Written by Haider Kazim, Esq.

Over the last few years, with increasing frequency, attorneys at Cummings, McClorey, Davis & Acho, P.L.C., have represented their municipal clients in lawsuits stemming from allegations of violations concerning the Michigan Freedom of Information Act (FOIA).

FOIA cases are unique from other types of litigation, in that they usually can be avoided altogether at the outset. Most violations of FOIA are unintentional and the result of an oversight or a misunderstanding of the statutory requirements by a public official. Unfortunately, for some, FOIA litigation has become a cottage industry in which lawsuits are primarily motivated by the prospect of monetary benefit. It therefore should come as no surprise that more lawsuits alleging FOIA violations are being filed by plaintiffs in pro per, that is, without representation by an attorney. Knowledge of FOIA can enable a public body to avoid such lawsuits or at least discourage their filing.

FOIA provides that a public body must respond to a request for a public record within five business days after the public body receives the request, unless the person making the request agrees to a longer period of time. The public body must respond by (a) granting the request; (b) issuing a written notice to the requesting person denying the request; (c) granting the request in part and issuing a written notice to the requesting person denying the request in part; or (d) issuing a notice extending for not more than 10 business days the period during which the public body must respond to the request. A public body may not issue more than one notice of extension for a particular request.

Failure to respond to a FOIA request constitutes a public body’s final determination to deny the request. In a circuit court action to compel a public body’s disclosure of a public record, the circuit court shall assess damages against the public body if the circuit court (a) has determined that the public body has not responded in one of the ways noted above; and (b) ordered the public body to disclose or provide copies of all or a portion of a

It is critical that the designated FOIA coordinator for a public body takes prompt action upon receiving a request under FOIA. It is certainly foreseeable that a FOIA coordinator would receive a request that would require him or her to forward it to another public official for a response. This can lead to confusion as to which official is responsible for responding to the request, and also could lead to a delayed response. The delay, in turn, may result in a lawsuit alleging a FOIA violation. In such a circumstance, the FOIA coordinator should issue a notice extending the time for responding to the request. Such a notice would allow the public body a total of 15 business days to consider and to respond to a FOIA request.

If documents requested under FOIA request do not exist, a public body must still respond and advise the requesting person that the documents do not exist. A requesting party should not have to file a lawsuit only to find out that a document does not exist. Notifying the person from the beginning that a document does not exist will avoid a lawsuit and an argument for costs and attorney fees made necessary by a failure to disclose that information.

FOIA is a disclosure statute, intended to provide citizens a glimpse into the workings of their government so they can be informed participants in the democratic process. The more forthcoming a public body is in response to a FOIA request, the less likely it will have to endure the time and expense of a FOIA lawsuit.