Back to Basics: FOIA

The recent surge of FOIA requests received by many Michigan schools provides a timely opportunity to focus this month’s Back to Basics article on FOIA requirements.

Reviewing Requests

School officials often ask whether they must respond to a FOIA request if it is a “scam” or “not legiti­mate.” As a public body, a school is required to respond to all FOIA requests unless the requester is incarcer­ated in a state or local correctional facility or the re­quest was submitted without the requester’s required contact information. Under Michigan law, FOIA re­quests must contain the requester’s full name, mailing address, and phone number or email address.

A FOIA request is not void merely because it was sent to an incorrect or non-functioning email address or was captured in a school’s spam or junk mail folder. But those factors do affect a school’s response require­ments. In such a situation, the request is not considered “received” until one business day after the school first “becomes aware” of the request. A school’s FOIA proce­dures and guidelines should indicate how often a school’s FOIA Coordinator will review the school’s spam and junk mail folders.

Responsive Documents

We are often asked, “Can these records be FOIA’d?” The answer is usually “yes.” Public access to records is construed broadly, while exemptions are construed narrowly.

FOIA nevertheless allows, and sometimes requires, redaction or removal of certain information. The public body must prove the legal basis for the redaction or removal, and there is a pro-disclosure presumption.

There are no exemptions for a record that is merely embarrassing to a school employee, because someone wrote “confidential” on a record, or because school of­ficials would rather not disclose a record. Unless the FOIA Coordinator can provide a specific legal basis for an exemption, the document must be provided. FOIA Section 13 contains a full list of allowable FOIA exemptions.

 

Response Timeline

Under FOIA Section 5, a public school must respond to a FOIA request within five business days after the request is “received” by doing one of the following:

  1. granting the request;
  2. issuing a written notice to the requester denying the request;
  3. granting the request in part and issuing a written notice to the requester denying the request in part; or
  4. issuing a notice extending for not more than 10 business days the period during which the public school must respond to the request.

Schools do not need to seek a requester’s permission to exercise the 10 business day extension. The extension notice, however, must specify the reason for the extension and the date by which the response will be issued. A school cannot issue more than one notice of extension for a particular FOIA request.

A business day is any day of the year, Monday through Friday, excluding only Saturdays, Sundays, and legal holidays. In other words, any weekday, other than a legal holiday, is a business day, regardless of whether a school is open for business (e.g., vacations or clo­sures). Failing to respond to a FOIA request within the required timeframe is considered a denial of the re­quest. Consequently, school officials must ensure some­one carefully reviews incoming email, mail, and faxes during school vacations and closures so that FOIA requests can be processed in a timely manner.

FOIA requests sent electronically are not considered “received” until the next business day. For example, if a requester sends a FOIA request via email on Thursday, September 16, the request would not be considered “received” by the school until the next busi­ness day: Friday, September 17. This means that the school’s time to respond to the request starts the day after the request was “transmitted.”

Fees & Deposits

A school’s response to a FOIA request may also include an assessment of fees for responding to the re­quest and, if necessary, a notice that the school requires a “good-faith deposit” from the requester before providing the records. However, a school can charge a fee only if its FOIA procedures and guidelines (includ­ing the itemized fee form) are posted on the school’s website in compliance with the 2015 FOIA amend­ments. A response charging fees must be accompanied by a detailed cost itemization form, following the fee procedures in the school’s FOIA procedures and guide­lines. If the total fee estimate (based on a “good-faith calculation” of the fee using the school’s cost itemiza­tion form) exceeds $50, a school may require a good faith deposit of not more than half of the total estimated fee before the school provides the responsive records. A response requiring a deposit must provide a “best ef­forts” estimate of the time it will take the school to produce the requested records, which is nonbinding.

Schools may impose a 48-day deadline to pay the deposit. The time period begins when the school pro­vides written notice to the requester of the deposit re­quirement, amount, and deadline. Then, unless the requester appeals the amount, a failure to appeal or pay the deposit by the deadline renders the FOIA request abandoned and the school is not required to fulfill the request. Without proper notice provided by the school, the 48-day deposit deadline does not apply.

Noncompliance

School officials should be aware that hefty fines may be imposed for intentional FOIA violations or act­ing in bad faith when dealing with a FOIA request. An improper denial of a FOIA request could result in a law­suit, fines, attorney fee liability, and the assessment of punitive damages against the school.

We have seen a large number of FOIA requests to schools so far this year. Now is a good time to review your school’s FOIA Procedures and Guidelines and en­sure that your school has the required information posted on the website. It is also a good time to remind staff that emails – even if they are embarrassing – are usually considered public records that are subject to disclosure under FOIA.

If you have questions about whether your school’s FOIA procedures and guidelines are legally compliant or if you are interested in purchasing updated model FOIA procedures and guidelines, please contact a Thrun Law Firm attorney.