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Like many aspects of Township law, recent legal developments under the Open Meetings Act (OMA) and Freedom of Information Act (FOIA) have made compliance with these statutes increasingly complex. Typically, these developments occur in court cases, which can involve sometimes shifting interpretations of these statutes, or in new legislation that changes the provisions in the statutes. This E-Letter summarizes the significant OMA and FOIA developments during the last year.

Texts and Emails during Public Meetings

Cell phone and email use at public meetings has become as common as opening each meeting with the Pledge of Allegiance. Immediate access to e-mail and the internet through cell phones can assist in many meetings. For example, the review of a document provided to the Board through email but not printed and distributed at the meeting can facilitate the Board’s deliberations. But with this added convenience comes some potential legal consequences. Text messages or emails sent on personal devices may be subject to public disclosure under the FOIA in some circumstances. Text messages or emails sent in furtherance of official duties, even if sent and received on personal cell phones, may be subject to disclosure

Interestingly, this conclusion stems from a recent case where the Court of Appeals held that emails among public employees discussing personal matters were not subject to disclosure under the FOIA even though they were sent using a public email system. Howell Education Association v Howell Board of Education (Michigan Court of Appeals, 2010). But under the holding in this case, the converse could also likely be true: Written communications sent in furtherance of a public purpose would be subject to disclosure, even if they were sent on personal systems.

Although there is no definitive case on this issue yet, it is likely to come up in the near future given the prevalence of cell phone use. One suggestion to curb any FOIA challenge is to adopt a policy on the use of cell phones during public meetings so that officials will be advised that such communications may be subject to public disclosure. Although cell phones and other technology can provide a benefit to board meetings, appropriate policies should be adopted that provide helpful guidance on the use of technology that will protect the Township’s best public interests

Attorney Fees for Violation of the OMA

When a township violates the OMA, an individual may bring one or more of three claims under the OMA: (1) a claim to invalidate a decision made at a public meeting; (2) a claim for injunctive relief to compel compliance with the OMA; and/or (3) a claim against a public official for “intentional” violations. Leemreis v Sherman Township, Michigan Court of Appeals (2007). Only the second and third types of claims allow the recovery of attorneys’ fees and costs under the express language of the FOIA.

Michigan court decisions since 1990 have established three elements that must be satisfied for a plaintiff to recover damages and attorney fees under the second type of claim (seeking injunctive relief): (1) a public body must violate the OMA; (2) a civil action must be filed against the public body requesting injunctive relief; and (3) plaintiff must succeed in obtaining relief.

The Court of Appeals recently announced a conflict between its previous decisions and the plain language of the OMA regarding when a plaintiff may recover attorney fees under the OMA. According to the court, the plain language of MCL 15.271(4) only allows attorney fees if the plaintiff receives injunctive relief requiring some action in compliance with the OMA. But not all violations of the OMA require the public body to take any additional action, because they are considered “technical” violations. For example, it is a “technical” violation to provide proposed minutes 9 days after the meeting where the minutes were taken, since the OMA requires that minutes be available within in 8 days after the meeting. Once the proposed minutes have been made available, although late, there is no future action that the Court can order, even if the Court determines that the OMA was violated.

The court recognized that some previous court decisions awarded attorney fees if any relief was ordered, even for technical violations. In other words, some of the prior cases allowed attorney fees when a plaintiff received any relief, not just injunctive relief. To address a possible conflict in the law, the court requested a special review by other judges of the Court of Appeals. Stayed tuned to see whether the Court of Appeals overturns its previous decisions and limits attorney fees to cases where plaintiffs receive injunctive relief. Speicher v Columbia Twp Bd, Michigan Court of Appeals (2013).

Charges for Responding to an FOIA Request

Townships are authorized by statute to charge a fee for responding to FOIA requests. Unless a township rarely deals with such requests, we recommend that the township adopt a fee schedule by resolution that establishes the charges for responding to FOIA requests. The fees must be “limited to actual mailing costs, the actual incremental cost of duplication or publication including labor, the cost of the search, examination, review, and the deletion and separation of exempt from nonexempt information.” MCL 15.234.

Since some searches for public records can be costly, including those that require the redaction of sensitive information, the township may request a deposit from the person if the estimated fee for complying with the request will exceed $50.00. The deposit may not exceed ½ of the total estimated fee. Although some FOIA requests may contain expansive language, a township will not be punished for being over-inclusive and providing documents that the requesting person did not want, as long at the information produced is reasonably responsive to the broad terms of the request. If the township has adopted a fee schedule by resolution, the township can recover its costs, including the labor costs of searching for, retrieving, examining, and reviewing the records to separate exempt records from nonexempt material, plus the costs for photocopying records. King v Michigan State Police Department,Michigan Court of Appeals (2013).

Documents Exempt from Disclosure under the FOIA

Not all documents requested from a township must be disclosed. The FOIA provides for the possible exemptions of certain documents, if determined by the Township. MCL 15.243. Not all of the exemptions listed are specific enough for a township to clearly determine whether an exemption applies to the request. The court decisions interpreting the scope of each exemption t provide additional guidance. This year, the Court of Appeals discussed two exemptions—the exemption for police records and the exemption of documents protected by other statutes.

• Law Enforcement Investigative Records

Investigative records compiled for law enforcement purposes are exempt if disclosure of the documents will “interfere with law enforcement proceedings.” The disclosure of the investigative records must interfere with law enforcement to be exempt. The mere probability that disclosure could compromise an investigation is not sufficient.

The exemption applies even if the records contain sensitive information that will interfere with the criminal investigation of another suspect. Many investigations involve multiple suspects. If disclosing the records about one suspect will interfere with an investigation of another suspect, the exemption applies. This occurs when the records requested are intertwined with other sensitive information that cannot be disclosed.

The FOIA coordinator should consider “redacting” (deleting portions of) the sensitive information about the law enforcement proceedings. The township may also release the documents at a later date when the disclosure will no longer interfere with an ongoing law enforcement proceeding. Such disclosure would support the intent and purpose of FOIA: to provide transparency through disclosure of public records to the public. When drafting the response letter denying access to such records, the FOIA coordinator should use language that explains that the release will interfere with an investigation. It is also important to balance merely reciting the language of the exemption from the statute against being over particular and divulging too much information. King v Oakland County Prosecutor, Michigan Court of Appeals (2013).

• Polygraph Results

Any material exempt from disclosure by another statute is also exempted from public disclosure under the FOIA. Since the Forensic Polygraph Examiners Act limits the person who administered a polygraph examination from disclosing the results, a township or police department requested to publicly disclose such materials may deny such request. Although requests for polygraph results may not be routine throughout all communities, the court decisions illustrate how important it is for the FOIA coordinator to be aware of statutes other than FOIA that may limit public disclosure of various classes of documents. King v Michigan State Police, Michigan Court of Appeals (2013).

How Detailed Must Meeting Notices Be?

The OMA obviously requires that any public notice must state when the township board or other public body will meet. But how much more detail must this notice provide? By statute, the notice must include the public body’s name, address and telephone number, and it must be posted at its principal office and other appropriate locations. MCL 15.264. Many times a meeting will involve a specific individual of the community. The township has no duty under the OMA to provide this individual personal notice, although another statute may contain such requirements in specific matters (such as zoning matters involving hearings on variances, special use permits or rezoning for specific properties). The meeting notice required under the OMA for a regularly scheduled board meeting is not required to contain any particular degree of detail regarding the meeting’s subjects and agenda items. If a meeting is not properly noticed, any decision made by the public body at that meeting may be invalidated by a court. VR Entertainment v Ann Arbor, Michigan Court of Appeals (2013).

Public Comment during a Meeting

A public body must provide the public an opportunity to address the body. MCL 15.263(5). The topic does not need to be a matter on the public body’s agenda. Any issue a person decides to raise must be permitted. The Township may impose rules limiting the time for public comment. Many townships do so by limiting the amount of time a specific individual of the public may talk and the times when public comment are permitted. We often observe townships that place a limit on public comment, limiting comment from each individual between three to five minutes.

Most townships limit public comment to the end of the meeting. We’ve also observed townships that provide for public comment at the opening of the meeting, as well as by request of the township board before any major township decisions that may  have a substantial affect on residents of the township. Other townships provide for public comment at the start and end of the meeting.

A time for public comment must be provided, but townships have the discretion on when and how such comments are provided. V.R. Entertainment v City of Ann Arbor, Michigan Court of Appeals (2013).

Possible FOIA Changes for 2014

The legislature is examining possible changes to the FOIA in a bill currently before the House. Changes currently contemplated include:

• Set predetermined limits on charges for FOIA requests (e.g., $0.10 per a page for copying).
• No copying costs for on-site inspection unless copies are requested.The fee charged by a public body will be decreased if the documents are not produced within the time frame provided for in the FOIA.
• Allow the requesting person to appeal the fee in the same manner that a requesting person can appeal a denial of a request.
• Increase the amount of punitive damages for arbitrarily and capriciously violating the FOIA from $500 to $5,000.

We expect that the bill will decrease the charges received from FOIA requests for Michigan townships, but until the legislature finally settles on a specific schedule of charges, that is difficult to guess at this point. The changes are supposedly designed to make public bodies more responsive to FOIA requests.

We can help

The lawyers of Fahey Schultz Burzych Rhodes PLC have been helping townships comply with FOIA and OMA issues since those laws took effect over 35 years ago. We work with Michigan townships to develop FOIA and OMA procedures and responses that meet all applicable legal requirements. Our lawyers have successfully guided many townships through OMA and FOIA litigation. We also offer legal counseling to prevent litigation or enhance litigation outcomes. Please contact us if you need any assistance.

We wish everyone a Merry Christmas and a Happy New Year!

— Christopher S. Patterson   cpatterson@fsbrlaw.com

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Fahey Schultz Burzych Rhodes PLC, Your Township Attorneys, is a Michigan law firm specializing in the representation of Michigan townships. Our lawyers have more than 130 years of experience in township law, and have represented more than 130 townships across the state of Michigan. This publication is intended for our clients and friends. This communication highlights specific areas of law, and is not legal advice. The reader should consult an attorney to determine how the information applies to any specific situation.