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Proposed Bill Would Revise FOIA Law in Michigan

Posted: Monday, June 10, 2013

Many public entities recently received FOIA requests from the Detroit Free Press, and those requests seem to be providing the data for Free Press testimony before the House Committee on Oversight, Reform and Ethics concerning a FOIA reform bill.

The hearings are for House Bill 4001 (revising the Michigan Freedom of Information Act), which was introduced earlier this year. The House Fiscal Agency issued its analysis of HB 4001 on May 15, 2013.

The bill is currently pending in the House Committee on Oversight, Reform and Ethics, which is holding the aforementioned hearings on the matter.

HB 4001 proposes the following changes to the current law:

  • A public body could no longer charge more than 10 cents a page when copying a record.
  • A public body would have to reduce the fees it charged to satisfy a FOIA request by 20% of the original fee for each day it failed to a make the requested records available for inspection and/or provide a copy of the requested records within the statute’s deadlines. Also, a public body would be unable to charge a fee for a record produced more than five days after the statutory deadline.
  • A requesting party could also challenge a public body’s proposed fees or charges for a FOIA response via the head of a public body and/or a lawsuit in the circuit court.
  • A public body would be prohibited from asserting an exemption in a lawsuit arising out of FOIA dispute if it did not assert the exemption in its original response to the record request.
  • Unlike a requestor, a public body could not recover any of its attorney fees or costs from the requesting party even if it prevailed in litigation brought pursuant to the statute.
  • A requesting party could obtain punitive damages in the amount of $5,000 if the circuit court determined the public body “arbitrarily and capriciously” violated the statute. In its current form, the statute caps punitive damages at $500.

It’s clear that HB 4001 would drastically alter the way governmental entities handle and respond to FOIA requests. In particular, the proposed changes would place more restrictions on a public body’s discretion regarding how to respond. Additionally, based on the proposed curtailment of fees and increased damages, public bodies will likely have lower reimbursement revenue and increased liability exposure if the bill should pass in its current form.

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Michigan Municipal Risk
Management Authority

14001 Merriman Road
Livonia, MI 48154

MMRMA has been a leader in municipal risk since 1980 and remains committed to meeting the ever-expanding challenges faced by its membership. MMRMA's risk control services are designed to help its members identify, prevent, and mitigate losses through on-site surveys, training, and other services. MMRMA also provides its members with premier claims and legal services, sound financial management, and essential news on the latest developments in public risk management.


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