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Freedom of Information Act Update

A recent Michigan Attorney General Opinion (No. 7300) sheds light on the current obligations of a public body under Michigan’s Freedom of Information Act (“FOIA”).

Under the FOIA, a person has a right to inspect, copy, or receive copies of a public record of the public body at issue as long as the request is in writing and describes the public record sufficiently to enable the public body to find the record.  The FOIA also requires the public body to inform the requestor of its decision to release (or not) the record within five business days of receiving a request; a public body may also extend this response period for ten additional days.

As part of its initial response, if the public body grants the request in whole or in part, it must provide an estimate as to how long it will take to actually produce the requested record(s).  Under the current FOIA provisions, a non-binding “best efforts estimate” on the part of the public body (in good faith) is all that is required.  The recent Attorney General opinion affirms that under the current statutory language the FOIA imposes no fixed deadline for a public body to turn over requested records.

However, public bodies are still bound by the “best efforts estimate.” The Attorney General found that while the statutory language gives public bodies “significant latitude regarding the time for fulfilling a public records request” this standard still requires that the public body work diligently, and in good faith, to fulfill its obligation.  The estimate must be comparable to what a reasonable person in the same circumstances as the public body would provide for fulfilling a similar public records request."

It is anticipated that the Michigan Legislature will take up this issue in the coming year in an effort to set clear deadlines for production of public records.

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