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Like many aspects of Township law, recent legal developments under the Freedom of Information Act (FOIA) have made it increasingly complex to be in compliance with these statutes. The Michigan courts released several significant decisions addressing the FOIA. The courts continued with last year’s theme, continuing to enforce the longstanding principle that the FOIA is a prodisclosure statute designed to inform the public as to the actions of public bodies. This E-Letter highlights those decisions.

FOIA Coordinator Should Reasonably Interpret FOIA Request to Identify Responsive Public Records

The FOIA provides that a public body shall disclose a record if the requestor describes the information sought “sufficiently to enable the public body to find the public record[.]” This requires the FOIA coordinator to decide whether the description is sufficiently particular to enable the coordinator to locate the document. This year, the Court of Appeals illustrated that a narrow and technical reading of a requestor’s description is not consistent with the FOIA. Rather, the FOIA coordinator should reasonably interpret the FOIA request to determine whether the description is sufficient to identify a record. A review of the request should be flexible—not hyper-technical. If it can be read to identify certain documents, disclosure of those documents would be consistent with the FOIA.

There are no detailed or technical requirements as a precondition for disclosing information. Many summaries and policies for the FOIA adopted last year by Michigan townships even include statements that no specific form or document is necessary to request information under the FOIA. It is also important to note that the FOIA coordinator may follow-up with the requestor to determine whether certain records would be responsive. This is not an obligation under the FOIA, but it proves useful in certain circumstances.

For instance, a requestor requested all records indicating the number of student disciplinary matters “referred to” certain police departments by a school district. The school district denied the request on the grounds that no responsive public records exist because the school district does not “refer” any student matters to certain police departments. The Court deemed this as an unreasonable interpretation to deny the request based on the use of the word “referred” by the requestor, and determined the school district did violate the FOIA. The school district did actually have public records indicating the number of student disciplinary actions where the school district “called,” “reported,” or “involved” certain police departments. Instead of denying the request based on the word “referred,” the school district could have informed the requestor of certain public records that appeared responsive and allowed the requestor to indicate whether those were the records the requestor was seeking. This, of course, will not work in all instances and with all FOIA requestors. Rodd Monts v Detroit Public School District, Michigan Court of Appeals, January 5, 2016.

Public bodies should not conclude that the court has burdened their FOIA coordinators, however. In the same year, the Court of Appeals also acknowledged that broad and vague requests did not sufficiently describe the public records requested. According to the Court, a FOIA requestor cannot liberally craft opened-ended requests, placing the duty on the FOIA coordinator to search through all of the public body’s records guessing at which are responsive. Wilson v City of Gross Pointe Park, Michigan Court of Appeals, March 17, 2016.

The Public Body Is Not Required to Disclose Public Records Within the Same Statutory Period Required to Grant or Deny the Request

One of the more significant decisions issued by the Court of Appeals this year illustrated a very important point under the FOIA. Although the FOIA requires that a public body respond to a request within 5 business days granting, granting in part, or denying the request, or responding within an additional 10 business days (if the proper notice is provided), the public records do not need to be produced within the same statutory period.

The Court explained that granting a request is not the same as fulfilling a request. Since the FOIA does not include an express deadline for when public records must be disclosed after the request has been granted, the Court noted that a public body must still disclose the public record within a reasonable time. The public body cannot arbitrarily or capriciously delay in the production of requested documents. Otherwise, a requestor may rightfully compel disclosure through a FOIA suit.

This decision is important for public bodies that face long detailed requests for multiple volumes of documents or documents containing sensitive material, such as police reports, that must be reviewed and redacted. The public body must still respond within the statutory period as to whether the request is granted, granted in part, or denied, but the courts understand that the FOIA does not impose the burden on the public body to produce those public records at the same time as granting the request. Rather, public bodies acting in good faith have a reasonable time to search for the responsive documents, redact any exempt information, and compile them for disclosure. More importantly, if a FOIA lawsuit is filed, that does not mean that the public body is subject to attorney fees for disclosing the documents after the lawsuit. Brandi Cramer, f/k/a Brandi Bitterman v Village of Oakley, Michigan Court of Appeals, June 23, 2016.

The Public Body Should Include Estimates Regarding the Time Necessary for the Public Records to be Disclosed

The Court of Appeals has now clarified that documents do not need to be produced at the same time a response is provided granting, granting in part, or denying a request. Even so, public bodies should know that the public body must include in its response an estimate of the time it will take for the public records to be disclosed to the requestor. According to the Court, MCL 15.234(8) requires that the public body provide “in good faith” a “best efforts estimate” of when the documents will be disclosed. This is mandatory, but the “best efforts estimate” is not binding on the public body.

Public bodies should review their FOIA responses and ensure there is a section that addresses the “best efforts estimate” of time necessary to provide the documents, if the responsive documents are not produced with the public bodies’ response granting or granting in part a request. Brandi Cramer, f/k/a Brandi Bitterman v Village of Oakley, Michigan Court of Appeals, June 23, 2016.

Attorney Fees May Be Awarded Even if the Public Records Are Disclosed Without a Court Order

The FOIA provides the possibility for an award of statutory damages and attorney fees. Statutory damages are provided for under MCL 15.240(7). In addition to statutory damages, plaintiffs filing FOIA suits routinely seek attorney fees. Attorney fees are provided under MCL 15.240(6) of the FOIA. The Court of Appeals again addressed the awarding of attorney fees in a situation where a public body discloses documents after a FOIA suit is filed.

The test used for determining whether an award is appropriate requires the following three determinations:

1. whether the requested documents were subject to disclosure under FOIA;
2. whether the action was “reasonably necessary” to compel the disclosure; and
3. whether the action had the “substantial causative effect” on the delivery of the documents to the requestor.

In applying this test, the Court of Appeals illustrated that this does not mean in all situations where a public body discloses records after a FOIA suit has been filed, attorney fees will be awarded. In one specific case reviewed by the Court, the requestor sent a request for certain police reports regarding retail fraud. Shortly thereafter, the requestor filed suit claiming violations of the FOIA and demanding disclosure of the report. Several days later, the public body disclosed the police report subject to the FOIA request.

Since the police report was disclosed, the public body argued that the FOIA suit was moot as all requested records were disclosed. The Court pointed out that the circumstances of each FOIA case will dictate whether attorney fees should be awarded. Regardless of whether record were voluntarily disclosed after the filing of suit, the FOIA suit must be necessary and the causative effect for disclosure of those records. There are two important takeaways.

First, public bodies should understand that the tactic of withholding documents that should be disclosed under FOIA and waiting to see if a FOIA suit is filed may have to pay the requestor’s attorney fees. Even once the documents are disclosed, a court must still decide whether the FOIA suit had any effect as to why the public body released the records. If it did, the court may determine that attorney fees are due even though the documents were disclosed.

Second, a requestor who files suit hoping to take advantage of an attorney fees award should understand that the FOIA suit must actually have some effect on the disclosure of records by the public body. For example, if a public body grants a request within the timelines and then starts to assemble the non-exempt records in good faith for purposes of disclosure, the filing of a FOIA suit is not necessary to compel disclosure and no attorney fees should be awarded.

It is important for public bodies to respond to FOIA requests within the mandated statutory timelines. If a FOIA suit is filed between the time when the request is granted and the time when the public body discloses the records, the public body may still have to pay attorney fees. Phaedra Peterson v Charter Township of Shelby, Michigan Court of Appeals, April 28, 2016; compare with Brandi Cramer, f/k/a Brandi Bitterman v Village of Oakley, Michigan Court of Appeals, June 23, 2016.

The Public Body Maintains the Burden to Show that a Specific Document is Exempt from Disclosure under the FOIA

The FOIA places the burden on the public body claiming that a public record is exempt to demonstrate why the public record is entitled to the exemptions provided in the FOIA. This has been the general understanding of many public bodies. Interestingly, certain categories of records are exempt if the public body determines that the public interest in disclosing the record outweighs the nondisclosure of the record in the particular instance. This is considered a balancing test to see which public interest outweighs the other.

Some public bodies have applied the balancing test to certain categories of records and presumed under the analysis that if a record is identified, it will be exempt from disclosure. See for example MCL 15.243(1)(s). Public bodies have also placed the burden on the requestor to explain the public interest that weighs in favor of disclosure. If not public interest is asserted in the request (such as during a subsequent appeal to the body), many public bodies will still deny the request.

The Michigan Court of Appeals explained that when conducting this balancing test under certain exemptions, there is no presumption of nondisclosure. Rather, the public body must perform the balancing test, understanding that FOIA is a prodisclosure statute. The Court also noted that there is no burden upon the requestor to prove the public interest in a particular instance outweighs the public interest in nondisclosure. The burden to prove that any record is exempt under FOIA remains with the public body.

Even though the burden rests with the public body, the Court did note the practical implications if the requestor does not identify the public interest involved. It often may be the requestor who has knowledge of the specific public interest benefited by disclosure. To the extent there is litigation, a trial court may be more likely to reach an appropriate outcome as to whether the exemption applies if both parties (the requestor and the public body) participate in assisting the court in applying the balancing test.

— Christopher Patterson

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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.