FOIA

What is the Freedom of Information Act (FOIA)?

The Freedom of Information Act (FOIA) is a law that provides citizens the right to access information from the government.

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What is the Procedure for Responding to a Freedom of Information Act (FOIA) Request?

The Freedom of Information Act (FOIA), MCL 15.231 et seq., provides explicit guidelines that a public body must follow when responding to a request for information under the Act.

MCL 15.235(2) provides:
Unless otherwise agreed to in writing by the person making the request, a public body shall respond to the request for a public record within 5 business days after the public body receives the request by doing 1 of the following:

(a) Granting the request;

(b) Issuing a written notice to the requesting person denying the request;

(c) Granting the request in part and issuing a written notice to the requesting person denying the request in part;

(d) Issuing a notice extending for not more than 10 business days the period during which the public body shall respond to the request. A public body shall not issue more than 1 notice of extension for a particular request.
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What is the Procedure for Denying a Freedom of Information Act (FOIA) Request?

MCL 15.235(4) provides that a written notice denying a request for public records, in whole or in part, shall contain:

(a) An explanation of the basis under this act or other statute for the determination that the public record, or portion of that public record, is exempt from disclosure, if that is the reason for denying all or portion of the request.

(b) A certificate that the public record does not exist under the name given by the requester or by another name reasonably known to the public body, if that is the reason for denying the request or a portion of the request.

(c) A description of a public record or information on a public record that is separated or deleted pursuant to section 14, if a separation or deletion is made.

(d) A full explanation of the requesting person’s right to do either of the following:

  1. Submit to the head of the public body a written appeal that specifically states the word “appeal” and identifies the reason or reasons for reversal of the disclosure denial.
  2. Seek judicial review of the denial under section 10

(e) Notice of the right to receive attorneys’ fees and damages as provided in section 10 if, after judicial review, the circuit court determines that the public body has not complied with this section and orders disclosure of all or a portion of a public record.
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How Specific Do I Have to Make the Freedom of Information Act (FOIA) Request?

A request made for a public record “need not specifically describe the records containing the sought information; rather a request for information contained in the records will suffice.”1 The Freedom of Information Act (FOIA) “is a pro disclosure statute that [the court is] to interpret broadly to allow public access,”2 and by wrongfully denying a request as overly broad constitutes a clear violation of the Freedom of Information Act (FOIA) and creates unjustified obstacles to access of public information.
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Is There Information that is Exempt from a Freedom of Information Act (FOIA) Request?

The Freedom of Information Act (FOIA) contains several expressed exemptions under MCL 15.243 that may be used as a basis for a denial of disclosure. However, exemptions to disclosure are to be narrowly interpreted as [the Freedom of Information Act] FOIA is intended to be a pro-disclosure statute.3 To support a refusal to release the requested information, the agency seeking exemption cannot rely on a generic statement or simply cite to the statute; it must provide specific reasons based on the facts of each and every case.

The Michigan Supreme Court in Evening News Association v. City of Troy4 held that the generalized denial “did not meet the defendant [Government’s] statutory burden of proof to sustain their denial.”5 The court concluded that “it is apparent that the exemptions require particularized justification” and that the party claiming the exemption must show “(1) how the particular kinds of records would [fit within the exemption], (2) by more than conclusory statements.”6 The Court further clarified and held that more than conclusory means more “than simple repetition of statutory language.”7

In addition, when invoking an exemption under MCL 15.423(1)(s)(ix) or the personnel records exemption, the “requested records are exempt from disclosure if two grounds are satisfied. First, the records must qualify under the exemption for personnel records in § 243(1)(s)(ix). Second, the public interest in protecting the records must outweigh the public interest in reviewing the records.”8

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What is Considered a Personnel Record for the Purposes of Exemption under the Freedom of Information Act (FOIA)?

In order to qualify as a personnel record, the court has determined that the “location of the documents is not determinative of the applicability of the personnel records exemption.”9 If location were determinative, it would “shield any record from disclosure by merely placing it in a folder labeled ‘personnel file  [and] would undercut the policy of full and complete disclosure mandated by [the Freedom of Information Act] FOIA.”10 The court in Landry v. City of Dearborn11 noted that the “term ‘personnel’ with regard to [the Freedom of Information Act] FOIA has not been defined in a published opinion in Michigan,”12 but determined that based on the plain and ordinary meaning of the term “personnel” as well as examining the exemption in light of the rest of the statute, the legislature meant to protect from disclosure “personal information about active police officers that would subject them to risk, such as their names, addresses, telephone numbers, and family information.”13

Notably, a training record or certification is not analogous to any personal identifying information as the record and certification is not unique to the officer such as a name or address and is broad educational background information that can be the same or similar to that of other officers. In addition, training records or certifications are generally not private information, but are often considered public knowledge as many people display their certifications as well as advertise it as a specialty or skill.

Even where a court determines information fits within an exemption under the Freedom of Information Act (FOIA), the governmental entity nevertheless must still demonstrate how the interest in nondisclosure of the information outweighs the public interest in disclosure.14

The court in Mager v. Department of State Police15, determined that under the public-interest balancing test, the “only relevant public interest is the extent to which disclosure would serve the core purpose of the Freedom of Information Act (FOIA), which is to facilitate citizen’s ability to be informed about the decisions and priorities of their government.”16 “This interest is best served through information about the workings of government or information concerning whether a public body is performing its core function.”17 The court in Seyler v. City of Troy18 relied upon this public interest in disclosure and ordered a release of the arresting officers’ training records as such disclosure “would serve the core purpose of the [Freedom of Information Act] FOIA”19 and “are informative workings of the [city police department] and whether the department is performing its core function.”20
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What is My Remedy if the Government Does Not Follow Proper Procedure in Responding to a Freedom of Information Act (FOIA) Request?

Where the governmental entity does not follow proper procedure in responding to a Freedom of Information Act (FOIA) request and particularly, unlawfully denies the requested information, a citizen may be entitled an award of costs and attorney fees. The Court in Walloon Lake Water System, Inc. v. Melrose Township21 held that a citizen must prevail in the Freedom of Information Act (FOIA) action, in whole or in part, to be entitled to an award of costs and fees.22 The Court concluded that in order for a citizen to show that he or she “prevailed” in the action, the citizen must “demonstrate that prosecution of the action was necessary to and had a causative effect on the delivery of or access to the document.”23

Similarly, the court in Scharret v. City of Berkley24, held that “a party prevails in the context of a [Freedom of Information Act] FOIA action when the action was reasonably necessary to compel the disclosure, and the action had a substantial causative effect on the delivery of the information to the plaintiff.”25 The Court in Meredith Corporation v. City of Flint26 held that “as long as an action for disclosure of public records is initiated pursuant to the [Freedom of Information Act] FOIA, the prevailing party’s entitlement to an award of reasonable attorney fees, costs, and disbursements includes all such fees, costs and disbursements related to achieving production of the public records.”27 Therefore, if a court orders the governmental entity to provide any previously denied information, the citizen is entitled to an award of reasonable attorney fees, costs and disbursements related to the procurement of the requested information.

Further, in Hartzell v. Mayville Community School District,28 the court held that when a citizen initially receives no response to its Freedom of Information Act (FOIA) request and later files suit to find that the information does not exist, the citizen “prevails in the action so as to be entitled to a mandatory award of costs and fees . . . .”29 Accordingly, where a citizen prevails in a Freedom of Information Act (FOIA) lawsuit, the citizen may recover attorney fees and costs related to procuring the requested information.
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Can I Recover Punitive Damages in a Freedom of Information Act Lawsuit?

When an agency acts arbitrary and capriciously regarding a Freedom of Information Act (FOIA) request, the Court must award damages, including punitive damages. MCL 15.240(7) provides:

If the circuit court determines in an action commenced under this section that the public body has arbitrarily and capriciously violated this act by refusal or delay in disclosing or providing copies of a public record, the court shall award, in addition to any actual or compensatory damages, punitive damages in the amount of $500.00 to the person seeking the right to inspect or receive a copy of a public record. The damages shall not be assessed against an individual, but shall be assessed against the next succeeding public body that is not an individual and that kept or maintained the public record as part of its public function.

For example, the court in Local Area Watch v. City of Grand Rapids30, held that “[p]unitive damages in a [Freedom of Information Act] FOIA case may be assessed only if the court orders disclosure of a public record.”31 In addition, “[e]ven if defendant’s [the governmental entity] refusal to disclose or provide the requested materials was a statutory violation, it was not necessarily arbitrary or capricious if defendant’s decision to act was based on consideration of principles or circumstances and was reasonable, rather than whimsical.”32

Therefore, in order to qualify for punitive damages, the citizen must satisfy a two-part test. First, the court must order disclosure of a public record, and second, the governmental entity must have been unreasonable.
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Why is the Freedom of Information Act (FOIA) So Important?

The Freedom of Information Act (FOIA) encourages transparency between law enforcement officers and the public and “is a mechanism through which the public may examine and review the workings of government and its executive officials.”33 The Freedom of Information Act (FOIA) is meant to “carry out this state’s strong public policy favoring access to government information, recognizing the need for citizens to be informed so that they may fully participate in the democratic process and thereby hold public officials accountable for the manner in which they discharge their duties.”34

Law enforcement officers have extraordinary responsibilities retained by the government in order to protect the public. This includes their ability to invade personal liberty and property in the name of justice. With this ability should come accountability and the Freedom of Information Act (FOIA) is one of the only ways individuals are able to hold law enforcement officers responsible for their actions by being more educated about what parameters govern the actions of law enforcement. Without the ability to hold officers and their departments accountable for their actions, the number of cases involving law enforcement misconduct and abuse of power will only grow.
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