Checklist for FOIA Requests
How to do it right!
- When you draft your FOIA request, be sure you are requesting a covered “public record.”
- Submit your request in writing to the FOIA coordinator. Use the proper form, and be able to prove how and when you sent it. Remind the FOIA coordinator of your statutory rights and the agency’s statutory obligations.
- A person has a right to subscribe to future issuances of public records that are created, issued, or disseminated on a regular basis. A subscription shall be valid for up to 6 months, at the request of the subscriber, and shall be renewable. An employee of a public body who receives a request for a public record shall promptly forward that request to the freedom of information act coordinator.
- Describe the records you are seeking very carefully so that the public body will be
able to find them quickly - they can charge you for the time they spend looking, and a common tactic is to overcharge. Remember, they have no duty to generate records of information for you. You get the records they have - you have to find the facts withing those, ans so you need to ask for records with some level of specificity. Set a limit on how much you will spend in your request.
- Remember, if you have to sue to enforce your rights, the county of the lawsuit is always the requesters county. Sometimes it is better to have a lawyer from another county make the request, as the judges might not favor the government players as much if they are a few counties over.
- Be sure you are submitting your request to a covered “public body.”The term public body means a “state officer, employee, agency, department, division, bureau, board, commission, council, authority, or other body in the executive branch of the state government, but does not include the governor or lieutenant governor, the executive office of the governor or lieutenant governor, or employees thereof.” It includes an agency, a board, a commission, or a council in the legislative branch of the state government, a county, a city, a township, a village, an intercounty, an intercity, or a regional governing body; a council, school district, special district, or municipal corporation; or a board, department, commission, council or agency thereof; anany other body that is created by state or local authority or that is primarily funded by or through state or local authority. The judiciary is not included in the definition of public body.Private nonprofit corporations and other nongovernmental bodies generally are not subject to FOIA, but a nonprofit foundation primarily funded by a state university was held subject to FOIA.
- Anticipate potentially applicable exemptions. FOIA contains more than 20 express exemptions, but exemptions to disclosure are to be narrowly construed and the burden is on the public body claiming
the exemption. Exempt material must be separated from nonexempt material, detailed
affidavits must be supplied describing the materials withheld, and justification for the exemption must must give factually based reasons for not releasing particular
kinds of documents.
- Be prepared to pay the fee, or make a case for a waiver. If you can show that fulfilling your request will benefit the general public, ask for a waiver of fees. Explain why you are requesting the documents and how disclosure is likely to shed light on how well the government is fulfilling its statutory functions. Emphasize that you are not requesting the information for commercial use or private gain.
- Fees must be limited to actual mailing costs and actual incremental costs of duplication or publication, including labor, the cost of the search, examination, review, and deletion and separation of exempt from nonexempt information. For labor costs, a public body may not charge more than the hourly wage of the lowest paid public body employee capable of retrieving the information necessary to comply with the FOIA request. Be aware of the Enhanced Access to Public Records Act, MCL 15.441 et seq.; a public body may charge a reasonable fee for providing enhanced access to public records. Enhanced access means a public record is immediately available for inspection, purchase, or copying by digital means.
- Know the Time Line: Factor in Obstruction! They have 5 business days after they receive your request - plus one if you faxed the request. They must comply or deny in writing, and the denial must contain some legal technicalities.They can issue a notice extending for not more than 10 business days the period during which the public body shall respond to the request. A public body shall not issue more than 1 notice of extension for a particular request.
- If your request is denied, you can appeal to the head of the agency before you sue, but you do not have to. If you do, they have 10 days to reverse the denial; issue a written notice upholding the denial; reverse the denial in part and issue a written notice upholding the denial in part; or, under unusual circumstances, issue a notice extending the time to respond for not more than 10 business days.
- You get copies, but you have to ask specifically:" Upon furnishing a sufficiently descriptive, written request, a person has the right to inspect, copy, or receive copies of a public record not exempt from disclosure. MCL 15.233(1)."
- If your appeal is denied, consider filing a complaint. If your request is denied, you have the right to seek judicial review within 180 days.The public body has the burden of justifying nondisclosure of the requested records. The burden is a heavy one, and it is the duty of a reviewing court to determine whether it has been met.
- If you win in court on appeal, request attorney fees.A pro se litigant (even one who is an attorney) will not recover attorney fees.Punitive damages might appropriate if the agency concealed the requested records