The Clock Is Ticking: Avoid the Financial Liability of Missing a FOIA Deadline

FOIA’s short deadlines coupled with the often-voluminous FOIA records requests can make it difficult to produce requested records within the statutorily required timeframe. Timely response to a FOIA request is a legal requirement, even if the request is received just before or during a school break. Under FOIA Section 5, a public school must respond to a FOIA request within five business days after the request is “received.” A FOIA request sent via U.S. Mail is considered “received” the day of receipt. If a FOIA request is sent electronically, such as via email, it is considered “received” the next business day.

FOIA Response Deadlines

School officials must respond to a FOIA request within five business days by either granting or denying the request in whole or in part or issuing a notice extending the response time not more than 10 business days. To invoke the extension, the FOIA Coordinator must send the requester a written notice specifying the reason for the extension and the date by which the responsive documents will be provided. The school may not extend the deadline more than once per request.

FOIA timelines are calculated using business days: Monday through Friday, excluding Saturdays, Sundays, and state holidays. A day that a school is closed due to the school calendar, or for any other reason (such as a snow day), may still be a “business day” for FOIA purposes. Failing to respond to a FOIA request within the required timeframe is considered a denial of the FOIA request. Schools that violate FOIA deadline requirements may have financial consequences because courts have the authority to order monetary compensation to the requester.

Mitigating Damage if the Deadline Is Missed

Strategies to minimize or even eliminate monetary damages resulting from a timeline violation were identified in a recent decision by the Michigan Court of Appeals. Rumpel v Saginaw Township Community Schools, No. 364378 (November 20, 2023). In Rumpel, the school’s FOIA Coordinator violated FOIA by missing the extended response deadline but provided the requested documents within days of that deadline. Rumpel sued the district anyway and sought civil fines, attorney fees, and punitive damages. Acting in bad faith or the willful and intentional failure to comply with FOIA can result in a civil fine of not less than $2,500 or more than $7,500 for each occurrence. The court denied Rumpel’s request for civil fines because it found that the FOIA Coordinator acted in good faith and made extensive efforts to comply.

FOIA authorizes a court to grant attorney fees to the prevailing party. A court must award attorney fees to any person or public body that prevails on all issues in a FOIA lawsuit. But, if the person or public body making the request prevails only in part, the court has discretion to award or deny reasonable attorney’s fees. In Rumpel, the court exercised its discretion to deny attorney fees because Rumpel only prevailed in part on the issue of timing, and the district had made extensive efforts to produce the documents and resolve the matter before judicial intervention.

FOIA authorizes punitive damages under certain circumstances. The Rumpel court noted that it could not order punitive damages because the district produced the records prior to judicial intervention. A court may issue a $1,000 punitive damage award if a public body violates FOIA by refusing or delaying the disclosure of a public record, but only if a court previously ordered records to be disclosed. Here, a court had not ordered disclosure because the documents were disclosed before the case was heard by a judge.

Conclusion

Missing a FOIA deadline can have legal and financial consequences. But, acting in good faith to quickly gather the requested documents, documenting the efforts to do so, and disclosing the documents as soon as possible, even if the deadline has passed, may lessen those financial consequences.

If you have a FOIA request or any questions about the process, please contact a Thrun attorney for assistance. If you are seeking more information about processing FOIA requests, please join us at our FOIA webinar on February 7, 2024. A registration form is attached.