Michigan House passes enhanced FOIA bill

Michigan’s House of Representatives honored Sunshine Week Thursday (March 20) by approving an enhanced and much stronger version of HB 4001 (2013). The modified bill would standardize copying charges, mandate that a public body create specific fees and guidelines for charges and procedures; post that information on its website (if it has one) or provide it for free to a requester if it does not; reduce by 10 percent per day up to 50 percent fees that are assessed if the public body does not respond within the time allotted under the FOIA (five business days maximum with an additional 10 business days, if necessary). A fee reduction would only occur if the delay is willful or intentional or if the requestor included the words or characters FOIA, Freedom of Information or similar words within the first 500 words of the request. In other words, communicating near the beginning of the request that this is a FOIA matter. In addition, the charge for labor costs now must exclude fringe benefits. This is a significant step in helping reduce costs for requesters facing steep charges for public records. The House approved bill also provides much more specificity when public bodies require a deposit for large records searches and requires a detailed, good faith itemization of the estimated charges and the time frame it will take for the public body to comply. Copying charges have varied from community to community with some charging 10 cents a page to others as much as $1. Under HB 4001 the charge would be standardized statewide at 10 cents for 8 1/2 x 11 and 8 1/2 x 14 pages. Another plus in the revised bill limits labor charges for copying to the lowest paid individual capable of making copies “regardless of whether that person is available or who actually performs the labor.” Further, total labor costs “shall not exceed an amount equal to three times the state minimum hourly wage.” Labor costs can still be an issue, however. New language in the bill may help lower costs for the search for public records and the examination of them to separate exempt from nonexempt information. Excessive fees have long been a deterrent for citizens trying to access information that is, by law, public. One school district north of the metropolitan counties has even admitted charging FOIA fees to raise revenue–despite the fact that is not permitted under the law. Other changes approved by the House prohibits charging for previously redacted copies of public records if still in the public body’s possessions, encourages public bodies to use “nonpaper physical media (like disks, thumb drives and e-mail) to deliver records especially if requested (as long as the public body has the technological capability) and even authorizes the public body to use requester provided digital media (like thumb drives) to save costs. One significant change allows fees to be challenged in court with the burden of proof that the fees are reasonable placed on the public body. If the public body loses, attorneys fees and court costs, at the court’s discretion, may be awarded. This opens the door for challenges to excessive fees. The new language also mandates an expedited hearing in court, similar to language that requires a fast track hearing for records denied. If the court finds the public body willfully and intentionally failed to follow the law, a civil fine of not less than $2,500 or more than $7,500 “shall” be imposed for “each occurrence. The revised bill also puts some new requirements on requesters who seeks public records but then refuse to pay even though they agreed to do so in writing. This addresses a complaint of some public bodies who say citizens request records, even pay a deposit then fail the balance (however, the final charge cannot exceed 105 percent of the estimate). The enhanced HB 4001 is a positive step forward in Michigan. MiCOG has long voiced concerns on many of the issues now finally addressed by the enhanced bill. Kudos to House members who supported it. If approved in this incarnation by the Senate, it would be a positive leap forward for transparency and accountability for Michigan’s residents. And a great way to celebrate Sunshine Week in Michigan. Michigan’s citizens will have to wait until January 1, 2015 for these changes, if passed by the Senate and signed by the governor, to take effect. To read a full copy of the modified HB 4001 click on the link or go directly to the legislature website at https://www.legislature.mi.gov/documents/2013-2014/billengrossed/House/htm/2013-HEBH-4001.htm.

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