Section 10b: MCL § 15.240b – Failure to comply with act; civil fine.
Sec. 10b.
If the court or the Commission determines, in an action commenced under this act, that a public body willfully and intentionally failed to comply with this act, or otherwise acted in bad faith, the court or Commissionshallmust order the public body to pay, in addition to any other award or sanction, a civil fine of not less than $2,500.00 or more than $7,500.00$25,000.00 for each occurrence. In determining the amount of the civil fine, the court or Commission shall consider the budget of the public body, any endowment benefitting the public body, other economic factors affecting the public body’s overall financial condition, and whether the public body has previously been assessed penalties for violations of this act. The civil fine shall be deposited in the general fund of the state treasury.
If a public body has been previously found to have violated this act within the past 2 years, minimum fines must be as follows:
For a second violation: $7,500;
For a third violation: $10,000;
For a fourth or subsequent violation: $15,000.
If the court or the Commission determines in an action commenced under this section that the public body has willfully, arbitrarily, or capriciously violated this act, the court or Commissionmust order the public body to pay a civil fine not less than $5,000.00, nor more than $50,000.00, which must be deposited in the general fund of the state treasury. The court or Commission may also award, in addition to any actual or compensatory damages, punitive damages in the amount of $5,000.00. The fine and any damages shall not be assessed against an individual, but must 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. Fines described by this subsection are in addition to any other fines and costs permitted by this section. In determining the amount of the civil fine, the court or Commission shall consider the budget of the public body, any endowment benefitting the public body, other economic factors affecting the public body’s overall financial condition, and whether the public body has previously been assessed penalties for violations of this act. The civil fine shall be deposited in the general fund of the state treasury.
If a public body files a petition for an extension of time as provided by MCL 15.235(11), and fails to obtain relief in the form of an extension, that public body shall be fined $100.00 per day for each day beyond the date records would have been required to be produced under section 5(2) of this act. If the Commission or circuit court determines that the petition for an extension of time was arbitrary, capricious, or made in bad faith, the Commission or circuit court shall award fines as provided in subsection (1) and (2) of this section. In determining the amount of the civil fine, the court or Commission shall consider the budget of the public body, any endowment benefitting the public body, other economic factors affecting the public body’s overall financial condition, and whether the public body has previously been assessed penalties for violations of this act. The civil fine shall be deposited in the general fund of the state treasury.
Comment
MCL § 15.240b(1): This amendment both adds the Commission as a body that can levy fines and significantly increases the possible penalties under FOIA. In doing so, it offers guidance that the financial status of the public body should be considered in crafting an appropriate fine. This encourages large, sophisticated actors (such as the state or major universities) to maintain a robust FOIA compliance team, while at the same time encouraging lenity for smaller public bodies.
MCL § 15.240b(2): This amendment is designed to encourage public bodies to take complying with FOIA seriously. By creating a structure of escalating fines, public bodies will need to be more concerned with compliance than at present, where low fines can be more easily dismissed as a cost of doing business. This would also make it more difficult for public bodies to simply pay the fines for violating FOIA as a means to prevent the disclosure of certain information.
MCL § 15.240b(3): This amendment significantly increases penalties for egregious violations of FOIA. In addition, the amendment makes punitive damages available in these circumstances. Taken together, these increased penalties deter public bodies from blatantly violating FOIA.
MCL § 15.240b(4): This amendment makes clear that if a public body fails to demonstrate that more time is needed to respond to a request than is provided in section 5(2), it will be fined for the delay associated with the extension petition. Certain petitions undertaken for improper reasons, meanwhile, are treated as a violation of FOIA to be fined as though the public body failed to respond. This ensures that public bodies do not abuse the petition process to obtain a de facto extension during the pendency of the appeal.
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