30 June 2016

Michigan Appeals Court Decision Gives More Time For FOIA Document Delivery

In a surprising decision, Michigan’s Court of Appeals has ruled that a public body need not actually provide requested documents within FOIA’s “response” deadline.

As a bit of background, FOIA requires public bodies to respond to a request for public records within 5 business days by (1) granting the request, in whole or part; (2) denying the request, in whole or part; or (3) taking a 10-day extension to respond to the request. Traditionally, when a request is granted, the public body has provided the documents at the same time as its “response” – either within 5 business days or the 10-day extension. Now, according to the Court of Appeals, all a public body needs to do within the “response” deadline is communicate whether it has decided to grant the request, deny the request or take the 10-day extension. Also, if the public body grants the request, it must give a “best efforts” estimate of when the documents will be available.

In the recent case, Cramer v. Village of Oakley, the village responded to six FOIA requests within three business days by saying only that it would “grant” the requests and begin to search its records. The village provided the records roughly 14 business days after receiving the request, but the requestor nevertheless complained that they were “late” because they were not provided at the time the village granted the request. The court disagreed, holding that FOIA’s deadline applies only to the “response” – meaning that initial communication where the public body grants the request, denies the request, or issues notice of a 10 day extension to respond. The deadline does not apply to when the public body “fulfills” the request by making documents available. Thus, a public body that grants a request need not make the requested documents available within the deadline for responding to a request.

The case arose before FOIA was amended to require that a response contain a “best efforts” estimate of when the documents will be available. The court observed, however, that this amendment supports FOIA’s distinction between making a response and providing the documents. It reasoned that, if the documents were due at the time of the “response,” there would be no need for a “best efforts” estimate for fulfilling the request.

Does all of this mean that a public body may grant a request, and then delay forever in sending documents? No. The court observed that if an “inordinate delay” occurs, a requestor may consider whether the delay is effectively a denial of its FOIA request. And though the “best efforts estimate” is not binding, failure to meet that estimate may, in some circumstances, be used to show that the request has been effectively denied.

We would not be surprised to see this decision appealed to the Michigan Supreme Court. It may also stimulate some legislative activity to either confirm or reverse the decision. We’ll monitor these developments and keep you informed.

What should public bodies do now?

  1. Advise your FOIA coordinator of this decision.
  2. Update your response letter forms. If you are granting a request, the form must include your “best efforts” estimate of when the documents will be available. If you have taken the 10-day extension and then decided to grant the request, the follow-up letter should include that “best efforts” estimate.
  3. Though the “best efforts” estimate is not binding, you should make every effort to give a reasonable estimate that you can meet. Don’t be arbitrary or capricious in delaying fulfillment of the request, as that would still trigger penalties.
  4. Revise your written FOIA procedures (FOIA requires you to have these). Your procedures should allow you to grant a request without having to produce the documents at the same time or even within the five business-day deadline or 10 day extension.

If you have questions or would like more information, please contact your Miller Johnson lawyer or any member of the Education Law or Municipal practice groups listed below.