[nfbmi-talk] free technical guidence on foia

[joe harcz Comcast]

August 31, 2010

 

Paul Joseph Harcz, Jr.

1365 E. Mt. Morris Rd.

Mt. Morris, MI 48458

E-mail: joeharcz at comcast.net

 

To: members Michigan Commission for the Blind

 

Dear Commissioners:

 

It has recently come to my attention that many of you do to lack of technology or expertise in obtaining public information (i.e. surfing the internet) do not have ready access to information relative to exercising your various charges. As you know commissioners are subject to the Michigan Freedom of Information Act and the Michigan Open Meetings Act.

 

In order to avoid confusion and in the interest of offering technical assistance I am submitting to you three items related to the Michigan FOIA.

 

After my signature line please find a link and the main body from the Michigan Attorney General’s office on A.G. Opinions related to FOIA over the years. I will also send you a plain text enclosure of the statute in a subsequent post and a list and summaries of case law (again from the Michigan Attorney General’s office.

 

This is proffered in order to avoid confusion on these issues and in an attempt to assist you as an advocate in performing your jobs in the best interests of both the law and citizens who are blind in Michigan.

 

Sincerely,

 

Paul Joseph Harcz, Jr.



 

 

 

http://www.michigan.gov/textonly/0,2964,7-164-17337_18160-51244--,00.html

 

 

 

AG - Attorney General Opinions Relating to FOIA

 

AG - Attorney General Opinions Relating to FOIA

 

Attorney General Opinions Relating to FOIA

 

Attorney General

 

August 17, 1998

 

Dear Citizen:

 

Few things are as critical to preserving our democratic ideal as assuring that the people are afforded every opportunity to know how their government works.

For that reason, I vigorously support Michigan's laws that open the doors of government to the people.

 

The Michigan Freedom of Information Act provides every person with the right of access to most public documents. Where access to records is wrongfully denied,

citizens are authorized to bring suit to compel disclosure and may be awarded damages and reasonable attorney fees.

 

The following information is compiled to help you know your rights under the Freedom of Information Act.

 

Very truly yours,

 

Attorney General

State of Michigan

 

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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Related Content

 •

Open Meetings & Freedom of Information Acts Seminar - Powerpoint Presentation

PPT icon

 •

Freedom of Information Act (FOIA) MCL 15.231

•

Summary of Michigan's FOIA

•

Court Opinions on FOIA

•

Open Meetings Act MCL 15.261

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