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Does a township have any legal right to restrict a person from making excessive requests under the Michigan Freedom of Information Act (“FOIA”)?

No. Currently, no such law exists. Even FOIA requests that a township believes is being submitted for the purposes of harassment must be answered according to that law.

MCL 15.232(e) defines the term “public record” as used within the FOIA, dividing it into two categories. The first category of public records are “[t]hose that are exemption from disclosure under [MCL 15.243].” The second category of public records are “all public records that are not exempt from disclosure under [MCL 15.243] and which are subject to disclosure under this act.” In other words, unless a public record is exempt from disclosure, it must be produced.

The FOIA is a pro-disclosure statute, and as a result, “exemptions to disclosure are to be narrowly construed.” Swickard v Wayne County Medical Examiner, 438 Mich 536, 544 (1991). MCL 15.243 contains the list of exemptions available under the FOIA; this list does not contain, however, an exemption for excessive or harassing requests. As such, we conclude that these requests must be answered in the same way as any other FOIA request received by the public body.

Many times the problem with excessive requests is the time spent responding to the request. The FOIA, however, does permit the township to collect fees for the time spent searching for public records responsive to the request. Under certain circumstances, public bodies may charge an advance fee of up to half of the total estimated costs of responding to a request. MCL 15.234(8). Charging these fees in advance will assist the township in recovering its costs and expenses in responding. The fees may also deter FOIA request filed for the mere purpose of harassment. Before attempting to charge these fees, however, a township should speak with its attorney, as a number of steps must be taken to ensure that these fees are legally implemented, and appropriate to the particular situation.

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