Back to Basics: FOIA

Many schools have experienced a significant increase in FOIA requests. This month’s Back to Basics article addresses some of the common FOIA questions we receive and provides guidance about responding to FOIA requests.

Reviewing Requests

School officials often ask whether they must respond to a FOIA request that appears to be 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 because it was captured in a school’s spam or junk mail folder. Those factors, however, do affect a school’s response requirements. In either 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 email folders.

Responsive Documents

We are often asked, “Can these records be FOIA’d?” The answer usually is “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. If challenged, the public body must prove the legal basis for the redaction or removal, which can be difficult due to FOIA’s pro-disclosure presumption.

There are no exemptions for a record that is embarrassing to a school employee, because someone labeled it “confidential” 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 disclosed. FOIA Section 13 contains a full list of 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 extend time more than once for each FOIA request.

Under FOIA, 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 monitors incoming email, regular mail, and faxes during school vacations and closures so that FOIA requests are 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, October 20, the request would not be considered “received” by the school until the next business day, Friday, October 21.

Fees & Deposits

A school’s response to a FOIA request may include an assessment of fees for responding and, if necessary, a notice that the school requires a “good-faith deposit” from the requester before providing the records. A school may 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. A response requiring a deposit must provide a “best efforts” (but nonbinding) estimate of the time it will take the school to produce the requested records. 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 up to half of the total estimated fee before the school provides the records.

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, a failure to appeal or pay the deposit by the deadline means the FOIA request is 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

Hefty fines may be imposed for intentional FOIA violations or acting in bad faith when processing a FOIA request. An improper denial of a FOIA request could result in a lawsuit, fines, attorney’s fee liability, and punitive damages.

Now is a good time to review your school’s FOIA procedures and guidelines to ensure that your school has the required information posted on its website. It is also a good time to remind school officials and staff that emails and texts – even if embarrassing – are usually considered public records subject to disclosure under FOIA and that records are not protected from disclosure simply because they are located on a personal device or server.

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 attorney.

Thrun will offer an online FOIA training on Thursday, January 12, 2023, from 1:00-3:00 p.m.