State Police regarding the state's handling of federal homeland security grant money. She was told that it would cost $6,876,303.90, with a downpayment of $3,438,151.95. Hoekstra's interest in the records was galvanized by a report from the Office of the Inspector General that, in the seven Michigan counties that were spot-checked, discovered a variety of problems, such as inadequate record-keeping, difficulty in locating emergency equipment, and a pervasive lack of required accountability systems.[20]

2008: exemptions are expanded

In July 2008, the Michigan Supreme Court ruled in a unanimous decision that the FOIA law does not cover "private or confidential information relating to a person." The case arose from an open records request made in 2004 by the Michigan Federation of Teachers (MFT). The MFT wanted, from the University of Michigan, the home addresses and telephone numbers of any employees who had not consented to a public listing in the school's faculty and staff directory.

In the ruling, written by Robert Young, the state's high court said that providing the addresses and phone numbers of these employees to the union "would not shed light on whether the University of Michigan and its officials are satisfactorily fulfilling their statutory and constitutional obligations and their duties to the public."[21]

In a second July 2008 ruling of the Michigan Supreme Court, also unanimous and also written by Justice Young, the court determined that events that intervene between the time a records request is denied and the time the denial is litigated should not affect the merits of the case.

The background here is that a campus newspaper at Michigan State University requested from MSU a police incident report based on a 2006 incident involving an arrest on "suspicion of threatening a non-student with a gun, pouring gasoline on him and threatening to light him on fire." MSU declined the request and the campus newspaper sued. Later, some of the information the newspaper had request became public anyway. A trial court upheld MSU's denial, but an appeals court reversed, saying that the passage of time and the fact that much of the information had become public anyway meant that the request should be honored.

The Michigan Supreme Court overturned that appeals court analysis, saying that the FOIA decisions of governmental bodies must be judged based on the circumstances in effect when they denied a request, not later circumstances.

"Subsequent developments are irrelevant to that FOIA inquiry," according to the court's decision.

See also

External links

References