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Do We Need A FOIA Policy?

Michigan townships commonly adopt policies covering a wide range of subjects. Some are required, but others are just a good idea. For example, with requests for township records, the Freedom of Information Act (FOIA) does not mandate a policy, but if you want to recover your reasonable costs of responding to such requests, a policy is a must. In addition, the State Tax Commission (STC) is requiring information policies for township assessing records. Here’s what you need to know to adopt a FOIA policy.

Why Have Policies?

Some policies are required by law. Others are put in place in order to avoid potential problems in the future. Policies and procedures can also help the township run more smoothly, because everyone is on the same page. Some policies are simply a good idea, either to protect the township in the court of public opinion—or a court of law.

What FOIA Policies are Required by Law?

The State Tax Commission (STC) audits townships for compliance with certain minimum assessing requirements based on state law and STC Rules, Policy, Bulletins and Publications. One of the STC’s minimum requirements is a policy regarding public inspection of records. Where the township does not have normal business hours, this policy requirement is sure to be raised as a deficiency by the STC if you do not have it in place. The following policy has been approved by the STC for use by other townships:

POLICY AND PROCEDURE FOR THE PUBLIC INSPECTION AND COPYING

OF PUBLIC RECORDS IN LIEU OF CUSTOMARY BUSINESS HOURS

1)   Requests for public inspection and copying of public records may be made verbally and/or in writing.

2)   Said requests may be directed to the township official or authorized inpidual responsible for said public records.

3)   Any requests made pursuant to Michigan’s Freedom of Information Act, shall be made to the FOIA coordinator and shall be subject to the statutory requirements of FOIA.

4)   If verbal request is made, the responding township official or authorized inpidual shall prepare a checklist of item or records requested to be copied or inspected. Said listing shall be presented to the requesting party on the date set for inspection or copying.

5)   The responding township official or authorized inpidual may require the requesting party to counter sign the check list to indicate compliance with the verbal request.

6)   The responding township official or authorized inpidual shall be responsible for the production of the requested copies.

7)   The requesting party shall be billed for the copies and preparation time, if applicable, pursuant to the schedule of charges established by the Township Board.

8)   If the request is for inspection of public record, the responding township official or authorized inpidual shall respond in a timely manner, not to exceed 5 business days, from the date of said request. Said response shall indicate the date, time and place when said public Inspection of the requested public records shall take place.

9)   The establishment of the date and time of the public inspection of the requested public records shall be in the discretion of the responding township official or authorized inpidual. The place designated for the requested inspection shall be the Township Hall or the location where said public records are officially retained.

10)  The responding township official or authorized inpidual shall allow such inspection between the hours of 9:00 AM and 5:00 PM, Monday through Friday, unless mutually agreed to by the responding township official or authorized inpidual and the requesting party.

Fees for Responding to FOIA Requests

Unfortunately, the legal limitations placed on fees for responding to FOIA requests are often terribly inadequate to reimburse the township for its full costs of responding, and this can lead to some abuses of the FOIA by requesters. Even more regrettably, the legislature is currently considering the adoption of further limits on fees for record requests. As currently written, the FOIA requires that a township have an adopted policy for fees in order to recover most of the costs it incurs. The following policy language will help the township to maximize the amount of costs it can recover under current law, although future changes may be needed to address changes in law.

FEES FOR FOIA REQUESTS

It is the policy of the Township to charge a reasonable fee for providing copies of a public record or for the search, examination, and review of a requested public record. Except as otherwise provided by act or statute or this policy, all persons shall be charged the following fees for access to or copies of a public record:

a.   Except as set forth below, all requesters shall be charged $0.20 per page for copies of public records.

b.   The requester shall pay a fee for a public record search, the necessary copying of a public record for inspection, for making a record available for review, and for providing a copy of a public record.

c.   In calculating the cost of labor incurred in duplication, mailing, and the cost of search, examination, review, and the deletion and separation of exempt from nonexempt information, the Township may not charge more than the hourly wage of the lowest paid employee who is capable of retrieving the information and performing the tasks necessary to comply with the request.

d.   The fee for any mailing, shipping, and similar charges shall be the actual cost of such services.

e.   Fees shall be uniform and not dependent upon the identity of the requesting person. The Township shall utilize the most economical means available for making copies of public records.

f.    In cases where a fee will be charged, the request shall be approved specifying the amount assessed and indicating that the documents will be provided after payment is received in full. If the amount assessed will exceed $50.00, exclusive of any waived amounts, a 50% deposit shall be required before processing of the request begins. Upon completion of processing, the balance must be paid before the documents are delivered to the requester.

g.   A public record search shall be made and a copy of a public record shall be furnished without charge for the first $20.00 of the fee for each request to an inpidual who is entitled to information by law and who submits an affidavit stating that the inpidual is then receiving public assistance or, if not receiving public assistance, stating facts showing inability to pay the cost because of indigency.

h.   A search for a public record may be conducted or copies of public records may be furnished without charge or at a reduced charge if the Township determines that a waiver or reduction of the fee is in the public interest.

“Enhanced Access”

FOIA requests for electronic data trigger a special provision of the Enhanced Access to Public Records Act that allows the township to charge more than just actual, incremental costs to provide access to digital records. With an enhanced access policy in place, you may charge a “reasonable fee” for this access. This policy is intended for the companies who make requests for all your assessing data, voter data, etc. You can actually charge more for these kinds of requests, but you need an enhanced access policy to do so. Here is an example:

ENHANCED ACCESS TO PUBLIC RECORDS POLICY

Pursuant to the Michigan Enhanced Access To Public Records Act, MCL 15.232 et seq, the Township is entitled to establish a policy seeking reimbursement to the Township for the costs incurred in responding to enhanced access requests, especially since these requests could result in an unusually high cost to the public body. Therefore, the Township will charge a reasonable fee to recover the cost of providing the enhanced access information, in accordance with this Policy.

1.    AUTHORIZATION

A.   Pursuant to the Enhanced Access Act, the Township establishes this Policy in order to provide enhanced access for the inspection, copying, or purchasing of certain public records that are not confidential or otherwise exempt by law from disclosure.

B.   This Policy does not require the Township to provide enhanced access to any specific public record other than those identified herein.

C.   The Township may make the following public records available for enhanced access:

1.    Tax roll;

2.    Assessment roll;

3.    Voter registration list;

4.    Voter records; and

5.    GIS records.

D    The enhanced access provided by the Township entails the placement of all or a portion of a public record listed in 1 C. above, on a computerized medium compatible with the Township’s computer equipment.

2.    DEFINITIONS

A.   “Enhanced access” means a public record’s availability for public inspection, purchase or copying by digital means. Enhanced access does not include the transfer of ownership of a public record.

B.   “Geographical Information System” (GIS) means an informational unit or network capable of producing customized maps based upon a digital representation of geographical data.

C.   “Operating expenses” includes, but is not limited to, a public body’s direct cost of creating, compiling, storing, maintaining, processing, upgrading, or enhancing information or data in a form available for enhanced access, including the cost of computer hardware and software, systems development, employee time, and the actual cost of supplying the information or record in the form requested by the purchaser.

D.   “Person” means that term as defined in Section 2 of the Freedom of Information Act, Act No. 442 of the Public Acts of 1976, MCL 15.232.

E.   “Public Body” means that term as defined in Section 2 of the Freedom of Information Act, Act No. 442 of the Public Acts of 1976, MCL 15.232.

F.   “Public Record” means that term as defined in Section 2 of the Freedom of Information Act, Act No. 442 of the Public Acts of 1976, MCL 15.232.

G.   “Reasonable fee” means a charge calculated to enable the Township to recover over time those operating expenses directly related to the public body’s provision of enhanced access.

H.   “Software” means that term as defined in Section 2 of the Enhanced Access to Public Records Act, Act No. 462 of the Public Acts of 1996, MCL 15.442.

3.    FEES

A.   It is the policy of the Township to charge a reasonable fee for providing enhanced access to a public record.

B.   Except as otherwise provided by law, the Township Clerk may establish a proposed reasonable fee for each public record made available for enhanced access. The proposed fee(s) shall be presented to and approved by the Township Board before they shall be effective.

C.   Except as otherwise provided by law or this Policy, all persons shall be charged the reasonable fee approved by the Township Board for enhanced access.

D.   The Township may furnish enhanced access without charge or at a reduced charge if the Township Clerk determines that a waiver or reduction of fee is in the public interest because enhanced access can be considered as primarily benefitting the general public. Examples may include, but are not limited to, instances when:

1.   The information is critical to public health or safety.

2.   The information is required to meet legal or governmental objectives;

3.   The information explains the rights, entitlements and/or obligations of inpiduals;

4.   The cost of administering the fees would exceed the revenue to be collected;

5.   The reasonable fee established would have a serious detrimental impact on the financial position of particular groups or classes of users;

E.   The fee schedule set forth in Exhibit “A,” attached hereto and made a part hereof, is adopted and established as the fee schedule for obtaining any information under this Policy.

4.    DISCLAIMERS

A.   Recipients of enhanced access information receive all information “AS IS,” and the Township, its officers, officials, employees, agents, volunteers, contractors, or its public bodies, make no warranties of any kind, including but not limited to warranties of accuracy, fitness for a particular purpose, or of a recipient’s right of use. Recipients are solely responsible for investigating, resisting, litigating and settling such complaints, including the payment of any damages or costs, unless the Township Board, by resolution adopted by a majority of those elected and serving, elects to participate in the process at the Township’s expense.

B.   Except for the Township Board, by resolution adopted by a majority of those elected and serving, no officer, official, employee, agent, volunteer, contractor or other person or public body may make any representation or warranty on behalf of the Township or one of its public bodies.

Exhibit A

FEE SCHEDULE

1.     The Township will charge a reasonable fee to recover only the cost of providing the enhanced access information.

2.     The reasonable fee shall include, but not be limited to, the direct cost of creating, compiling, storing, maintaining, processing, upgrading, or enhancing information or data in a form available for enhanced access, including the pro-rated cost of computer hardware and software, system development, employee time, and any other actual costs incurred in supplying the information or record in the form requested by the purchaser.

3.     When calculating employee time, the actual wage (plus benefits) of the lowest paid employee capable of performing the responsibilities shall be utilized.

4.     The Township Clerk shall estimate the reasonable fee for a request for enhanced access information in accordance with the foregoing and present the estimate to the requester. Prior to the Township incurring costs in response to the request, the requester shall post a cash deposit with the Township Clerk equal to at least ½ of the estimated cost or providing the enhanced access information.

5.     The Township shall not provide the requested enhanced access information to the requester until full payment therefore has been made to the Township.

Other Important FOIA Policy Provisions

A FOIA policy should be comprehensive to assure compliance with the FOIA by all departments, officials and employees and to communicate to all officials, employees, and members of the public the process by which information may be requested. Consider including provisions that:

Apply to all departments, commissions, boards, committees, offices, officials, appointees and employees.

Define key terms, typically by reference to the state law.

Designate a FOIA Coordinator who is authorized to accept and process requests for public records and to approve denials where permitted by law. Require any FOIA request received by any person be forwarded to the FOIA Coordinator immediately. If the township will permit department heads to process routine requests when so delegated by the FOIA Coordinator, consider still requiring any department head’s denials of requests to be authorized by the FOIA Coordinator. Consider authorizing the FOIA Coordinator to consult directly with legal counsel.

Establish minimum requirements for the FOIA request to be processed:

1.   Submitted in writing.

2.   If received via facsimile, electronic mail or other electronic means, consider it received on the first business day following transmittal.

3.   Request must describe the public record sufficiently to enable the township to find the public record.

4.   Request may be a one-time request or a renewable subscription request (up to 6 months subscriptions, for instance).

Clarify that requests for township information that is generally furnished to the public through normal operations is not to be treated as a FOIA request.

Describe the process to be adhered to when the FOIA Coordinator is responding to a request, including the deadlines for response, grounds for extension of time to respond, and, if requested, how to facilitate inspection of a public record instead of providing a copy. This is particularly important when it comes to denials, which must include particular information, such as:

1.   A description of the denied record.

2.   An explanation for the grounds of denial.

3.   If the record is exempt, cite the applicable statute.

4.   If the record does not exist, provide a certification that it does not exist by that name or by another name reasonably known to the township.

5.   If a separation or deletion (redaction) is made, describe generally what was redacted or separated pursuant to Section 14 of the FOIA.

Include a “right to appeal” statement informing the requester of his or her right to either:

1.   Appeal the denial to the township supervisor by submitting a document that specifically says “appeal” on it and identifies the reason the denial should be reversed OR

2.   Pursue judicial review under section 10 of the FOIA.

Inform the requester of his or her right to receive attorney fees and damages under section 10 of the FOIA if the circuit court determines the township did not comply with FOIA and orders disclosure of all or portions of the public record.

Maintain FOIA logs. Keep a copy of all written requests and responses on file for a least one year. The log may track:

1.   Date Received

2.   Brief Description of Request

3.   Requesting Party

4.   Date Responded

5.   Response Type (granted, denied, partial, extension, deposit)

6.   Fees Charged

7.   Fees Collected

We Can Help

The lawyers of Fahey Schultz Burzych Rhodes PLC have been helping townships comply with FOIA issues since those laws took effect over 37 years ago. We work with Michigan townships to develop FOIA policies, procedures and responses that meet all applicable legal requirements. Our lawyers have successfully guided many townships through FOIA litigation. We also offer legal counseling to prevent litigation or enhance litigation outcomes. Please contact us if you need any assistance.

 –Bill Fahey  

wfahey@fsbrlaw.com

Click here for a PDF version of this publication. 

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 150 years of combined experience in township law, and have represented hundreds 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.

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