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Attention FOIA Coordinators! Have you ever received an extensive Freedom of Information Act (“FOIA”) request that leaves you wondering how you should respond? As the individuals tasked with answering your municipalities’ requests for information, you may be questioning whether you even have adequate time or resources to answer large-scale requests. This e-letter will address how you can effectively answer large-scale FOIA requests without sacrificing your municipalities’ limited resources or impairing the public’s right to be informed.

It is undisputed that the FOIA represents the State of Michigan’s public policy favoring public access to government information. The FOIA recognizes the need for citizens to be informed in the actions taken by their government officials by permitting the disclosure of public records for the public’s review and consideration.  It is unsurprising then that Michigan courts regularly and repeatedly describe the FOIA as “pro-disclosure,” meaning the provisions of the FOIA should be interpreted to ensure public access to public records.

Municipalities are tasked with upholding this public policy by disclosing public records upon request to the public under their duty to disclose. A municipality’s duty to disclose is hindered only by the specific exceptions contained within the FOIA, and even those exceptions are narrowly construed by Michigan courts to promote public transparency.

Requests that seek large quantities of government records represent unique challenges to municipalities in light of the FOIA’s pro-disclosure policy. The municipality is tasked with balancing the FOIA’s interest in disclosure with the Township’s interest in the effective management and utilization of its limited resources, including the time of its employees or officials.  But Michigan courts have stated that the FOIA was not enacted to allow private individuals “the right to conduct a full-scale audit of public body activity; the purpose of the act is to make information available to promote an informed citizenry.” Cashel v Regents of Univ of Michigan, 141 Mich App 541, 549 (1985).

When answering large-scale FOIA requests, municipalities should be aware of and consider the options the FOIA provides to municipalities to help balance these interests more effectively. “While promoting disclosure, FOIA does not require agencies to accede to overly burdensome information requests. The requirement of the act is one of reasonableness.” Id.

STEP ONE: CONFIRM THE REQUEST IS PROPERLY SUBMITTED

A valid FOIA request must contain a requestor’s: (1) complete name; (2) address written in compliance with  United States Postal  Service addressing standards; and (3)  e-mail address or telephone number. A request may be denied if it fails to provide any of this information. The requestor may submit a new request complete with the required information, or they may not follow up. If a new request is not made, no further action is necessary.

Of course, if a valid request is made the municipality will need to process the request pursuant to the provisions of the FOIA.

STEP TWO: CONFIRM YOUR FOIA TIMELINE AND DEADLINES TO RESPOND

We have recognized in the past that FOIA coordinators may be inadvertently shortening their deadlines to respond. To quote, and modify, a popular motto: every day counts when you are faced with an extensive FOIA request.

As most FOIA Coordinators are aware, a request for records is subject to an initial five-business- day response timeline. The FOIA Coordinator may during that time issue a notice extending for not more than 10 business days the period during which the municipality shall respond to the request. A municipality cannot issue more than one notice of extension for a particular request. When a municipality claims the additional 10 business days for a response, the new response deadline is 15 business days after the receipt of the request, regardless of when the notice of extension is issued within the initial five-business-day response period.

For example, if a FOIA request is sent to the Township via physical mail on August 2, 2021, the FOIA Coordinator may send a 10-day notice of extension at any point during the initial five-day response timeline ending on August 9, 2021. The Township’s new deadline to respond would be August 23, 2021, regardless of when the notice of extension is issued within the initial response period.

FOIA Coordinators should confirm their FOIA timeline and deadlines to respond to ensure they are compliant with the deadlines provided by the FOIA. This is especially valuable when dealing with extensive FOIA requests that will require a significant amount of time to process.

STEP THREE: REQUEST A GOOD-FAITH DEPOSIT

There is no provision under the FOIA to simply ignore or not respond to a request that calls for an extremely large quantity of government records. While it is certainly understandable that comprehensive requests may be difficult or challenging for a municipality, a request’s size does not relieve the municipality from processing the request. It is likely, however, that large-scale requests will require the municipality to spend a considerable amount of time and effort searching for, reviewing and potentially redacting responsive records.

For that reason, it is not unlikely in the instance of a large-scale FOIA request that the municipality’s effort to process the request would result in unreasonably high costs. The municipality is thereby permitted to impose the permissible fees under the FOIA to help recoup some of the resources expended responding to and fulfilling the request. Large-scale FOIA requests require municipalities to expend significant resources and manpower to respond. These requests typically require officials and employees to be taken away from pending work to process the request, and therefore require them to expend additional time to complete regularly assigned work. It is the municipality’s right under the FOIA to request fees to recoup some of those costs. Recoverable FOIA costs include, but are not limited to, labor to locate records, costs of duplicating records,  and costs of potential redaction and separating exempt from non-exempt information.

The cost to fulfill large-scale FOIA requests will likely exceed $50.00, meaning the municipality may request a good-faith deposit from the requestor that equals half of the total estimated FOIA processing fee. Once a good-faith deposit is requested, the municipality is not required to begin producing or searching for any copies of responsive records until payment of the requested good-faith deposit is received.

The request for a good-faith deposit ensures the municipality will not waste its resources processing a large request that may or may not be paid for by the requestor. For example, a Township may receive a large-scale request that requires them to produce all electronic correspondences sent or received by all Township board members for the past ten years. The Township could process the request by first expending its resources and manpower to search for, collect, and review those records. And only after the search, collection, and review is complete the Township requests costs be paid prior to the disclosure of the records. There is no guarantee, however, that any costs will be paid by the requestor. The requestor may ignore the request for costs, or abandon or withdraw the request. The time and resources spent by the Township to process the request would be unrecoverable.  A request for a good-faith deposit helps municipalities avoid this outcome by requiring some of those costs up front.

Warning: The FOIA allows a municipality to recover various costs for responding to requests, but the municipality should adopt a FOIA Written Public Summary and FOIA Written Procedures and Guidelines. These policies should be posted on the municipality’s website if the municipality directly or indirectly administers or maintains an official internet presence.

STEP FOUR: IF YOU RECEIVE A DEPOSIT, PROCESS THE REQUEST PURSUANT TO YOUR BEST-EFFORTS TIME ESTIMATE

If a good-faith deposit is received, the municipality will need to begin searching for and locating responsive records. The FOIA Coordinator processing the request will need to track the actual time and costs incurred to be included in the final cost sheet to be presented to the requestor prior to final disclosure of the records.

The municipality’s deadline to respond to the request following its request for a good-faith deposit and the receipt of the same will depend on its best-efforts estimate. A request for a good-faith deposit requires the municipality to provide the requestor with a best-efforts estimate regarding the time frame it will take the municipality to provide the public records to the requestor. The municipality should process the request pursuant to that best-efforts estimate provided to the requestor.

The best-efforts estimate provides the municipality with the necessary additional time to search for, locate, and review the records responsive to large-scale requests. While small or moderate requests can often be processed and completed within either the initial five-business-day response time, or within 15 business days after the receipt of the request if an extension is requested, requests desiring large quantities of public records generally will require more time to complete. The best-efforts estimate is a mechanism that allows a municipality processing a large-scale FOIA request to do so properly with the additional time provided. The best-efforts estimate is additionally non-binding on the municipality, but must be made in good faith and strive to be reasonably accurate so as to provide the requested records in a manner based on the public policy expressed by the FOIA.

STEP FIVE: IF NO ANSWER IS PROVIDED, ABANDON THE REQUEST

If a good-faith deposit is not received by a municipality within 48 days from the date the notice is sent, and the requesting person has not filed an appeal of the deposit amount, the municipality should consider the request abandoned by the requesting person. A municipality is not required to fulfill an abandoned request. Abandonment therefore relieves the municipality of any continuing obligation under the FOIA to respond to large-scale FOIA requests if a fee deposit is not received.

To rely on abandonment, however, a municipality should ensure that it has provided notice to the requestor in its request for the good-faith deposit that the municipality will consider the request abandoned within 48 days from the date the notice is sent if a good-faith deposit is not received. While a large-scale FOIA request may appear problematic when first received, the provisions explained herein provided by the FOIA grant municipalities the tools they need to effectively conquer the request.

CONCLUSION

Township officials should be aware that the Freedom of Information Act is a very complex area of the law. To ensure that Township officials are compliant with FOIA requirements, they should consult legal advice. The municipal attorneys at Fahey Schultz Burzych Rhodes have decades of experience helping public entities uphold their obligations under the FOIA.

– Kendall O’Connor

This publication is intended for educational purposes only. 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.

Upcoming Webinars

Beginner’s Guide to Conquering Large-Scale FOIA Requests | Thursday, August 19, 12-1 pm

The Freedom of Information Act (“FOIA”) gives any individual the statutory right to request information held by public bodies, no matter how extensive. For FOIA coordinators, the important responsibility of answering these large requests can be a daunting task, between the pressures of having to respond in a short timeframe and ensuring that all the requested records are provided.

This month’s webinar will help you to:

• Determine your timeline and deadlines for answering a complex FOIA request
• Discover what costs can be recovered for responding to a complex FOIA request
• Learn when and how a municipality can consider a FOIA request to be abandoned
• Achieve records visibility and efficient retrieval through best practices

Join Attorney Kendall O’Connor as she outlines the important steps to effectively answer large-scale FOIA requests without sacrificing limited municipal resources or impairing the public’s right to be informed.

Click here to Register

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