Difference between revisions of "Michigan FOIA procedures"

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:: ''See also: [[List of who can make public record requests by state]]''
 
:: ''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". <ref>[http://www.legislature.mi.gov/(S(jqzgh245wlfzlh45dvqdj245))/mileg.aspx?page=getObject&objectName=mcl-15-231 ''Michigan Code, 15.231'']</ref>
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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."<ref>[http://www.legislature.mi.gov/(S(jqzgh245wlfzlh45dvqdj245))/mileg.aspx?page=getObject&objectName=mcl-15-231 ''Michigan Code, 15.231'']</ref>
 
* MCL 15.232 defines a "person" as an "individual, corporation, limited liability company, partnership, firm, organization, association, governmental entity, or other legal entity."   
 
* MCL 15.232 defines a "person" as an "individual, corporation, limited liability company, partnership, firm, organization, association, governmental entity, or other legal entity."   
* "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."  
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* "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."  
 
* This law was challenged in ''[[Proctor v. White Lake Police Dept.]]'' in 2001 as being an unconstitutional deprivation of rights.  The law was upheld.
 
* This law was challenged in ''[[Proctor v. White Lake Police Dept.]]'' in 2001 as being an unconstitutional deprivation of rights.  The law was upheld.
  
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=== 13(1)(a) : Personal privacy ===
 
=== 13(1)(a) : Personal privacy ===
"Information of a personal nature", disclosure of which would be a "clearly unwarranted invasion of privacy".
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"Information of a personal nature," disclosure of which would be a "clearly unwarranted invasion of privacy."
 
   
 
   
 
* [[Herald Co. v Bay City]]. 577 NW 2d 696 - Mich: Court of Appeals 1998  Information about a person being considered as a finalist for a high level public position is not of a personal nature.
 
* [[Herald Co. v Bay City]]. 577 NW 2d 696 - Mich: Court of Appeals 1998  Information about a person being considered as a finalist for a high level public position is not of a personal nature.

Latest revision as of 07:48, 25 March 2014

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Each state varies slightly in the procedures used to gain access to public documents. This article serves to describe specifically the steps used in Michigan. To read the history and details of Michigan’s sunshine laws please see Michigan Freedom of Information Act

The Michigan Attorney General's Office has produced a summary of the Michigan Freedom of Information Act, which details the procedure for filing an FOIA request.

Agencies affected by Michigan FOIA

The Freedom of Information Act sets requirements for the disclosure of public records by all “public bodies” in the state. All state agencies, county and other local governments, school boards, other boards, departments, commissions, councils, and public colleges and universities are covered.

How to request public records in Michigan

Requests must be made in writing and provided to the FOIA coordinator of the public body. The request need not be made using forms provided by the agency or on official letterhead. Michigan FOIA allows a person may ask to inspect, copy or receive a copy of a public record. There are no qualifications such as residency or age that must be met in order to make a request.

Purpose and use

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. For more information, see State Employees Association v. Dept. of Management and Budget.

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." For more information, please see, Mullin v. Detroit Police Dept..

Who may request public 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."[1]

  • MCL 15.232 defines a "person" as an "individual, corporation, limited liability company, partnership, firm, organization, association, governmental entity, or other legal entity."
  • "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."
  • 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.

Fees for FOIA requests

See also: How much do public records cost?

A government agency may charge a fee for the necessary copying of a public record for inspection or providing a copy of a public record to a requestor. A public body may also charge for search, examination and review and the separation of exempt information in those instances where failure to charge a fee would result in unreasonably high costs to the public body. The fee must be limited to actual duplication, mailing and labor costs. The first $20 of a fee must be waived for a person who is on welfare or presents facts showing inability to pay because of indigency.

Response time

See also: Request response times by state

Not more than five business days after receiving a request, the public body must respond to a request for a public record. The public agency can, notify the requester in writing and extend the time for an additional ten business days. If a request for a record is denied, written notice of the denial must be provided to the requester within five business days, or within 15 business days if an extension is taken. A failure to respond at all constitutes a denial.

Allowing access to information

The public body or agency has a responsibility to provide reasonable facilities so that persons making a request may examine and take notes from public records. The facilities must be available during the normal business hours of the public body.

Appealing the denial of a records request

A person may appeal a final decision to deny a request to the head of the public body. The head of the public body has 10 days to respond to the appeal. Under unusual circumstances, an additional 10 days may be taken. A person also has the right to commence an action in circuit court to compel disclosure of public records. The suit must be filed within 180 days after the public body's final decision to deny a request.

The action may be brought in the county where the requester lives, the county where the requester does business, the county where the public document is located, or a county where the agency has an office.

Exemptions

MCL 15.243 provides a list of exemptions from disclosure. They fall into the following categories:

13(1)(a) : Personal privacy

"Information of a personal nature," disclosure of which would be a "clearly unwarranted invasion of privacy."

  • Herald Co. v Bay City. 577 NW 2d 696 - Mich: Court of Appeals 1998 Information about a person being considered as a finalist for a high level public position is not of a personal nature.
  • Bradley v Saranac Community Schools Board of Education. No specific exemption for personnel records.
  • Herald Co. v Ann Arbor Public Schools. Records regarding the professional performance of a teacher in the classroom is an issue of legitimate concern to the public.
  • Oakland County Prosecutor v Department of Corrections. Notwithstanding the personal nature of the records sought, the invasion is warranted because the Legislature has provided for the release of these mental health records submitted to the parole board when seeking parole in the context of the parole proceedings.
  • Nicita v Detroit. Business records pertaining to a real estate development company are not exempt from disclosure pursuant to § 13(1)(a) of the FOIA where there is no indication that the records contain information of a personal nature.
  • Booth Newspapers, Inc v University of Michigan Board of Regents (1993). Travel expense records of members of a public body do not constitute "records of a personal nature."
  • Clerical-Technical Union of MSU v Board of Trustees of MSU. The home addresses of donors to Michigan State University are information of a personal nature, the disclosure of which would constitute a clearly unwarranted invasion of privacy.
  • Bechtel Power Corp v Department of Treasury. Tax information may be protected against disclosure under 13 (1) (a).

13(1)(b) : Law enforcement investigating records

13(1)(g): Attorney-client privilege

Information or records subject to the attorney-client privilege.

  • Herald Co. v Ann Arbor Public Schools. The FOIA excludes from disclosure information protected by the attorney-client privilege. The scope of the privilege is narrow, including only those communications by the client to its advisor that are made for the purpose of obtaining legal advice. A tape recording of an interview of the teacher by the school district is not within the attorney-client privilege.
  • Hubka v Pennfield Township, 197 Mich App 117, 494 NW2d 800 (1992). Letters sent by a township attorney to a township board that contain information obtained by the attorney from township employees under compulsion and promises of confidentiality are protected from disclosure under the Freedom of Information Act by the attorney-client privilege. Likewise, the opinions, conclusions, and recommendations of the attorney, based on the information, are protected.

13(1)(m): Advisory communications; "intra-agency" exemption

"(m) 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. This exemption does not constitute an exemption under state law for purposes of section 8(h) of the open meetings act, 1976 PA 267, MCL 15.268. As used in this subdivision, "determination of policy or action" includes a determination relating to collective bargaining, unless the public record is otherwise required to be made available under 1947 PA 336, MCL 423.201 to 423.217."

A public body may exempt from disclosure, pursuant to section 13(1)(n), advisory communications within a public body or between public bodies to the extent that they are non-factual and are preliminary to a final agency determination. However, if records meet these substantive tests, the public body must also establish that the public interest in encouraging frank communications within the public body or between public bodies clearly outweighs the public interest in disclosure. In this case the public interest in disclosing records that contain public observations of a teacher who has been convicted of carrying a concealed weapon is not clearly outweighed by the public interest in encouraging frank communications within the public body.
  • Local 312 of the AFSCME, AFL-CIO v Detroit, 207 Mich App 472; 525 NW2d 487 (1994).
Section 13(1)(n) of the FOIA protects from disclosure communications within or between public bodies of an advisory nature that are other than purely factual and are preliminary to a final agency determination of policy or action. The burden is on the public body to show, in each particular instance, that the public interest in encouraging frank communications between officials and employees of the public body clearly outweighs the public interest in disclosure. It is not adequate to show that the requested document falls within a general category of documents that may be protected.

See also

External links

References