MML #3 – The Public’s Right to Know: FOIA and OMA Basics
(Crystal A. Proxmire, Oct. 14, 2018)
Grand Rapids, MI- Democracy is protected by two important laws, the Freedom of Information Act and the Open Meetings Act. These laws force public bodies to operate with transparency, and ensure that the public has a right to know what their government is up to.
Yet often, local elected officials and people serving on boards and commissions don’t come to their positions knowing how these laws work. Even seasoned staff may not know, since some communities only rarely receive requests.
That’s why groups like the Michigan Municipal League offer trainings on the subject. At the recent MML/Michigan Association of Planning Annual Convention, officials from around the state learned the basics of FOIA and OMA from Attorney Ann Seurynck of Foster, Swift, Collins and Smith.
While the presentation went over each in depth, here are some highlights that the public, and officials, should know:
~A request can be made in any written form, including email.
~The public body may provide documents requested verbally, but is not required to by law.
~A request simply has to seek a document, it does not have to specify that it is a FOIA request.
~A person can submit an ongoing request for records created on an ongoing basis, such as agendas, meeting minutes, reports etc. A continuing request for future records is valid for up to six months, and may be renewed.
~Michigan Courts found that public records does not include private email, even if that email was sent on a public computer. However, emails and texts that discuss public business, even in a private email account, can be requested.
~Municipalities should have clear retention policies for all correspondence, including emails.
~The FOIA does not require the public body to make or prepare any particular records that have not already been created. However, if the information is available in a data base or easily retrievable manner, Seurynck said she would likely advise her clients that the public body should err on the side of the public and fill the request.
~Cities, townships, villages and counties need to have a designated FOIA coordinator, who may also have a designee who can act on their behalf if they are unavailable.
~A public body has 5 business days to respond to a request, and may take 10 business days for an extension. This is based on business days, not days that a particular municipality’s office is open. For example, if city hall is closed on Friday, it still counts as a business day.
~Spam/Junk folders of emails are not an excuse for missing a FOIA request. Be sure these folders are checked regularly.
~A public body may require a fee. If the FOIA is over $50 the public body may require a deposit not to exceed half of the fee. A public body may also waive the fee.
~A FOIA request may be denied for several reasons including “Document does not exist,” “No public records” as defined by FOIA, and “Not required to create documents.”
~There are 27 types of items exempt from public disclosure. Among them are:
*Items that invade personal privacy
*Bids or appraisals for certain periods of time
*Social security numbers
*Attorney-client privileged information
*Records exempt because the public body and requester are parties in a civil action
*Information about cybersecurity procedures and software used by the public body
~The public body shall not charge more than the hourly wage of the lowest paid employee capable of searching for, locating and examining the public records. This fee is charged regardless of that person is available or who actually performs the labor.
~A requester can appeal a denial. If the public body fails to respond within 10 business days, or if they uphold their denial, the requester may seek judicial review in circuit court.
~If the court determines that the public body has arbitrarily and capriciously violated this Act by refusal or delay…the court shall order the public body to pay a civil fine of $1,000 which shall be deposited into the general fund of the state treasury. The new Act increased punitive damages from $500 to $1,000 to the person seeking the right to inspect or receive a copy of a public record. There could be additional penalties for bad faith on the part of the public body.
~The Open Meetings Act was expressly enacted for the purpose of requiring certain meetings of public bodies to be open to the public, to require notice and the keeping of minutes of the meetings, to provide for enforcement of the act, to provide invalidation of decisions under certain circumstances, and to provide penalties for non-compliance.
~A public body may not place conditions on attendance such as requiring visitors to sign in or provide names. People should be able to sit anonymously in the audience.
~All persons in attendance have the right to address the public body.
~Have the Board or Council develop a policy on public comment time that covers time limits, and whether the speaker must give their name and address.
~The right to attend a meeting of a public body includes the right to tape record, videotape and broadcast the public proceedings via live radio and television.
~People can only be removed for “Breach of Peace.”
~Public body means any state or local legislative or governing body including a board, commission, subcommittee, authority or council that is empowered by state constitution, statute, charter, ordinance, resolution, or rule to exercise governmental or proprietary authority or perform governmental or proprietary function; a lessee of such a body performing an essential public purpose and function pursuant to the lease agreement, or the board of a nonprofit corporation formed by a city under section 40 of the home rule city act.
~Examples include council, board, planning commission, and ZBA meetings.
~A “meeting” is the convening of a public body at which a quorum is present for the purpose of deliberating toward or rendering a decision on a public policy.
~The OMA does not apply to a conference or informational gathering, providing that the meeting does not involve deliberation and is not designed to circumvent the act.
~A public body may convene to listen to the concerns of a neighborhood group or board of directors without complying with the OMA, provided that the body does not deliberate toward or render a decision.
~Public meetings must be properly noticed. A public notice for a public body shall always be posted at its principal office and any other locations considered appropriate by the public body. Some types of meetings may have additional requirements.
~If a meeting date is changed, the date must be posted at least 18 hours before the rescheduled meeting in a prominent and conspicuous place. Special meetings require posting 18 hours in advance also.
~A public notice on the website shall be included on either the homepage or a separate webpage dedicate to public notices for nonregularly scheduled public meetings and accessible via a prominent and conspicuous link on the website homepage that clearly describes its purpose for public notification of those nonregularly scheduled public meetings.
~A closed session must be preceded by a vote in an open session. The vote and the purpose of the closed session must be stated and included in the minutes of the open session. At the conclusion of the closed session, vote must be taken to close the closed session and re-open the open session before the meeting may be adjourned.
~A closed session may be called by a majority vote of the members to consider the dismissal, suspension, discipline, complaints, charges or periodic personnel evaluations of a public officer or employee, if the person requests a closed session hearing; or for strategy and negotiation sessions connected with the negotiation of a collective bargaining agreement, if either party requests a closed session.
~A closed session may be called by a two-thirds roll call vote of the members to consider the purchase or lease of real property up until the time an option to purchase or lease is acquired. This is only for the purchase of property. It does not include the sale of property. There is current proposed legislation about adding the “sale” of property, but it is not law yet.
~A closed session may also be called to consult with the municipal attorney regarding trial or settlement strategy in connection with specific pending litigation, if an open meeting would have a detrimental financial effect on the public body. Threat of litigation is not enough to warrant closed session. The public body must name the litigation in the motion.
~A closed session may also be called to review the specific contents of an application for employment or appointment to public office, if the candidate requests that the application remain confidential. All interviews by a public body for a public office must be open however. The body cannot compare candidates in closed session.
~Closed session may also be used to consider material exempt from discussion or disclosure such as documents exempt under FOIA, attorney-client privileged, HIPPA or medical issues, Michigan Library Privacy Act “library records,” and closed session minutes.
~A decision made by a public body may be invalidates if the public body did not comply with OMA. The public may re-enact the decision in conformity with the act.
~If a public body violates the OMA, a person may commence a civil action to compel compliance or to enjoin further non-compliance with the act.
~If a public official is found to have intentionally violated the Act, the official may be held personally liable for court costs and actual attorney fees as well as up to $500 in damages.
~A public official who intentionally violates the Act is guilty of a misdemeanor punishable by a fine of up to $1,000. For a second offense during the same term of office the maximum fine increases to $2,000 and the public official may be imprisoned for up to one year.
More information on FOIA and OMA can be found at the State of Michigan website at https://www.michigan.gov/ag/0,4534,7-359-81903_20988_18160—,00.html
This article is a series based on presentations from the Michigan Municipal League (MML)/ Michigan Association of Planning Annual Convention held in Grand Rapids, MI Sept. 20-22, 2018. For more MML-related stories click here. For more on the Michigan Municipal League, visit their website http://www.mml.org.