Michigan Court of Appeals Provides New FOIA Guidance

The Michigan Court of Appeals recently issued a published decision explaining that “granting” a request for public records under the Michigan Freedom of Information Act (“FOIA”) is separate and distinct from “fulfilling” a request. Cramer v Village of Oakley, No. 330736 (Mich App, 2016).

Brandi Cramer sent six FOIA requests to the Oakley police department seeking information about the village’s reserve police department unit. The village sent written notice to Cramer stating that her requests were granted and that the village would conduct a search and produce all responsive records. Cramer immediately responded by sending an email to the village’s FOIA coordinator claiming that the responses were insufficient and demanding that records be produced within two days. Cramer filed a lawsuit against the village three business days later, claiming the village’s response violated the FOIA.

The trial court ruled that the records should have been produced within the FOIA’s response period. The Michigan Court of Appeals disagreed, concluding that FOIA does not require that documents be delivered within the time period specified for responding to a FOIA request. Rather, a public body may send notice that it has granted a request and notify the requestor when the records will be available. The court noted, however, that a public body that “grants” a request but refuses to fulfill the request for an inordinate amount of time may be assessed punitive damages for an arbitrary and capricious refusal to disclose records.

This case confirms this Firm’s longstanding position that “granting” and “fulfilling” requests are separate actions under the FOIA and may be treated as such. For extremely large requests, it may be appropriate to notify the requestor that his or her request is granted, but that records will not be available until a certain date. We recommend, however, that more routine FOIA requests be granted and fulfilled as soon as possible to avoid any claim of undue delay and to avoid losing track of unfulfilled requests.

Finally, over one year has passed since the FOIA amendments took effect. If your school has not updat­ed its FOIA policy or created FOIA procedures, guidelines, and a cost itemization sheet, we strongly recommend doing so immediately. The procedures and guidelines must be available on the public body’s website. A public body may not charge a fee to respond to any FOIA request, no matter how large, until legally compliant procedures and guidelines, a public summary of those procedures and guidelines, and a cost itemization sheet are adopted and published on the public body’s website. If your school has not yet implemented FOIA procedures and guidelines, Thrun Law Firm has developed model procedures and guidelines, including a detailed cost itemization sheet, for use by our retainer clients. Please contact Jill Walker at (517) 374-8822 for more information or to order.