Section 5: MCL § 15.235 – Request to inspect or receive copy of public record, etc.

Section 5: MCL § 15.235 – Request to inspect or receive copy of public record; response to request; failure to respond; damages; contents of notice denying request; signing notice of denial; notice extending period of response; action by requesting person requestor; law enforcement records management system; alternate responses.

(1) Except as provided in section 3, a person desiring to inspect or receive a copy of a public record shall make a written request for the public record to the FOIA coordinator of a public body. A written request made by facsimile, electronic mail, or other electronic transmission is not received by a public body's FOIA coordinator the day it is transmitted, unless the request is not submitted on a business day, in which case it is not received until 1 the following business day after the electronic transmission is made. However, if a written request is sent by electronic mail and delivered to the public body's spam or junk-mail folder, the request is not received until 1 business day after the public body first becomes aware of the written request. The public body shall must note in its records both the time a written request is delivered to its spam or junk-mail folder and the time the public body first becomes aware of that request. A public body must acknowledge, in writing, receipt of a request no later than 24 hours after receiving it.

(2) Unless otherwise agreed to in writing by the person making the request, a public body shall must, subject to subsection (10) section 4(16),respond to a request for a public record within 5 business calendar days after the public body receives the request by doing 1 of the following by producing the requested records. In unusual circumstances where the public body is unable to produce records within 5 calendar days, the public body may take an additional 10 calendar day extension, but only after issuing a written notice to the requestor specifically identifying the unique unusual circumstances justifying the extension. A public body shall not issue more than 1 notice of extension for a particular request. Said notice shall comply with MCL 15.235(7).

(a) Granting the request.

(b) Issuing a written notice to the requesting person denying the request.

(c) Granting the request in part and issuing a written notice to the requesting person denying the request in part.

(d) Issuing a notice extending for not more than 10 business days the period during which the public body shall respond to the request. A public body shall not issue more than 1 notice of extension for a particular request.

(3) Failure to produce records in response respond to a request within the time periods specified under subsection (2) constitutes a public body's final determination to deny the request unless a petition for additional time has been filed as provided in section 5(11) of this act.either of the following applies:

(a) The failure was willful and intentional.

(b) The written request included language that conveyed a request for information within the first 250 words of the body of a letter, facsimile, electronic mail, or electronic mail attachment, or specifically included the words, characters, or abbreviations for "freedom of information", "information", "FOIA", "copy", or a recognizable misspelling of such, or appropriate legal code reference to this act, on the front of an envelope or in the subject line of an electronic mail, letter, or facsimile cover page.

(4) In a civil action to compel a public body's disclosure of a public record under section 10, the court shall must assess damages against the public body under section 10(7) if the court has done both of the following:

(a) Determined that the public body has not complied with subsection (2).

(b) Ordered the public body to disclose or provide copies of all or a portion of the public record.

(5) A written notice denying a request for a public record in whole or in part is a public body's final determination to deny the request or portion of that request. The written notice must contain:

(a) An explanation of the basis under this act or other statute for the determination that the public record, or portion of that public record, is exempt from disclosure, if that is the reason for denying all or a portion of the request.

(b) A certificate that the public record does not exist under the name given by the requester or by another name reasonably known to the public body, if that is the reason for denying the request or a portion of the request.

(c) A description of a public record or information on a public record that is separated or deleted under section 14, if a separation or deletion is made.

(d) A full explanation of the requesting person requestor's right to do either any of the following:

(i) Submit to the head of the public body a written appeal that specifically states the word "appeal" and identifies the reason or reasons for reversal of the disclosure denial.

(ii) Seek judicial review of the denial under section 10.

(iii) Appeal the determination to the Commission as provided in section 10c.

(e) Notice of the right to receive attorneys' fees and damages as provided in section 10 if, after judicial review, the court determines that the public body has not complied with this section and orders disclosure of all or a portion of a public record.

(6) The individual designated in section 6 as responsible for the denial of the request shall must sign the written notice of denial.

(7) If a public body issues a notice extending the period for a response to the request producing records, the notice must specify the reasons for the extension and the date by which the public body will do 1 of the following, which may not exceed 15 calendar days from the date the request was received:

(a) Grant the request by producing the requested records.

(b) Issue a written notice to the requesting person requestor denying the request.

(c) Grant the request in part by producing a portion of the requested records and issue a written notice to the requesting person requestor denying the request in part.

The public body’s specification may include all relevant information, but must, at minimum, indicate the anticipated number of records to be produced in comparison to the average number of records produced per request for responses in the previous year.

(8) If a public body makes a final determination to deny in whole or in part a request to inspect or receive a copy of a public record or portion of that public record, the requesting person requestor may do either any of the following:

(a) Appeal the denial to the head of the public body under section 10.

(b) Commence a civil action, under section 10.

(c) Appeal the denial to the Commission, under section 10c.

(9) Notwithstanding any other provision of this act to the contrary, a public body that maintains a law enforcement records management system and stores public records for another public body that subscribes to the law enforcement records management system is not in possession of, retaining, or the custodian of, a public record stored on behalf of the subscribing public body. If the public body that maintains a law enforcement records management system receives a written request for a public record that is stored on behalf of a subscribing public body, the public body that maintains the law enforcement records management system shall must, within 10 5 business calendar days after receipt of the request, give written notice to the requesting person requestor identifying the subscribing public body and stating that the requesting person requestor shall must submit the request to the subscribing public body. As used in this subsection, "law enforcement records management system" means a data storage system that may be used voluntarily by subscribers, including any subscribing public bodies, to share information and facilitate intergovernmental collaboration in the provision of law enforcement services.

(10) A person making a request under subsection (1) may stipulate require that the public body's response under subsection (2) be electronically mailed, delivered by facsimile, or delivered by first-class mail. This subsection does not apply if the public body lacks the technological capability to provide an electronically mailed response.

(11) If a public body determines that it is not possible for it to respond within the time required by subsection (2), it may petition the Commission for an extension. The public body bears the burden of demonstrating, by clear and convincing evidence, that adherence to the timelines required in subsection (2) would require a material disruption of the public body’s ordinary business. Should the public body demonstrate such a burden, the Commission may permit the public body additional time to produce responsive records, but such additional time must be the minimum time the Commission determines to be reasonably necessary for a public body working diligently to respond to the request. Should the public body fail to satisfy its burden of proof, it shall be responsible for any reasonable attorneys’ fees and costs incurred by the requesting party in responding to the public body’s petition, as well as fines and fees as provided by section 10b of this act, and shall produce records in a period determined by the Commission not to exceed 15 calendar days.

Comment

• MCL § 15.233(1): This amendment requires a public body to acknowledge receipt of a request within 24 hours of receipt on business days. This eliminates a potential delay — in current law, a public body is not required to communicate with a requestor until the fifth business day after receiving a request. Thus, a requestor has no way to know if a public body has received their request for five business days. This amendment resolves that issue.


• MCL § 15.233(2): This change significantly accelerates the FOIA process. Currently, a public body can take five business days to produce a good-faith deposit and has no obligation to act until that deposit is received. They can take an additional 10 business days via an extension. Nearly all public bodies opt for this extension, meaning even the request for a deposit is not sent for three weeks. That time is excessive for most requests. As amended, public bodies have either five or 15 calendar days to produce records, rather than five to 15 days to begin the process of locating and reviewing them. Also, to discourage public bodies from taking extensions in every instance, this amendment requires them to justify an extension by comparing the burden posed by a particular request to the average burden of requests over the past year.


• MCL § 15.233(3): This amendment eliminates a loophole by no longer requiring a FOIA requestor to demonstrate a public body failed to respond intentionally. Whether a public body failed to respond of its own will is irrelevant, as that failure to respond still delayed or prevented the release of public documents. Currently, a failure to respond can only be addressed through an appeal or through litigation, and a requestor should not face the additional burden of showing a public body’s failure to adhere to FOIA was willful.


• MCL § 15.233(4)(d)(3) and MCL § 15.233(8)(c): These amendments provide an additional appellate option in the form of an appeal before the Commission.


• MCL § 15.233(10): This amendment makes clear that only the requestor has the ability to specify the means through which records are to be delivered.


• MCL § 15.235(11): This amendment creates relief for public bodies in situations where the newly created statutory deadlines for fulfilling a request within five or 15 calendar days are not sufficient to process a request. To receive an extension, a public body would be required to seek the Commission’s approval. Alone, however, this requirement could lead public bodies to file petitions for every FOIA. To prevent this, the amendment changes the standard by which a public body could be afforded an extension. It must now show its ordinary business would be materially disrupted.

  This is intended to incentivize public bodies to only use the petition process when absolutely necessary. To further encourage this, a public body that loses its petition is required to pay the requesting party’s attorneys’ fees and will be ordered to produce records within a reasonable time. In addition, an unsuccessful petition is considered a violation of FOIA, leading to fines as provided in section 10b. Taken together, these risks should limit the petition process to its intended application, namely, large requests that cannot be completed within the default period, even when a public body is exercising reasonable diligence.