The Open Meetings Act and the FOIA - Michigan Municipal League FOIA Basics.pdf · The Open Meetings...

The Open Meetings Act and the FOIA

Steven Mann, Principal

313.496.7509

[email protected]

Michigan Municipal League

June 1, 2017 ● Marquette

Presentation Outline - OMA

• Notice Requirements & Minutes

• Key Definitions & Meeting Requirements

• Closed Sessions

• Subquorum Meetings

• Electronic Communications

• Questions?

2

Recent Headlines

“Almer Twp. planning commission meeting violated Michigan Open Meetings Act, attorney says”

Tuscola County Advertiser, March 16, 2016

www.tuscolatoday.com

“Almer Twp. Meeting rescheduled due to Open Meetings Act violation, second time this year”

Tuscola County Advertiser, October 5, 2016

www.tuscolatoday.com

3

Recent Headlines

“Lawyer files appeal against Fiscelli for more legal fees”Port Huron Times Herald, September 22, 2016

www.thetimesherald.com

“Prosecutor: Leelanau official unintentionally violated OMA”

Traverse City Record Eagle, October 22, 2016

www.record-eagle.com

“Lawyer appeals Algonac open meeting violation”Port Huron Times Herald, October 21, 2016

www.thetimesherald.com 4

Recent Headlines

“President candidates to be secret in Western Michigan University Search”

mLive, November 18, 2016

www.mlive.com

“Attorney: Waverly board’s decision ‘inappropriate’”Lansing State Journal, January 23, 2017

www.lansingstatejournal.com

“Waverly board apologizes, says halting public comment ‘not legal’”

Lansing State Journal, February 2, 2017

www.lansingstatejournal.com

5

The Open Meetings Act

• The intent of the Open Meetings Act (OMA) is to provide openness and accountability in government and is interpreted to accomplish this goal.

Booth Newspapers v Wyoming City Council

168 Mich App 459 (1988)

• The OMA is construed liberally in favor of openness.Wexford County Prosecutor v Pranger

83 Mich App 197 (1978)

• Attempts to avoid the OMA are regularly met with disapproval by the courts.

Booth Newspapers v Wyoming City Council

168 Mich App 459 (1988) 6

NOTICE REQUIREMENTS

AND MINUTES

7

• A public notice shall always contain the name, address, and telephone number if one exists for the public body.

• A public notice shall always be posted at the principal office of the public body and other locations considered appropriate by the public body. Cable television may be utilized for the purposes of posting public notices.

MCL 15.264(1); MCL 15.264(2).

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NOTICE REQUIREMENTS (Sec. 5)

• For regular meetings, there shall be posted within ten (10) days after the first meeting in each calendar or fiscal year a public notice stating the dates, times, and places of its regular meetings.

• Any change in the regular meeting schedule shall be posted within three (3) days after the meeting at which the change is made stating the new dates, times, and places of the regular meetings.

MCL 15.265(2); MCL 15.265(3).

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• For a rescheduled regular, or special meeting, a public notice stating the date, time, and place shall be posted at least eighteen (18) hours before the meeting….• Citizens for Public Accountability & Responsible Development v Northville Charter Twp. Bd. of

Trustees, unpublished, 2011 WL 2184257 (OMA contained no specific time requirement for accessibility to notice).

• 2012 AMENDMENT (Act 528 of 2012; eff. Dec. 28, 2012)

• “in a prominent and conspicuous place at both the…principal office and…if the public body directly or indirectly maintains an official internet presence that includes monthly or more frequent updates of public meeting agendas or minutes, on a portion of the website that is fully accessible to the public.”

MCL 15.265(4). 10



• “The public notice on the website shall be included on either the homepage or on a separate webpagededicated to public notices for nonregularly scheduled public meetings and accessible via a prominent and conspicuous link on the website’s homepage that clearly describes its purpose for public notification of those nonregularly scheduled public meetings.”

MCL 15.265(4). 11



• “A durational requirement for posting a public notice of a meeting under this act is the time that the notice is required to be accessible to the public.”

MCL 15.265(7).

12


• A public body may meet in an emergency session in the event of severe and imminent threat to the public health, safety, and welfare when 2/3 of the members of the body decide delay would be detrimental to efforts to respond to the threat, without meeting these notice requirements. (Act 528 of 2012 adds special notice requirements)

• A meeting of the public body may only take place in a residential dwelling if a non-residential building within the local governmental unit or school system is not available without cost to the public body. Special notice provisions apply.

MCL 15.265(5); MCL 15.265(6)13


Subscription to Notices

• Upon written request and payment of a reasonable fee to cover the costs, a public body must send notices of public meetings to a requesting party by first class mail.

• Upon written request, a public body must provide public notice of meetings to the media.

MCL 15.266.

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Requirements for Minutes

• Section 9 of the OMA requires that minutes show:

• Date, time and place of the meeting

• Members present

• Members absent

• Any decisions made at a meeting

• The purpose(s) for which a closed session is called

• All roll call votes taken

MCL 15.269. 15

MINUTES (Sec. 9-Open Session)

KEY DEFINITIONS AND

MEETING REQUIREMENTS

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• Public Body - means any State or Local legislative or governing body, including a board, commission, committee, subcommittee, authority, or council, which is empowered by State constitution, statute, charter, ordinance, resolution, or rule to exercise governmental or proprietary authority or perform a governmental or proprietary function, or a lessee thereof performing an essential public purpose and function pursuant to the lease agreement.

MCL 15.262.17


• Meeting - means the convening of a public body at which a quorum* is present for the purpose of deliberating toward or rendering a decision on a public policy.

• Closed Session - means a meeting or part of a meeting of a public body which is closed to the public.

MCL 15.262.

*Subquorum meetings will be discussed later.

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• Decision - means a determination, action, vote, or disposition upon a motion, proposal, recommendation, resolution, order, ordinance, bill, or measure on which a vote by members of a public body is required and by which a public body effectuates or formulates public policy.

MCL 15.262.

19


• Deliberation – While the act does not define deliberation, the courts have provided guidance:

• “deliberation” includes “discussing,” which, in turn, is defined as “the act of exchanging views on something”

- Hoff v Spoolstra, unpublished, 2008 (COA No. 272898)

• Black's Law Dictionary . . . defines this word as “the act of carefully considering issues and options before making a decision or taking some action; esp., the process by which a jury reaches a verdict; as by analyzing, discussing, and weighing the evidence”. The word “discussion” is defined as the act of exchanging views on something; a debate.

– Ryant v Cleveland Twp., 239 Mich. App. 430 (2000).

20


• All meetings of a public body shall be open to the public and shall be held in a place available to the general public. A person may tape record, video tape, broadcast live, and telecast live the proceedings. A public body may establish reasonable rules and regulations in order to minimize the possibility of disrupting the meeting.

MCL 15.263(1).

21


• All decisions of a public body shall be made at a meeting open to the public.

• All deliberations of a public body constituting a quorum*

of its members shall take place at a meeting open to the public, except for closed sessions.

MCL 15.263(2); MCL 15.263(3).

*Subquorum deliberations will be discussed later.

22


CLOSED SESSIONS

23

A closed session may be held only for the following purposes:

• To consider the dismissal, suspension, or disciplining, or to hear complaints or charges brought against, or to consider a periodic personnel evaluation of a public officer, employee, staff member, or individual agent, if the named person requests a closed hearing.

MCL 15.268(a).

24

CLOSED SESSIONS (Sec. 8)

• For strategy and negotiation sessions connected with the negotiation of a collective bargaining agreement if either negotiating party requests a closed hearing.

MCL 15.268(c).

25


• To consider the purchase or lease of real property up to the time an option to purchase or lease that real property is obtained. (Note: does not apply to sale or other disposition of property)

• To consult with its attorney regarding trial or settlement strategy in connection with specific pending litigation, but only if an open meeting would have a detrimental financial effect on the litigating or settlement positions of the public body. (Note: pending litigation means a case which has been filed in court)

MCL 15.268(d); MCL 15.268(e). 26


• To review the specific contents of an application for employment or appointment to a public office if the candidate requests that the applications remain confidential. All interviews by a public body for employment or appointment to a public office shall be held in an open meeting pursuant to this Act.

• To consider material exempt from disclosure or discussion by Federal or state statute. (Example: To consider a written attorney-client privileged communication which is exempt from disclosure under FOIA)

MCL 15.268(f); MCL 15.268(h). 27


• A two-thirds roll call vote is required to call a closed session, except for closed sessions permitted under subsections (a) (personnel discipline, complaints or evaluation) and (c) (strategy and negotiating sessions regarding collective bargaining). The roll call vote and purpose of the closed session must be entered in the minutes of the meeting.

• A separate set of minutes must be taken by the clerk at the closed session. The separate set shall be retained for one year and one day and shall only be disclosed if required by civil actions filed under the Act.

MCL 15.267.28


Closed Session Procedures

• Board member makes motion to enter closed session

• Motion must include the purpose for closed session

• We recommend motion also include reference to the specific applicable section of OMA (i.e. MCL 15.268(___))

• Support for motion from second Board member

• Roll call vote (2/3 approval needed for most closed session purposes)

• Board convenes in closed session

• Board returns to resume open portion of public meeting

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SUBQUORUM MEETINGS

30

• Cases where subquorum meetings or communications held to be in violation of the OMA:

• Booth v Wyoming, 168 Mich.App. 459, 425 N.W.2d 695 (1988)(subquorum deliberations of a city council over two day period violated the OMA).

• Booth Newspapers, Inc. v. Univ. of Michigan Bd of Regents, 192 Mich.App. 574, 481 N.W.2d 778 (1992) aff'd in part and rev'd in part on other grounds 444 Mich. 211 (1993) (sub-quorum committee given the authority to act regarding the selection of a university president violated the OMA; “round-the-horn” telephone calls and conferences resulted in “decisions” required to be made at an open meeting).

31


• Federated Publications, Inc. d/b/a Lansing State Journal v Michigan State University, 221 Mich App 103; 561 N.W.2d 433 (1997), rev’d on other grounds 460 Mich 755 (1999) (sub-quorum committee given the authority to act regarding the selection of a university president violated the OMA – note – reversed on unrelated constitutional grounds).

• Schmiedecke v Clare School Bd, 228 Mich App 259; 577 N.W.2d 706 (1998), (sub-quorum committee given the authority to make only a recommendation on policy regarding evaluation of administrators violated the OMA).

• Hoff v Spoelstra, et al, unpublished opinion per curiam of the Court of Appeals, issued July 8, 2008, (Docket No. 272898) (subquorumdiscussions on termination of city attorney violated OMA.)

32


• Cases where subquorum meetings or communications held not a violation of the OMA:

• St. Aubin v Ishpeming City Council, 197 Mich App 100; 494 N.W.2d 803 (1993)(informal canvassing by mayor to determine the status of votes on a particular issue did not violate the OMA.)

• Finn v Flint School Bd, unpublished opinion per curiam of the Court of Appeals, issued December 20, 2002, (Docket No. 237105), (Discussions between the president and individual members of a school board regarding the superintendent’s desire to terminate his employment did not violate the OMA.)

33


• Tucker v Harper Woods Bd of Educ, unpublished opinion per curiam of the Court of Appeals, issued April 5, 2002, Docket No. 229685.(Meeting of less than a quorum of a school board with its attorney did not violate the OMA.)

• Collins v Ham, unpublished opinion per curiam of the Court of Appeals, issued June 17, 2008, (Docket No. 275493) (subquorum meeting of council members with city manager to ask him to resign prior to meeting did not violate OMA.)

34


• Williams v Michigan Public School Employees Retirement Bd, unpublished opinion per curiam of the Court of Appeals, issued September 29, 2009 (Docket No. 282543) (Meeting of subquorum “steering committee” of Retirement Board and its counsel prior to board meeting did not violate the OMA.)

• Mandich v Owendale Gagetown Area Schools Board of Trustees,unpublished opinion per curiam of the Court of Appeals, issued December 14, 2010 (Docket No. 294264) (Meeting of subquorum Finance Committee, Superintendent, and Auditor prior to regular board meeting did not violate OMA because there was no evidence that any deliberation or discussion among board members took place. The board members “just sat there.”)

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• The committee must be advisory.

• The committee cannot make any decisions.

• The intent for creating the committee cannot be to avoid the OMA.

• Any committee discussion cannot move a matter closer to a predetermined resolution.

• The committee cannot engage in deliberations.

• In the alternative, the committee meeting may be posted and treated as an open meeting in all respects.

36


ELECTRONIC COMMUNICATIONS

37

Policy Considerations

• E-mail Policy• Recognize record retention requirements

• Discussions or deliberations by council members?

• Use of personal email accounts for municipal business?

• Text Messaging Policy• Recognize record retention requirements

• Practical challenges of retention

• Practical challenges of reproducing for retention/disclosure


• Social Media Policy (Facebook, Twitter, etc.)• Recognize record retention requirements


• Role of public relations personnel and staff

38


39

Citizens for a Better Algonac Community Schools v Algonac Community Schools

2016 WL 4705141, ___ Mich. App. ___ (Sept. 8, 2016)

• Early 2014 – P undertakes search for Superintendent

• Apr. 1, 2014 – Board votes to offer position to neighboring Superintendent and “begin contract development [asap]”

• President and members exchange a series of emails over the next few weeks regarding contract negotiations, drafts of proposed contracts, working out details and settling on a final contract.

• Apr. 28, 2014 – Board approves contract “unanimously, swiftly, and without discussion”


40


2016 WL 4705141, ___ Mich. App. ___ (Sept. 8, 2016)

• May 2014 – P files suit alleging emails constitute deliberations of a pubic body in violation of OMA

• P sought declaratory judgment finding a violation of OMA, an order compelling compliance and enjoining further non-compliance, and attorney fees and costs

• T/C: Board “violated the [OMA] by conducting deliberations…outside of a public meeting”

• T/C: No injunction as P failed to show practice occurred in the past, continued at the present time, or would persist in the future


41


2016 WL 4705141, ___ Mich. App. ___ (Sept. 8, 2016)

• T/C: No injunction = no attorney fees or costs

COA

A complaint seeking pure declaratory relief, as an independent remedy standing on its own, is unsustainable in regard to alleged OMA violations.

OMA provides 3-tiered enforcement scheme for private litigants An action to invalidate a decision made in violation of the OMA. MCL

15.270

An action for injunctive relief enjoining ongoing OMA violation and compelling compliance. MCL 15.271

An action for damages for intentional OMA violation. MCL 15.273

P’s not entitled to injunction = no sustainable cause of action. Vacated the T/C’s granting of declaratory relief.


Court of Appeals Holds Email Deliberations Among a “Quorum" of a Public Body Violates the OMA

Markel v Mackley, Case No. 327617 (Mich. Ct. App., Nov. 1, 2016)(Unpublished)

• Four members of a seven-member elected public body engaged in numerous email exchanges regarding matters of public policy which would soon come before the public body for consideration

• Three of the members on the group emails actively exchanged thoughts and plans to handle the matters.

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• The fourth member on the group emails simply received the emails but did not actively engage in the exchange.

• At subsequent public meetings, the matters were handled just as had been planned in the email exchanges.

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• The Court found that the group emails constituted a “meeting” under the OMA because there was a quorum present and deliberations occurred on a matter of public policy.

• “Because the meeting was held privately via email, the four defendants violated [Section 3(3) of the OMA] which required such deliberations to be open to the public.” 44


Questions?

45Next up…FOIA

Presentation Outline - FOIA

• General Provisions

• Key Definitions

• Processing a FOIA Request

• Certain Exemptions from disclosure

• Questions?

Legislative Intent

Public Access to Government Information

Access to the affairs of government and official

acts of public officials

Participate in the democratic process

FOIA is a pro-disclosure statute

Exemptions are narrowly construed

Duty to provide access to non-exempt records

47

General Provisions of FOIA

Procedures and Guidelines

• All public bodies must establish procedures and guidelines to implement FOIA.

• Must create a written public summary of the specific procedures and guidelines regarding how to submit written requests and how to understand responses, deposit requirements, fee calculations and avenues for challenge and appeals.

• Must include a standard form for detailed itemization of any fee in responses to written requests. This form must clearly list and explain detailed and allowable charges for each of the 6 fee components. • May use form created by the Department of Technology,

Management, and Budget.48

Procedures and Guidelines

• Must provide free copies of procedures and guidelines and its summary upon request at the public office. Must provide free copy with responses to written requests or include the website link to the documents.

• Must post the procedures and guidelines on the public body’s website (if public body directly or indirectly maintains an internet presence).

• The public body may NOT charge a fee or deposit if it has not established procedures and guidelines, created a summary, made those items publicly available without charge, or fails to follow the procedures and guidelines.

49

The public body of a city, village, township, county,

or state department shall appoint a FOIA

Coordinator.

MCL 15.236

The FOIA Coordinator

Responsible for accepting and processing

requests

Approves denials

May delegate duties to another individual 50

The FOIA Coordinator

All public records are subject to full disclosure

under the act unless the material is specifically

exempt under an express statutory exemption.

Swickard v. Wayne County Medical Examiner, 438

Mich 536, 544 (1991).

The FOIA does not require that information be

recorded; it only gives a right of access to records

in existence. Bredemeier v. Kentwood Bd. of Ed.,

95 Mich App 767, 771 (1980).

51

Records Subject to Disclosure

• A public record is a writing prepared,

owned, used, in the possession of, or

retained by a public body in the

performance of an official function, from

the time it is created. Public record does

not include computer software.

MCL 15.232

52

What is a Public Record?

• A “Writing” means handwriting, typewriting, printing, photostating, photographing, photocopying, and every other means of recording, and includes letters, words, pictures, sounds, or symbols, or combinations thereof, and papers, maps, magnetic or paper tapes, photographic films or prints, microfilm, microfiche, magnetic or punched cards, discs, drums, or other means of recordingor retaining meaningful content.

MCL 15.232(h)

53

What is a Writing?

How Specific must the FOIA Request be?

The request to inspect a public record need not

describe the public record precisely or fully, but

need only provide a sufficient description to

enable the public body to identify it. Coblentz v

City of Novi, 475 Mich 558, 572 (2006).

However, courts are unlikely to uphold requests

for records which are “absurdly overboard.”

Capital Information Ass’n v Ann Arbor Police,

138 Mich App 655, 658 (1984). 54

The FOIA Request

Public body is required to respond within

five business days.

May give written notice extending

response period by up to ten business

days.

Failure to respond constitutes a denial.

MCL 15.235(2) and (3)55

Time Limits to Respond

• The response must be by: (a) granting the

request, (b) issuing a written notice to the

requesting party denying the request, (c)

granting the request in part and issuing a

written notice to the requesting party

denying part of the request.

• MCL 15.235(2)

56



• When Notice is Received• A written request by fax, email, or other electronic

communication is still considered received 1 business day after the transmission is made.

• If a request by email goes to the Public Body’s spam or junk mail folder, the request is not considered received until 1 day after the Public Body first becomes aware of the request.

• Must keep a log of when request is delivered to the junk mail folder and when the Public Body becomes aware of it.

57

The Denial Letter

Denials – The Requester’s “Miranda” Rights

Notice of denial must include:

Right to appeal to the head of the public body Right to judicial review in circuit courtRight to receive attorney’s fees and damagesExempt material - Basis for exemptionNo public record - Certification that record doesn’t existRedacted material - A description of a record or information that has been redacted MCL 15.235(4) 58

Exemptions from Disclosure

Section 13 of the act

The decision to deny disclosure of an exempt

record is one committed to the public body's

discretion.

Blue Cross and Blue Shield of Michigan v

Insurance Bureau, 104 Mich App 113, 126 (1981),

citing Tobin v Michigan Civil Service Comm’n, 98

Mich App 604, 608 (1980).

We will review only a select few exemptions59


• Privacy Exemption

• Records containing information of a

“personal nature” (next slide), and

• Disclosure would constitute a clearly

unwarranted invasion of an

individual’s privacy

60


Privacy exemption

Information of a personal nature is:

Intimate,

Embarrassing,

Private, or

Confidential

And would constitute clearly unwarranted invasion of privacy 61


Police Records – 2 Categories

Investigative Records Compiled for Law

Enforcement Purposes, but only to the extent

that disclosure would:

Interfere with law enforcement

proceedings…

Personnel Records of Law Enforcement

Agencies (Subject to balancing test)62


• Records or information specifically described and exempted from disclosure by statute. 13(1)(d).

63


PA 457 of 2012 (eff. Dec. 27, 2012) creates a FOIA exemption for

crime victim information and visual representations (See handout):

Home address and phone, work address and phone

Images of the victim

For victims of child abuse, CSC (or assault w/intent to commit),

or similar crime who was less than 18 at time of crime:

Name and address, name and address of certain family

members and relatives

Any other information tending to reveal victim identity

Information may be released to a victim advocacy organization.

• MCL 780.758(3) 64


• (f) Trade secrets or commercial or financial information voluntarily provided to an agency for use in developing governmental policy if:• (i) The information is submitted upon a promise of

confidentiality by the public body.• (ii) The promise of confidentiality is authorized by the chief

administrative officer of the public body or by an elected official at the time the promise is made.

• (iii) A description of the information is recorded by the public body within a reasonable time after it has been submitted, maintained in a central place within the public body, and made available to a person upon request. This subdivision does not apply to information submitted as required by law or as a condition of receiving a governmental contract, license, or other benefit.

13(1)(f) 65


• Information or records subject to the attorney-client privilege. 13(1)(g).

• A bid or proposal by a person to enter into a contract or agreement, until the time for the public opening of bids or proposals, or if a public opening is not to be conducted, until the deadline for submission of bids or proposals has expired. 13(1)(i). 66


• Communications and notes within a public body or between public bodies of an advisory nature to the extent that they cover other than purely factual materials and are preliminary to a final agency determination of policy or action. This exemption does not apply unless the public body shows that in the particular instance the public interest in encouraging frank communication between officials and employees of public bodies clearly outweighs the public interest in disclosure. 13(1)(m).

67


• Records or information relating to a civil action in which the requesting party and the public body are parties. 13(1)(v).

• Information or records that would disclose the social security number of an individual. 13(1)(w)

68

Calculating Fees Continued

Six Fee Components

1. Labor Costs – Searching, Locating, and Examining of Records.*

2. Labor Costs – Redacting Records.*3. Non-Paper Physical Media.4. Paper Copies.5. Labor Costs – Duplication and Publication.6. Mailing Costs.

69


*Labor Costs – May Not Charge Unless Unreasonably High

• A fee shall not be charged for the cost of search, examination, review, and redaction, unless failure to charge a fee would result in unreasonably high costs to the public body because of the nature of the request in the particular instance, and the public body specifically identifies the nature of these unreasonably high costs.

• What are unreasonably high costs? See Bloch v Davison Cmty Schools, No. 296003 (Mich.App. Apr. 26, 2011), 2011 WL 1564645.

70

Calculating Fees

The Amendments break the charges into the following 6 Fee Components:

1. Labor Costs – Searching, Locating, and Examining of Records*

• Shall not exceed the hourly wage of the lowest paid employee capable of performing the task. Itemize hourly wage and number of hours.

• Charged in increments of 15 minutes or more, with partial timerounded down.

• May add up to 50% of the applicable labor charge for fringe benefits. Itemization must note percentage multiplier used.

• No overtime unless stipulated by requesting person.

71


2. Labor Costs – Redacting Records*• If performed by Public Body Employee, shall not exceed the hourly

wage of lowest paid employee capable of performing the tasks.

• May charge for Contracted Labor if the Public Body does not employ a person capable of redacting records as determined by the FOIA coordinator. Must list the name of the person or firm contracted. Contracted labor may not exceed 6 times the State minimum wage.

• Itemize hourly wage and number of hours. Charged in 15 minute increments or more, with partial time rounded down.


• No overtime unless stipulated by requesting Person.

• If the Public Body knows or has reason to know the record has previously been redacted and the redacted version is in Public Body’s possession, it may not impose a charge.

72


3. Non-Paper Physical Media

• For public records provided on non-paper physical media, the actual and most reasonably economical cost of the computer discs, computer tapes, other digital or similar media.

• The requestor may stipulate the records to be provided on non-paper physical media, emailed, or otherwise electronically provided.

• Only applies if Public Body has the technological capability necessary to provide records in the requested electronic format.

73


4. Paper Copies

• Not to exceed the actual cost of duplication, not including labor.

• May only charge $0.10 per sheet for 8 ½ by 11 inch or 8 ½ by 14 inch paper.

• May only charge the actual cost of all other types of paper.

• Must use most economical means available, including double sided printing.

• Itemization must express both the cost per sheet and the number of sheets provided. 74


5. Labor Costs – Duplication or Publication

• Cost of labor directly associated with making copies (paper or digital), transferring digital records to non-paper physical media, or providing these documents electronically.

• Shall not exceed the hourly wage of the lowest paid employee capable of performing the task.

• Fee may be charged in any time increment established by the Public Body, but all partial increments must be rounded down. Itemize hourly wage and number of hours.


• Overtime wages may only be included if stipulated by requesting person.

75


6. Mailing

• Actual cost of mailing in a reasonably economical and justifiable manner.

• May only charge for expedited shipping or insurance if stipulated by the requesting person.

• May charge for the least expensive form of postal delivery confirmation.

76

Responding to a Request

• Timeliness

• If the public body fails to timely respond to a request, it must reduce the labor costs by 5% per day up to a maximum 50% reduction, but only if:

• The late response was willful and intentional; OR

• The request included language requesting information within first 250 words of the body of the correspondence or the front of the envelope or subject line of the email, letter, or fax included the following words, characters or abbreviations, or recognizable misspellings: “Freedom of Information”, “Information”, “FOIA”, “Copy”, or legal code reference to the act.

77

Questions?

78

Steven D. Mann(313)496-7509

[email protected]

Steven Mann is a senior principal with Miller, Canfield, Paddock andStone, P.L.C. practicing in the area of public finance and municipal law.Steve specializes in the area of municipal finance, representing publicagencies as bond counsel. His practice covers all facets of tax incrementfinancing, special assessments, and economic development. Steve alsospecializes in complex issues related to the Freedom of Information Act(FOIA) and the Open Meetings Act (OMA).

Steve co-authored the Sunshine Laws and Local Government (OMA/FOIA)chapter of the Michigan Municipal Law handbook published by theInstitute for Continued Legal Education.

Steve has authored several amicus curiae briefs in both the MichiganCourt of Appeals and the Michigan Supreme Court arguing on behalf ofthe Michigan Municipal League, the Michigan Townships Association, thePublic Corporations Section of the State Bar of Michigan, and othermunicipal associations and their constituents.

Steve served twelve years elective office on the Charter Township ofPlymouth Board of Trustees (2000-2012), including one term as TownshipSupervisor and two terms as Trustee, and one additional year as anappointed trustee (2015-2016). He received his law degree, cum laude,from Thomas M. Cooley Law School in Lansing, and his B.B.A., summacum laude, from Cleary University. 79

The Open Meetings Act and the FOIA - Michigan Municipal League FOIA Basics.pdf · The Open Meetings...

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