Tuesday, April 9, 2013

04/09/13 1. Making FOIA request , Bankruptcy Reaffirmation , Family Law Custodial Environments,

04/09/13 by Flint Attorney Terry R. Bankert 235-1970, terry@attorneybankert.com
GENESEE FLINT . COM issues here on family law, bankruptcy and community.
Presented by www.geneseeflint.com

FAMILY Issues:
Whether the child had an "established custodial environment" (ECE) with both parties;
Berger v. Berger; MCL 722.27(1)(c);
Deference to the trial court's credibility findings; MCR 2.613(C);
The trial court's findings on the statutory "best interest" factors (MCL 722.23);
McIntosh v. McIntosh; Factors (b), (g), and (j);
Subject matter jurisdiction; Bowie v. Arder; Ryan v. Ryan; MCL 552.6; MCL 552.9; Stamadianos v. Stamadianos; MCL 722.24(1); MCL 552.16; Harvey v. Harvey
Court: Michigan Court of Appeals (Unpublished)03/21/13, No. 308253,Case Name: Dixon v. Dixon,e-Journal Number: 54240,Wayne Circuit Court , Family Division LC No. 10-116073-DM
Judge(s): Per Curiam – Murray, Markey, and Whitbeck
Holding that the trial court did not err in finding that the parties' minor child had an ECE with both parties, or in its findings as to best interest factors (b), (g), and (j), the court affirmed the trial court's judgment of divorce awarding the parties joint legal and physical custody of the child.
The defendant-mother argued on appeal, inter alia, that the trial court's ECE finding was against the great weight of the evidence because the parties were frequently separated throughout the marriage and the plaintiff-father did not see the child for the entire summer before the trial.
However, the court concluded that the record evidence did not clearly preponderate against the trial court's finding that the child had an ECE with both parents.

While defendant testified that the parties were frequently separated, plaintiff testified that, except for a period of about five months in 2008, they lived together and raised the child together.

"The trial court found that for the majority of the child's life, both parents lived with and cared for her, and she looked to both parents for love, affection, guidance, and necessities."
The court defers to the trial court's findings of credibility, and will not substitute its judgment for that of the trial court. Since the parties' directly conflicting testimony about how often they lived together was the only evidence on that fact, the trial court's finding that they lived together and raised the child together for most of her life was essentially a finding of credibility.
The court also rejected defendant's claim that the trial court's finding that plaintiff had a greater capacity to provide the child with love, affection, and guidance was against the great weight of the evidence.
trial court stated that it was concerned about defendant's ability to provide the child with guidance. Plaintiff testified that defendant was frequently untruthful and alleged that she instigated a sexual abuse investigation to attain an advantage in the custody proceedings. Defendant testified that she believed plaintiff was sexually abusing the child.

The trial court found that defendant's sexual abuse allegations had no basis in fact and caused unnecessary trauma. To the extent that the trial court determined that she fabricated the allegations, the court deferred to its credibility assessment.

The trial court found that the unsubstantiated allegations caused the child to miss parenting time and to undergo medical examinations and investigations. The record reflected that CPS investigated the allegations, and the child was interviewed and medically examined. Plaintiff was not allowed to exercise his parenting time while the investigation was pending.


What Is a Reaffirmation Agreement?

1. Definition

§3.101 A reaffirmation agreement is a contract between the debtor and a creditor that the prefiling contract between them will not be discharged in the bankruptcy. 11 USC 524(c). Typically, a reaffirmation agreement is executed on secured debts such as the debtor’s home or vehicle.

A reaffirmation agreement has several key components. First are the terms of the agreement, the requirements of which are outlined in 11 USC 524(k), including the payment, interest rate, collateral, etc. Second is the certificate, which is a declaration by the attorney that the agreement, and debtor’s agreement to enter into it, are in the debtor’s best interests. The last is the debtor’s motion to reaffirm a debt, if applicable.

Note that effective December 16, 2009, the Eastern District adopted Guideline 13, Responsibilities of Debtor’s Counsel Relating to a Reaffirmation Agreement, available at http://www.mieb.uscourts.gov/notices/admin_order_debtor_reaff_agreement.pdf, which provides that a debtor’s counsel (1) may not exclude representation services relating to a reaffirmation agreement and (2) must appear and represent the debtor at any hearing on any reaffirmation agreement. In an ethics opinion based on an inquiry as to whether debtor’s counsel can exclude representation with respect to reaffirmation agreements, a limitation excluding representation as to reaffirmation does not by itself result in a violation of MRPC 1.1 and is permitted under MRPC 1.2(b). In seeking to so limit the scope of the representation, debtor’s counsel must obtain the client’s consent after consultation, and in connection with obtaining consent must explain the material risks of reaffirmation and available alternatives. RI-348 (July 26, 2010).

See also §§4.8, 4.9 for further discussion of reaffirmation agreements.

2. Should You Sign the Certificate?

§3.102 Pursuant to 11 USC 524(c)(3), an attorney who has represented a debtor in the negotiation of a reaffirmation agreement must certify that the debtor has entered into the agreement after being fully informed of the terms and has done so voluntarily. The attorney must further certify that the agreement does not impose an undue hardship on the debtor and that the attorney has advised the debtor of the “legal effect and consequences” of the agreement and any default thereunder.

Whether or not you should sign the certificate is a business practice decision you must make in light of your interpretation of the liability you assume in conjunction with 11 USC 524(c)(3). Deserving of particular consideration is what level of inquiry you must make to determine that “such agreement does not impose an undue hardship on the debtor or a dependent of the debtor.” 11 USC 524(c)(3)(B).

Absent clear evidence that the debtor has the ability to maintain the payments on the secured debt, it is usually best to have the debtor sign the portion of the reaffirmation agreement requesting that the matter be set for hearing on a motion. This allows the court to make a determination on the issue of undue hardship.

3. When the Client Signs and Counsel Doesn’t

§3.103 In the event that counsel for the debtor is not involved in the negotiation of the reaffirmation agreement or cannot otherwise certify the agreement in accordance with 11 USC 524(c)(3), the debtor must file a motion to reaffirm the debt. Most creditors include a motion as a separate section in the reaffirmation agreement. The debtor must sign the motion, and it must be properly filed with the court; such a filing will prompt a hearing to be set by the court.

The debtor must attend the hearing on the motion to approve the reaffirmation agreement. At the hearing, the debtor must prove that the reaffirmation agreement is in the debtor’s best interests and that the debtor is able to afford the payments required pursuant to the reaffirmation agreement. As a practical matter, the creditor in interest will likely question the debtor and do so in a manner conducive to eliciting responses in support of the court’s approving the agreement.

C. Rescission

§3.104 11 USC 524(c)(4) permits the debtor the opportunity to rescind his or her reaffirmation “at any time prior to discharge or within sixty days after such agreement is filed with the court, whichever occurs later.” Rescission is effective upon the debtor’s notifying the creditor of his or her wish to rescind. The Code does not identify a required method of “notification,” so the practitioner is well advised to effectuate a rescission in writing.

D. What Is an Assumption of Lease?

§3.105 An assumption of lease is essentially the equivalent of a reaffirmation agreement for a lease agreement, but without the same protections of a reaffirmation agreement. Unexpired leases are governed by 11 USC 365, which allows the trustee, subject to approval of the court, to assume or reject an unexpired lease of the debtor. In Chapter 7 proceedings, the debtor elects to assume or reject, subject to the same approval of the court. 11 USC 365(d)(1) requires generally that the debtor must assume or reject the lease within 60 days of the order for relief or the lease is deemed rejected.

Note that unlike 11 USC 524(c)(4), which allows the debtor to rescind a reaffirmation agreement within 60 days of the filing of such an agreement or at any time before discharge, there is no such provision in the Code to reject a previously assumed lease.

Unlike a reaffirmation there is no requirement that a debtor’s attorney sign an assumption of lease form or that a hearing will be scheduled. Many creditors create forms that have approval or signature line for an attorney, but the Code does not require such approval.

Handling Consumer and Small Business Bankruptcies in Michigan ch 3 (Richardo I. Kilpatrick et al eds, ICLE 2009), at http://www.icle.org/modules/books/chapter.aspx?lib=bankruptcy&book=2009550820&chapter=03 (last updated 03/29/2013).


Main Checklist for requesting information about what the emergency  is doing with tax payer resources. First make sure the EFM is not exempt under statute.

Step 1: Review the statute, court decisions, and attorney general opinions.

The Michigan Freedom of Information Act (FOIA), MCL 15.231 et seq., is a potentially significant avenue of discovery in all kinds of situations involving governmental agencies. Patterned after the federal Freedom of Information Act, 5 USC 552 et seq., Michigan’s FOIA implements the policy of this state that all persons are entitled to full and complete information regarding the affairs of government. It provides, in general, that any person may inspect or copy any public records in the state, subject to certain exceptions and rules regarding inspection and copying.

The Michigan Attorney General website contains a summary of the Michigan FOIA, the text of the statute, summaries of more than 30 OAGs explaining the various applications of FOIA, and summaries of over 90 Michigan court decisions regarding FOIA.

Step 2: Know how FOIA requests and formal discovery work together.

FOIA and civil discovery are independent schemes. Just because something is exempt under FOIA does not necessarily mean it is privileged for purposes of civil discovery. Conversely, privileged information is not necessarily exempt under FOIA.
MCL 15.243(1)(v) was added to prevent the use of FOIA as a substitute for discovery in civil actions in which the requesting party and the public body are parties. See Public Body Litigation Exemption.

In theory, a request under FOIA is a quicker mode of discovery (5-day response time) than interrogatories or requests for production of documents under the Michigan Court Rules (generally 28-day response time).

Materials disclosed pursuant to FOIA are public documents and may be used for any purpose in any form by any party. Information received through other discovery methods may be subject to protective orders available under state and federal court rules.

There is no requirement that an opponent in litigation receive notice that a FOIA request was made. Using FOIA, a litigant may obtain access to agency records that might be unfavorable to his or her position without the other side seeing those records or even becoming aware of their existence.

Step 3: When you making your FOIA request, be sure you are requesting a covered “public record.”

A public record is defined as a writing prepared by, owned by, used by, in the possession of, or retained by a public body in the performance of an official function from the time it is created. MCL 15.232(e). All public records are subject to disclosure on request, except records that are exempt under MCL 15.243.

15.243 Exemptions from disclosure; public body as school district or public school academy; withholding of information required by law or in possession of executive office.
Sec. 13.

(1) A public body may exempt from disclosure as a public record under this act any of the following:
(a) Information of a personal nature if 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, the 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 submission of bids or proposals has expired.
(j) Appraisals of real property to be acquired by the public body until either of the following occurs:
(i) An agreement is entered into.
(ii) Three years have 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, including protected health information, as defined in 45 CFR 160.103.
(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 communication 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, 1976 PA 267, MCL 15.268. 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 1947 PA 336, MCL 423.201 to 423.217.
(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 archaeological sites. The department of history, arts, and libraries may promulgate rules in accordance with the administrative procedures act of 1969, 1969 PA 306, MCL 24.201 to 24.328, 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 a campaign committee including a 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 informant.
(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 active or retired law enforcement officers or agents or a special skill that they may have.
(iv) Disclose the name, address, or telephone numbers of family members, relatives, children, or parents of active or retired 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 informant.
(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 under article 15 of the public health code, 1978 PA 368, MCL 333.16101 to 333.18838, before a complaint is issued. This subdivision does not apply to records or 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; the fact that the department 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 an 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.
(y) Records or information of measures designed to protect the security or safety of persons or property, whether public or private, including, but not limited to, building, public works, and public water supply designs to the extent that those designs relate to the ongoing security measures of a public body, capabilities and plans for responding to a violation of the Michigan anti-terrorism act, chapter LXXXIII-A of the Michigan penal code, 1931 PA 328, MCL 750.543a to 750.543z, emergency response plans, risk planning documents, threat assessments, and domestic preparedness strategies, unless disclosure would not impair a public body's ability to protect the security or safety of persons or property or unless the public interest in disclosure outweighs the public interest in nondisclosure in the particular instance.
(2) A public body shall exempt from disclosure information that, if released, would prevent the public body from complying with 20 USC 1232g, commonly referred to as the family educational rights and privacy act of 1974. A public body that is a local or intermediate school district or a public school academy shall exempt from disclosure directory information, as defined by 20 USC 1232g, commonly referred to as the family educational rights and privacy act of 1974, requested for the purpose of surveys, marketing, or solicitation, unless that public body determines that the use is consistent with the educational mission of the public body and beneficial to the affected students. A public body that is a local or intermediate school district or a public school academy may take steps to ensure that directory information disclosed under this subsection shall not be used, rented, or sold for the purpose of surveys, marketing, or solicitation. Before disclosing the directory information, a public body that is a local or intermediate school district or a public school academy may require the requester to execute an affidavit stating that directory information provided under this subsection shall not be used, rented, or sold for the purpose of surveys, marketing, or solicitation.

(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 the administrative procedures act of 1969, 1969 PA 306, MCL 24.201 to 24.328.

(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.


MCL 15.232(h) defines a writing as any “handwriting, typewriting, printing, photostating, photographing, photocopying, and every other means of recording,” including letters, words, pictures, sounds, symbols, and combinations of them, as well as papers, maps, tapes, films, microfilms, microfiches, cards, disks, drums, “or other means of recording or retaining meaningful content.”

Public record does not include computer software, MCL 15.232(e), but does include computer-stored information or data, or a field name, if disclosure of that field name does not violate a software license. MCL 15.232(f).

FOIA does not require a public agency to make a compilation, summary, or report of information or to create a new document in response to a request. MCL 15.233(4), (5).

FOIA does not give the party requesting records the right to insist on obtaining microfilm copies. While the act gives the public the right to receive copies of public records, it does not require that these copies be made in a microfilm format rather than a paper copy. Lapeer County Abstract & Title Co v Lapeer County Register of Deeds, 264 Mich App 167, 691 NW2d 11 (2004).

Step 4: Be sure you are submitting your request to a covered “public body.”

Under the act, 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.” MCL 15.232(d)(i). The judiciary also is not included in the definition of public body. MCL 15.232(d)(v). Public body includes the following:

  • an agency, a board, a commission, or a council in the legislative branch of the state government;
  • a county, a city, a township, a village, an intercounty, an intercity, or a regional governing body; a council, school district, special district, or municipal corporation; or a board, department, commission, council or agency thereof; and
  • any other body that is created by state or local authority or that is primarily funded by or through state or local authority.
MCL 15.232(d)(ii)–(iv). The catchall provision in MCL 15.232(d)(iv) covers an organization that is primarily funded by or through state or local government, regardless of whether the funding came from one specific source or several. Sclafani v Domestic Violence Escape, 255 Mich App 260, 660 NW2d 97 (2003).

Private nonprofit corporations and other nongovernmental bodies generally are not subject to FOIA. See State Defender Union Employees v Legal Aid & Defender Ass’n of Detroit, 230 Mich App 426, 584 NW2d 359 (1998); OAG No 6,942 (July 3, 1997). A private nonprofit organization with a voluntary membership of private and public schools was not a public body. Breighner v Michigan High Sch Athletic Ass’n, 471 Mich 217, 683 NW2d 639 (2004). However, a nonprofit foundation primarily funded by a state university was held subject to FOIA in Jackson v Eastern Michigan Univ Found, 215 Mich App 240, 544 NW2d 737 (1996).

Step 5: Anticipate potentially applicable exemptions.

FOIA contains more than 20 express exemptions. See MCL 15.243. The private information exemption has been the subject of a great deal of litigation. Additionally, the frank communication exemption has also been the subject of litigation.

Because FOIA is intended as a pro-disclosure statute, exemptions to disclosure are to be narrowly construed. Swickard v Wayne County Med Exam’r, 438 Mich 536, 475 NW2d 304 (1991).

The following rules generally apply in analyzing claims of exemption from disclosure under FOIA: (1) the burden of proof is on the party claiming the exemption, (2) the exemption must be narrowly interpreted, (3) exempt material must be separated from nonexempt material, (4) detailed affidavits must be supplied describing the materials withheld, and (5) justification for the exemption must be more than conclusory, i.e., the agency must give factually based reasons for not releasing particular kinds of documents. Evening News Ass’n v City of Troy, 417 Mich 481, 339 NW2d 421 (1983); Post-Newsweek Stations, Michigan, Inc v City of Detroit, 179 Mich App 331, 445 NW2d 529 (1989).

If a requested document contains material that is exempt and other material that is nonexempt, the public body must disclose the nonexempt material and delete the exempt material. The exempt material must be described in general terms unless it is apparent from the copies received that material has been deleted. MCL 15.244.

Public bodies may disclose records that are exempt from disclosure. The act authorizes withholding exempt records but does not require it. Tobin v Michigan Civil Serv Comm’n, 416 Mich 661, 331 NW2d 184 (1982).

Step 6: Submit your request in writing to the FOIA coordinator.

A FOIA request must be made in writing and can be addressed to the FOIA coordinator of the public body. MCL 15.235(1). Fax and e-mail requests are permitted, but oral requests are not. MCL 15.232(i).

The statute requires that each public body designate a FOIA coordinator responsible for accepting and processing FOIA requests. MCL 15.236. Under MCL 15.233(1), any employee of a public body who receives a FOIA request must promptly forward the request to the FOIA coordinator.

The FOIA coordinator must keep copies of all written requests on file for at least one year. MCL 15.233(2). The statute also places a duty on the public body to protect public records from loss, unauthorized alteration, mutilation, or destruction. MCL 15.233(3).
Step 7: Describe the records so that the public body will be able to find them within a reasonable amount of time, with a reasonable amount of effort.

The request must describe the requested records sufficiently to enable the public body to find them. MCL 15.233(1); see also Coblentz v City of Novi, 475 Mich 558, 719 NW2d 73 (2006). Specifying which records you want, in as much detail as possible, will make it easier for the public body to fulfill your request promptly and will keep search and copy fees to a minimum. If possible, identify the records by name, number, date, and personnel involved. It may also be helpful to identify specific records your request does NOT include. Include a phone number where you can be reached and an offer to answer any questions the public body may have about the scope of your request. This often saves time and avoids unnecessary expense in obtaining unwanted materials.

Step 8: If the records are voluminous, state a maximum dollar value you are willing to spend and your willingness to examine them in person during normal business hours as an alternative to photocopying.

The public body or agency has an obligation to provide reasonable facilities available during normal business hours so that persons making a request may examine and take notes from the public records. MCL 15.233(3). Access to a public body’s records are subject to reasonable rules developed by the public body as necessary to protect public records and to prevent excessive and unreasonable interference with its operations. Id. See sample request #1.

Step 9: Remind the FOIA coordinator of your statutory rights and the agency’s statutory obligations.

Remind the FOIA coordinator that the burden is on the public body to justify any claimed exemptions and that the body is obligated to separate exempt and nonexempt material and disclose the latter.

Invite the agency to exercise its discretion to disclose the information even if an exemption applies. The statutory exemptions are not mandatory.

Remind the FOIA coordinator that you have the right to appeal a denial to the head of the agency or to circuit court. Request the name and mailing address of the head of the agency, in case an appeal becomes necessary.

Remind the FOIA coordinator that, if the request is denied and a court subsequently orders disclosure of all or a portion of the requested records, you may be entitled to attorney fees and damages.

Step 10: Pay the fee, or argue for a waiver.

A public body may charge fees for responding to requests under FOIA. However, fees must be limited to actual mailing costs and actual incremental costs of duplication or publication, including labor, the cost of the search, examination, review, and deletion and separation of exempt from nonexempt information. MCL 15.234.

 For labor costs, a public body may not charge more than the hourly wage of the lowest paid public body employee capable of retrieving the information necessary to comply with the FOIA request. MCL 15.234(3); see also Coblentz v City of Novi, 475 Mich 558, 719 NW2d 73 (2006) (city could not charge for labor of independent contractor attorney for locating requested letters and separating nonexempt from exempt materials). A public body may search and produce records at no charge or at a reduced charge if it determines that it is in the public interest to do so. Upon submission of an affidavit of indigency, the public body must waive the first $20 of the fee. Id.

If you can show that fulfilling your request will benefit the general public, argue for a waiver of fees. Succinctly explain why you are requesting the documents and how disclosure is likely to shed light on how well the government is fulfilling its statutory functions. Emphasize that you are not requesting the information for commercial use or private gain. As an alternative, state that you authorize expenditures up to a maximum dollar figure but that you wish to be contacted if the fees exceed this limit. See sample request #1.

The fees for the receipt of certain property tax records from a county treasurer is governed by the provisions of MCL 48.101, the Transcripts and Abstracts of Records section of the County Treasurer’s statute. Title Office, Inc v Van Buren County Treasurer, 469 Mich 516, 676 NW2d 207 (2004). FOIA does not govern the fees charged for receipt of these county treasurer documents. MCL 15.234(4).

Another statute that provides an alternative fee structure for certain public records is the Enhanced Access to Public Records Act, MCL 15.441 et seq., under which a public body may charge a reasonable fee for providing enhanced access to public records. Enhanced access means a public record is immediately available for inspection, purchase, or copying by digital means. MCL 15.442(a). A reasonable fee means a charge calculated to enable the public body to recover over time only those operating expenses directly related to the provision of enhanced access. MCL 15.442(g).

Step 11: If your request is denied, appeal to the head of the agency.

Within five business days after receiving a request, the public body must respond by granting the request, denying the request in writing, granting the request in part and issuing a written partial denial, or issuing a notice extending the time for responding to the request up to ten additional business days. MCL 15.235(2). Failure to respond within the time period constitutes a denial of the request. MCL 15.235(3). The five business day response period means five consecutive weekdays, other than weekends and holidays, not the five consecutive days that the public body is open for public business. OAG No 7,172 (Mar 17, 2005).

Denial of a request must be given in writing and must state the reasons for the denial. MCL 15.235(2)(b), (4). The notice of denial must also give a full explanation of the requesting party’s right to submit an appeal to the head of the public body or seek judicial review of the denial and the requesting party’s right to attorney fees and damages. MCL 15.235(4).

If your request is denied, you have the right to seek judicial review within 180 days. MCL 15.240. However, under most circumstances, it is preferable to appeal first to the head of the public body. This shows the agency that you are serious about pursuing the matter and gives a higher-level decision maker the opportunity to review the merits of your request.

The appeal to the head of the public body must be in writing, use the word appeal, and identify the reasons the denial should be reversed. MCL 15.240(1). It should be detailed and persuasive, with citations to authority. Think of it as a road map to the circuit court complaint you may have to file. See FOIA Appeal Letter.

Step 12: If your appeal is denied, consider filing a complaint.

Within 10 days, the head of the public body must reverse the denial; issue a written notice upholding the denial; reverse the denial in part and issue a written notice upholding the denial in part; or, under unusual circumstances, issue a notice extending the time to respond for not more than 10 business days. Under MCL 15.240(3), a board or commission that is the head of a public body is not considered to have received a written appeal until the first regularly scheduled meeting of that board or commission following the requester’s submission of the appeal. Id.
If the head of the body upholds the denial or fails to respond to the appeal within the time period, you may seek judicial review in circuit court within 180 days. Id. See FOIA Complaint and Emergency Motion to Compel Disclosure of Public Records Under FOIA. Venue lies in the county where the complainant resides or has his or her principal place of business or the county in which the public record or an office of the public body is located. MCL 15.240(4).

The public body has the burden of justifying nondisclosure of the requested records. MCL 15.240(1). The burden is a heavy one, and it is the duty of a reviewing court to determine whether it has been met. Kincaid v Department of Corr, 180 Mich App 176, 182–183, 446 NW2d 604 (1989); UPGWA v Department of State Police, 118 Mich App 292, 295, 324 NW2d 611 (1982), aff’d and remanded, 422 Mich 432, 373 NW2d 713 (1985); Penokie v Michigan Technological Univ, 93 Mich App 650, 663, 287 NW2d 304 (1979). In reviewing the denial of a FOIA request, a court must determine the applicability of a FOIA exemption at the time the public body asserted the exemption. The passage of time and the course of events after the assertion of a FOIA exception do not affect whether a public record was initially exempt from disclosure. State News v Michigan State Univ, 481 Mich 692, 753 NW2d 20 (2008).

Step 13: If you prevail on appeal, request attorney fees.

Reasonable attorney fees and costs are available if the requester prevails in a court action. MCL 15.240(6). Furthermore, if the public body is found to have arbitrarily and capriciously violated the act, the court may award punitive damages of $500 against the public body. MCL 15.240(7).

Make a Request Under the Michigan Freedom of Information Act

Sphere: Related Content