New FOIA Fees and Standards

Governor Snyder recently signed into law PA 563 of 2014, modifying statewide standards for public bodies in disclosing public records and charging fees under the Freedom of Information Act. PA 563 is effective July 1, 2015.

Section 4 of the FOIA states that a public body may charge a fee for searching, copying, and providing pub­lic records in response to a FOIA request if it has established and made public its FOIA policies. Before completing a FOIA request, a public body may require a good faith deposit from the requester if the total fee is estimated to exceed $50. The required deposit may not exceed ½ of the total estimated fee. The public body must provide an itemized list describing the es­timated fees and state the time frame necessary to provide copies of the requested records.

The amendments provide detailed guidance on charging fees for labor and copying costs in respond­ing to FOIA requests. Labor costs must be itemized by stating both the hourly wage and number of hours charged. Copies must be itemized by the cost per sheet and the number of sheets. The total fee may not ex­ceed the sum of the following components:

1. Searching, locating, and examining records: A public body may not charge more than the hourly wage of its lowest-paid employee ca­pable of searching, locating, and examining public records, regardless of whether that person actually performs the labor. Labor costs may be estimated in time increments of 15 minutes or more. All partial increments must be rounded down.
2. Separating and deleting exempt information: A public body may not charge a fee for the cost of searching, examining, reviewing, and sepa­rating exempt and non-exempt information unless failing to charge a fee would result in unreasonably high costs to the public body and the public body identifies the nature of the unreasonably high costs.

A public body may not charge more than the hourly wage of its lowest-paid employee ca­pable of separating exempt and non-exempt information, regardless of whether that per­son actually performs the labor. A public body may not charge for redacting records if the public body knows or reasonably should know that it possesses already-redacted rec­ords.

If a public body does not employ a person ca­pable of separating exempt and non-exempt documents, it may treat contracted labor costs in the same manner as employee labor costs if it clearly notes the name of the contracted firm or person. Total labor costs for contract­ed labor may not, however, exceed “an amount equal to 6 times the state minimum hourly wage rate” under the Workforce Opportunity Wage Act.

3. Non-paper copies: A requesting person may agree to non-paper physical copies of records instead of paper copies if the public body has the technological capability to provide copies in that form. The public body may charge for the “actual and most reasonably economic cost” of the computer discs, tapes, or similar media.
4. Paper copies: Public bodies may not charge more than 10 cents per copy of an 8 1/2-by-11-inch or an 8 1/2-by-14-inch document. A public body must utilize the most economic means of copying available, including double-sided printing.
5. Duplicating or publishing documents: A public body may not charge more than the hourly wage of its lowest-paid employee capable of duplicating documents. Costs may be estimat­ed in time increments of the public body’s choosing, but all partial increments must be rounded down.
6. Mailing: The actual cost of mailing public doc­uments must be reasonable and justifiable. The public body may charge for the least-expensive form of postal delivery confirma­tion and may not charge for expedited shipping or insurance unless specifically agreed to by the requester.

When calculating hourly labor costs, overtime wages may not be included unless specifically agreed to by the requester. A public body may add up to 50% to the labor charge amount to cover the cost of fringe benefits, but not more than the actual cost of fringe benefits, if it clearly notes the percentage multiplier used to calculate the benefits. Overtime wages may not be included in calculating the cost of fringe benefits.

A public body may provide copies free of charge in response to a FOIA request if it determines that a fee waiver is in the public interest. In addition, a public body must waive the first $20 in fees for FOIA requests made by nonprofit organizations and persons who submit an affidavit stating they are indigent or receiv­ing public assistance.

The amendments provide that if information re­quested is available on the public body’s website, the public body may notify the requester the information is available on the website and provide the web ad­dress in its written response in lieu of providing cop­ies. If the requester still requests copies of this information, the public body must provide the copies but may charge a fee using a fringe multiplier benefit greater than the 50% limitation but not exceeding the actual cost of fringe benefits.

The amendments also state that requesting indi­viduals may appeal excessive fees to the head of a public body if the public body’s procedures provide for such an appeal. Within 10 days of receiving an appeal, public bodies must either: waive the fee, reduce the fee, uphold the fee, or extend the time to respond by 10 business days.

Requesting individuals may also bring a civil ac­tion against a public body to dispute excessive fees if: (a) a public body’s procedures do not provide for fee appeals; (b) the head of the public body fails to re­spond to an appeal; or (c) the public body issues a determination to the appeal. The civil action must be filed within 45 days after receiving notice of a re­quired fee or a public body’s determination on appeal.

The amendments increase civil fines and damages against public bodies for arbitrarily and capriciously violating the Act by delaying or refusing to provide copies of public records from $500 to $1,000.

The amendments also impose civil fines against public bodies for charging excessive fees. If a court finds that a fee was unreasonable (i.e., a fee that un­reasonably exceeds the amount properly calculated under the Act) and the court reduces the fee by 50% or more, the court may award reasonable attorney fees and costs. In addition, the amendments require a court to award damages of $500 if it finds that a public body arbitrarily and capriciously violated the Act by charging an unreasonable fee. The court may also award punitive damages of $500. If a court finds that a public body intentionally failed to comply with the Act or acted in bad faith, the court must charge the public body a civil fine not less than $2,500 or more than $7,500.

Although the amendments will not become effec­tive until July 1, 2015, school officials should review their current FOIA policies to determine whether their policies must be amended to comply with the Act. The amendments require public bodies to create a written public summary of the specific procedures and guide­lines on how to submit a written request, how to un­derstand a public body’s response, deposit requirements, fee calculations, and avenues for appeal. If a public body maintains an internet presence, these procedures and guidelines must be published on the public body’s website and be available upon request free of charge.