Federal and State FOIA Laws

Case Law

Commentary

Scenarios

Works Consulted

Author

Federal and State FOIA Laws

FOIA Improvement Act of 2016, Pub. L. 114-185, 5 U.S.C. § 552

Freedom of Information Act (Michigan), 1976 P.A. 442, Eff. April 13, 1977, MCL 15.231 et seq.

National Freedom of Information Coalition, “State Freedom of Information Laws,” nfoic.org/coalitions/state-foi-resources/state-freedom-of-information-laws

Case Law

Ahmad v. University of Michigan, No. 341299, unpublished (Mich. Ct. App. 2019); affirmed Ahmad v. Univ. of Mich., SC: 160012 (Mich. Apr. 9, 2021).

In this action brought under the Freedom of Information Act (FOIA), MCL 15.231 et seq., plaintiff, Hassan M. Ahmad, appeals as of right the November 20, 2017 order of the Court of Claims granting summary disposition in favor of defendant, the University of Michigan (“the University”), pursuant to MCR 2.116(C)(8) (failure to state a claim). Because plaintiff alleged sufficient facts to establish a prima facie claim under the FOIA, we reverse the judgment of the Court of Claims and remand.

I. BASIC FACTS

Plaintiff challenges the University’s denial of his FOIA request. Dr. John Tanton—“an ophthalmologist and conservationist,” according to the University, and “a figure widely regarded as the grandfather of the anti-immigration movements,” according to plaintiff—donated his personal writings, correspondence, and research (collectively, “the Tanton papers”) to the Bentley Library’s collection. His donation included 25 boxes of papers, but boxes 15-25 were to remain closed for 25 years from the date of accession, i.e., until April 2035, purportedly in accordance with the terms of the gift. [note: The University indicates that the restriction is memorialized in a charitable gift agreement, but that agreement is not contained in the lower court record. Regardless, plaintiff in his complaint has referenced the existence of the agreement and has acknowledged that the records were “marked ‘closed for 25 years from the date of accession, or until April 6, 2035.’ ” Further, attachments to plaintiff’s complaint show that the records were “closed to research until April 2035.” ]

Plaintiff filed a FOIA request with the University, seeking all of the Tanton papers, including those found in boxes 15-25 and marked as “closed.” The University eventually denied plaintiff’s request, asserting that the Tanton papers were closed to research until April 2035 and were therefore not “public records” subject to FOIA disclosure because they were not “utilized, possessed, or retained in the performance of any official University function.”

Following plaintiff’s unsuccessful administrative appeal, he filed suit in the Court of Claims. The Court of Claims granted the University’s motion for summary disposition, concluding that the Tanton papers are not “public records.” This appeal followed.

II. STANDARD OF REVIEW

A trial court’s ruling on a motion for summary disposition is reviewed de novo on appeal. Maiden v Rozwood, 461 Mich 109, 118; 597 NW2d 817 (1999). Summary disposition under MCR 2.116(C)(8) is appropriately granted if the plaintiff has failed to state a claim on which relief can be granted. “A motion under MCR 2.116(C)(8) tests the legal sufficiency of the complaint. . . . A motion under MCR 2.116(C)(8) may be granted only where the claims are so clearly unenforceable as a matter of law that no factual development could possibly justify recovery.” Maiden, 461 Mich at 119 (quotations marks and citations omitted). In reviewing the sufficiency of a complaint, a court accepts as true and construes in a light most favorable to the nonmovant all well-pleaded factual allegations. Id. And when deciding a motion brought under this subrule, a court considers only the pleadings. Id. at 119-120.

The interpretation and application of a statute is a question of law that this Court reviews de novo. Whitman v City of Burton, 493 Mich 303, 311; 831 NW2d 223 (2013).

When interpreting a statute, we follow the established rules of statutory construction, the foremost of which is to discern and give effect to the intent of the Legislature. To do so, we begin by examining the most reliable evidence of that intent, the language of the statute itself. If the language of a statute is clear and unambiguous, the statute must be enforced as written and no judicial construction is permitted. Effect should be given to every phrase, clause, and word in the statute and, whenever possible, no word should be treated as surplusage or rendered nugatory. [Id. at 311-312 (citations omitted).]

Finally, we also review legal determinations under the FOIA de novo. Herald Co, Inc v Eastern Mich Univ Bd of Regents, 475 Mich 463, 471-472; 719 NW2d 19 (2006).

III. WHAT CONSTITUTES A “PUBLIC RECORD” UNDER THE FOIA

Unless an exception applies, a person who provides a proper written request for a public record is entitled to “ ‘inspect, copy, or receive copies of the requested public record of the public body.’ ” Amberg v Dearborn, 497 Mich 28, 30; 859 NW2d 674 (2014), quoting MCL 15.233(1). Defendant argues that the Tanton papers are not subject to disclosure under the FOIA because under the terms of the gift agreement, they never became public records, and only public records are subject to FOIA disclosure. See MCL 15.233(1).

Under the FOIA, a “ ‘[p]ublic record’ means a writing prepared, owned, used, in the possession of, or retained by a public body in the performance of an official function, from the time it is created.” MCL 15.232(i). Thus, the sole issue before us is whether plaintiff alleged facts sufficient to show that the Tanton papers constitute a public record under the FOIA. Here, there is no doubt that plaintiff adequately alleged that the University had “possession of” or “retained” the documents at issue. Accordingly, the only question remaining is whether said possession or retention was alleged to have been done “in the performance of an official function.”

While the FOIA defines what constitutes a “public record,” it does not define what constitutes an “official function.” When a statute does not define a term, we are to give the term its plain and ordinary meaning. Williams v Kennedy, 316 Mich App 612, 616; 891 NW2d 907 (2016); see also Kestenbaum v Mich State Univ, 414 Mich 510, 538; 327 NW2d 783 (1982) (opinion by RYAN, J.) (noting that because “official function” is not defined in the FOIA, “the term must be construed according to its commonly accepted and generally understood meaning”). We may consult a dictionary in ascertaining plain meanings. Williams, 316 Mich App at 616. “Official” is defined, in pertinent part, as “AUTHORITATIVE, AUTHORIZED.” Merriam-Webster’s Collegiate Dictionary (11th ed). And “function” is defined as “the acts or operations expected of a person or thing.” Id. Thus, an “official function” of the Bentley Library, as intended under the FOIA, includes those authorized acts or operations that are expected of the Library as it relates to its position as a public library. In order to help determine whether any given act or operation is authorized, we turn to the University’s bylaws.

The University’s bylaws provide that the Bentley Library’s historical collection is “maintained for the purpose of collecting, preserving, and making available to students manuscripts and other materials pertaining to the state, its institutions, and its social, economic, and intellectual development.” Bylaws, § 12.04 (emphasis added). The University does not dispute that it had collected and possessed the Tanton papers but instead argues that because the papers had never been made available to anyone, let alone students, then the papers cannot constitute a public record. In making this argument, the University says that in order to qualify as a “public record” for FOIA purposes, all three aspects of the bylaws’ stated purpose are required to have been accomplished. The University primarily relies on the conjunctive “and” in the list, “collecting, preserving, and making available to students.” (Emphasis added.) However, we believe that the University is reading the conjunctive “and” in this context incorrectly.

We agree with the University that the purpose for the Library’s existence is defined as having three distinct aspects, which are indeed provided for in the conjunctive, i.e., collecting, preserving, and making available to students the Library’s materials. We generally are to read the conjunctive word “and” as a true conjunctive, see Coalition Protecting Auto No-Fault v Mich Catastrophic Claims Ass’n (On Remand), 317 Mich App 1, 14; 894 NW2d 758 (2016); People v Comella, 296 Mich App 643, 649; 823 NW2d 138 (2012) (both cases explaining that the words “and” and “or” are not interchangeable and their strict meanings, including the conjunctive meaning of “and,” should be followed unless legislative intent shows otherwise); OfficeMax, Inc v United States, 428 F3d 583, 589 (CA 6, 2005) (“[T]he Supreme Court has said that ‘and’ presumptively should be read in its ‘ordinary’ conjunctive sense unless the ‘context’ in which the term is used or ‘other provisions of the statute’ dictate a contrary interpretation.”). However, as the cases above show, the meaning of “and” and “or” may be flexible depending on context. Heckathorn v Heckathorn, 284 Mich 677, 681-682; 280 NW 79 (1938). We do not read this list as requiring all three aspects to have been completed in order for the Library to have been acting in furtherance of its purpose, as described in the bylaws.

Because the Tanton papers have never been made available to students, if the University’s construction of the statute were correct, then none of what it has done to date with respect to the papers has been in the performance of an official function. The flaw with the University’s argument is that while all three aspects of the Library’s purpose are relevant to the Library’s purpose and mission, they do not each have to have been completed in order for the Library’s acts to have been in furtherance of its purpose. Instead, from the context of the bylaws, all that is required is that the Library’s actions were done with the intention that all three aspects of its stated purpose were to be fulfilled. This interpretation gives the conjunction “and” in the bylaws its proper meaning. For example, the act of presently collecting and acquiring papers that the Library intends to preserve and make available to students at a future date would be in the performance of its official function. But the act of acquiring writings or documents that the University has no intention of ever making available to students would not be in the performance of its official function. Therefore, the Library doing any act in furtherance of any single aspect of its stated purpose, while intending to accomplish the other aspects, is doing the act “in the performance of an official function.”

Here, plaintiff sufficiently pled that defendant was storing and maintaining the Tanton papers, which is consistent with the stated purposes of the Library’s official functions. The fact that those materials were not subject to disclosure to students or research does not detract from the fact that the act of keeping those materials is part of the Library’s purpose. Importantly, plaintiff’s complaint can be read to allege that the Tanton papers were “closed” to research until April 2035. The clear implication is that the University was holding the papers with the intent to open them to research (and students) at that later time. Thus, the University’s acts of collecting and preserving the papers were in furtherance of its official purpose. Accordingly, we read the complaint as alleging that defendant “maintained the records” in the performance of an official function, which, under FOIA’s definitions, renders them “public records.” Therefore, contrary to the ruling of the Court of Claims, the complaint states a valid claim that the papers are public records.

Further, the Michigan Community Foundation Act (MCFA), MCL 123.901 et seq., and its predecessor act, 1921 PA 136, support our conclusion that the Library’s act of holding onto the Tanton papers was an official or “authorized” function. MCL 123.905(3) of the MCFA states:

A public library may receive and accept gifts and donations of real, personal, or intangible personal property, for the library, and shall hold, use, and

apply the property received for the purposes, in accordance with the provisions, and subject to the conditions and limitations, if any, set forth in the instrument of gift.

Thus, a public library receiving a gift is authorized by statute to “hold, use, and apply” the gift for the purposes set forth in the donor’s agreement, subject to any conditions or limitations expressly made. Therefore, the Bentley Library carries out an “official function” as it relates to its gifts and donations when it holds onto such gifts and donations in accordance with the donation agreement.

Reversed and remanded for proceedings not inconsistent with this opinion. We do not retain jurisdiction.

/s/ Thomas C. Cameron /s/ Amy Ronayne Krause /s/ Jonathan Tukel

Commentary

Introduction

Each state has its own Freedom of Information Act (FOIA) statute, and these FOIA statutes differ from state to state. This chapter uses Michigan’s FOIA as an example of how FOIA impacts governmental institutions, including public libraries, state university libraries and archives, public schools, and state agency libraries. Federal libraries and archives are subject to the federal FOIA statute, the FOIA Improvement Act of 2016, Pub. L. 114-185, 5 U.S.C. § 552. Private college and university libraries and archives and non-governmental special libraries are not subject to FOIA.

We strongly encourage readers to review their own states’ FOIA statutes. For links to all state FOIA statutes, see National Freedom of Information Coalition, “State Freedom of Information Laws,” nfoic.org/coalitions/state-foi-resources/state-freedom-of-information-laws.

The Michigan Freedom of Information Act, 1976 PA 442 (“FOIA”) provides that all persons (except those persons incarcerated in state, county, or federal correctional facilities) are entitled to full and complete information regarding the affairs of government and the official acts of those who represent them as public officials and public employees. MCL 15.231(2). Access to such information is important so that people may understand how the government operates and how taxpayer funds are spent.   A person requesting records from a library is not required to be a patron of the library or even live in the library’s legal jurisdiction.

Are Libraries Required to Respond to FOIA Requests?

“Public bodies” are required to comply with the FOIA. The FOIA defines a “public body,” including “[a] body that is created by state or local authority or is primarily funded by or through state or local authority.” MCL 15.232(h). Because public libraries are created and funded through state and local authorities, they are bound by the disclosure requirements under the FOIA.  Independent public libraries, such as district libraries or libraries established under the City, Village and Township Libraries Act, 1877 PA 164 (“PA 164”), are separate, independent public bodies and must respond to FOIA requests directed to the library. Libraries with advisory boards, such as city libraries that are departments of the city, may fall under their governing municipality’s FOIA process. State university libraries and archives and public school media centers will fall under their institutions’ FOIA processes. State and federal agency libraries will fall under their agencies’ FOIA processes. Private college and university libraries and archives, private schools, and non-governmental special libraries are not required to respond to FOIA requests.

Libraries Must Follow Established Procedures

The FOIA was amended in 2015 and now requires public bodies to establish procedures and guidelines to implement the FOIA (“Procedures”). A public body must also create a written public summary of the Procedures that may be easily understood by members of the general public. The Procedures must include information regarding: (1) how to submit written requests to the public body; (2) how to understand a public body’s written responses; (3) deposit requirements; (4) fee calculations; and (5) avenues for challenge and appeal. MCL 15.234(4). If the library has a website (regardless of whether it directly or indirectly maintains it), the Procedures and written summary must be posted on the website. Id. Every FOIA response must include either a copy of both the Procedures and summary or a link to the website where the documents can be located. Id.

FOIA Coordinator

The chief administrative officer is the FOIA Coordinator for libraries. MCL 15.236(2). For most libraries, this will be the director. The FOIA Coordinator is responsible for accepting and processing requests for the public body and is responsible for approving denials or denials in part. The FOIA Coordinator may designate another individual to act on his or her behalf in accepting and processing the requests. MCL 15.236(3).

Making a FOIA Request

Any person or organization may request information under the FOIA, except those persons incarcerated in a state, county, or federal correctional facility. However, the library is only required to respond to requests made in writing. MCL 15.233(1). The FOIA permits the library to respond to a verbal request but does not require it with one exception – the library must respond to a verbal request if there is a reasonable belief that the requested information is available on the library’s public website. MCL 15.234(6).

The FOIA was also amended to prohibit anonymous FOIA requests. Now, a FOIA request must include the person’s and organization’s agent’s complete name and address. The FOIA request must also include either a valid telephone number or email address. MCL 15.233(1).

A written request may be in any written form such as an email, fax, or letter. A common misperception is that a FOIA request must contain the words “FOIA” or “Freedom of Information Act” to be valid; that is not accurate. As long as the request is in writing and contains the required contact information, the request will be considered a request governed by the FOIA. With that said, a FOIA request must contain a sufficient description of the public record requested. Libraries will have to evaluate the request to determine whether the request is sufficient. A vague request for records that spans a vast amount of time may not be sufficiently described. Capitol Information Ass’n v Ann Arbor Police, 138 Mich App 655; 360 NW2d 262 (1984); OAG, 1978-1979, No. 5500, p 255 (July 23, 1979). For example, a request for “all information affecting the budget for the last 10 years” is likely not sufficiently described. A library would likely not be able to determine what information “affects the budget” over a 10 year period. However, a request for all final budgets for the last 10 years would be sufficiently described. Even though it spans many years, the request seeks easily identifiable documents.

A person may also submit a continuing request called a subscription for public records created, issued or disseminated on a regular basis. A continuing request for future records is valid for up to six months and may be renewed. However, a subscription is only for documents created, issued or disseminated on a regular basis. This would include records like minutes and agendas. It would not include records that are created as needed. For example, if a requestor asked for all correspondence received by the library regarding the new library building, this would not be a proper subscription because the documents are not routinely created.

What Records are Subject to FOIA?

The FOIA only requires that libraries provide copies or access to “public records.” “Public records” include writings prepared, owned, used, in the possession of, or retained by a public body in the performance of an official function, from the time it is created. MCL 14.232(i). However, not every document in the library’s possession or received by the library will be considered a “public record” as defined by the FOIA. Walloon Lake Water Systems, Inc v Melrose Twp, 163 Mich App 726; 415 NW2d 292 (1987). For example, the Michigan Court of Appeals determined that a letter read aloud at a meeting would constitute a public record because it was made part of the minutes of the public body and was the basis for a decision to refrain from taking official action. Id.

The courts have also addressed whether emails captured on a library system would be a “public records” under the FOIA. The Court of Appeals determined that the mere possession of the public record, such as retaining all emails on the library’s backup system, was not sufficient; the document must also have been used in the performance of an official function. Howell Educ Ass’n MEA/NEA v Howell Bd of Educ, 287 Mich App 228; 789 NW2d 495 (2010). For example, if a director sent an email to the board president about an agenda item, that email would likely be a “public record.” However, if the director sent an email to her sister to meet for lunch, she is acting in her personal capacity and the email would not be a public record under the FOIA.

Similarly, the courts have determined that handwritten notes kept by an official were not a public record. Hopkins v Duncan Township, 294 Mich App 401; 812 NW2d 27 (2011). A board member took notes during a meeting and a person sent a FOIA request asking for the notes. The board member argued they were not public records because they were not used in the performance of an official function but were private writings to refresh his own recollection. The court agreed with the board member because the notes were (1) never in the public body’s possession; (2) not used in the performance of an official function; (3) not used for substantive decision making or record keeping; (4) not considered by other board members; and (5) were not read into the record at a board meeting. Id.

When requesting a public record through the FOIA, a requestor may specify whether he or she would like to inspect, receive paper copies, or receive the request for specified non-paper physical media. However, the library is only required to comply with the request for specified non-paper physical media if it has the technological capability necessary to provide the public records in such a format in the particular instance. MCL 15.234(1)(c).

Options After Receiving a FOIA request

Unless otherwise agreed to in writing by the person making the request, a library shall respond to a request within five business days after it receives the request. A library has not “received” a FOIA request sent by fax, email or other electric transmission until one business day after the transmission is made. If the email is delivered to the library’s spam or junk-mail folder, the five business day time frame does not begin to run until one day after the request is discovered. MCL 15.235(1). The library 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 business day is Monday through Friday excluding legal holidays; the library should not calculate businesses days solely on the days the library is open. The library has several options for its initial response as follows:

1. Respond to the Request. First the library can respond to the request by (a) granting the request; (b) denying the request; or (c) granting the request in part and denying the request in part. This chapter contains additional detail for what must be included in a FOIA response. MCL 15.235(1).
2. Extension. The library may issue a notice extending the time period for not more than 10 business days. The extension notice must indicate the reason for the extension and the date by which the library will respond. MCL 15.235(2)(d) and (7).
3. Deposit. The library may require a good-faith deposit before providing the public records to the requestor if the entire fee estimate or charge is estimated to exceed $50.00. However, the required deposit shall not exceed ½ of the total estimated fee and must provide the deposit amount on a detailed itemization sheet. As an exception to the general rule, a library may require a deposit of up to 100% of the estimated amount from an individual who failed to pay for a prior FOIA request under certain very limited conditions outlined in MCL 15.234(11). The library’s deposit notice shall contain a best efforts estimate by the library regarding the time frame it will take the library to respond after receiving the deposit.

The FOIA was amended in 2018 to address a situation in which a library does not receive the deposit after the notice was sent. If a public body requests a deposit, if that deposit is not received by the public body within 45 days from receipt of the notice of deposit, and if the requesting person has not filed an appeal of the deposit amount, the request shall be considered abandoned by the requesting person. In such cases, the library is no longer required to fulfill the request. The deposit notice is considered received three days after it is sent, regardless of the means of transmission.   The deposit letter must include notice of the date by which the deposit must be received, which date is 48 days after the date the deposit letter is sent. So, each deposit letter must include the deadline. MCL 15.234(14).

Response Requirements

Granting the Request

If a library grants a FOIA request, it must provide the requested public records. If the library is charging a fee, the letter granting the request in whole or in part must include a detailed itemization of the fees. The library may require that the requestor pay the full amount of the fee before releasing the documents. OAG, 1997-1998, No 6977, p 131 (April 1, 1998). If all or a portion of the requested records are available on the website, the library may provide the requestor with the website address in its written response. As mentioned above, if the requestor wants the public records in a paper format or other non-paper physical media, the library shall provide the public records in the specified format if possible.   With any response, the library must provide a copy or a website link to the Procedures and written summary.

Denying the Request

If a library denies a FOIA request (in whole or in part), it must provide the requestor with additional information regarding the denial. The library must explain why the request was denied, how the requestor may appeal the denial, and provide notice of the requestor’s potential right to attorney’s fees and damages. MCL 15.235(5). The following are common denials.

1. The Documents Do Not Exist. If the document does not exist or cannot be reasonably identified, then the public body can deny the request on that basis. But, the library must provide a “certificate” that the record does not exist under the name given by the requestor or by another name reasonably known to the public body. If the requestor provides a list of documents such as all emails, videos, audio recordings, reports, notes and other public records, make sure to inform the requestor if you don’t have any part of that request.
2. No “Public Records” as Defined by the FOIA. As described above, not every document in the public body’s possession will be considered a “public record” under the FOIA. Just like when documents do not exist, the library must provide a “certificate” that no public record exist under the name given by the requestor or by another name reasonably known to the public body.
3. Not Required to Create Documents. If the request for information requires the public body to create a new document, then the request can be denied.   The library is also not required to create a compilation, summary or report for a requesting party. This can be a difficult issue when dealing with electronic databases. The library will have to determine whether a particular request for electronic records would require the public body to create a public record. MCL 15.233(4) and (5).
4. Documents Are Exempt. If there are public records in existence, they are subject to disclosure unless specifically exempted. The FOIA requires that the library explain what information is exempt. If the public body separates or deletes exempt material from the response, it must provide the requesting party with a description of the public record or information on a public record that is separated or deleted. A list of 27 types of documents that are exempt from disclosure are set forth in Section 13 under the FOIA. The following list includes exemptions likely to be encountered more frequently.

• General Privacy. A public body may exempt from disclosure information of a personal nature if public disclosure of the information would constitute a clearly unwarranted invasion of an individual’s privacy. Evaluating a request under a privacy exemption, the public body must look at (1) whether the information is of a personal nature; and (2) whether the disclosure of such information would constitute a clearly unwarranted invasion of privacy. Mager v Dept of State, 460 Mich 134; 595 NW2d 142 (1999); MCL 15.243(1)(a).

• Frank Communication Exemption. This exemption is very narrow and must meet the balancing test. Frank communications are “[c]ommunications and notes within a public body or between public bodies of an advisory nature to the extent that they cover other than purely factual materials and are preliminary to a final agency determination of policy or action. This exemption does not apply unless the public body shows that in the particular instance the public interest in encouraging frank communication between officials and employees of public bodies clearly outweighs the public interest in disclosure.” MCL 15.243(1)(m)

• Information That is Exempt by Statute. For libraries, this exemption includes any record that would be a “library record” under the Michigan Library Privacy Act. MCL 15.243(1)(d).

• Other Information. Attorney-client privileged information, social security numbers, certain bid and appraisal information (time limited) and records that involve a civil action between the library and the requestor. MCL 15.243(1)(g), (i), (j) and (v).

FOIA Fees

A library 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 the library has established and made the Procedures publically available. However, the fee shall be limited to actual mailing costs and to the actual incremental cost of duplication or publication which includes the cost of labor. The library must use a standard form for the detailed itemization of costs. The fees are complicated and detailed, so reviewing the statute is important. MCL 15.234. However, we have summarized them in this chapter.

If a labor fee is justified, it may include time spent (1) searching for, locating, and examining public records if the request is granted; (2) separating and deleting exempt material from public records (which includes redacting); and (3) duplicating or publishing public records. A labor fee shall not be charged for (1) searching for locating, and examining; or (2) separating or deleting information unless failure to charge a fee would result in unreasonably high costs to the library. For most labor charges, the library must not charge more than the hourly wage of its lowest-paid employee capable of performing the action, even if someone else actually preforms the task. Except for duplication and publication, all fees must be charged in 15 minute increments, rounded down. MCL 15.234.

For the task of separating and deleting only (otherwise known as redacting), if the library does not employ a person capable of conducting the action, the library may contract the labor out to a third party. This cost should not exceed an amount equal to six times the state minimum hourly wage. MCL 15.234.

Aside from labor costs, a library may charge a requestor for providing (1) paper copies of a public record at a maximum of $.10 per sheet for standard sizes; (2) non-paper physical media copies of a public record; and (3) mailing costs. The library shall use the most economical means available for providing copies and shall not charge more for expedited shipping unless specifically stipulated by the requestor. MCL 15.234.

In limited situations, FOIA fees may be waived or reduced by a library’s FOIA Coordinator. If the requestor is either indigent, or an exempt non-profit organization, the FOIA Coordinator must provide a $20.00 credit to be reduced from the requestor’s FOIA costs for each FOIA request. MCL 15.234(2).

If the library does not respond to a written FOIA request in a timely manner, the FOIA Coordinator shall reduce the charges for labor costs by 5% each day the library exceeds the permissible time frame (with a maximum 50% reduction) if either of the following conditions apply:

1. The late response was willful and intentional.
2. If the requestor included language that conveyed a request for information within the first 250 words of the body of a letter, fax, 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 fax cover page. MCL 15.234(9).

In addition, the library may reduce the fee when the reduction of the fee would be in the public interest; this would occur if the request benefits the general public. In that instance, the FOIA Coordinator may in his or her discretion reduce or waive the imposition of FOIA fees. MCL 15.234(2).

FOIA Appeals; Circuit Court Actions; Remedies

If a FOIA request is denied or denied in part, a requestor has two options. First, a requestor may appeal a final determination denying his or her FOIA request to the library board. To appeal a determination to the library board, a requestor must submit a written appeal that specifically states the word “appeal” and identifies the reason or reasons for reversal of the determination. The library board is considered to have received the notice of appeal at its first regularly scheduled meeting following submission of the appeal. Within 10 business days after receiving the written appeal, the board must either make a determination on the appeal or issue a notice extending the period under which a determination must be made. MCL 15.210

After the appeal or instead of filing an appeal, the requestor may file an action in circuit court to compel the library’s disclosure of the public records; the cause of action must be filed within180 days after the library’s final determination to deny a request. This final determination could be the FOIA Coordinator’s determination or the library board’s appeal determination. If the court determines that a public record was wrongfully withheld from the requestor, the court may compel disclosure as well as hold the library liable for civil fines and penalties, as well as reasonable attorney’s costs and fees. MCL 15.210

In a similar manner, a requestor may also appeal fees imposed upon him or her which exceed the amount permitted under the FOIA to the library board or the circuit court. However, in this case, the requestor is not permitted to directly file a lawsuit with the circuit court. In order for the requestor to properly commence a civil action in the circuit court, the library must have (1) failed to respond to a written appeal; or (2) made a determination on a written appeal. This action must be filed within 45 days after receiving notice of the determination of an appeal to the library board. If the court determines that the library arbitrarily and capriciously violated the FOIA by charging an excessive fee, the library may be liable for civil fines and penalties, as well as reasonable attorney’s costs and fees. MCL 15.210a.

It is important that public libraries fully comply with all FOIA requirements and Procedures. If a court determines that a public body willfully and intentionally failed to comply with the FOIA or otherwise acted in bad faith, the court may order the public body to pay a civil fine of up to $7,500 for each occurrence. MCL 15.210b.

Summary

Compared to other types of public entities, public libraries tend to receive fewer FOIA requests. Because of this, libraries do not have much “practice” responding to FOIA requests. The law contains many technical requirements that, if not followed, may have legal consequences. Therefore, it is important for libraries to have the correct policies in place and sufficient training. Library directors should be well-versed in the technical aspects of the FOIA.

Also, if the library is found to have violated the FOIA in responding to a FOIA request, the court may award the plaintiff reasonable attorney fees. So, the library would have to pay its own attorneys to defend it in a lawsuit, but may also have to pay the plaintiff for bringing the lawsuit.

Scenarios

Scenario 1 – The Investigating FOIA Requestor

The library has been operating efficiently and without major incident for many years. One day, a patron notices someone looking at material that the patron finds offensive on the library computer. The patron approaches library staff and asks why the offensive material is not blocked by library filters. The library director informs the patron that the library board has decided not to filter the internet provided by the library; the library cannot ask the patron not to view the material because it is protected by the First Amendment. The patron is furious that public funds are being used in such a manner and that the library is not protecting patrons from viewing offensive material.

This sets the patron off on a mission – the mission to get to the bottom of why the library is not filtering its computers. As his primary tool, the investigating patron sends a FOIA request asking for:

• All library minutes addressing library filtering
• All incident reports that involve the use of library computers
• All emails and texts from the staff at the library to library board members over the past month

Under your state’s FOIA statute, how should the library respond? With respect to the minutes, there is no time frame included in his request. Would the library be required to search its entire 85-year history of minutes?

Your state’s Library Privacy Act precludes the library from releasing information about patrons, including information contained in complaint forms. How should the library respond to the portion about incidents?

The library is not sure how to approach the issue about emails and texts. Some of the emails were sent from a personal account; some were sent on the library computer. Over the last month, the director sent emails from his work computer to relatives about a surprise party for his wife. Would those be subject to disclosure?

Scenario 2 – The Disgruntled Former Employee

Unfortunately, the library had to terminate the employment of an employee. She was late frequently, missed work, and was insubordinate. She was consistently arguing with management. Now, unemployed, she has plenty of time to send FOIA requests. Her first request was for the personnel file of the library director and senior staff. The personnel file contains at least one disciplinary action. Is the director required to send all information in the personnel file? What about information regarding personal leave requests?

Weeks later, the ex-employee is still sending FOIA requests. She has sent over 10 requests in two weeks. The director and staff is required to spend many hours fulfilling the requests and wonder if there is any end in sight. Does the director have any recourse for “harassing” FOIAs?

Works Consulted

Ahmad v. University of Michigan, No. 341299, unpublished (Mich. Ct. App. 2019); affirmed Ahmad v. Univ. of Mich., SC: 160012 (Mich. Apr. 9, 2021).

Capitol Information Ass’n v Ann Arbor Police, 138 Mich. App. 655; 360 N.W.2d 262 (1984).

FOIA Improvement Act of 2016, Pub. L. 114-185, 5 U.S.C. § 552.

Freedom of Information Act (Michigan), 1976 P.A. 442, Eff. April 13, 1977, MCL 15.231 et seq.

Hopkins v Duncan Township, 294 Mich. App. 401; 812 N.W.2d 27 (2011).

Howell Educ Ass’n MEA/NEA v Howell Bd of Educ, 287 Mich. App. 228; 789 N.W.2d 495 (2010).

Mager v Dept of State, 460 Mich. 134; 595 N.W.2d 142 (1999).

National Freedom of Information Coalition. State Freedom of Information Laws, nfoic.org/coalitions/state-foi-resources/state-freedom-of-information-laws.

Office of the Attorney General (MI). “IV. Court Opinions on the Michigan Freedom of Information Act.” Michigan’s Freedom of Information Act: Current Through January 2017, May 24, 2017, pp. 42-76, www.michigan.gov/documents/ag/FOIA_Pamphlet_380084_7.pdf.

—. “III. Attorney General Opinions Relating to the Freedom of Information Act.” Michigan’s Freedom of Information Act: Current Through January 2017, May 24, 2017, pp. 32-41, www.michigan.gov/documents/ag/FOIA_Pamphlet_380084_7.pdf.

Walloon Lake Water Systems, Inc v Melrose Twp, 163 Mich. App. 726; 415 N.W.2d 292 (1987).

Author

Anne Seurynck (she/her/hers) is a shareholder and President of Foster, Swift, Collins & Smith, P.C. Anne has been practicing with the Foster Swift Municipal Law Practice Group since her arrival at the firm in 1996. Anne’s focus has been on the representation of libraries. Anne is currently serving as the lead contact person for the firm’s library clients. In addition to her library law practice, Anne also counsels clients on other municipal matters such as Open Meetings Act and Freedom of Information Act compliance. An undergraduate of the University of Michigan, she is a graduate of the University of Wisconsin Law School.