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The following information is presented on-line for informational use only

and without warranty as to its accuracy, timeliness, or completeness. It

does not replace any official versions of this information. (Mich Dept of

Attorney General Web Site - www.ag.state.mi.us)

Table of Contents

I. Summary of Michigan’s Freedom of Information Act

<http://www.ag.state.mi.us/foia_and_open_meetings/#I>

 

II. Text of the Freedom of Information Act

<http://www.ag.state.mi.us/foia_and_open_meetings/#II>

 

III. Attorney General Opinions Relating to the Freedom of Information Act

<http://www.ag.state.mi.us/foia_and_open_meetings/#III>

 

IV. Court Opinions on the Freedom of Information Act

<http://www.ag.state.mi.us/foia_and_open_meetings/#IV>

 

  _____

 

I.

<http://www.ag.state.mi.us/foia_and_open_meetings/#Table of Contents>

[Return To Table of Contents]

<http://www.ag.state.mi.us/foia_and_open_meetings/#Table of Contents>

SUMMARY OF MICHIGAN’S

FREEDOM OF INFORMATION ACT

 

The following is an updated summary of the basic provisions of the Freedom

of Information Act (FOIA) as amended by 1996 PA 553. The actual text of the

statute follows in Section II.

 

Basic Intent:

The Freedom of Information Act regulates and sets requirements for the

disclosure of public records by all “public bodies” in the state.

 

Key Definitions:

“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 also includes:

*       an agency, board, commission, or council in the legislative branch of the

state government;

 

*       a county, city, township, village, inter county, inter city, or regional

governing body, council, school district, special district, or municipal

corporation, or a board, department, commission, council or agency thereof;

or

 

*       any other body which is created by state or local authority or which is

primarily funded by or through state or local authority. It does not include

private non-profit corporations.

 

“Public record” means 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.

 

Coverage:

The Freedom of Information Act sets requirements for the disclosure of

public records by all “public bodies” in the state. All state agencies,

county and other local governments, school boards, other boards,

departments, commissions, councils, and public colleges and universities are

covered.

 

Public Records Open to Disclosure:

In general, all records except those specifically cited as exceptions are

covered by the Freedom of Information Act. The records covered include

minutes of open meetings, officials’ voting records, staff manuals, final

orders or decisions in contested cases and the records on which they were

made, and promulgated rules. Other written statements which implement or

interpret laws, rules or policies, including, but not limited to,

guidelines, manuals and forms with instructions, adopted or used by the

agency in the discharge of its functions, are also covered.

 

It does not matter what form the record is in. The act applies to any

handwriting, typewriting, printing, photostating, photographing,

photocopying and every other means of recording. It includes letters, words,

pictures, sounds or symbols, or combinations thereof, as well as papers,

maps, magnetic or punched cards, discs, drums, or other means of recording

or retaining meaningful content. It does not include computer software.

 

 

Public Records Exempt From Disclosure:

A public body may (but is not required to) withhold from public disclosure

certain categories of public records under the Freedom of Information Act.

The following public records are exempt from disclosure under this act:

 

--Specific personal information about an individual if the release would

constitute a clearly unwarranted invasion of that individual's privacy.

 

--Investigating records compiled for law enforcement purposes, but only to

the extent that disclosure as a public record would do any of the following:

 

*       interfere with law enforcement proceedings;

 

*       deprive a person of the right to a fair trial or impartial administrative

adjudication;

 

*       constitute an unwarranted invasion of personal privacy;

 

*       disclose the identity of a confidential source or, if the record is

compiled by a criminal law enforcement agency in the course of a criminal

investigation, disclose confidential information furnished only by a

confidential source;

 

*       disclose law enforcement investigative techniques or procedures; or

 

*       endanger the life or physical safety of law enforcement personnel.

 

--Public records which if disclosed would prejudice a public body’s ability

to maintain the physical security of custodial or penal institutions

occupied by persons arrested or convicted of a crime or admitted because of

a mental disability, unless the public interest in disclosure under this act

outweighs the public interest in nondisclosure.

 

--Records which if disclosed would violate the Family Educational Rights and

Privacy Act of 1974 (primarily student records).

 

--Records specifically exempted from disclosure by another statute.

 

--A public record or information which is furnished by the public body

originally compiling, preparing, or receiving the record or information to a

public officer or public body in connection with the performance of the

duties of that public officer or public body, if the consideration

originally giving rise to the exempt nature of the public record remains

applicable.

 

--Trade secrets or commercial or financial information voluntarily provided

to an agency for use in developing governmental policy.

 

--Information subject to attorney-client privilege.

 

--Information subject to other privileges such as counselor-client and those

recognized by statute or court rule.

 

--Pending public bids to enter into contracts.

 

--Appraisals of real property to be acquired by a public body.

 

--Test questions and answers, scoring keys and other examination

instruments.

 

--Medical, counseling or psychological facts which would reveal an

individual’s identity.

 

--Communications and notes between and within 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 shall 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.

 

--Law enforcement communication codes and employment plans unless the public

interest in disclosure outweighs the public interest in nondisclosure.

 

--Information which would reveal the location of archeological sites.

 

--Product testing data developed by agencies buying products where only one

bidder meets the agency’s specifications.

 

--A student’s college academic transcript where the student is delinquent on

university loans.

 

--Records of any campaign committee including any committee that receives

moneys from a state campaign fund. (These records are open to the public

under Public Act 388 of 1976).

 

--Public records of a police or sheriff's agency where disclosure would

identify an informer, or undercover agent, or reveal the home address,

telephone number of an officer or agent, or disclose personnel records of

law enforcement agencies.

 

--Records pertaining to an investigation of a health care professional

conducted by the Department of Consumer and Industry Services pursuant to

the Public Health Code before a complaint is issued.

 

--Records of a public body's security measures.

 

--Records relating to a civil action in which the requesting person and the

public body are parties.

 

--Records that would disclose the social security number of an individual.

 

--Applications, including letters of recommendation and references, for

president of an institution of higher learning if the records could be used

to identify the candidate. However, records pertaining to persons identified

as finalists, except letters of recommendation and references, are not

exempt.

 

Availability of Public Records:

A request must be made in writing and provided to the FOIA coordinator of

the public body. A FOIA coordinator may designate another individual to act

on his or her behalf to accept requests for processing.

 

A person may ask to inspect, copy or receive a copy of a public record.

There are no qualifications such as residency or age that must be met in

order to make a request. However, prisoners in state, county or federal

correctional facilities are not entitled to make requests.

 

Not more than five business days after receiving a request, the public body

must respond to a request for a public record. The public agency can, notify

the requester in writing and extend the time for an additional ten business

days.

 

A person also has the right to subscribe to future issuances of public

records which are created, issued or disseminated on a regular basis. A

subscription is valid for up to six months, at the request of the

subscriber, and is renewable.

 

The public body or agency has a responsibility to provide reasonable

facilities so that persons making a request may examine and take notes from

public records. The facilities must be available during the normal business

hours of the public body.

 

Fees for Public Records:

A government agency may charge a fee for the necessary copying of a public

record for inspection or providing a copy of a public record to a requestor.

A public body may also charge for search, examination and review and the

separation of exempt information in those instances where failure to charge

a fee would result in unreasonably high costs to the public body. The fee

must be limited to actual duplication, mailing and labor costs. The first

$20 of a fee must be waived for a person who is on welfare or presents facts

showing inability to pay because of indigency.

 

Denial of a Record:

If a request for a record is denied, written notice of the denial must be

provided to the requester within five business days, or within 15 business

days if an extension is taken. A failure to respond at all, constitutes a

denial.

 

When a request is denied, the public body must provide the requester with a

full explanation of the reasons for the denial and the requester’s right to

submit an appeal to the head of the public body or to seek judicial review.

Notification of the right to judicial review must include notification of

the right to receive attorney fees and collect damages.

 

Enforcement:

A person may appeal a final decision to deny a request to the head of the

public body. The head of the public body has 10 days to respond to the

appeal. Under unusual circumstances, an additional 10 days may be taken.

A person also has the right to commence an action in circuit court to compel

disclosure of public records. The suit must be filed within 180 days after

the public body's final decision to deny a request.

 

The action may be brought in the county where the requester lives, the

county where the requester does business, the county where the public

document is located, or a county where the agency has an office.

 

Penalties for Violation of the Act:

If the circuit court finds that the public body has arbitrarily and

capriciously violated the Freedom of Information Act by refusal or delay in

disclosing or providing copies of a public record, it may, in addition to

any actual or compensatory damages, award punitive damages of $500 to the

person seeking the right to inspect or receive a copy of a public record.

 

Effective Date:

April 13, 1977.

  _____

 

II.

<http://www.ag.state.mi.us/foia_and_open_meetings/#Table of Contents>

[Return To Table of Contents]

<http://www.ag.state.mi.us/foia_and_open_meetings/#Table of Contents>

FREEDOM OF INFORMATION ACT

Act 442 of 1976

 

AN ACT to provide for public access to certain public records of public

bodies; to permit certain fees; to prescribe the powers and duties of

certain public officers and public bodies; to provide remedies and

penalties; and to repeal certain acts and parts of acts.

 

HISTORY: 1976, Act 442, Eff. April 13, 1977.

 

The People of the State of Michigan enact:

 

15.231 Short title; public policy.

Sec. 1. (1) This act shall be known and may be cited as the “freedom of

information act.”

(2) It is the public policy of this state that all persons, except those

persons incarcerated in state or local correctional facilities, are entitled

to full and complete information regarding the affairs of government and the

official acts of those who represent them as public officials and public

employees, consistent with this act.  The people shall be informed so that

they may fully participate in the democratic process.

 

 

15.232 Definitions.

Sec. 2. As used in this act:

 

(a) “Field name” means the label or identification of an element of a

computer data base that contains a specific item of information, and

includes but is not limited to a subject heading such as a column header,

data dictionary, or record layout.

 

(b) "FOIA Coordinator" means either of the following:

 

(i) An individual who is a public body.

 

(ii) An individual designated by a public body in accordance with section 6

to accept and process requests for public records under this act.

 

(c) "Person" means an individual, corporation, limited liability company,

partnership, firm, organization, association, governmental entity, or other

legal entity. Person does not include an individual serving a sentence of

imprisonment in a state or county correctional facility in this state or any

other state, or in a federal correctional facility.

 

(d) “Public body” means any of the following:

 

(i) 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.

 

(ii) An agency, board, commission, or council in the legislative branch of

the state government.

 

(iii) A county, city, township, village, intercounty, intercity, or regional

governing body, council, school district, special district, or municipal

corporation, or a board, department, commission, council, or agency thereof.

 

(iv) Any other body which is created by state or local authority or which is

primarily funded by or through state or local authority.

 

(v) The judiciary, including the office of the county clerk and employees

thereof when acting in the capacity of clerk to the circuit court, is not

included in the definition of public body.

 

(e) “Public record" means 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. This act separates public records into the following 2 classes:

 

(i) Those that are exempt from disclosure under section 13.

 

(ii) All public records that are not exempt from disclosure under section 13

and which are subject to disclosure under this act.

 

(f) "Software" means a set of statements or instructions that when

incorporated in a machine usable medium is capable of causing a machine or

device having information processing capabilities to indicate, perform, or

achieve a particular function, task, or result. Software does not include

computer-stored information or data, or field name if disclosure of that

field name does not violate a software license.

 

(g) “Unusual circumstances” means any 1 or a combination of the following,

but only to the extent necessary for the proper processing of a request:

 

(i) The need to search for, collect, or appropriately examine or review a

voluminous amount of separate and distinct public records pursuant to a

single request.

 

(ii) The need to collect the requested public records from numerous field

offices, facilities, or other establishments which are located apart from

the particular office receiving or processing the request.

 

(h) “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 recording or retaining meaningful content.

 

(i) "Written request" means a writing that asks for information, and

includes a writing transmitted by facsimile, electronic mail, or other

electronic means.

 

15.233 Public records; right to inspect, copy, or receive; subscriptions;

inspection and examination; memoranda or abstracts; rules; compilation,

summary, or report of information; creation of new public record; certified

copies.

 

Sec. 3. (1) Except as expressly provided in section 13, upon providing a

public body's FOIA coordinator with a written request that describes a

public record sufficiently to enable the public body to find the public

record, a person has a right to inspect, copy, or receive copies of the

requested public record of the public body. 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.

 

(2) A freedom of information act coordinator shall keep a copy of all

written requests for public records on file for no less than 1 year.

 

(3) A public body shall furnish a requesting person a reasonable opportunity

for inspection and examination of its public records, and shall furnish

reasonable facilities for making memoranda or abstracts from its public

records during the usual business hours. A public body may make reasonable

rules necessary to protect its public records and to prevent excessive and

unreasonable interference with the discharge of its functions. A public body

shall protect public records from loss, unauthorized alteration, mutilation,

or destruction.

 

(4) This act does not require a public body to make a compilation, summary,

or report of information, except as required in section 11.

 

(5) This act does not require a public body to create a new public record,

except as required in section 11, and to the extent required by this act for

the furnishing of copies, or edited copies pursuant to section 14(1), of any

already existing public record.

 

(6) The custodian of a public record shall, upon written request, furnish a

requesting person a certified copy of a public record.

 

 

15.234 Fees; waiver or reduction; affidavit; deposit; calculation of costs;

provisions inapplicable to certain public records; review by bipartisan

joint committees; appointment of members.

 

Sec. 4. (1) A public body may charge a fee for a public record search, the

necessary copying of a public record for inspection, or for providing a copy

of a public record. Subject to subsections (3) and (4), the fee shall be

limited to actual mailing costs, and to the actual incremental cost of

duplication or publication including labor, the cost of search, examination,

review, and the deletion and separation of exempt from nonexempt information

as provided in section 14. A search for a public record may be conducted or

copies of public records may be furnished without charge or at a reduced

charge if the public body determines that a waiver or reduction of the fee

is in the public interest because searching for or furnishing copies of the

public record can be considered as primarily benefiting the general public.

A public record search shall be made and a copy of a public record shall be

furnished without charge for the first $20.00 of the fee for each request to

an individual who is entitled to information under this act and who submits

an affidavit stating that the individual is then receiving public assistance

or, if not receiving public assistance, stating facts showing inability to

pay the cost because of indigency.

 

(2) A public body may require at the time a request is made a good faith

deposit from the person requesting the public record or series of public

records, if the fee authorized under this section exceeds $50.00. The

deposit shall not exceed 1/2 of the total fee.

 

(3) In calculating the cost of labor incurred in duplication and mailing and

the cost of examination, review, separation, and deletion under subsection

(1), 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 a request under this act. Fees shall be uniform and not

dependent upon the identity of the requesting person. A public body shall

utilize the most economical means available for making copies of public

records. A fee shall not be charged for the cost of search, examination,

review, and the deletion and separation of exempt from nonexempt information

as provided in section 14 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. A public body shall

establish and publish procedures, and guidelines to implement this

subsection.

 

(4) This section does not apply to public records prepared under an act or

statute specifically authorizing the sale of those public records to the

public, or if the amount of the fee for providing a copy of the public

record is otherwise specifically provided by an act or statute.

 

15.235 Request to inspect or receive copy of public record; response to

request; failure to respond; court order to disclose or provide copies;

damages; contents of notice denying request; signing notice of denial;

notice extending period of response; grounds for commencement of action.

 

Sec. 5. (1) Except as provided in section 3, a person desiring to inspect or

receive a copy of a public record shall make a written request for the

public record to the FOIA coordinator of a public body. A written request

made by facsimile, electronic mail, or other electronic transmission is not

received by a public body's FOIA coordinator until 1 business day after the

electronic transmission is made.

 

(2) Unless otherwise agreed to in writing by the person making the request,

a public body shall respond to a request for a public record within 5

business days after the public body receives the request by doing 1 of the

following:

 

(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.

 

(d) Issuing 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.

 

(3) Failure to respond to a request pursuant to subsection (2) 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 under section

10, the circuit court shall assess damages against the public body pursuant

to section 10(8) if the circuit court has done both of the following:

 

(a) determined that the public body has not complied with subsection (2).

 

(b) ordered the public body to disclose or provide copies of all or a

portion of the public record.

 

(4) A written notice denying a request for a public record in whole or in

part is a public body's final determination to deny the request or portion

of that request. The written notice shall contain:

 

(a) An explanation of the basis under this act or other statute for the

determination that the public record, or portion of that public record, is

exempt from disclosure, if that is the reason for denying all or a portion

of the request.

 

(b) A certificate that the public record does not exist under the name given

by the requester or by another name reasonably known to the public body, if

that is the reason for denying the request or a portion of the request.

 

(c) A description of a public record or information on a public record that

is separated or deleted pursuant to section 14, if a separation or deletion

is made.

 

(d) A full explanation of the requesting person’s right to do either of the

following:

 

(i) submit to the head of the public body a written appeal that specifically

states the word "appeal" and identifies the reason or reasons for reversal

of the disclosure denial.

 

(ii) seek judicial review of the denial under section 10.

 

(e) Notice of the right to receive attorneys’ fees and damages as provided

in section 10 if, after judicial review, the circuit court determines that

the public body has not complied with this section and orders disclosure of

all or a portion of a public record.

 

(5) The individual designated in section 6 as responsible for the denial of

the request shall sign the written notice of denial.

 

(6) If a public body issues a notice extending the period for a response to

the request, the notice shall specify the reasons for the extension and the

date by which the public body will do 1 of the following:

 

(a) Grant the request.

 

(b) Issue a written notice to the requesting person denying the request.

 

(c) Grant the request in part and issue a written notice to the requesting

person denying the request in part.

 

(7) If a public body makes a final determination to deny in whole or in part

a request to inspect or receive a copy of a public record or portion of that

public record the requesting person may do either of the following:

 

(a) appeal the denial to the head of the public body pursuant to section 10.

 

(b) commence an action in circuit court, pursuant to section 10.

 

15.236 Persons responsible for approving denial of request for public

record.

 

Sec. 6. (1) A public body that is a city, village, township, county, or

state department, or under the control of a city, village, township, county,

or state department, shall designate an individual as the public body's FOIA

coordinator. The FOIA coordinator shall be responsible for accepting and

processing requests for the public body's public records under this act and

shall be responsible for approving a denial under section 5(4) and (5). In a

county not having an executive form of government, the chairperson of the

county board of commissioners is designated the FOIA coordinator for that

county.

 

(2) For all other public bodies, the chief administrative officer of the

respective public body is designated the public body's FOIA coordinator.

 

(3) An FOIA coordinator may designate another individual to act on his or

her behalf in accepting and processing requests for the public body's

records, and in approving a denial under section 5(4) and (5).

 

15.240 Action to compel disclosure of public records; commencement; orders;

jurisdiction; de novo proceeding; burden of proof; private view of public

record; contempt; assignment of action or appeal for hearing, trial, or

argument; attorneys' fees, costs and disbursements; assessment of award;

damages.

 

Sec. 10. (1) If a public body makes a final determination to deny all or a

portion of a request, the requesting person may do 1 of the following at his

or her option:

 

(a) submit to the head of the public body a written appeal that specifically

states the word "appeal" and identifies the reason or reasons for reversal

of the denial.

 

(b) commence an action in the circuit court to compel the public body's

disclosure of the public records within 180 days after a public body's final

determination to deny a request.

 

(2) Within 10 days after receiving a written appeal pursuant to subsection

(1)(a), the head of a public body shall do 1 of the following:

 

(a) reverse the disclosure denial.

 

(b) issue a written notice to the requesting person upholding the disclosure

denial.

 

(c) reverse the disclosure denial in part and issue a written notice to the

requesting person upholding the disclosure denial in part.

 

(d) under unusual circumstances, issue a notice extending for not more than

10 business days the period during which the head of the public body shall

respond to the written appeal. The head of a public body shall not issue

more than 1 notice of extension for a particular written appeal.

 

(3) A board or commission that is the head of a public body is not

considered to have received a written appeal under subsection (2) until the

first regularly scheduled meeting of that board or commission following

submission of the written appeal under subsection (1)(a). If the head of the

public body fails to respond to a written appeal pursuant to subsection (2),

or if the head of the public body upholds all or a portion of the disclosure

denial that is the subject of the written appeal, the requesting person may

seek judicial review of the nondisclosure by commencing an action in circuit

court under subsection (1)(b).

 

(4) In an action commenced under subsection (1)(b), a court that determines

a public record is not exempt from disclosure shall order the public body to

cease withholding or to produce all or a portion of a public record

wrongfully withheld, regardless of the location of the public record. The

circuit court for the county in which the complainant resides or has his or

her principal place of business, or the circuit court for the county in

which the public record or an office of the public body is located has venue

over the action. The court shall determine the matter de novo and the burden

is on the public body to sustain its denial. The court, on its own motion,

may view the public record in controversy in private before reaching a

decision. Failure to comply with an order of the court may be punished as

contempt of court.

 

(5) An action commenced under this section and an appeal from an action

commenced under this section shall be assigned for hearing and trial or for

argument at the earliest practicable date and expedited in every way.

 

(6) If a person asserting the right to inspect, copy, or receive a copy of

all or a portion of a public record prevails in an action commenced under

this section, the court shall award reasonable attorneys’ fees, costs, and

disbursements. If the person or public body prevails in part, the court may,

in its discretion, award all or an appropriate portion of reasonable

attorneys’ fees, costs, and disbursements. The award shall be assessed

against the public body liable for damages under subsection (7).

 

(7) If the circuit court determines in an action commenced under this

section that the public body has arbitrarily and capriciously violated this

act by refusal or delay in disclosing or providing copies of a public

record, the court shall award, in addition to any actual or compensatory

damages, punitive damages in the amount of $500.00 to the person seeking the

right to inspect or receive a copy of a public record. The damages shall not

be assessed against an individual, but shall be assessed against the next

succeeding public body that is not an individual and that kept or maintained

the public record as part of its public function.

 

15.241 Matters required to be published and made available by state

agencies; form of publications; effect on person of matter not published and

made available; exception; action to compel compliance by state agency;

order; attorneys' fees, costs, and disbursements; jurisdiction; definitions.

 

Sec. 11. (1) A state agency shall publish and make available to the public

all of the following:

 

(a) Final orders or decisions in contested cases and the records on which

they were made.

 

(b) Promulgated rules.

 

(c) Other written statements which implement or interpret laws, rules, or

policy, including but not limited to guidelines, manuals, and forms with

instructions, adopted or used by the agency in the discharge of its

functions.

 

(2) Publications may be in pamphlet, loose-leaf, or other appropriate form

in printed, mimeographed, or other written matter.

 

(3) Except to the extent that a person has actual and timely notice of the

terms thereof, a person shall not in any manner be required to resort to, or

be adversely affected by, a matter required to be published and made

available, if the matter is not so published and made available.

 

(4) This section does not apply to public records which are exempt from

disclosure under section 13.

 

(5) A person may commence an action in the circuit court to compel a state

agency to comply with this section. If the court determines that the state

agency has failed to comply, the court shall order the state agency to

comply and shall award reasonable attorneys’ fees, costs, and disbursements

to the person commencing the action. The circuit court for the county in

which the state agency is located shall have jurisdiction to issue the

order.

 

(6) As used in this section, "state agency", "contested case", and "rules"

shall have the same meanings as ascribed to those terms in Act No. 306 of

the Public Acts of 1969, as amended, being sections 24.201 to 24.315 of the

Michigan Compiled Laws.

15.243. Items exempt from disclosure

Sec. 13. (1) A public body may exempt from disclosure as a public record

under this act:

(a) Information of a personal nature where the public disclosure of the

information would constitute a clearly unwarranted invasion of an

individual's privacy.

(b) Investigating records compiled for law enforcement purposes, but only to

the extent that disclosure as a public record would do any of the following:

(i) Interfere with law enforcement proceedings.

(ii) Deprive a person of the right to a fair trial or impartial

administrative adjudication.

(iii) Constitute an unwarranted invasion of personal privacy.

(iv) Disclose the identity of a confidential source, or if the record is

compiled by a law enforcement agency in the course of a criminal

investigation, disclose confidential information furnished only by a

confidential source.

(v) Disclose law enforcement investigative techniques or procedures.

(vi) Endanger the life or physical safety of law enforcement personnel.

(c) A public record that if disclosed would prejudice a public body’s

ability to maintain the physical security of custodial or penal institutions

occupied by persons arrested or convicted of a crime or admitted because of

a mental disability, unless the public interest in disclosure under this act

outweighs the public interest in nondisclosure.

(d) Records or information specifically described and exempted from

disclosure by statute.

(e) A public record or information described in this section that is

furnished by the public body originally compiling, preparing, or receiving

the record or information to a public officer or public body in connection

with the performance of the duties of that public officer or public body, if

the considerations originally giving rise to the exempt nature of the public

record remain applicable.

(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.

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

(h) Information or records subject to the physician-patient privilege,

psychologist-patient privilege, the minister, priest or Christian Science

practitioner privilege, or other privilege recognized by statute or court

rule.

(i) 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 the submission of

bids or proposals has expired.

(j) Appraisals of real property to be acquired by the public body until (i)

an agreement is entered into; or (ii) 3 years has elapsed since the making

of the appraisal, unless litigation relative to the acquisition has not yet

terminated.

(k) Test questions and answers, scoring keys, and other examination

instruments or data used to administer a license, public employment, or

academic examination, unless the public interest in disclosure under this

act outweighs the public interest in nondisclosure.

(l) Medical, counseling, or psychological facts or evaluations concerning an

individual if the individual’s identity would be revealed by a disclosure of

those facts or evaluation.

(m) 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 communications between officials and employees of public bodies

clearly outweighs the public interest in disclosure.  This exemption does

not constitute an exemption under state law for purposes of section 8(h) of

the Open Meetings Act, Act No. 267 of the Public Acts of 1976, being section

15.268 of the Michigan Compiled Laws.  As used in this subdivision,

“determination of policy or action” includes a determination relating to

collective bargaining, unless the public record is otherwise required to be

made available under Act No. 336 of the Public Acts of 1947, being sections

423.201 to 423.217 of the Michigan Compiled Laws.

(n) Records of law enforcement communication codes, or plans for deployment

of law enforcement personnel, that if disclosed would prejudice a public

body's ability to protect the public safety unless the public interest in

disclosure under this act outweighs the public interest in nondisclosure in

the particular instance.

(o) Information that would reveal the exact location of archeological sites.

The secretary of state may promulgate rules pursuant to the administrative

procedures act of 1969, Act No. 306 of the Public Acts of 1969, being

sections 24.201 to 24.328 of the Michigan compiled Laws, to provide for the

disclosure of the location of archaeological sites for purposes relating to

the preservation or scientific examination of sites.

(p) Testing data developed by a public body in determining whether bidders'

products meet the specifications for purchase of those products by the

public body, if disclosure of the data would reveal that only 1 bidder has

met the specifications.  This subdivision does not apply after 1 year has

elapsed from the time the public body completes the testing.

(q) Academic transcripts of an institution of higher education established

under section 5, 6, or 7 of article VIII of the state constitution of 1963,

if the transcript pertains to a student who is delinquent in the payment of

financial obligations to the institution.

(r) Records of any campaign committee including any committee that receives

money from a state campaign fund.

(s) Unless the public interest in disclosure outweighs the public interest

in nondisclosure in the particular instance, public records of a law

enforcement agency, the release of which would do any of the following:

(i) Identify or provide a means of identifying an informer.

(ii) Identify or provide a means of identifying a law enforcement undercover

officer or agent or a plain clothes officer as a law enforcement officer or

agent.

(iii) Disclose the personal address or telephone number of law enforcement

officers or agents or any special skills that they may have.

(iv) Disclose the name, address, or telephone numbers of family members,

relatives, children, or parents of law enforcement officers or agents.

(v) Disclose operational instructions for law enforcement officers or

agents.

(vi) Reveal the contents of staff manuals provided for law enforcement

officers or agents.

(vii) Endanger the life or safety of law enforcement officers or agents or

their families, relatives, children, parents, or those who furnish

information to law enforcement departments or agencies.

(viii) Identify or provide a means of identifying a person as a law

enforcement officer, agent, or informer.

(ix) Disclose personnel records of law enforcement agencies.

(x) Identify or provide a means of identifying residences that law

enforcement agencies are requested to check in the absence of their owners

or tenants.

(t) Except as otherwise provided in this subdivision, records and

information pertaining to an investigation or a compliance conference

conducted by the department of consumer and industry services under article

15 of the public health code, Act No. 368 of the Public Acts of 1978, being

sections 333.16101 to 333.18838 of the Michigan Compiled Laws, before a

complaint is issued.  This subdivision does not apply to records and

information pertaining to 1 or more of the following:

(i) The fact that an allegation has been received and an investigation is

being conducted, and the date the allegation was received.

(ii) The fact that an allegation was received by the department of consumer

and industry services; the fact that the department of consumer and industry

services did not issue a complaint for the allegation; and the fact that the

allegation was dismissed.

(u) Records of a public body's security measures, including security plans,

security codes and combinations, passwords, passes, keys, and security

procedures, to the extent that the records relate to the ongoing security of

the public body.

(v) Records or information relating to a civil action in which the

requesting party and the public body are parties.

(w) Information or records that would disclose the social security number of

any individual.

(x) Except as otherwise provided in this subdivision, an application for the

position of president of an institution of higher education established

under section 4, 5, or 6 of article VIII of the state constitution of 1963,

materials submitted with such an application, letters of recommendation or

references concerning an applicant, and records or information relating to

the process of searching for and selecting an individual for a position

described in this subdivision, if the records or information could be used

to identify a candidate for the position.  However, after 1 or more

individuals have been identified as finalists for a position described in

this subdivision, this subdivision does not apply to a public record

described in this subdivision, except a letter of recommendation or

reference, to the extent that the public record relates to an individual

identified as a finalist for the position.

(2) A public body shall exempt from disclosure information that, if

released, would prevent the public body from complying with section 444 of

subpart 4 of part C of the general education provisions act, title IV of

Public Law 90-247, 20 U.S.C. 1232g, commonly referred to as the family

educational rights and privacy act of 1974.

(3) This act does not authorize the withholding of information otherwise

required by law to be made available to the public or to a party in a

contested case under Act No. 306 of the Public Acts of 1969.

(4) Except as otherwise exempt under subsection (1), this act does not

authorize the withholding of a public record in the possession of the

executive office of the governor or lieutenant governor, or an employee of

either executive office, if the public record is transferred to the

executive office of the governor or lieutenant governor, or an employee of

either executive office, after a request for the public record has been

received by a state officer, employee, agency, department, division, bureau,

board, commission, council, authority, or other body in the executive branch

of government that is subject to this act.

15.243a. Educational institutions; employee salary records

Sec. 13a. Notwithstanding section 13, an institution of higher education

established under section 5, 6, or 7 of article 8 of the state constitution

of 1963; a school district as defined in section 6 of Act No. 451 of the

Public Acts of 1976, being section 380.6 of the Michigan Compiled Laws; an

intermediate school district as defined in section 4 of Act No. 451 of the

Public Acts of 1976, being section 380.4 of the Michigan Compiled Laws; or a

community college established under Act No. 331 of the Public Acts of 1966,

as amended, being sections 389.1 to 389.195 of the Michigan Compiled Laws

shall upon request make available to the public the salary records of an

employee or other official of the institution of a higher education, school

district, intermediate school district, or community college.

 15.244 Separation of exempt and nonexempt material; design of public

record; description of material exempted.

 

Sec. 14. (1) If a public record contains material which is not exempt under

section 13, as well as material which is exempt from disclosure under

section 13, the public body shall separate the exempt and nonexempt material

and make the nonexempt material available for examination and copying.

 

(2) When designing a public record, a public body shall, to the extent

practicable, facilitate a separation of exempt from nonexempt information.

If the separation is readily apparent to a person requesting to inspect or

receive copies of the form, the public body shall generally describe the

material exempted unless that description would reveal the contents of the

exempt information and thus defeat the purpose of the exemption.

 

15.245 Repealer.

 

Sec. 15. Sections 21, 22 and 23 of Act No. 306 of the Public Acts of 1969,

as amended, being section 24.221, 24.222 and 24.223 of the Michigan Compiled

Laws are repealed.

 

15.246 Effective date.

Sec. 16. This act shall take effect 90 days after being signed by the

governor.

  _____

 

III.

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Attorney General Opinions

Relating to the

Freedom of Information Act

 

Numerous Opinions of the Attorney General (OAG) which explain various

applications of the Freedom of Information Act. While these opinions are

binding on state agencies they are not binding on the courts or on local

units of government. Copies of OAG’s may be obtained by writing me at:

Attorney General

525 West Ottawa

Williams Building, 7th Floor

P.O. Box 30212

Lansing, Michigan 48909

 

1. Unless exempt from disclosure by law, records of the Brown-McNeeley

insurance fund are public records. Attorney General Opinion No. 5156, p. 66,

March 24, 1977.

 

2. The FOIA's definition of public body includes single member bodies.

Attorney General Opinion No. 5183-A, p. 97, April 18, 1977.

 

3. Records subject to the confidentiality provisions of the Child Protection

Law, MCL 722.621 et seq; MSA 25.248(1) et seq, are exempt from disclosure

under the FOIA, §§ 13(1)(a) and 13(1)(d). Attorney General Opinion No. 5297,

p. 430, April 28, 1978.

 

4. The office of county sheriff is subject to the provisions of the Freedom

of Information Act. Attorney General Opinion No. 5419, p. 758, December 29,

1978.

 

5. Since certain records are protected from disclosure by the Social Welfare

Act, they are exempt from disclosure under section 13(1)(d) of the Freedom

of Information Act which exempts records that are exempt from disclosure by

statute. Attorney General Opinion No. 5436, p. 31, February 1, 1979.

 

6. The Insurance Commissioner is required to charge a rate for making copies

of public records requested in accordance with the Freedom of Information

Act. Attorney General Opinion No. 5465, p. 104, March 26, 1979.

 

7. The following responses to specific inquiries are found in Attorney

General Opinion No. 5500, published on July 23, 1979.

 

a. A summary of the Freedom of Information Act. p. 255

 

b. A government agency does not fall within the meaning of “person” for

purposes of obtaining information under the Act. p. 261

 

c. The Civil Service Commission is subject to the provisions of the Freedom

of Information Act. p. 261

 

d. Since the President’s Council of State Colleges and Universities is

wholly funded by state universities and colleges, it is a public body as

defined by the Freedom of Information Act. p. 262

 

e. A board of trustees of a county hospital may refuse to make available

records of its proceedings or reports received and records compiled which

would constitute a clearly unwarranted invasion of an individual’s privacy

under section 13(1)(a), involve disclosure of medical, counseling or

psychological facts or evaluations concerning a named individual under

section 13(m); or involve disclosure that would violate physician-patient or

psychologist-patient privilege under section 13(1)(i). p. 263

 

f. Transcripts of depositions taken in the course of an administrative

hearing are subject to disclosure to a person who was not a party to the

proceeding, as there is no specific exemption in section 13(1) or any other

statute which exempts a deposition or a document referring to the deposition

from disclosure. These documents may, however, contain statements which are

exempt from disclosure and therefore, pursuant to section 14, where a person

who is not a party to the proceeding requests a copy, it will be necessary

to separate the exempt material and make only the nonexempt records

available. p. 263

 

g. Stenographer’s notes or the tape recordings or dictaphone records of a

municipal meeting used to prepare minutes are public records under the Act

and must be made available to the public. p. 264

 

h. Computer software developed by and in the possession of a public body is

not a public record. p. 264

 

i. Although a state university must release a report of the performance of

its official functions in its files, regardless of who prepared it, if a

report prepared by an outside agency is retained only by the private agency,

it is not subject to public disclosure. p. 265

 

j. Copyrighted materials are not subject to the Act. p. 266

 

k. A request for data which refers only to an extensive period of time and

contains no other reference by which the public record may be found does not

comply with the requirement of section 3 that the request describe the

public record sufficiently to enable the public body to find it. p. 268

 

l. If a public body maintains a file of the names of employees which it has

fired or suspended over a certain designated period of time, it must

disclose the list if requested. p. 268

 

m. A public body may charge a fee for providing a copy of a public record.

p. 268

 

n. The five-day response provision begins the day after the public body has

received the request sufficiently describing the public record. If the

request does not contain sufficient information describing the public

record, it may be denied on that ground. Subsequently, if additional

information is provided that sufficiently describes the public record, the

period within which the response must be made dates from the time that the

additional information is received. p. 269

 

o. A school board may meet in closed session pursuant to the Open Meetings

Act to consider matters which are exempt from disclosure under the Freedom

of Information Act. p. 270

 

p. The names and addresses of students may be released unless the parent of

the student or the student has informed the institution in writing that such

information should not be released. p. 282

 

q. A law enforcement agency may refuse to release the name of a person who

has been arrested, but not charged, in a complaint or information, with the

commission of a crime. p. 282

 

r. Since motor vehicle registration lists have not been declared to be

confidential, they are required to be open to public inspection. p. 300

 

8. File photographs routinely taken of criminal suspects by law enforcement

agencies are public records as defined by the Freedom of Information Act. To

the extent that the release of a photograph of a person would constitute a

clearly unwarranted invasion of personal privacy, a public body may refuse

to permit a person to inspect or make copies of the photograph. Attorney

General Opinion No. 5593, p. 468, November 14, 1979.

 

9. The exemption contained in section 13(1)(n) of the Freedom of Information

Act for communications and notes within a public body or between public

bodies of an advisory nature does not constitute an exemption for the

purposes of the Open Meetings Act in view of a specific statutory provision

which states that this exemption does not constitute an exemption for the

purposes of section 8(h) of the Open Meetings Act. Attorney General Opinion

No. 5608, p. 496, December 17, 1979.

 

10. The meetings of a board of education expelling a student from school

must list a student’s name. Unedited minutes must be furnished to the public

on request in accordance with law. Attorney General Opinion No. 5632, p.

563, January 24, 1980.

 

11. The confidentiality mandated by the Banking Code of 1969 is not limited

to facts and information furnished by state chartered banks, but applies to

all facts and information received by the Financial Institutions Bureau.

Such facts and information are not subject to disclosure pursuant to the

Freedom of Information Act. Attorney General Opinion No. 5725, p. 842, June

23, 1980.

 

12. Rules promulgated by the Ethics Board require that records and files

concerning dismissed complaints or terminated investigations be suppressed

or expunged. This rule is consistent with the privacy exemption of the FOIA

since records would be suppressed only if a determination was made that the

complaints were unfounded. Attorney General Opinion No. 5760, p 935, August

26, 1980.

 

13. Since the Law Enforcement Information Network Policy Council does not

receive and maintain records in the LIEN system, it does not possess copies

of records and as a result has no material to furnish persons seeking such

records under the Freedom of Information Act. Attorney General Opinion No.

5797, p. 1038, October 14, 1980.

 

14. A public body is not required to disclose both the questions and answers

of a sheriff’s promotional test unless the public body finds it in the

public interest to disclose both the test questions and answers. Attorney

General Opinion No. 5832, p. 1125, December 18, 1980.

 

15. Employment records disclosing salary history and employment dates are

subject to disclosure under the Freedom of Information Act. Attorney General

Opinion No. 6019, p. 507, December 29, 1981.

 

16. Copies of receipts maintained by a register of deeds for amounts paid as

real estate transfer taxes fall within the mandatory exemption from

disclosure established by 1966 P.A. 134, section 11b, and are exempt from

disclosure under the Freedom of Information Act. Attorney General Opinion

No. 6023, p. 518, January 8, 1982.

 

17. A township is not required to enact its own Freedom of Information Act

in order to comply with the state Freedom of Information Act. Attorney

General Opinion No. 6042, p. 584, February 25, 1982.

 

18. A school district must furnish the records of a student upon request of

another school district in which the student is enrolled as an incident to

the operation of free public elementary and secondary schools required by

the Michigan Constitution 1963, art. 8, section 2, and is precluded from

withholding the records because the student or his or her parents is

indebted to the school district possessing the records for fees or other

charges. Attorney General Opinion No. 6064, p. 641, April 30, 1982.

 

19. Records of a public body showing the number of days a public employee is

absent from work are not exempt from disclosure under the Freedom of

Information Act. Attorney General Opinion No. 6087, p. 698, July 28, 1982.

 

20. The Freedom of Information Act does not require a sheriff to furnish

jail booking records to a private security firm if the sheriff determines

disclosure would constitute a clearly unwarranted invasion of privacy.

Attorney General Opinion No. 6389, p. 374, September 24, 1986.

 

21. State legislators are exempt from the Freedom of Information Act.

Attorney General Opinion No. 6390, p. 375, September 26, 1986.

 

22. Surveys, comments, and other information received by the Qualifications

Advisory Committee in its performance evaluation of worker's compensation

magistrates are confidential by statute, MCL 418.212(1)(g), and, therefore,

are exempt from disclosure under the FOIA. Attorney General Opinion No.

6504, p. 295, March 4, 1988.

 

23. The FOIA does not apply to a private nonprofit corporation. Attorney

General Opinion No. 6563, p. 27, January 26, 1989.

 

24. While the personal files of the Auditor General are exempt from

disclosure, the general files, records, and final audit reports prepared by

the Auditor General's staff are subject to FOIA disclosure, except where a

portion is specifically exempted by statute. Attorney General Opinion No.

6613, p. 299, March 14, 1990.

 

25. A public officer's or employee's routine performance evaluation is not

exempt from disclosure, even when the evaluation is discussed in a closed

meeting held pursuant to the Open Meetings Act. Attorney General Opinion No.

6668, p. 409, November 28, 1990.

 

26. A public body may not deny a FOIA request simply because the requester

has previously obtained the identical records under that statute. A public

body need not provide a waiver of fees to an indigent person requesting

additional copies of identical documents previously provided with a waiver

of fees pursuant to a prior request under the FOIA. Attorney General Opinion

No. 6766, p. 52, August 19, 1993.

 

27. The records maintained by the Department of State Police on the STATIS

computer system meet the definition of a "public record" set forth in

section 2(c) of the FOIA. Therefore, that Department must search the STATIS

computer system when it responds to a FOIA request. It must also allow the

examination of or produce copies of all documents it finds, unless the

records sought fall within one or more of the specific exemptions set forth

in section 13 of the FOIA. Although participating law enforcement agencies

other than the Department of State Police have remote computer terminals,

which allow them access to the STATIS computer, those records are not

writings in the possession of those agencies within the meaning of the FOIA,

section 2(c) and (e), unless those records are saved to a computer storage

device or printed by the participating agency. Thus, law enforcement

agencies other than the Department of State Police are not obligated under

the FOIA to search the STATIS system for records except for those records

which they contributed to that system. Attorney General Opinion No. 6820, p.

196, October 11, 1994.

 

28. Section 4(2) of the Freedom of Information Act permits a public body to

charge a deposit of not more than one-half of the projected total fee if

that fee exceeds $50.00. A public body may establish a fee in advance of

compiling the records responsive to a request under the Freedom of

Information Act so long as the fee represents the actual cost of responding

to the request based on prior experience and it is calculated in accordance

with section 4 of the Freedom of Information Act. Attorney General Opinion

No. 6923, p 224, October 23, 1996.

 

29. A private, voluntary unincorporated association of lake property owners

is not a public body subject to the FOIA.

 

A corporation formed under the summer resort owners corporation act, 1929 PA

137, MCL 455.201 et seq., MSA 21.751 et seq., is a public body subject to

the provisions of the FOIA. Attorney General Opinion No. 6942, p 40, July 3,

1997.

 

30. The state Insurance Bureau, in response to a request made under the

Freedom of Information Act, 1976 PA 442, must provide copies of copyrighted

manuals of rules and rates which are in its possession and are required by

law to be filed by insurers with the bureau, without first obtaining the

permission of the copyright holder. Attorney General Opinion No. 6965, p 91,

January 16, 1998.

 

31. Under the FOIA, the Auditor General may, in the discharge of his duties

to audit the states and its departments, access non-exempt public records of

local units of government under the Freedom of Information Act. Attorney

General Opinion No. 6970, p 106, January 28, 1998.

 

32. A public body may require that its fees be paid in full prior to actual

delivery of the copies. However, a public body may not refuse to process a

subsequent FOIA request on the ground that the requestor failed to pay fees

charged for a prior FOIA request.

 

A public body may refuse to process a FOIA request if the requestor fails to

pay a good faith deposit properly requested by the public body pursuant to

section 4(2) of the FOIA.

 

Although the FOIA does not specify a limitations period within which a

public body must commence a lawsuit to collect fees charged for complying

with a records request, the 6-year limitations period applicable to contract

claims governs such a cause of action. Attorney General Opinion No. 6977, p

, April 1, 1998.

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Court Opinions

on the

Freedom of Information Act

 

Michigan courts have rendered decisions which, when "reported", become

precedent and are the law of the state until changed by a higher court or by

the Legislature. The following list contains decisions of Michigan’s

appellate and Supreme courts regarding FOIA. Court opinions may be obtained

from law libraries or from the courts of record at a nominal fee.

 

Herald Co. v Bay City, 228 Mich App 268; NW2d ; 1998 Mich App. LEXIS 55

(February 24, 1998).

 

Information about a person being considered as a finalist for a high level

public position is not of a "personal nature" for the purposes of the FOIA

privacy exemption. Once the list of candidates has been narrowed to those

persons to be interviewed, the applicant's right of privacy is outweighed by

the public's interest in knowing the applicants' qualifications. Redaction

can be used to separate confidential information from non-private

information.

 

Bradley v Saranac Community Schools Board of Education, 455 Mich 285; 565

NW2d 650 (1997).

 

The Michigan FOIA does not have a specific exemption for personnel records.

Thus, the personnel records of non-law enforcement public employees

generally are available to the public. Information that falls within one of

the exemptions of the FOIA may be redacted.

 

The privacy exemption under 13(1)(a) of the FOIA consists of two elements,

both of which must be met in order for an exemption to apply. First, the

information must be of a "personal nature." Second, the disclosure must be a

"clearly unwarranted invasion of privacy."

 

Performance appraisals, disciplinary actions, and complaints relating to

employees' accomplishments in their public jobs do not reveal intimate or

embarrassing details of their private lives and, therefore, they are not

records of a "personal nature."

 

Performance evaluations of public employees are not counseling evaluations

protected from disclosure by the FOIA, § 13(1)(m).

 

Section 13(1)(n) of the FOIA provides an exemption for communications

passing within or between public bodies. Documents in the possession of a

school district prepared by parents are not within the scope of this

exemption. Further, the exemption must be asserted by a public body rather

than by a private individual.

 

Seaton v Wayne County Prosecutor, 225 Mich App 1; 570 NW2d 125 (1997).

 

A prisoner's request for records pertaining to his own criminal conviction

is governed exclusively by court rule, MCR 6.101(L), now MCR 6.433(A). The

FOIA does not apply.

 

Herald Co. v Ann Arbor Public Schools, 224 Mich App 266; 568 NW2d 411

(1997).

 

Once a document that is the subject of a FOIA lawsuit has been disclosed,

the subject of the controversy disappears and becomes moot.

 

The privacy exemption of the FOIA allows a public body to withhold from

disclosure public records of a personal nature where the information would

constitute a clearly unwarranted invasion of an individual's privacy.

Information is considered personal if it concerns a particular person and

his intimate affairs, interests or activities. While the records sought in

this case were personal in nature in that they contained information about a

teacher's family and observations about his conduct, the disclosure did not

constitute a "clearly unwarranted" invasion of privacy because the records

discussed the professional performance of a teacher in the classroom which

is an issue of legitimate concern to the public.

 

A public body may exempt from disclosure, pursuant to section 13(1)(n),

advisory communications within a public body or between public bodies to the

extent that they are non-factual and are preliminary to a final agency

determination. However, if records meet these substantive tests, the public

body must also establish that the public interest in encouraging frank

communications within the public body or between public bodies clearly

outweighs the public interest in disclosure. In this case the public

interest in disclosing records that contain public observations of a teacher

who has been convicted of carrying a concealed weapon is not clearly

outweighed by the public interest in encouraging frank communications within

the public body.

 

A class of documents may be exempt from the FOIA so long as the exempt

categories are clearly described and drawn with precision so that all

documents within a category are similar in nature. Exempt material must be

segregated from non-exempt material to the extent practicable.

 

The FOIA exempts, in section 13(1)(i), information subject to the

physician-patient privilege. The purpose of the privilege is to protect the

physician-patient relationship and ensure that communications between the

two are confidential. Attendance records that do not contain any information

that a physician acquired while treating an employee are not covered by this

exemption.

 

The fact that an employee waives the physician-patient privilege by

submitting to his employer attendance records that contain medical records

does not mean that the privilege was waived with regard to third parties who

request disclosure of the records under the FOIA.

 

The FOIA excludes from disclosure information protected by the

attorney-client privilege. The scope of the privilege is narrow, including

only those communications by the client to its advisor that are made for the

purpose of obtaining legal advice. A tape recording of an interview of the

teacher by the school district is not within the attorney-client privilege.

 

CMU Supervisory-Technical Ass'n MEA/NEA v CMU Board of Trustees, 223 Mich

App 727; 567 NW2d 696 (1997).

 

A party to a lawsuit does not lose his right under the FOIA simply because

the party may be able to obtain the records from a public body through the

discovery phase of pending civil litigation.

 

Oakland County Prosecutor v Department of Corrections, 222 Mich App 654; 564

NW2d 922 (1997).

 

A prisoner's mental health records submitted to the parole board when

seeking parole must be provided to a county prosecutor when requested

pursuant to FOIA so that the prosecutor may determine whether the board's

decision to grant parole should be appealed.

 

The records are not exempt from disclosure under the psychologist-patient

privilege because the prisoner in seeking parole consents to the release of

the records to the parole board. Once otherwise privileged records are

disclosed to a third party by the holder of the privilege, the privilege

disappears.

 

The records are not exempt pursuant to a statutory provision protecting

records created in the course of providing mental health services because

that provision permits release to "comply with another provision of law"

i.e. a prosecutor's request for such records to determine whether to appeal

a particular parole.

 

Section 13(1)(m) of the FOIA which exempts psychological evaluations

concerning an individual if the disclosure would reveal the identity of the

individual is inapplicable because the identity of the individual is already

known.

 

The privacy exemption at section 13(1)(a) of the FOIA is not applicable.

Notwithstanding the personal nature of the records sought, the invasion is

warranted because the Legislature has provided for the release of these

records in the context of the parole proceedings.

 

Schroeder v Detroit, 221 Mich App 364; 561 NW2d 497 (1997).

 

A person denied employment by a police department was not entitled to

receive a copy of his psychological evaluation under the FOIA. In cases

involving testing instruments as defined by section 13(1)(l) of the FOIA,

release of the information is not required unless the public interest in

disclosure outweighs the public interest in non-disclosure. Here, the public

interest ensuring the integrity of the hiring process outweighed the public

interest in disclosing the information to a candidate attempting to

investigate the fairness of the test.

 

Grebner v Oakland County Clerk, 220 Mich App 513; 560 NW2d 351 (1996).

 

Section 10(1) of the FOIA is a combined jurisdiction and venue provision.

This provision makes it clear that circuit courts have jurisdiction to hear

FOIA cases and specifies the counties in which the action may be brought.

 

Venue for FOIA actions properly lies in the county where the complainant

resides.

 

Nicita v Detroit, 216 Mich App 746; 550 NW2d 269 (1996).

 

Business records pertaining to a real estate development company are not

exempt from disclosure pursuant to § 13(1)(a) of the FOIA where there is no

indication that the records contain information of a personal nature. This

section does not protect information that could conceivably lead to the

revelation of personal information.

 

Section 13(1)(n) of the FOIA protects communications within or between a

public body that are other than purely factual and are preliminary to a

final agency determination of policy or action. A public agency must also

show that the need for nondisclosure clearly outweighs the public interest

in disclosure.

 

Grebner v Clinton Charter Twp, 216 Mich App 736; 440 NW2d 265 (1996).

 

Section 522(1) of the Michigan Election Law which provides for the making,

certifying, and delivery of a computer tape to any person upon the payment

to the clerk of the court of the cost of making, certifying and delivering

the tape, disk, or listing is not a statute "specifically authorizing the

sale" of the computer tape. Therefore, the determination of the fee to be

charged for obtaining the computer tape is made pursuant to § 4 of the FOIA.

 

Lansing Ass'n of School Adm'rs v Lansing School District, 216 Mich App 79;

549 NW2d 15 (1996).

 

Plaintiffs seeking to prevent a school board from disclosing personnel

records of employees must predicate their suits on grounds outside of the

FOIA. No abuse of discretion was found in the school board's decision to

release documents where the release of the information did not infringe on

the common law or constitutional privacy rights of the plaintiffs.

 

Eric Jackson v Eastern Michigan University, 215 Mich App 240; 544 NW2d 737

(1996).

 

Eastern Michigan University Foundation is primarily funded by Eastern

Michigan University and, therefore, is a public body subject to FOIA.

 

Michigan Council of Trout Unlimited v Michigan Department of Military

Affairs, 213 Mich App 203; 539 NW2d 745 (1995).

 

Notwithstanding the unique relationship between the Michigan National Guard

and the Federal Government which is explicitly recognized by Michigan

statutes, the circuit court had jurisdiction to consider plaintiff's actions

under the Michigan FOIA seeking to obtain documents in possession of the

Michigan National Guard.

 

While the state courts have jurisdiction, application of § 13(1)(d) of the

Michigan FOIA encompasses federal regulations and the federal FOIA both of

which prohibit the release of the documents sought by plaintiff.

Accordingly, plaintiff could not obtain the documents at issue.

 

Thomas v State Board of Law Examiners, 210 Mich App 279; 533 NW2d 3 (1995).

 

The State Board of Law Examiner's is an agent of the judiciary and,

therefore, not a public body subject to the disclosure requirements of the

FOIA.

 

Farrell v Detroit, 209 Mich App 7; 530 NW2d 105 (1995).

 

Computer records are public records that are subject to disclosure pursuant

to the FOIA. A public body is required to provide public records in the form

requested, not just the information they contain. The providing of a

computer printout of the information contained on a computer tape does not

satisfy a request for the computer tape itself.

 

Local 312 of the AFSCME, AFL-CIO v Detroit, 207 Mich App 472; 525 NW2d 487

(1994).

 

The public employment relations act (PERA) and the freedom of information

act (FOIA) are not conflicting statutes such that the PERA would prevail

over the FOIA with the result that a person involved in a labor dispute

would be precluded from obtaining public records under the FOIA.

 

The Legislature has clearly defined the class of persons entitled to seek

disclosure of public records pursuant to the FOIA. There is no sound policy

reason for distinguishing between persons who are involved in

litigation-type proceedings and those who are not.

 

The court is required to award plaintiff attorney fees and costs where the

plaintiff prevails in a FOIA action.

 

In Re Subpoena Duces Tecum, on remand from the MI Supreme Court, 205 Mich

App 700; 518 NW2d 522 (1994).

 

Section 13(1)(n) of the FOIA protects from disclosure communications within

or between public bodies of an advisory nature that are other than purely

factual and are preliminary to a final agency determination of policy or

action. The burden is on the public body to show, in each particular

instance, that the public interest in encouraging frank communications

between officials and employees of the public body clearly outweighs the

public interest in disclosure. It is not adequate to show that the requested

document falls within a general category of documents that may be protected.

 

 

Hyson v Department of Corrections, 205 Mich App 422; 521 NW2d 841 (1994).

 

Statements made by confidential witnesses relating to a major misconduct

charge against a prison inmate may be withheld when requested pursuant to

FOIA because disclosure of the documents, even with the names of the

witnesses deleted, would reveal their identities and jeopardize their

personal safety within the prison. In addition, the release would prejudice

the public body's ability to maintain the physical security of the penal

institution.

 

Mackey v Department of Corrections, 205 Mich App 330; 517 NW2d 303 (1994).

 

A prison record about a prison inmate is exempt from disclosure under the

prison security exemption of the FOIA where the record is requested by an

inmate other than the one to whom the record pertains.

 

The Detroit News, Inc v Detroit, 204 Mich App 720; 516 NW2d 151 (1994).

 

Telephone bills paid by a public body constitute expense records of public

officials and employees and are "public records" under the FOIA.

 

Quatrine v Mackinaw City Public Schools, 204 Mich App 342; 514 NW2d 254

(1994).

 

Public schools were not required to release records under FOIA where written

parental consent for release of records was not provided.

 

Newark Morning Ledger Company v Saginaw County Sheriff, 204 Mich App 215;

514 NW2d 213 (1994).

 

Internal affairs investigation records of a law enforcement agency

constitute personnel records which are exempt from disclosure, unless the

public interest in disclosure outweighs the public interest in

nondisclosure. The mere location of a public record in a personnel file is

not determinative as to its status in a personnel record.

 

In determining what is a "personnel record" under the FOIA the court looked

to the definition of that term in the Bullard-Plawecki Employee Right to

Know Act (ERKA). While the purpose of the FOIA and the ERKA are different,

the Legislature's clearly expressed intent in the ERKA to prohibit access by

an employee to any internal investigations relating to that employee

indicates an intent to not allow public access to such records.

 

Densmore v Department of Corrections, 203 Mich App 363; 512 NW2d 72 (1994).

 

A public body does not need to provide additional copies of records it has

already provided unless the requester can demonstrate why the copy already

provided was not sufficient.

 

Booth Newspapers, Inc v University of Michigan Board of Regents, 444 Mich

211; 507 NW2d 422 (1993).

 

To exempt information under the FOIA, § 13(1)(a), information must be of

"personal nature," and disclosure of that information must constitute

"clearly unwarranted" invasion of privacy. Travel expense records of members

of a public body do not constitute "records of a personal nature."

 

The privacy exemption does not permit the withholding of information that

conceivably could lead to the revelation of personal information. Therefore,

a public body may not withhold travel expense records because their

disclosure might lead to information concerning the candidates interviewed

by board members.

 

Walen v Department of Corrections, 443 Mich 240; 505 NW2d 519 (1993).

 

A prison disciplinary hearing falls within the definition of "contested

case" and, therefore, pursuant to the FOIA, § 11(1), must be published and

made available to the public. The Department of Corrections satisfied the

publication requirement by retaining the final orders and decisions from

disciplinary hearings in prisoners' files.

 

Patterson v Allegan County Sheriff, 199 Mich App 638; 502 NW2d 368 (1993)

 

A booking photograph of a county jail inmate kept in the files of a county

sheriff is a public record under the FOIA; such photographs may not be

withheld from disclosure on the basis of the privacy exemption found in 13

(1) (a).

 

Yarbrough v Department of Corrections, 199 Mich App 180; 501 NW2d 207 (1993)

 

Records compiled in the course of an internal investigation into a sexual

harassment are "investigating records compiled for law enforcement purposes"

within the meaning of said terms at § 13(1)(b) of the FOIA.

 

Hubka v Pennfield Township, 197 Mich App 117, 494 NW2d 800 (1992)

 

Letters sent by a township attorney to a township board that contain

information obtained by the attorney from township employees under

compulsion and promises of confidentiality are protected from disclosure

under the Freedom of Information Act by the attorney-client privilege.

Likewise, the opinions, conclusions, and recommendations of the attorney,

based on the information, are protected.

 

Wilson v Eaton Rapids, 196 Mich App 671; 493 NW2d 433 (1992)

 

A public body’s attempt to reconcile a contractual obligation to maintain

the confidentiality of a resignation agreement with its statutory obligation

under FOIA does not constitute arbitrary and capricious behavior.

 

A party prevails under FOIA, and is therefore entitled to an award of costs

and reasonable attorney fees, only if the action was necessary to and had a

substantial causative effect on delivery or access to the documents.

 

Swickard v Wayne County Medical Examiner, 196 Mich App 98; 492 NW2d 497

(1992)

 

A party who prevails completely in an action asserting the right to inspect

or receive a copy of a public record under the Freedom of Information Act is

entitled to reasonable attorney fees, costs, and disbursements. No time

limit is imposed upon a prevailing party for requesting attorney fees.

 

Nicita v Detroit, 194 Mich App 657; 487 NW2d 814 (1992)

 

Section 13 (l) (j) of the FOIA does not exempt bids with respect to

development projects from disclosure once a developer has been chosen.

 

Shellum v MESC, 194 Mich App 474; 487 NW2d 490 (1992)

 

Information held by MESC concerning the calculated unemployment insurance

tax contribution rate of an employer is exempt from disclosure under 13 (1)

(d) of the FOIA because it utilizes information obtained from the employer

which is protected by statute and administrative rule.

 

Swickard v Wayne County Medical Examiner, 438 Mich 536; 475 NW2d 304 (1991)

 

In making a determination whether a disclosure of requested information

would constitute an invasion of privacy one looks to constitutional law and

common law as well as customs, mores, or ordinary views of the community.

 

The release of autopsy reports and toxicology test results are not

unwarranted infringements on the right to privacy of either the deceased or

the deceased’s family. The autopsy report and toxicology tests are not

within the doctor-patient privilege.

 

Michigan Tax Management Services Co v City of Warren, 437 Mich 506; 473 NW2d

263 (1991)

 

When a prevailing party in a FOIA action is awarded "reasonable" attorney

fees, the trial court is obligated to make an independent determination with

regard to the amount of the fee. The standard utilized by an appellate court

to review such a determination is abuse of discretion.

 

Favors v Department of Corrections, 192 Mich App 131; 480 NW2d 604 (1991)

 

The form used in determining whether a prisoner should be awarded

disciplinary credits was exempt from disclosure under § 13(1)(n) of the FOIA

in that it covered other than purely factual materials, was advisory in

nature and preliminary to final agency determination of policy or action.

The public interest in encouraging frank communications within the

Department of Corrections (DOC) clearly outweighed the public interest in

disclosure of worksheet forms.

 

The trial court failed to comply with the technical requirements of FOIA

because it did not require the DOC to bear the burden of proving that a

public record was exempt. However, that failure did not require reversal of

a grant of summary disposition for the DOC in inmate's action where the DOC

clearly reached the correct result.

 

Lepp v Cheboygan Area Schools, 190 Mich App 726; 476 NW2d 506 (1991)

 

Where the requested information pertains to the party making the request, it

is unreasonable to refuse disclosure on the grounds of invasion of privacy.

 

Clerical-Technical Union of MSU v Board of Trustees of MSU, 190 Mich App

300; 475 NW2d 373 (1991)

 

The home addresses of donors to Michigan State University are information of

a personal nature, the disclosure of which would constitute a clearly

unwarranted invasion of privacy.

 

The Detroit News, Inc v Detroit, 185 Mich App 296; 460 NW2d 312 (1990)

 

The minutes of a closed city council meeting, held in violation of Open

meetings Act, are public records and are available upon request under the

FOIA.

 

The oral opinions of an attorney are not public records subject to the FOIA

and, therefore, cannot be used to justify a closed meeting of a public body.

 

Wayne County Prosecutor v Detroit, 185 Mich App 265; 460 NW2d 298 (1990)

 

For purposes of the FOIA, a county prosecutor is a person as defined in the

Act. This allows him, in his official capacity, to request documents from

public bodies under the FOIA.

 

Traverse City Record Eagle v Traverse City Area Public Schools, 184 Mich App

609; 459 NW2d 28 (1990)

 

A tentative bargaining agreement between a school district and the union

which represents its employees was held to be exempt from disclosure

pursuant to § 13(1)(n) of the FOIA which exempts communication and notes

within a public body or between public bodies which are advisory, nonfactual

and preliminary to a final decision. The public interest in encouraging

frank communications between the employer and its employees, which leads to

effective negotiations, in this case outweighs the public interest in

disclosure.

 

Hartzell v Mayville Community School District, 183 Mich App 782; 455 NW2d

411 (1990)

 

The FOIA requires disclosure of the fact that a requested document does not

exist. A plaintiff in a FOIA action that is forced to file a lawsuit to

ascertain that a document does not exist is a prevailing party entitled to

an award of costs and reasonable attorney fees.

 

Tallman v Cheboygan Area Schools, 183 Mich App 123; 454 NW2d 171 (1990)

 

A public body may charge a fee for providing a copy of a public record.

Section 4 of the Act provides a method for determining the charge for

records and a public body is obligated to arrive at its fees pursuant to

that section.

 

Booth Newspapers, Inc v Kalamazoo School District, 181 Mich App 752; 450

NW2d 286 (1989)

 

The trial court appropriately ordered the release of tenure charges and a

settlement agreement concerning allegations of sexual misconduct against an

unmarried teacher in redacted form. The records were redacted to prevent the

identity of the teacher and the students involved from being disclosed in

order to protect their privacy.

 

The FOIA confers discretion upon a court to award an appropriate portion of

the reasonable attorney fees incurred by a party which has prevailed in

part. When a plaintiff prevails only as to a portion of the request, the

award of fees should be fairly allocable to that portion.

 

Kincaid v Department of Corrections, 180 Mich App 176; 446 NW2d 604 (1989)

 

A public body bears the burden of proof in demonstrating a proper

justification for the denial of a FOIA request.

 

A request for disclosure of information under the FOIA must describe the

requested records sufficiently to enable the public body to find them; when

a request is denied because of an insufficient description, the requesting

person may (1) rewrite the request with additional information, or (2) file

suit in circuit court where the sole issue would be the sufficiency of

information to describe the records desired.

 

A FOIA request by an inmate which erroneously states the date of a guilty

determination on a misconduct or the hearing date with respect to which

records are sought, reasonably and sufficiently describes the records

sought. A public body acts in an arbitrary and capricious manner by

repeatedly refusing to look for a record so described.

 

Post-Newsweek Stations, Michigan, Inc v Detroit, 179 Mich App 331; 445 NW2d

529 (1989)

 

In claiming an exemption under FOIA, for interference with law enforcement

proceedings, the burden of proof is on the public body claiming the

exemption. The exemption must be interpreted narrowly and the public body

must separate exempt material from non-exempt and make non-exempt

information available. Exempt information must be described with

particularity indicating how the information would interfere with law

enforcement proceedings.

 

When analyzing claims of exemption under FOIA a trial court must make sure

it receives a complete particularized justification for a denial of a

request, or hold in camera hearings to determine whether this justification

exists. The court may allow counsel for the requesting party to examine, in

camera, under special agreement, the contested material.

 

Easley v University of Michigan, 178 Mich App 723; 444 NW2d 820 (1989)

 

A public body must have in its possession or control a copy of the requested

document before it can be produced or before a court can order its

production.

 

Payne v Grand Rapids Police Chief, 178 Mich App 193; 443 NW2d 481 (1989)

 

A record of a law enforcement investigation may be exempt from disclosure

under the FOIA where disclosure would interfere with law enforcement

proceedings. However, the agency must demonstrate how disclosure of

particular records or kinds of records would amount to interference on the

basis of facts and not merely conclusory statements which recite the

language of the act.

 

A court can consider allowing plaintiff's counsel to have access to

contested records in camera under special agreement as a means to resolve a

FOIA lawsuit.

 

Booth Newspapers, Inc v Kent County Treasurer, 175 Mich App 523; 438 NW2d

317 (1989)

 

Tax records indicating the monthly or quarterly tax payments made by

individual hotels and motels under a county hotel/motel tax do not fall

within the FOIA's privacy exemption.

 

Hagen v Department of Education, 431 Mich 118; 427 NW2d 879 (1988)

 

The decisions of the State Tenure Commission are matters of public record.

When a private hearing is requested by a teacher as provided under the

teacher tenure act, the decision may be withheld during the administrative

stage of the teacher's appeal. Once a final administrative decision is

reached, the decision may not be withheld from disclosure.

 

Oakland Press v Pontiac Stadium Building Authority, 173 Mich App 41; 433

NW2d 317 (1988)

 

The release of names and addresses of licensees doing business with a public

body is not an unwarranted invasion of privacy.

 

Haskins v Oronoko Township Supervisor, 172 Mich App 73; 431 NW2d 210 (1988)

 

A trial court complies with the holding in The Evening News Ass'n v City of

Troy, 417 Mich 481; 339 NW2d 421 (1983), where it conducts an in camera

inspection of the records sought and determines that certain records are

exempt from disclosure under narrowly drawn statutory exemptions designed to

protect the identity of confidential informants.

 

Kubick v Child and Family Services of Michigan, 171 Mich App 304; 429 NW2d

881 (1988)

 

While there is no bright-line rule to determine what constitutes "primarily

funded" to determine if a body is a "public body" as defined at § 2(b) of

the act, a private nonprofit corporation which receives less than half of

its funding from government sources is not a public body which is primarily

funded by or through state or local authority. Accordingly, such corporation

is not subject to the requirements of the Freedom of Information Act

regarding the disclosure of information by public bodies.

 

Kearney v Department of Mental Health, 168 Mich App 406; 425 NW2d 161 (1988)

 

The FOIA exempts from disclosure records exempted from disclosure by other

statutory authority. Mental Health treatment records are exempt under the

Mental Health Code. However, treatment records may be disclosed where the

holder of the record and the patient consent.

 

Persons requesting records under the FOIA are not entitled to free copies of

the records. The holder of a public record may charge a fee for providing

copies. There is, however, a waiver of the first $20.00 for those who, by

affidavit, can show an inability to pay because of indigency.

 

State Employees Association v Department of Management & Budget, 428 Mich

104; 404 NW2d 606 (1987)

 

The disclosure of the home addresses of state employees to a recognized

employee organization does not constitute a clearly unwarranted invasion of

privacy.

 

Residential Ratepayer Consortium v Public Service Commission, 168 Mich App

476; 425 NW2d 98 (1987)

 

An administrative agency does not waive its defenses in a circuit court

action to compel disclosure of documents under FOIA because they were not

raised at the administrative level.

 

Jones v Wayne County Prosecutor’s Office, 165 Mich App 62; 418 NW2d 667

(1987)

 

A criminal defendant seeking documents pertaining to his criminal conviction

must seek those records from the court pursuant to court rule, not from the

prosecutor pursuant to FOIA.

 

Detroit Free Press, Inc v Oakland County Sheriff, 164 Mich App 656; 418 NW2d

124 (1987)

 

Booking photographs of persons arrested, charged with felonies, and awaiting

trial are not protected from release as an unwarranted invasion of personal

privacy.

 

Mithrandir v Department of Corrections, 164 Mich App 143; 416 NW2d 352

(1987)

 

Because of the special circumstances surrounding prison security and the

confinement of prisoners, the Department of Corrections may set limits on a

prisoner’s right to examine nonexempt records.

 

Walloon Lake Water System, Inc v Melrose Township, 163 Mich App 726; 415

NW2d 292 (1987)

 

A public body does not escape liability under the FOIA merely because a

capricious act on its part rendered the lawsuit moot. This is particularly

true when actions of the public body include direct violation of the FOIA,

i.e., not giving a written explanation of the refusal as required and

willfully disposing of the material knowing that a suit is pending under the

FOIA for disclosure.

 

Laracey v Financial Institutions Bureau, 163 Mich App 437; 414 NW2d 909

(1987)

 

Attorney who filed pro se action is not entitled to recover attorney fees in

a FOIA lawsuit.

 

DeMaria Building Co, Inc v Department of Management and Budget, 159 Mich App

729; 407 NW2d 72 (1987)

 

The exemption found in 13 (1) (n) of the FOIA, for communications and notes

within a public body or between public bodies, does not apply to an outside

consultant’s report to a public body.

 

In re Buchanan, 152 Mich App 706; 394 NW2d 78 (1986)

 

The common-law right of access to court records is not without limitation.

 

Health Central v Commissioner of Insurance, 152 Mich App 336; 393 NW2d 625

(1986)

 

HMO’s have no standing to raise common-law right of privacy claims. Such

claims can only be asserted by individuals whose privacy has been invaded.

The right of privacy does not protect artificial entities.

 

Curry v Jackson Circuit Court, 151 Mich App 754; 391 NW2d 476 (1986)

 

The term “resides” as used in the FOIA, when applied to a prisoner, refers

to the prisoner's intended domicile. Such a place may be the county where

the prisoner last lived before being sent to prison or the county where the

prison is located. Factors such as the possibility of parole and how the

prisoner has ordered his personal business transactions will be considered

relevant to corroboration of a prisoner’s stated intention relative to

domicile.

 

Milford v Gilb, 148 Mich App 778; 384 NW2d 786 (1985)

 

Under the FOIA a public body may exempt from disclosure 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. The public

body bears the burden of proof that a statutory exception applies to the

item requested.

 

Paprocki v Jackson County Clerk, 142 Mich App 785; 371 NW2d 450 (1985)

 

Under 10(1) of FOIA, the term “resides,” when applied to a prisoner, refers

to the place where the prisoner last lived before being sent to prison;

“resides” must be interpreted to mean a person’s legal residence or domicile

at the time of his incarceration.

 

Cashel v Regents of the University of Michigan, 141 Mich App 541; 367 NW2d

841 (1985)

 

Where a person seeking to inspect records will take more than two weeks to

complete inspection, she may be assessed labor costs incurred by public body

to supervise her inspection.

 

Soave v Michigan Department of Education, 139 Mich App 99; 360 NW2d 194

(1984)

 

Because federal agency regulations have the force and effect of federal

statutory law, a state agency may properly withhold a record under FOIA,

13(1)(d) if that record is exempt from disclosure under a federal agency

regulation.

 

Capitol Information Association v Ann Arbor Police Department, 138 Mich App

655; 360 NW2d 262 (1984)

 

Plaintiff’s request, seeking “all correspondence” between local police

department and “all federal law enforcement/investigative” agencies, was

“absurdly overboard” and failed to sufficiently identify specific records as

required by FOIA, 3(1).

 

Hoffman v Bay City School District, 137 Mich App 333; 357 NW2d 686 (1984)

 

Where an attorney conducted an investigation into the business and finance

practices of a school district and orally reported his opinion regarding the

investigation to the school board but did not share the actual documents,

the investigative file itself is not a public record of the board.

 

Michigan State Employees Association v Department of Management and Budget,

135 Mich App 248; 353 NW2d 496 (1984)

 

The disclosure to a union of a list of the names and home addresses of

public employees is not a clearly unwarranted invasion of the employees’

privacy; such lists are, therefore, not exempt under FOIA, 13(1)(a).

 

Mullin v Detroit Police Department, 133 Mich App 46; 348 NW2d 708 (1984)

 

Defendant properly exempted a computer tape containing personal information

on persons involved in traffic accidents. Disclosure of the tape would have

been a clearly unwarranted invasion of privacy.

 

Evening News Association v City of Troy; 417 Mich 481; 339 NW2d 421 (1983)

 

A general claim that records are involved in an ongoing criminal

investigation and that their disclosure would “interfere with law

enforcement proceedings” is not sufficient to sustain an exemption under

FOIA, § 13 (1)(b). A public body must indicate factually and in detail how a

particular document or category of documents satisfies the exemption; mere

conclusory allegations are not sufficient.

 

Dawkins v Department of Civil Service, 130 Mich App 669; 344 NW2d 43 (1983)

 

If a plaintiff in a FOIA case prevails only in part, she may be awarded

either all of her court costs and attorney fees or only that portion fairly

allocable to the successful portion of her case. The fact that the defendant

’s refusal to disclose the records was made in good faith and was not

arbitrary or capricious has no bearing whatever on the plaintiff’s right to

recover these costs.

 

Bechtel Power Corp v Department of Treasury, 128 Mich App 324; 340 NW2d 297

(1983)

 

Tax information may be protected against disclosure under 13 (1) (a) and

13(1)(d) of FOIA.

 

Pennington v Washtenaw County Sheriff, 125 Mich App 556; 336 NW2d 828 (1983)

 

Failure to respond to a request is treated as a final decision to deny the

request. A plaintiff need only make a showing in circuit court that the

request was made and denied. The burden is on the defendant to show a viable

defense. Nondisclosure based upon the privacy exemption of 13(1)(b)(iii) is

limited to intimate details of a highly personal nature.

 

Perlongo v Iron River TV, 122 Mich App 433; 332 NW2d 502 (1983)

 

A private non stock, nonprofit cable television corporation is not a “public

body” for purposes of either the Open meetings Act or the Freedom of

Information Act, even though it is licensed, franchised, or otherwise

regulated by the government.

 

Tobin v Michigan Civil Service Commission, 416 Mich 661; 331 NW2d 184 (1982)

 

The FOIA does not compel a public body to conceal information at the

insistence of one who opposes its release.

 

Kestenbaum v Michigan State University, 414 Mich 510; 327 NW2d 783 (1982)

 

An equally divided supreme Court affirmed the lower court in holding that a

list of names and addresses of students on a computer tape would appear to

be a public record, but the nature of the information is personal and falls

within an enumerated exception. Public disclosure of the tape would

constitute a clearly unwarranted invasion of a person’s privacy.

 

Ballard v Department of Corrections, 122 Mich App 123; 332 NW2d 435 (1982)

 

A film made by the Department of Corrections showing a prisoner being

forcibly removed from his prison cell is a public record and must be

disclosed. Exemption asserted by the DOC did not outweigh the public

interest in disclosure.

 

International Union, UPGWA v Department of State Police, 118 Mich App 292;

324 NW2d 611 (1982), aff’d by equally divided court, 422 Mich 432 (1985)

 

The exemption of a list of names and home addresses of private security

guards from disclosure to a union seeking that list for collective

bargaining purposes is not justified. The public purpose of collective

bargaining outweighs the employees’ interest in the privacy of this

information. However, the union is ordered not to engage in further

disclosure of the list for other unrelated purposes.

 

Cashel v Smith, 117 Mich App 405; 324 NW2d 336 (1982)

 

Depositions may sometimes be appropriate in FOIA cases, but they must be

justified. The Legislature intended that the flow of information from public

bodies and persons should not be impeded by long court process.

 

Palladium Publishing Co v River Valley School District, 115 Mich App 490;

321 NW2d 705 (1982)

 

The name of student suspended by the action of a board of education will

appear in the meeting minutes and is not information exempt from disclosure

under the FOIA.

 

Ridenour v Dearborn Board of Education, 111 Mich App 798; 314 NW2d 760

(1981)

 

Public disclosure of performance evaluation of school administrators is not

an intrusion of privacy as defined by FOIA because people have a strong

interest in public education and because taxpayers are increasingly holding

administrators accountable for expenditures of tax money.

 

Local 79, Service Employees International Union, AFL-CIO, Hospital Employees

Division v Lapeer County General Hospital, 111 Mich App 441; 314 NW2d 648

(1981)

 

The proper forum in which to seek relief from a violation of the FOIA is the

circuit court and not the Michigan Employment Relations Commission,

notwithstanding labor-related issues.

 

Schinzel v Wilkerson, 110 Mich App 600; 313 NW2d 167 (1981)

 

A plaintiff appearing in propria persona who prevails in an action commenced

pursuant to the Freedom of Information Act is entitled to an award of his

actual expenditures, but is not entitled to an award of attorney fees.

 

Blue Cross/Blue Shield v Insurance Bureau, 104 Mich App 113; 304 NW2d 499

(1981)

 

Information may be revealed under FOIA despite claim of exemption. A

decision to deny disclosure of exempt records is committed to discretion of

agency and should not be disturbed unless abuse of discretion is found.

Trade secret exemption does not apply to information required by law or as a

condition of receiving a government contract, license or benefit.

 

Jordan v Martimucci, 101 Mich App 212; 300 NW2d 325 (1980)

 

A plaintiff who brings an action under the FOIA for punitive damages for

delay in disclosure of requested information must demonstrate that he has

received the requested information as a result of a court-ordered disclosure

and that the defendant acted arbitrarily and capriciously in failing to

comply with the disclosure request in a timely manner.

 

Nabkey v Kent Community Action Program, Inc., 99 Mich App 480; 298 NW2d 11

(1980).

 

No award of attorney fees is possible where a prevailing plaintiff under the

FOIA is not represented by an attorney.

 

Bredemeier v Kentwood Board of Education, 95 Mich App 767; 291 NW2d 199

(1980)

 

The FOIA does not require that information be recorded by a public body, but

if it is, it must be disclosed. Attorney fees, costs and disbursements are

awarded to prevailing party under FOIA. However, to prevail, a party must

show at a minimum that bringing a court action was necessary and had a

causative effect on delivery of the information. Lack of court-ordered

disclosure precludes an award of punitive damages under FOIA.

 

Penokie v Michigan Technological University, 93 Mich App 650; 287 NW2d 304

(1979)

 

Disclosure of the names and salaries of employees of the defendant

university is not a “clearly unwarranted” invasion of personal privacy under

FOIA.

 

 

Booth Newspapers, Inc v Regents of University of Michigan, 93 Mich App 100;

286 NW2d 55 (1979)

 

The written opinion of a public body’s attorney is exempt from disclosure

under FOIA and may serve as a basis for closing a meeting under the OMA.

 

Williams v Martimucci, 88 Mich App 198; 276 NW2d 876 (1979)

 

Action of the manager of general office services at a state prison in

denying inmate’s request for copies of certain documents in inmate’s file

because inmate did not pay the $3 fee for the cost of processing the request

was not arbitrary and capricious, since the manager checked the

institutional indigency list for the month and found that the inmate’s name

was not on it.

 

Alpena Title, Inc v Alpena County, 84 Mich App 308; 269 NW2d 578 (1978)

 

A county board of commissioners may charge a reasonable fee for access to

and the copying of county tract index information in accordance with the

statute regarding fees for the inspection of such records.

 

 

 

  _____

 

Department of Attorney General

Seventh Floor G. Mennen Williams Building

525 W. Ottawa Street

P.O. Box 30212

Lansing, MI 48909

  _____