Section 10: MCL § 15.240 – Options by requesting person; appeal; actions by public body, etc.

Section 10: MCL § 15.240 – Options by requesting person requestor; appeal; actions by public body; receipt of written appeal; judicial review; civil action; venue; de novo proceeding; burden of proof; private view of public record; contempt; assignment of action or appeal for hearing, trial, or argument; attorneys' fees, costs, and disbursements; assessment of award; damages.

Sec. 10.[*]

(1) If a public body makes a final determination to deny all or a portion of a request, the requesting person requestor may do 1 of the following at his or her option:

(a) 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 denial.

(b) Commence a civil action in the circuit court, or if the decision of a state public body is at issue, the court of claims, to compel the public body's disclosure of the public records within 180 days after a public body's final determination to deny a request.

(c) Submit to the Commission a written appeal that specifically states the word “appeal” and identifies the reason or reasons for reversal of the denial.

(2) Within 10 business 7 calendar days after receiving a written appeal pursuant to subsection (1)(a), the head of a public body shall must do 1 of the following:

(a) Reverse the disclosure denial.

(b) Issue a written notice to the requesting person requestor upholding the disclosure denial.

(c) Reverse the disclosure denial in part and issue a written notice to the requesting person requestor upholding the disclosure denial in part.

(d) Under unusual circumstances, issue a notice extending for not more than 10 business days the period during which the head of the public body shall respond to the written appeal. The head of a public body shall not issue more than 1 notice of extension for a particular written appeal.

(3) A board or commission that is the head of a public body is not considered to have received a written appeal under subsection (2) until the first regularly scheduled meeting of that board or commission following submission of the written appeal under subsection (1)(a). If the head of the public body fails to respond to a written appeal pursuant to subsection (2), or if the head of the public body upholds all or a portion of the disclosure denial that is the subject of the written appeal, the requesting person requestor may seek judicial review of the nondisclosure by commencing a civil action under subsection (1)(b).

(4) In an action commenced under subsection (1)(b), a court that determines a public record or portion of a public record is not exempt from disclosure shall must order the public body to cease withholding or to produce all or a portion of a public record wrongfully withheld, regardless of the location of the public record. Venue for an action against a local public body is proper in the circuit court for the county in which the public record or an office of the public body is located has venue over the action. The court shall must determine the matter de novo and the burden is on the public body to sustain its denial. In defending an action commenced under subsection (1)(b), a public body is limited to the reasons given in its response denying the request. If the public body failed to timely respond to the request, it waives the right to assert any exemptions in section 13 as a basis to withhold all or any portion of a public record. The court, on its own motion, may view the public record in controversy in private before reaching a decision. Failure to comply with an order of the court may be punished as contempt of court. Notwithstanding the above, a court may permit the redaction of material pursuant to an exemption not asserted in a public body’s initial response if it determines the release of the exempted material would lead to the disclosure of privileged material, social security numbers, medical information, violate the law, or when the public interest in disclosure is overwhelmingly outweighed by the public interest in non-disclosure.

(5) An action commenced under this section and an appeal from an action commenced under this section shall must be assigned for hearing and trial or for argument at the earliest practicable date and expedited in every way.

(6) If a person asserting the right to inspect, copy, or receive a copy of all or a portion of a public record prevails, in whole or in part, in an action commenced under this section, the court or Commission shall must award reasonable attorneys' fees, costs, and disbursements. The award shall be assessed against the public body liable for damages under subsection (7).

(7) If the court determines in an action commenced under this section that the public body has arbitrarily and capriciously violated this act by refusal or delay in disclosing or providing copies of a public record, the court shall order the public body to pay a civil fine of $10,000.00, which shall be deposited into the general fund of the state treasury. The court shall award, in addition to any actual or compensatory damages, punitive damages in the amount of $15,000.00 to the person seeking the right to inspect or receive a copy of a public record. The damages shall not be assessed against an individual, but shall be assessed against the next succeeding public body that is not an individual and that kept or maintained the public record as part of its public function.

(7) If an attorney or law firm appeals a request filed by that attorney or law firm to a court or the Commission, and prevails as provided in subsection (6), that attorney or law firm is entitled to whatever fees and costs would be awarded if the attorney or law firm had represented a third-party client in that appeal, including the attorneys’ fees that would have been awarded for such representation.

[*] There are no sections 7, 8 or 9 currently in Michigan’s FOIA statute.

Comment

• MCL § 15.240(1)(b): This amendment eliminates a provision requiring cases against state agencies to be filed in the Court of Claims. That provision may be good for state agencies, as they need to travel only a short distance to defend a FOIA lawsuit. But that requirement placed requestors at a severe disadvantage. They may need to pay attorneys for hours of travel time to prosecute their cases. Given the choice between the state or citizens having to bear the burden of travel, it is preferable that the state absorb that burden.


• MCL § 15.240(1)(c): This amendment adds the option to appeal a public body’s FOIA determination to the Commission.


• MCL § 15.240(2)(d): As a matter of law, a FOIA appeal that is made to a public body is not considered “received” until the next meeting of the head of that public body. From that date, a public body would then have 10 business days to reach a decision on the appeal. Providing an additional 10 business day extension increases delays unnecessarily, particular for those public bodies that only meet on a monthly basis.


• MCL § 15.240(4) and (6): These two amendments interact to make clear that even if a requestor successfully demonstrates only a portion of a redacted record was improperly exempted, they have nevertheless prevailed in a FOIA appeal. The amendment to subsection (4) also closes a significant loophole, under which public bodies claim new exemptions after being sued. This practice makes it impossible for requestors to understand the likelihood that their suit will be successful and inappropriately shields public bodies from liability for poor initial responses.

  Some discretion is, however, afforded a reviewing court, to prevent the disclosure of particularly significant information that could lead to criminal liability, or otherwise disclose information that would cause significant and material harm to a person. Courts should, however, only permit additional redactions when the consequences of release would be both significant and a cause a manifest injustice. This discretion should not be employed simply because the information to be disclosed is embarrassing or damaging to a public body; instead, it should only be employed in special circumstances.



• MCL § 15.240(7) (old): This provision has been eliminated in light of a unified damages provision added later in the act.


• MCL § 15.240(7) (new): This amendment makes clear that an attorney representing himself or herself in a FOIA appeal nevertheless is entitled to reasonable attorneys’ fees and costs upon prevailing in a lawsuit challenging a public body’s FOIA determination. Under current law, attorneys cannot collect fees for representing themselves in FOIA matters.