Michigan governmental entities will face significant new regulations on how they charge for responses to Freedom of Information Act (FOIA) requests beginning July 1, 2015.

New legislation approved during the Michigan Legislature’s final session day of 2014 will require public bodies to establish specific written procedures and guidelines for FOIA requests, including a separate written summary informing the public on how to submit FOIA requests, how to understand the public body’s responses to FOIA requests, deposit requirements, fee calculations, and avenues for challenging and appealing the public body’s denial of a request.  The governor signed the new legislation into law this week as PA 563 of 2014.

If a public body administers or maintains an internet presence, then it is required to post the procedures, guidelines, and written summary on its website. Public bodies are also required to provide free copies of the procedures, guidelines, and written summary upon request, and are required to include a free copy, or a website link to the policies, in all FOIA responses.

The procedures and guidelines must include a standard form to detail the itemization of any fee the public body estimates or charges under FOIA. The itemization must clearly list and explain each of the six fee components authorized under the new legislation, which include several categories of labor costs associated with producing public records, whether in paper or electronic form; costs of non-paper physical media used to produce public records (e.g., DVDs, flash drives); copying costs; and postage costs. 

The new legislation also:

• Allows FOIA requestors to require that the public body provide records on non-paper physical media, by e-mail, or otherwise electronically provided, so long as the public body has the technological capability necessary to provide records on the particular media stipulated by the requestor.
• Prohibits a public body from charging more than $0.10/sheet for paper copies of public records (excluding labor costs).
• Allows a public body to charge for contractual services required to perform separation and deletion of exempt information from nonexempt information if the public body does not employee a person capable of such activity.  The public body may not charge more than an amount equal to six times the state minimum hourly wage rate for such contractual services.
• Allows a public body to add up to 50 percent to the applicable labor charge to cover or partially cover the cost of employee fringe benefits.
• Allows a public body to inform a FOIA requestor that requested information is available on the public body’s website, in lieu of providing the public records, so long as the records were available on the website at the time of the request.
• Requires public employees receiving verbal requests for information that is available on the public body’s website, to inform the requestor of the pertinent website address.
• Requires a public body, in certain circumstances, to reduce its charges for labor costs in responding to FOIA request if the public body has not responded in a timely manner.
• Allows a public body, under certain circumstances, to require a 100 percent deposit before processing a request from individuals who have not paid the public body for public records acquired pursuant to previous FOIA requests.
• Increases mandatory punitive damages to be awarded to a plaintiff from $500 to $1,000, and mandates a new $1,000 civil fine which a court must award if it finds the public body has arbitrarily and capriciously violated the act.
• Requires a court to impose an additional civil fine of $2,500 to $7,500 if it finds the public body willfully and intentionally failed to comply with the act or otherwise acted in bad faith.

This publication is intended only as a summary of the pertinent provisions of the new legislation. Governmental entities are encouraged to carefully review the requirements of the new legislation with their legal counsel.