Public Records – FOIA

Michigan has a law known as the Freedom of Information Act (FOIA) which gives the public including the media the right to see some legislative and executive government records. (MCLA 15.231 et seq.)

The catch is that the state legislature has also decided it’s sometimes better not to let the public see everything. There are 25 exemptions to the FOIA that give public officials the right to keep some types of records secret. These exemptions, however, are discretionary.

In the statute the legislature has made clear it is the “public policy” of the state to provide “full and complete information regarding the affairs of government and the official acts of …public officials and public employees…” That public policy statement is persuasive language and signals legislative intent that openness is preferable to secrecy. This has allowed the courts to rule in favor of disclosure if there is no clear exemption which allows the record to be kept secret. The exemptions in the law, as noted above, are optional not mandatory.

The law requires public bodies to have a FOI coordinator and a response to a written request within five business days. But the law also allows for a ten day extension. Expect to wait for the full 15 days in many instances. The requester does not need to explain why he/she wants the record.

The law also allows a charge of the hourly rate of the lowest paid person capable of retrieving the records. In a police department that could be the chief’s salary not the lowly desk clerk.

Public bodies are required to separate exempt from nonexempt materials and to design records to keep these two separated.

If a request is denied, one should appeal to the highest individual within the public body (e.g. in a public university, the president; in a township, the supervisor, etc.). The next step is filing a lawsuit in circuit court. If the public body loses in court, it must pay “actual attorney fees and court costs” of the requester.

Many public bodies now routinely require you to make a formal FOI request for any record. The FOI coordinator must keep a copy of all requests and track them for a year.

Always keep a copy of any FOI letter you submit.

For further information, please read the Michigan Freedom of Information Act.

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