Section 4: MCL § 15.234 – Fee; limitation on total fee; labor costs; establishment of procedures and guidelines; creation of written public summary; detailed itemization; availability of information on website; notification to requestor; deposit; failure to respond in timely manner; increased estimated fee deposit; deposit as fee; failure to pay or appeal deposit; request abandoned.
(1) A public body may charge a fee for a public record search, for the necessary copying of a public record for inspection, or for providing a copy of a public record if it has established, makes publicly available, and follows procedures and guidelines to implement this section as described in subsection (4). Subject to subsections (2), (3), (4), (5), and (9), the fee must be limited to actual mailing costs, and to the actual incremental cost of duplication or publication including labor, the cost of search, examination, review, and the deletion and separation of exempt from nonexempt information as provided in section 14. Except as otherwise provided in this act, if the public body estimates or charges a fee in accordance with this act, the total fee must not exceed the sum of the following components:
(a) That portion of labor costs directly associated with the necessary searching for, locating, and examining of public records in conjunction with receiving and fulfilling a granted written request. The public body
shall must not charge more than the hourly wage of its lowest-paid employee capable of searching for, locating, and examining the public records in the particular instance regardless of whether that person is available or who actually performs the labor. Labor costs under this subdivision shall must be estimated and charged in increments of 15 minutes or more, with all partial time increments rounded down. For purposes of this subsection, a public body’s review may only consist of the review necessary to determine whether a record is responsive, and no fee may be charged for reviewing records for any other purpose.
(b) That portion of labor costs, including necessary review, if any, directly associated with the separating and deleting of exempt information from nonexempt information as provided in section 14. For services performed by an employee of the public body, the public body
shall must not charge more than the hourly wage of its lowest-paid employee capable of separating and deleting exempt information from nonexempt information in the particular instance as provided in section 14, regardless of whether that person is available or who actually performs the labor. If a public body does not employ a person capable of separating and deleting exempt information from nonexempt information in the particular instance as provided in section 14 as determined by the public body's FOIA coordinator on a case-by-case basis, it may treat necessary contracted labor costs used for the separating and deleting of exempt information from nonexempt information in the same manner as employee labor costs when calculating charges under this subdivision if it clearly notes the name of the contracted person or firm on the detailed itemization described under subsection (4), and provides a detailed explanation of why the use of contracted labor was necessary in the particular instance. Total labor costs calculated under this subdivision for contracted labor costs must not exceed an amount equal to 6 times the state minimum hourly wage rate determined under section 4 of the improved workforce opportunity wage act, 2018 PA 337, MCL 408.934, or the hourly wage of the public body’s FOIA coordinator, whichever is less. Labor costs under this subdivision shall must be estimated and charged in increments of 15 minutes or, with all partial time increments rounded down. A public body shall must not charge for labor directly associated with redaction under section 14 if it knows or has reason to know that it previously redacted the public record in question and the redacted version is still in the public body's possession. If a public body charges a fee as described by this subsection, such a fee cannot exceed the fee charged to locate responsive records as described in subsection (a).
(c) For public records provided to the requestor on any form of nonpaper physical media, the actual and most reasonably economical cost of the nonpaper physical media. The requestor may stipulate that the public records be provided on nonpaper physical media, electronically mailed, or otherwise electronically provided to him or her in lieu of paper copies. This subdivision does not apply if a public body lacks the technological capability necessary to provide records on the particular nonpaper physical media stipulated in the particular instance.
(d) For paper copies of public records provided to the requestor, the actual total incremental cost of necessary duplication or publication, not including labor. The cost of paper copies
shall must be calculated as a total cost per sheet of paper and shall must be itemized and noted in a manner that expresses both the cost per sheet and the number of sheets provided. The fee must not exceed 10 cents per sheet of paper for copies of public records made on 8-1/2- by 11-inch paper or 8-1/2- by 14-inch paper. A public body shall must utilize the most economical means available for making copies of public records, including using double-sided printing, if cost saving and available.
(e) The cost of labor directly associated with duplication or publication, including making paper copies, making digital copies, or transferring digital public records to be given to the requestor on nonpaper physical media or through the internet or other electronic means as stipulated by the requestor. The public body
shall must not charge more than the hourly wage of its lowest-paid employee capable of necessary duplication or publication in the particular instance, regardless of whether that person is available or who actually performs the labor. Labor costs under this subdivision may must be estimated and charged in time increments of 15 minutes or more, the public body's choosing; however, with all partial time increments shall must be rounded down.
(f) The actual cost of mailing, if any, for sending the public records in a reasonably economical and justifiable manner. The public body
shall must not charge more for expedited shipping or insurance unless specifically stipulated by the requestor, but may otherwise charge for the least expensive form of postal delivery confirmation when mailing public records.
(2) When calculating labor costs under subsection (1)(a), (b), or (e), fee components
shall must be itemized in a manner that expresses both the hourly wage and the number of hours charged. The public body may also add up to 50% to the applicable labor charge amount to cover or partially cover the cost of fringe benefits if it clearly notes the percentage multiplier used to account for benefits in the detailed itemization described in subsection (4). Subject to the 50% limitation, the public body shall not charge more than the actual cost of fringe benefits, and overtime wages shall not be used in calculating the cost of fringe benefits. Overtime wages shall must not be included in the calculation of labor costs unless overtime is specifically stipulated by the requestor and clearly noted on the detailed itemization described in subsection (4). A search for a public record may must be conducted or copies of public records may must be furnished without charge or at a reduced charge if the public body determines that a waiver or reduction of the fee is in the public interest because searching for or furnishing copies of the public record can be considered as primarily benefiting the general public. The question of whether the production of a public record can be considered as primarily benefitting the general public must initially be determined by the public body, but is subject to appeal to the Commission or to the circuit court as provided by this act. A public record search shall must be made and a copy of a public record shall must be furnished without charge for the first $20.00 of the fee for each request by either any of the following:
(a) An individual who is entitled to information under this act and who submits an affidavit stating that the individual is indigent and receiving specific public assistance or, if not receiving public assistance, stating facts showing inability to pay the cost because of indigency.
If the requestor is eligible for a requested discount, the public body shall fully note the discount on the detailed itemization described under subsection (4). If a requestor is ineligible for indigent status the discount, the public body shall must inform the requestor specifically of the reason for ineligibility in the public body's written response. An individual is ineligible for this fee reduction if any of the following apply:
(i) The individual has previously received discounted copies of public records under this subsection from the same public body twice during that calendar year.
(ii) Tthe individual requests the information in conjunction with outside parties who are offering or providing payment or other remuneration to the individual to make the request. A public body may require a statement by the requestor in the affidavit that the request is not being made in conjunction with outside parties in exchange for payment or other remuneration.
(b) A nonprofit organization formally designated by the state to carry out activities under subtitle C of the developmental disabilities assistance and bill of rights act of 2000, Public Law 106-402, and the protection and advocacy for individuals with mental illness act, Public Law 99-319, or their successors, if the request meets all of the following requirements:
(i) Is made directly on behalf of the organization or its clients.
(ii) Is made for a reason wholly consistent with the mission and provisions of those laws under section 931 of the mental health code, 1974 PA 258, MCL 330.1931.
(iii) Is accompanied by documentation of its designation by the state, if requested by the public body.
(3) A fee as described in subsection (1)
shall must not be charged for the cost of search, examination, review, and the deletion and separation of exempt from nonexempt information as provided in section 14 unless: (a) the claimed exemption is mandatory in that failure to redact the relevant information would violate state or federal law; and (b) failure to charge a fee would result in unreasonably high costs to the public body because of the nature of the request in the particular instance, and the public body specifically identifies the nature of these unreasonably high costs. To charge such a fee, the public body must cite the mandatory exemption upon which it relies and provide evidence substantiating its claim of unreasonably high costs, including, at minimum, a statement of the public body’s average costs for producing records in the prior calendar year. The public body has the burden of demonstrating that the failure to charge a fee would result in unreasonably high costs to the public body by clear and convincing evidence. A public body’s determination that the costs of fulfilling a request would be unreasonably high is appealable to the Commission or the circuit court as provided by this act.
(4) A public body
shall must establish procedures and guidelines to implement this act and shall must create a written public summary of the specific procedures and guidelines relevant to the general public regarding how to submit written requests to the public body and explaining how to understand a public body's written responses, deposit requirements, fee calculations, and avenues for challenge and appeal. The written public summary shall must be written in a manner so as to be easily understood by the general public. If the public body directly or indirectly administers or maintains an official internet presence, it shall must post and maintain the procedures and guidelines and its written public summary on its website. A public body shall must make the procedures and guidelines publicly available by providing free copies of the procedures and guidelines and its written public summary both in the public body's response to a written request and upon request by visitors at the public body's office. A public body that posts and maintains procedures and guidelines and its written public summary on its website may include the website link to the documents in lieu of providing paper copies in its response to a written request. A public body's procedures and guidelines must include the use of a standard form for detailed itemization of any fee amount in its responses to written requests under this act. The detailed itemization must clearly list and explain the allowable charges for each of the 6 fee components listed under subsection (1) that compose the total fee used for estimating or charging purposes. Other public bodies may use a form created by the department of technology, management, and budget or create a form of their own that complies with this subsection. A public body that has not established procedures and guidelines, has not created a written public summary, or has not made those items publicly available without charge as required in this subsection is not relieved of its duty to comply with any requirement of this act and shall must not require deposits or charge fees otherwise permitted under this act until it is in compliance with this subsection. Notwithstanding this subsection and despite any law to the contrary, a public body's procedures and guidelines under this act are not exempt public records under section 13.
(5) If the public body directly or indirectly administers or maintains an official internet presence, any public records available to the general public on that internet site at the time the request is made are exempt from any charges under subsection (1)(b). If the FOIA coordinator knows or has reason to know that all or a portion of the requested information is available on its website, the public body
shall must notify the requestor in its written response that all or a portion of the requested information is available on its website. The written response, to the degree practicable in the specific instance, must include a specific webpage address where the requested information is available. On the detailed itemization described in subsection (4), the public body shall must separate the requested public records that are available on its website from those that are not available on the website and shall must inform the requestor of the additional charge to receive copies of the public records that are available on its website. If the public body has included the website address for a record in its written response to the requestor and the requestor thereafter stipulates that the public record be provided to him or her in a paper format or other form as described under subsection (1)(c), the public body shall must provide the public records in the specified format. but may use a fringe benefit multiplier greater than the 50% limitation in subsection (2), not to exceed the actual costs of providing the information in the specified format.
(6) A public body may provide requested information available in public records without receipt of a written request.
(7) If a verbal request for information is for information that a public body believes is available on the public body's website, the public employee
shall must, where practicable and to the best of the public employee's knowledge, inform the requestor about the public body's pertinent website address.
(8) In either the public body's initial response or subsequent response as described under section 5(2)(d), the public body may require a good-faith deposit from the person requesting information before providing the public records to the requestor if the entire fee estimate or charge authorized under this section exceeds $50.00 $100.00, based on a good-faith calculation of the total fee described in subsection (4). Subject to subsection (10), the deposit must not exceed 1/2 of the total estimated fee, and a public body's request for a deposit must include a detailed itemization as required under subsection (4). The response must also contain a best efforts estimate by the public body regarding the time frame it will take the public body to comply with the law in providing the public records to the requestor. The time frame estimate is nonbinding upon the public body, but the public body shall provide the estimate in good faith and strive to be reasonably accurate and to provide the public records in a manner based on this state's public policy under section 1 and the nature of the request in the particular instance. If a public body does not respond in a timely manner as described under section 5(2), it is not relieved from its requirements to provide proper fee calculations and time frame estimates in any tardy responses. Providing an estimated time frame does not relieve a public body from any of the other requirements of this act.
(9)(8) If a public body does not respond to a written request in a timely manner as required under section 5(2), the public body shall must do the following:
(a) Reduce the charges for labor costs otherwise permitted under this section by 5% for each day the public body exceeds the time permitted under section 5(2) for a response to the request.
, with a maximum 50% reduction, if either of the following applies:
(i) The late response was willful and intentional.
(ii) 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 for this act, on the front of an envelope, or in the subject line of an electronic mail, letter, or facsimile cover page.
(b) If a charge reduction is required under subdivision (a), fully note the charge reduction on the detailed itemization described under subsection (4).
(c) This section must not be construed as limiting any remedies available for noncompliance established elsewhere in this act.
10)(9) This section does not apply to public records prepared under an act or statute specifically authorizing the sale of those public records to the public, or if the amount of the fee for providing a copy of the public record is otherwise specifically provided by an act or statute.
11)(10) Subject to subsection (12), after a public body has granted and fulfilled a written request from an individual under this act, if the public body has not been paid in full the total amount under subsection (1) for the copies of public records that the public body made available to the individual as a result of that written request, the public body may require a deposit of up to 100% of the estimated fee before it begins a full public record search for any subsequent written request from that individual if all of the following apply:
(a) The final fee for the prior written request was not more than 105% of the estimated fee.
(b) The public records made available contained the information being sought in the prior written request and are still in the public body's possession.
(c) The public records were made available to the individual, subject to payment, within the time frame estimate described under subsection (8).
(d)(c) Ninety days have passed since the public body notified the individual in writing that the public records were available for pickup or mailing.
(e)(d) The individual is unable to show proof of prior payment to the public body.
(f)(e) The public body calculates a detailed itemization, as required under subsection (4), that is the basis for the current written request's increased estimated fee deposit.
(12)(11) A public body shall must no longer not require an increased estimated fee deposit from an individual as described under subsection ( 1110) if any of the following apply:
(a) The individual is able to show proof of prior payment in full to the public body.
(b) The public body is subsequently paid in full for the applicable prior written request.
(c) Three hundred sixty-five days have passed since the individual made the written request for which full payment was not remitted to the public body.
(13)(12) A deposit required by a public body under this act is a fee.
(14)(13) If a deposit that is required under subsection (8) or (11)(10) is not received by the public body within 45 days from receipt by the requesting person requestor of the notice that a deposit is required, and if the requesting person requestor has not filed an appeal of the deposit amount pursuant to section 10a, the request shall be considered abandoned by the requesting person requestor and the public body is no longer required to fulfill the request. Notice of a deposit requirement under subsection (8) or (11)(10) is considered received 3 days after it is sent, regardless of the means of transmission. Notice of a deposit requirement under subsection ( 8) or (11)(10) must include notice of the date by which the deposit must be received, which date is 48 days after the date the notice is sent.
(14) Notwithstanding any other provision of this statute, a public body must not charge more than $1.00 per page for the production of records, inclusive of all costs permitted by this section.
(15) If a public body accepts electronic payments for any other services it provides, it must also accept electronic payments for fees permitted by this act. A public body may not charge any fee for accepting such an electronic payment that is not equal to or lesser than the fee charged in connection with other electronic payments.
The changes to this section are also primarily intended to decrease costs to requestors. They clarify and limit what public bodies can charge requestors for the costs of searching for, retrieving, reviewing, copying and releasing public records.
- MCL § 15.234(1)(a): This amendment eliminates a loophole that allows public bodies to charge requestors to review material to determine whether it negatively impacts the public body’s interests. Not only does this process increase expenses to a requestor by requiring an additional “sensitivity” review prior to one for redactions, but it also encourages public bodies to apply excessive redactions to documents they deem sensitive. A proper FOIA review should only consider whether the record is responsive, and whether exemptions properly apply, without regard for the effect disclosure of the record would have on the public body.
- MCL § 15.234(1)(b): Currently, public bodies can use outside counsel to review records with relatively little proof required to demonstrate in-house staff cannot perform that review. This disincentivizes training their employees to conduct such reviews, as public bodies are relatively free to charge a high rate for the cost of outside counsel at will. To avoid this issue, this amendment caps fees to be no higher than the compensation that could be charged if the FOIA coordinator (who should be capable of handling the FOIA review process) performed the work. Those fees are further limited by being tied to the fee required to locate responsive records, to prevent the costs associated with redacting documents from significantly increasing the costs of a requests.
- MCL § 15.234(2): For some larger public entities, and particularly for larger universities, adding fringe benefits to the fees charged under FOIA significantly magnifies the expense to requestors. This amendment eliminates the ability to charge fringe benefits to make FOIA more affordable.
- The amendment also changes a public body’s role when responding to requests that are primarily made for the public interest. These requests must be fulfilled without cost under the proposed change. This is consistent with federal FOIA law and can have significant impacts. For example, the Mackinac Center in 2009 filed parallel state and federal FOIA requests, and the optional nature of Michigan’s fee waiver enabled the Michigan State Police to charge almost $7 million.[*] The federal FOIA, which has a mandatory public-interest fee waiver, was fulfilled for free.
- This amendment also is one of the first to utilize the newly created Open Government Commission (see proposed MCL § 15.240c). Challenging a public body’s determination that a request is not primarily in the public interest is difficult, if not impossible. The amendment explicitly authorizes an appeal of this decision and provides the option to file that appeal with the Commission. This will make the appeal process more cost efficient. It also prevents overwhelming the court system with FOIA-related matters.
- MCL § 15.234(2)(a): This proposed amendment clarifies that an indigent requestor is not limited to a set number of FOIA requests per year. This ensures that all Michiganders, regardless of wealth, have equal access to the FOIA process.
- MCL § 15.234(3): This amendment eliminates a major loophole. Nearly every public body determines that every FOIA request would result in unreasonably high costs, and as a result, requires a fee to be charged. To prevent this, the amended language would require public bodies to demonstrate that a particular request would result in unreasonably high costs when compared to the average costs of other requests. Furthermore, because the burden is “clear and convincing” evidence, public bodies must meet a fairly high evidentiary standard to charge a fee.
This amendment also clarifies that only the mandatory exemptions contained in section 13 (such as the social security number exemption) can result in fees. This disincentivizes public bodies from heavily redacting records based on permissive exemptions (such as the privacy exemption) that are often used to shield information from disclosure that the public body finds to be disadvantageous to its interests. The default position for a public body reviewing a FOIA request should be complete disclosure, with the public body only redacting information that, if released, would violate state or federal law. This amendment promotes this approach, as public bodies wishing to apply permissive exemptions would do so at their own expense.
- MCL § 15.234(8): In light of a future change requiring records to be produced within a fixed period of time, and charges only being applicable to mandatory exemptions, a good-faith deposit is no longer necessary.
- MCL § 15.234(9)(a): This amendment eliminates the cap on reducing the price of a FOIA response when a public body fails to process it in a timely fashion. For FOIA to be an effective tool, it must result in the timely production of documents. By leaving the cost-reduction uncapped, public bodies are incentivized to process requests quickly. Furthermore, a requestor who prevails after a significant delay could receive their records for free as a form of additional relief.
- MCL § 15.234(9)(c): This amendment clarifies that the previous changes to this section are not intended to limit any other remedies available within FOIA for a public body’s failure to comply with the requirement of the act.
- MCL § 15.234(14): This amendment creates a hard cap on the total amount that can be charged to produce records. Although FOIA already prohibits public bodies from charging more than $0.10 per copied page, there is currently no upper limit on the maximum amount that may be charged for all the labor costs on a per-page basis. In doing so, the amendment disincentivizes public bodies from classifying highly paid employees as being “the lowest paid employee capable of performing the work,” which increases costs to requestors. By setting an overall hard cap of $1 per produced page, labor costs cannot be inflated by classifying highly paid employees as the “lowest paid employee capable of performing the work,” which is generally left to a public body’s discretion.
- MCL § 15.234(15): This amendment addresses an issue in which some public bodies insist on payment by check, even when accepting electronic payments for other services. It also includes a carve out for those public bodies that do not accept electronic payments for any purpose, to avoid requiring an unfunded mandate.
[*] The Michigan State Police once charged the Mackinac Center almost $7 million to respond to a FOIA request. Kathy Hoekstra, “FOIA: One Word Makes a $7 Million Difference” (Mackinac Center for Public Policy, March 31, 2010), https://perma.cc/8E26-BKSE.