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Last month we asked our readers whether their townships had Freedom of Information Act (FOIA) policies. Fifty-eight percent of the responses indicate that township FOIA policies have all been updated within the last five years, which is great! Many of the compliance requirements for FOIA have become common knowledge and will be incorporated into these FOIA Policies. However, some widely accepted beliefs regarding the FOIA are nothing more than myth! The following myths have been inspired by actual events and court decisions relating to alleged FOIA violations. Make sure your updated FOIA policies conform to the following truths.

Myth: Legally-required records must be produced under FOIA even if Township does not have them.

An FOIA request sought the cellular call records of a telephone provided to a public employee for business purposes. The requester argued that the records were public records subject to disclosure, particularly because multiple state laws required the Board to maintain such records.

The Board denied the request on the grounds that it was not in possession of such records, and therefore there was no public record to disclose. It pointed to the FOIA, which does not require a public body to create a document that does not exist in order to fulfill a request. Furthermore, the Board contended that it was under no obligation to retrieve the requested records from the cellular service provider.

Truth: The court found that, even if the board was required by law to maintain the record, that does not mean it actually possesses the public record. The public body may have failed to follow another aspect of the law in not keeping the record, but under the FOIA it was not required to produce a record that it did not have. Caffrey v Gladwin Community Schools, Court of Appeals Opinion No. 314732 (Dec 26, 2013).

But: There may be other consequences to the Board, besides the FOIA, that could result to the Board by failing to keep required records.

Myth: Board member’s notes are public records subject to disclosure under FOIA.

An FOIA request sought copies of any notes taken by any elected official during any Board meeting over the preceding 12 months. The requester had a video tape showing various Board members taking notes during the meetings.

The Township argued that the notes were strictly for the personal use of a Board member, kept in his personal journal, not shared with other members, and never placed in Township files. Therefore, the notes did not qualify as public records. In responding to the request, the clerk made no mention of the notes, as she believed they were not a public record subject to disclosure.

Truth: The court had to determine whether the notes were strictly for personal use, or were used in carrying out official functions. Ultimately, it found that the notes were never part of the Board member’s official functions, and were never used in official township business. Therefore, the notes were not public records. Hopkins v Township of Duncan, 294 Mich App 401; 812 NW2d 27 (2011).

Myth: An FOIA denial only needs to state the basis for the denial, and not describe the record itself.

An FOIA request was made for multiple records. The request was granted in part and denied in part, on the grounds that the information fell under the attorney-client privilege, but did not offer a description of the record, which is required under the FOIA.

The public body argued that it eventually provided the description, in the form of an affidavit that was attached to a court filing once an action was filed.

Truth: The court agreed with the requester, noting that the plain language of the FOIA required a denial to contain a description of the public record that was separated or deleted. Further, there is nothing in the FOIA indicating that compliance with this section could be achieved at a later date. Aklam v Delta College, Court of Appeals Opinion No. 317962 (June 26, 2014).

Myth: Emails between board members on Township’s email account must be disclosed under FOIA.

An FOIA request sought all emails sent by board members on their public email system, even if the emails were of a personal nature.

The FOIA request was denied, with the board contending that the personal records did not qualify as a public record.

Truth: The court found that emails sent on a public system must only be disclosed under FOIA if the messages were sent in furtherance of official duties. Therefore, any messages that are solely of a personal nature are not a public record, even if sent on a public system. This ruling has been interpreted to include text messages as well. Howell Education Assoc v Howell Board of Education, 488 Mich 1010; 791 NW2d 719 (2010).

But: This ruling has also been held to mean that messages sent for a business purpose on personal systems could be subject to disclosure.

Myth: We don’t need an FOIA policy.

Truth: Although an FOIA policy is not mandated by law, a township is unable to recover reasonable costs of responding to such requests without having a policy. The Board should ensure that fees owing to the Township are properly collected. An FOIA policy will also aid full compliance with the FOIA, limiting potential liability for failure to comply.

Myth: We can charge $1 per page for responding to FOIA requests.

Truth: A fixed fee per page is not an option under the FOIA, unless the actual costs to the Township are based on a per-page charge. In addition to the Township’s actual mailing and duplication costs, if the Township adopts a fee resolution, it can recover its labor costs of searching, retrieving, examining, and reviewing the records to separate exempt records from nonexempt material.

Myth: If a neighbor files a complaint against another, we must disclose his identity under FOIA.

Truth: The Township can protect the identities of complainants as “confidential sources.” The FOIA allows a township to exempt confidential sources from disclosure. To help protect a complainant’s identity from FOIA disclosure, the official who receives the complaint should ask whether the complainant wants to remain a confidential source, and make a written record of the request to remain unidentified. If the complainant requests anonymity and the township keeps a record of the request, the township may protect the complainant’s identify from an FOIA request.

Bill Fahey wfahey@fsbrlaw.com

Steve Koski skoski@fsbrlaw.com

Ask the Experts

“Get your concerns addressed by the Experts each month!”

Can township trustees attend township meetings by phone or teleconference?

Yes. Although the Attorney General ruled in 1977 that telephone conferences could not meet Open Meetings Act requirements, the Court of Appeals disagreed in a later case. In Goode v Dept of Soc Services, 143 Mich App 756, 759-60; 373 NW2d 210 (1985), the Court said:

“We find no problem with the holding of hearings via teleconference calls. Such calls are heard through speaker phones and are audible to all in the room. Persons who wish to attend the hearing are allowed to do so and may attend at either location. The conference call set-up actually increases the accessibility of the public to attend, as now more than one location is open to the public.”

Stay tuned for next month when we tackle another township’s pressing question. If you have current issues or legal topics you need addressed, please fill out the form below with your question. We will select a question each month to answer.

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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 150 years of experience in township law, and have represented more than 150 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.