[nfbmi-talk] Fw: Revised response regarding accessible records request.

[joe harcz Comcast]

----- Original Message ----- 
From: Farmer, Mel (LARA) 
To: 'joe harcz Comcast' 
Cc: Cannon, Patrick (DELEG) ; Haynes, Carla (DELEG) 
Sent: Thursday, June 30, 2011 5:36 PM
Subject: Revised response regarding accessible records request.


Under "Thirdly" accurately stated quote from ADA Technical Assistance Manual regarding "undue financial and administrative burdens".

 


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From: Farmer, Mel (LARA) 
Sent: Thursday, June 30, 2011 5:25 PM
To: 'joe harcz Comcast'
Cc: Cannon, Patrick (DELEG); Haynes, Carla (DELEG); Arwood, Steve (LARA); Brown, Melanie (LARA); Zimmer, Mike (DELEG)
Subject: FW: FOIA - FW: ada request of mcb

 

Mr. Harcz, this notice is in response to your June 30, 2011 email to Ms. Carla Haynes regarding the Department's/MCB processing your request under the state's Freedom of Information Act (FOIA), MCL 15.231 et seq. Your June 21, 2011 email (enclosed) requested "pursuant to the accessible meeting requirements and effective communications requirements of the American Disabilities Act of 1990, and Section 504 of the very Rehabilitation Act of 1973", copies of the:

-- DVD of the MCB June 17th meeting

-- audio recording of the June 17th MCB meeting 

      -- audio recording of the MCB June 16th budget and PA 260 meeting

-- draft minutes of the MCB June 17th meeting as Word attachment sent to his email

 

You assert that because you made your request pursuant to the federal American with Disabilities Act (ADA) and the Rehabilitation Act of 1973 that these federal acts "trumps" the state's FOIA; and requires that requested materials be made at no surcharge. Please be informed of the following:

--Firstly, as regards the Department/MCB processing of requests for public records under the 

  state's FOIA, there is no requirement that the Department/MCB process requests for state 

  records under the ADA/Rehab Act. The federal requirement is that public bodies make public 

  meetings and public records accessible to citizens with disabilities. 

--Secondly, the state's FOIA, MCL 15.232, defines a "written request" as a writing that asks for 

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

  means; per MCL 15.235, requires a public body to respond to written request within 5 business 

  days after receiving such a request.

--Thirdly, as regards fees to process requests, according to the federal Department of Justice 

  Freedom of Information Act Reference Guide, section VII. Fees, it is stated "By law, however, 

  an agency is entitled to charge certain fees, which depend on the particular category of FOIA 

  requester that you fall into." The three federal categories of requesters are listed as commercial; 

  educational or noncommercial scientific institutions and representatives of the news media; and 

  all other requesters.

 

  The state's FOIA, per MCL 15.234, State Attorney General, and Michigan Appellate Court 

  rulings, provide that a public body may charge for it's cost to process a request when failure to 

  charge a fee, in a particular instance, would result in unreasonably high costs to the public body 

  because of the nature of the request, and the public body identifies the nature of the 

  unreasonably high costs. Further, MCL 15.233 of the state's FOIA does not require a public 

  body to create a new record not already in existence. However, in order to comply with your 

  request for a copy of the DVD of the MCB June 17, 2011 meeting in accessible format, it will 

  require the creation of a new record; and because the meeting lasted over 6 hours, will require

  the making of 2 DVDs. The costs is estimated to be at least $50.00 to make for uncaptioned 

  copies with no closed captions, and no audio descriptions.

  

As regards the ability of the Department/MCB to charge costs to process your request, the ADA 

Title II Technical Assistance Manual, Covering State and Local Programs and Services, section 

 II- 7.0000 Communications, Equally effective communication reads as follows:

 "A public entity must ensure that that its communications with individuals with disabilities are as 

  effective as communications with others. This obligation, however, does not require a public 

  entity to take any action that it can demonstrate would result in a fundamental alteration in 

  nature of its services, programs, or activities, or in undue financial and administrative burdens."

 

As regards examples of auxiliary aids and services to provide equal access, this section states:

 "Examples for individuals with vision impairments include qualified readers, taped texts, audio 

  recordings, Brailled materials, large print materials, and assistance in locating items." 

 

Under the state's FOIA, the State Attorney General (Opinion 7095) opined that under the FOIA, a public body may not impose a more restrictive schedule for access to it's public records for certain persons than it does for the public generally, based solely upon the purpose of for which the records are sought. The Department's

FOIA fee/charge policy is to assess labor and duplication costs for processing FOIA requests costing at or more than $25.00. As indicated above, there is no federal statute/regulation that prohibits a public body from assessing reasonable costs to process requests made under the ADA or Rehab. Act where failure to assess fees would result in "undue financial and administrative burdens". Further, the Michigan Appellate Court decision (Oakland County Treasurer v Title Office, Inc.) ruled that electronic records are writings as defined by the FOIA. Public bodies are required to provide public records in the format requested and if there is no explicit statutory language that provides fees for electronic records, the records must be provided using the FOIA fee requirements.

 

 Thusly, whereas, the Department/MCB may have to provide records responsive to your request that they be in accessible format, the Department/MCB also has the authority, per state and federal statutes/guidelines, to assess reasonable fees to process your request. To that end, the Department/MCB has been consistent in implementing the Department's fee policies of charging costs to process requests estimated to cost at or more than $25.00. 

 

 

 

 

 

 


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From: joe harcz Comcast [mailto:joeharcz at comcast.net] 
Sent: Tuesday, June 21, 2011 8:00 AM
To: Cannon, Patrick (DELEG)
Cc: Arwood, Steve (LARA); Jo Anne Pilarski MCB, Chair; Larry Posont; lydia schuck; John Scott MCB, Commissioner; Craig.McManus at ed.gov; Robin Jones; Joe Sibley MCBVI Pres.; nfbmi-talk at nfbnet.org; Elmer Cerano MPAS; TOM MASSEAU MPAS
Subject: ada request of mcb

 

June 21, 2011

 

Paul Joseph Harcz, Jr.

1365 E. Mt. Morris Rd.

Mt. Morris, MI 48458

E-mail: joeharcz at comcastnet

 

Re: ADA request for recordings related to meetings

 

Patrick D. Cannon

Michigan Commission for the Blind Director

(via e-mail)

 

 

Dear Mr. Cannon,

 

I am requesting today pursuant to the accessible meeting requirements and effective communications requirements of the Americans with Disabilities Act of 1990, and Section 504 of the very Rehabilitation Act of 1973 which enables, funds and authorizes the MCB the following items:

 

-a DVD of the video recording of the June 17, 2011 MCB general meeting on a thumb drive or similar medium sent to my address above

-the audio recording of the same meeting in similar manner

-the audio recording of the June 16, 2011 budget and PA 260 meeting

-and the draft meeting minutes of the June 17, 2010 MCB meeting as a Word attachment sent to my e-mail address listed above.

 

I thank you for your prompt and accessible response to this request for public information.

 

Sincerely,

 

Paul Joseph Harcz, Jr.

 

Cc: MCB Commissioners

Cc: Craig McManus, RSA Liaison

Cc: Michigan Protection and Advocacy Services

Cc: Great Lakes Technical Assistance Center

Cc: S. Arwood, LARA

Cc: NFB MI

Cc: MCBVI