06 April 2020

EO 2020-38: FOIA Flexibility During COVID-19

On Sunday, Governor Whitmer issued Executive Order 2020‑38, effective through June 4, 2020 (or through any extension of the EO).  The EO offers flexibility to public bodies under the Freedom of Information Act (FOIA) as they attempt to navigate the myriad issues caused by the coronavirus pandemic.

The EO relaxes the FOIA’s initial 5‑day requirement to respond to a request.  Instead, any requests received by physical mail, by hand, or by fax must receive a response within 10 days after “actual receipt” of the request.  “Actual receipt” means the date that the mail is opened or the fax is taken from the machine.  Additionally, if COVID‑19 interferes with the public body’s ability to timely respond to a request, the public body may issue a notice to the requestor that extends the response period for as long as necessary – up to the expiration of the EO.  The 10‑day and “as long as necessary” allowances are also applicable to FOIA appeals.

The EO grants additional flexibility where the processing of a FOIA request requires in-person activities (e.g., search, inspection, production, etc.).  In such cases, the portion of the request that require in‑person activities may be deferred until the expiration date of the EO.  If the public body elects to defer processing a request, it must notify the request in its FOIA response and explain the reason for the deferral.  Concurrently, the public body must notify the requestor of the right to amend the FOIA request to exclude public records that require in‑person activities, in order to expedite the processing of the remainder of the request (i.e., the portions of the request that do not require in-person activities).  While granting the above flexibility, the EO provides that public bodies must respond electronically to the extent possible.

The EO is welcome for public bodies who are managing with limited personnel in the building.  It may be reviewed here.