Michigan

Open Government Guide

Compare

Author

Brian D. Wassom
Kristina Araya

Valerie Uduji

WARNER NORCROSS + JUDD LLP

45000 River Ridge Dr., Ste. 300

Clinton Twp., MI 48038

(586) 303-4139

E-mail: bwassom@wnj.com

Last updated July 2023

Compare

Foreword

The public policy behind passage of Michigan's Freedom of Information Act ("FOIA"), Mich. Comp. Laws Ann. §§ 15.231-.246, is set forth in its first section:

It is the public policy of this state that all persons, except those persons incarcerated in state or local correctional facilities, are entitled to full and complete information regarding the affairs of government and the official acts of those who represent them as public officials and public employees, consistent with this act. The people shall be informed so that they may fully participate in the democratic process.

Mich. Comp. Laws Ann. § 15.231. This section was amended twice, in 1994 and 1997, before which it stated that FOIA's purpose was to provide all persons with information regarding "governmental decision making" and, before that, information regarding "the affairs of government and the official acts of those who represent them." It is not clear that these changes in FOIA's purpose have directly affected how courts interpret the statute, although a few key judicial decisions since those amendments have evidenced a disturbing disregard of FOIA’s historical breadth.

The state's tradition of giving the public the broadest possible access to its records did not begin with the enactment of the FOIA in 1977. Michigan courts throughout the state's history have both expressed and implemented the fundamental principle that the records of government belong to the public and not to the government officials who are their custodians. The public's access and ability to inspect are a matter of fundamental right. The public does not have the burden of justifying the requested inspection but, to the contrary, the custodian has the duty to facilitate inspections and the heavy burden of justifying any exemptions, restrictions, or delays he or she may attempt to impose. Nowack v. Auditor Gen., 243 Mich. 200, 219 N.W. 749 (1928) (common law); Burton v. Tuite, 78 Mich. 363, 44 N.W. 282 (1889); Booth Newspapers, Inc. v. Muskegon Probate Judge, 15 Mich. App. 203, 166 N.W.2d 546 (1968); Booth Newspapers, Inc. v. Univ. of Mich. Bd. of Regents, 444 Mich. 211, 507 N.W.2d 422 (1993) (FOIA). Nowack, a leading case both in Michigan and nationally, enforced a newspaper's right of inspection by the extraordinary remedy of mandamus, and contains one of the more noteworthy statements of this fundamental principle:

If there be any rule of the English common law that denies the public the right of access to public records, it is repugnant to the spirit of our democratic institutions. Ours is a government of the people. Every citizen rules . . . . Undoubtedly, it would be a great surprise to the citizens and taxpayers of Michigan to learn that the law denied them access to their own books for the purpose of seeing how their money was being expended and how their business was being conducted. There is no such law and never was either in this country or in England.

219 N.W. at 750.

The court then cites the 1889 case Burton v. Tuite as an example of Michigan's historical commitment to the principle of free access, concluding, "There is no question as to the common-law right of the people at large to inspect public documents and records. The right is based on the interest which citizens necessarily have in the matter to which the records relate." 219 N.W. at 750 (citing Burton v. Tuite, 78 Mich. at 374 ("I do not think that any common law ever obtained in this free government that would deny to the people thereof right of free access to, and public inspection of, public records.")). This principle was affirmed in Muskegon Probate Judge, which enforced a newspaper's right of inspection by the extraordinary remedy of superintending control:

The fundamental rule in Michigan on the matter before us, first enunciated in the case of Burton v. Tuite, (1889), 78 Mich. 363, is that citizens have the general right of free access to, and public inspection of, public records . . . . The Nowack decision has "placed Michigan at the vanguard of those states holding that a citizen's accessibility to public records must be given the broadest possible effect."

166 N.W.2d at 547-48 (quoting 1961-62 Op. Att'y Gen. 581, 587).

More recently, in Swickard v. Wayne County Medical Examiner, 438 Mich. 536, 475 N.W.2d 304 (1991), the Michigan Supreme Court declared that these same policies apply to FOIA:

One of the reasons prompting the legislation was concern over abuses in the operation of government. A policy of full disclosure underlies the FOIA . . . . In construing the provisions of the act we keep in mind that the FOIA is intended primarily as a prodisclosure statute and the exemptions to disclosure are to be narrowly construed.

475 N.W.2d at 307.

As discussed below, Michigan's FOIA also provides a procedure and remedy for improper governmental refusal to disclose public records, including the award of reasonable attorney’s fees and actual and punitive damages. Mich. Comp. Laws Ann. §§ 15.240 (6) and (7).

Since at least 1851, the policy of open access to public records also has been expressed and implemented by other Michigan statutes. For example, the Michigan Penal Code provides that "[a]ll official books, papers or records created by or received in any office or agency of the state of Michigan or its political subdivisions, are declared to be public property, belonging to the people of the state of Michigan." Mich. Comp. Laws Ann. § 750.491. The next section enforces the policy:

Any officer having the custody of any county, city or township records in this state who shall when requested fail or neglect to furnish proper and reasonable facilities for the inspection and examination of the records and files in his office and for making memoranda of transcripts therefrom during the usual business hours, which shall not be less than 4 hours per day, to any person having an occasion to make examination of them for any lawful purpose shall be guilty of a misdemeanor, punishable by imprisonment in the county jail not more than 1 year, or by a fine of not more than $500.00; Provided, that the custodian of said records and files may make such reasonable rules and regulations with reference to the inspection and examination of them as shall be necessary for the protection of said records and files, and to prevent interference with the regular discharge of the duties of such officer.

Mich. Comp. Laws Ann. § 750.492.

Open Meetings. Michigan's Open Meetings Act ("OMA"), Mich. Comp. Laws Ann. § 15.261, et seq., discussed in detail, infra, also reinforces the state's policy of insuring open access to government operations by providing for open access to public meetings. In Booth Newspapers, Inc. v. University of Michigan Board of Regents, for example, the Michigan Supreme Court stated:

“Legislators hailed [the OMA] as ‘a major step forward in opening the political process to public scrutiny.’ During this period, lawmakers perceived openness in government as a means of promoting responsible decision making. Moreover, it also provided a way to educate the general public about policy decisions and issues. It fostered belief in the efficacy of the system . . . . To further the OMA's legislative purposes, the Court of Appeals has historically interpreted the statute broadly, while strictly construing its exemptions and imposing on public bodies the burden of proving that an exemption exists.”

507 N.W.2d at 427-28 (citations and footnote omitted).

Unlike Michigan's Freedom of Information Act, which complements existing laws, the OMA, Mich. Comp. Laws Ann. § 15.261, et seq., was, in part, intended to resolve conflicting provisions of law and expressly provides that it "shall supersede all local charter provisions, ordinances, or resolutions which relate to requirements for meetings of local public bodies to be open to the public." Id. § 15.261(2).

The OMA also provides that public officials who intentionally violate the OMA have committed misdemeanors for which they can be fined and potentially imprisoned. Further, unlike FOIA, which provides for recovery of reasonable attorney’s fees to a prevailing plaintiff, OMA provides for the recovery of actual attorney’s fees. Id. § 15.271(4).

Compare

2. What physical form of records are covered

It should be noted that the definition of "public record" refers to "writings." "Writing" is defined to include:

[H]andwriting, typewriting, printing, photostating, photographing, photocopying, and every other means of recording, and includes letters, words, pictures, sounds, or symbols, or combinations thereof, and papers, maps, magnetic or paper tapes, photographic films or prints, microfilm, microfiche, magnetic or punched cards, discs, drums, hard drives, solid state storage components, or other means of recording or retaining meaningful content.

Mich. Comp. Laws Ann. § 15.232(l).

Stenographer notes, tape recordings, or dictaphone records have been held to qualify as writings under this section, and therefore, such methods of recording municipal meetings are public records under FOIA. 1979-80 Op. Att'y Gen. 255, 264 (1979); see also Payne v. Grand Rapids Police Chief, 178 Mich. App. 193, 443 N.W.2d 481 (1989) (tape recording of emergency 911 call to police department was "public record" under FOIA). The requester must be permitted to inspect the original document if he or she wishes; providing copies is insufficient. Hubka v. Pennfield Twp., 443 Mich. 864, 504 N.W.2d 183 (1993). But see Lapeer Cty. Abstract & Title v. Lapeer Cty. Reg. of Deeds, 264 Mich. App. 167, 691 N.W.2d 11 (2004) (county register not required by FOIA to provide requester with microfilm copies rather than paper copies of the records at issue).

“[V]ideo recordings are ‘writings’ within the meaning of FOIA.” Amberg v. City of Detroit, 497 Mich. 28, 859 N.W.2d 674, 676 (2014).

In addition, when a requester seeks a copy of computer records, a public body cannot satisfy the request by providing hard copies of the requested information. Farrell v. City of Detroit, 209 Mich. App. 7, 530 N.W.2d 105 (1995) (newspaper entitled to computer records used to generate lists of taxpayers and their properties; public body could not satisfy request by providing printout of information contained in computer records). The court in Farrell explicitly held that the computer records "constitute public records subject to disclosure under the FOIA." Id. at 14.

However, computer software developed by and in the possession of a public body has been held not to be a record under the FOIA, since computer software is an instructional form which is an integral part of computer operation and not a writing used to record information or ideas. 1979-80 Op. Att'y Gen. 255, 264-65 (1979); see also Farrell, 209 Mich. App. at 17 (noting that the requested computer records did not require the public body's software to be "utilized or released"). In 1996, after the decision of Farrell, the Michigan legislature incorporated its interpretation into statute. See Mich. Comp. Laws Ann. § 15.232(i), as amended by 1996 P.A. 553 ("Public record does not include computer software."). But see City of Warren v. City of Detroit, 261 Mich. App. 165, 680 N.W.2d 57 (2004) (formula for calculating water rates kept by city on computer disk is not software and therefore is not exempt under FOIA).

Photographs such as mug shots are also public records. Patterson v. Allegan Cty. Sheriff, 199 Mich. App. 638, 502 N.W.2d 638 (1993). Telephone bills for calls to and from the mayor's home and office, even though prepared by a private company, are public records. Detroit News, Inc. v. City of Detroit, 204 Mich. App. 720, 516 N.W.2d 151 (1994). Likewise, tapes containing tax information developed by a municipality and used in performing the government's official function of property tax billing, are public records subject to FOIA disclosure, even though they are in the possession of a third-party contractor. MacKenzie v. Wales Twp., 247 Mich. App. 124, 635 N.W.2d 335 (2001).

Compare

3. Are certain records available for inspection but not copying?

"The custodian of a public record shall, upon written request, furnish a requesting person a certified copy of a public record." Mich. Comp. Laws Ann. § 15.233(6). No section of the FOIA limits the availability of these records any further and a public body may not impose a more restrictive schedule for access to its public records for certain persons than it does for the public generally, based solely on the purpose for which the records are sought. 2001 Op. Att'y Gen. No. 7095 (2001). Moreover, the fact that public records being sought under this section are voluminous does not excuse the public body from permitting inspection of the public record or from providing copies thereof upon payment of a reasonable fee as provided in Mich. Comp. Laws Ann. § 15.234. 1979-80 Op. Att'y Gen. 255, 267 (1979).

Compare

4. Telephone call logs

In Booth v. Dep’t of Corrections, Case Nos. 331807, 332014, 2016 WL 7042020 (Mich. Ct. App. Dec. 1, 2016), the court required production of “a log indicating what DOC employees listened to the [prisoner] telephone call[s].”

Compare

5. Electronic records (e.g., databases, metadata)

Where a computer record exists, a requester generally has the right to the record in that form. See Farrell v. City of Detroit, 209 Mich. App. 7, 530 N.W.2d 105 (1995) ("In Michigan, these computer records constitute public records subject to disclosure under the FOIA."); Payne v. Grand Rapids Police Chief, 178 Mich. App. 193, 443 N.W.2d 481 (1989) (plaintiff entitled to copy of tape recording of 911 emergency calls, even where city offered to provide transcript of tape). But see Lapeer Cty. Abstract & Title v. Lapeer Cty. Reg. of Deeds, 264 Mich. App. 167, 691 N.W.2d 11 (2004) (public bodies are not required by the FOIA to provide microfilm copies rather than paper copies of the records at issue, even when the public body keeps the records on mircrofilm); see also Mich. Comp. Laws Ann. § 15.232(j) (software — which is not a public record — excludes "computer-stored information or data, or a field name if disclosure of that field name does not violate a software license").

There are no decisions regarding whether a requester can obtain a customized search of computer databases to fit its particular needs. According to Ellison v. Dep’t of State, 320 Mich. App. 169, 906 N.W.2d 221 (2017), however, "[a] FOIA request need only be descriptive enough that a defendant can find the records containing the information that the plaintiff seeks." This may suggest that a court would not be adverse to more specific requests. 320 Mich. App. at 180.A computerized database is, however, a writing. See Mich. Comp. Laws Ann. § 15.232(l) (“‘Writing’ means . . . hard drives, solid state storage components, or other means or recording or retaining meaningful content.”). For example, an insurance database maintained by the Michigan Department of State, which contained names, addresses, vehicle ID numbers, registration and insurance audit information was a writing and therefore a public record subject to disclosure under FOIA. However, the individual seeking the information must still pay the fee associated with obtaining the file. See Ellison, 320 Mich. App. 169.

Text messages and instant messages are likely records subject to FOIA. Although there is no published case law on the subject, the Wayne County Circuit Court issued an order in a FOIA case requiring a third-party service provider to produce the text messages that eventually caused the resignation and conviction of Detroit Mayor Kwame Kilpatrick. Detroit Free Press, Inc. v. City of Detroit, No. 08-100214-CZ (Wayne Cty. Cir. Ct. June 26, 2008). But cf. Howell Educ. Ass'n MEA/NEA v. Howell Bd. of Educ., 287 Mich. App. 228, 245, 789 N.W.2d 495, 505 (2010) (noting that, in denying leave to appeal in Detroit Free Press, Inc. v. City of Detroit, “the Supreme Court did not rule that the text messages themselves were public records”) (citing Detroit Free Press, Inc. v. City of Detroit, 480 Mich. 1079, 744 N.W.2d 667 (2008).

Compare

Whether social media postings and messages are subject to disclosure under the FOIA is still a nascent area of law. In a recent case, direct messages sent to or received by a mayor over Facebook were treated much like e-mails or written notes and were held not to be subject to disclosure as public records if they “were not owned, used, in the possession of, or retained by the [mayor’s] office in the performance of an official function.” Blackwell v. City of Livonia, No. 357469, 2021 WL 5977221, at *6 (2021) (publication in Mich. App. and N.W.2d reporters pending). In deciding that the messages were not related to an official function for the purposes of FOIA disclosure, the court took into consideration that the Facebook profile that sent and received the messages at issue was utilized as a campaign page and was not an official page for the office of mayor. Id. at *5.

Compare

9. Computer software

Computer software is exempt from the definition of public record under Mich. Comp. Laws 15.232(i). The statute and case law do not specifically address metadata.

Labor costs incurred in duplication, mailing, separation of material, etc., are to be calculated at no more than "the hourly wage of its lowest-paid employee capable of searching for, locating, and examining the public records in the particular instance. . . ." Mich. Comp. Laws Ann. § 15.234(1)(a). After the 2015 amendment, labor costs are calculated hourly and should be billed and estimated in 15 minute increments with partial time being rounded down. Id. § 15.234(1)(b). If the public body contracts out labor work, the maximum hourly rate cannot exceed 6 times the minimum wage. Id. Additionally, a fee shall not be charged for the cost of “search, examination, review and deletion and separation of exempt and nonexempt information . . . unless a failure to charge a fee would result in unreasonably high costs to the public body . . . and the public body specifically identifies the nature of these unreasonably high costs.” Id. § 15.234(3) (emphasis added).

Further, public bodies are charged to "utilize the most economical means available for providing copies." Id. § 15.234(1)(d); see also Tallman v. Cheboygan Area Schs., 183 Mich. App. 123, 454 N.W.2d 171, 174-75 (1990) (school district not permitted to employ its own method of computing copying charges to save money, even if reasonable, because a public body may not on its own deviate from computation method set forth in FOIA).

If there is an act or statute specifically authorizing the sale of public records, including the amount of the fee for providing a copy of the public record, the FOIA fee provisions do not apply. Title Off. Inc. v. Van Buren Cty. Treasurer, 469 Mich. 516, 676 N.W.2d 207 (2004) (holding that the fees for copies of property tax records requested from a county treasurer are to be computed according to the fee schedule provided in the Transcripts and Abstracts of Records Act). Additionally,

A public body shall utilize the most economical means available for providing copies of public records. A fee shall not be charged for the cost of search, examination, review, and the deletion and separation of exempt from nonexempt information as provided in section 14 unless failure to charge a fee would result in unreasonably high costs to the public body because of the nature of the request in the particular instance, and the public body specifically identifies the nature of these unreasonably high costs.

See Tallman, 183 Mich. App. at 128.

Compare

3. Provisions for fee waivers

The FOIA provides for fee waivers for both searches and copies in at least two circumstances:

a. Where the public body "determines that a waiver or reduction of the fee is in the public interest because searching for or furnishing copies of the public record can be considered as primarily benefiting the general public." Mich. Comp. Laws Ann. § 15.234(2); see also Kearney v. Dep’t of Mental Health, 168 Mich. App. 406, 425 N.W2d 161, 162 (1988) (mental health patient not entitled to receive copy of his 800-page treatment record without charge because such disclosure not a matter of public interest); and

b. Where an individual submits an affidavit stating that he or she is receiving public assistance or otherwise shows inability to pay the cost because of indigency. In such cases, the statute provides that a copy of the public record shall be furnished without charge for the first $20.00 of the fee for each request. Mich. Comp. Laws Ann. § 15.234(l). But see Kearney, 425 N.W.2d at 162-63 (because patient failed to attach indigency affidavit to his request, charging $80 copying fee was not improper; at best, patient was entitled to a $20 waiver). However, the individual is ineligible for a fee reduction if the individual has received discounted copies of public records twice during the calendar year or if the individual is making the request on behalf of another individual who is not indigent. Mich. Comp. Laws Ann. § 15.234(2).

The FOIA provides that the fee structure set forth in Mich. Comp. Laws Ann. § 15.234 does not apply "to public records prepared under an act or statute specifically authorizing the sale of those public records to the public, or if the amount of the fee for providing a copy of the public record is otherwise specifically provided by an act or statute." Id. § 15.234(4). In Grebner v. Clinton Charter Twp., 216 Mich. App. 736, 550 N.W.2d 265 (1996), the Michigan Court of Appeals ruled that the Michigan Election Law, Mich. Comp. Laws Ann. § 16.522(1), did not specifically authorize the sale of voter registration rolls, and therefore held that the usual FOIA fee structure applied to requests for voter registration rolls.

Compare

4. Requirements or prohibitions regarding advance payment

A public body may request a "good faith deposit" from the person requesting a record if the fee will exceed $50.00, so long as the deposit does not exceed half of the total fee. Mich. Comp. Laws Ann. § 15.234(8). If the public body does not receive a required deposit within 45 days from receipt by the requesting person of notice that a deposit is required, and if the requesting person has not filed an appeal of the deposit amount, then the request is considered abandoned and the public body is no longer required to fulfill the request. Id. § 15.234(14). In addition, a public body may require that its fees be paid in full prior to actual deliveries of copies. Id. However, a public body may not refuse to process a subsequent FOIA request on the ground that the requester failed to pay fees charged for a prior FOIA request. Id. But, the public body can require 100 percent of the estimated fee paid up front if a previous fee was not paid by the requestor and if all of the following apply:

The final fee of the prior written request was not more than 105% of the estimated fee;
the prior requested copy of the records still exist;
the prior request was done within the time frame required by the FOIA;
ninety or more days passed since the requestor was told the previously requested records are ready to pick up;
the requestor cannot show proof of payment; and
the public body has done a detailed itemization of an estimate

Mich. Comp. Laws Ann. (“MCLA”) § 15.234(11).

However, a full deposit cannot be required if the requestor shows proof of prior payment made in full, the public body was paid, or 365 days have passed since the individual made the written request. Id. § 15.234(12).

In addition, the public body may require payment in full where another statute covering release of the same records requires payment in full before the request may be processed. See Buckmaster v. Dep't of State, 327 Mich. App. 469, 934 N.W.2d 59 (2019) (holding Michigan Department of State could require advance payment of the fee for production of motor vehicle records under FOIA where the Michigan Vehicle Code required that a fee be paid prior to any release of records).

If a public body responded to a FOIA request by stating that the “request is granted as to existing, non-exempt records in the possession of the [public body] that fall within the scope of the request,” and requests a deposit based on the estimated labor costs for separating exempt from nonexempt material, then the response is considered a “denial in part” for the purpose of a FOIA appeal. See Arabo v. Mich. Gaming Control Bd., 310 Mich. App. 370, 384–85, 872 N.W.2d 223, 232 (2015). However, “a final determination is not required until plaintiff has paid the deposit required by the Board.” Id. at 388 (“The deposit required ‘at the time the request is made’ must therefore be made before the public body becomes obligated to process the request to enable it to formally respond with a final determination.”). Accordingly, the court will dismiss a FOIA appeal where the plaintiff has failed to pay the good faith deposit. Id. at 388-89.

Compare

5. Have agencies imposed prohibitive fees to discourage requesters?

Some public bodies have attempted to impose prohibitive fees to discourage requesters. These attempts can take the form of a high copying fee or a high labor rate, among other means. Although Michigan courts have not definitely resolved what rate for copying is acceptable, requesters are advised to take the position that any charge in excess of 10-15 cents per page is unreasonable, as this is comparable to the charges that would be incurred through a commercial copying source where a labor charge is also being paid.

In one case, where the requester sought a computer tape of driving license records, the public body asserted that the requester would have to pay a transaction fee for each record under an allegedly applicable state statute. The fee would have totaled almost $50 million. A state circuit court held that the statute was not applicable, and that the requester would have to pay only for the required computer tape and programming needed to provide non-exempt information — a fee totaling a few thousand dollars. Gilmore v. Sec'y of State, Oakland County Circuit Court Case No. 92-432519 CZ, affirmed in an unpublished decision May 16, 1997, Michigan Court of Appeals, No. 188313.

However, it should be noted that the 1996 amendment to Mich. Comp. Laws Ann. § 15.234(3), which permits a public body to charge no more than the hourly wage of the "lowest paid public body employee capable of retrieving the information necessary to comply with a request" may give public bodies the authority to charge a higher search fee than would have been permitted under the previous version of Mich. Comp. Laws Ann. § 15.234(3). Courts have interpreted this provision to allow a city attorney to conduct the FOIA review. Coblentz v. City of Novi, 264 Mich. App. 450, 691 N.W.2d 22 (2004) (city attorney was lowest paid employee capable of retrieving the information when it was necessary to determine whether requested material is exempt under the law). Additionally, "public employee" has been extended to include independent contractors hired by a public body. Id.

To combat excessive fees which discourage requesters, FOIA explicitly provides that "[a] fee shall not be charged for the cost of search, examination, review, and the deletion and separation of exempt from nonexempt information . . . unless failure to charge a fee would result in unreasonably high costs to the public body because of the nature of the request in the particular instance, and the public body specifically identifies the nature of these unreasonably high costs." Mich. Comp. Laws Ann. § 15.234(3). Notwithstanding that provision, many public bodies have been routinely assessing search fees for every request, ignoring the "unreasonably high costs" language. The Michigan Attorney General has opined that such routine labor charges are illegal. The opinion is binding on state government departments. 2001 Op. Att'y Gen. No. 7083 (2001).

If a public body requires a fee that exceeds the amount permitted under its publicly available procedures under § 15.234, the requesting party has options to challenge the fee. If the public body provides for fee appeals to the head of the body in its procedures and guidelines, the requesting party may submit to the head a written appeal for a fee reduction that specifically states “appeal” and identifies how the fee exceeds the guidelines. Mich. Comp. Laws Ann. § 15.240a(a). Or the requesting party may commence an action in the court of claims for a decision of a state public body within 45 days of receiving the notice of required fee. Mich. Comp. Laws Ann. § 15.240a(b). The public body is not obligated to complete the processing of the written request until after the court resolves the fee issue. Id. An action may not be filed under § 15.240a unless one of the following applies: (i) the public body does not provide for appeals, (ii) the head of the public body failed to respond to a written appeal, or (iii) the head of the public body issued a determination to a written appeal. Within 10 days of receiving a written appeal, the head of the body shall either waive the fee, reduce the fee, uphold the fee, or issue a notice extending the period of decision for no more than 10 days. Mich. Comp. Laws Ann. § 15.240. If a court determines that a fee is excessive it shall reduce the fee to a permissible amount. Moreover, if the requesting party receives a reduction of 50% or more of the fee, the court may award reasonable attorney fees and costs.

Compare

Within five business days of receiving a FOIA request, MCL 15.235(2) requires the public body to do one of the following: (a) grant the request; (b) issue a written notice denying the request; (c) grant the request in part and issue a written notice denying the request in part; or (d) issue a notice extending the time to respond to the request for not more than ten business days. Id. The public body may not issue more than one notice of extension for a particular request. MCL 15.235(2)(d). If the public body issues a notice extending the period of time to respond, it must specify the reasons for the extension and the date by which the public body will respond. MCL 15.235(7). In addition, the public body and the requestor may agree in writing to a different response time. MCL 15.235(2).

Compare

1. Character of exemptions

The exemptions are specific. Items exempt from disclosure are listed in Mich. Comp. Laws Ann. § 15.243. Beyond the listed exemptions, the FOIA provides that a public body may "make reasonable rules necessary to protect its public records and to prevent excessive and unreasonable interference with the discharge of [its] functions." Id. § 15.233(3). Further, the 1996 amendments to the FOIA specifically direct public bodies to "protect public records from loss, unauthorized alteration, mutilation or destruction." Id. For example, where an individual sought to examine extremely large quantities of documents, a rule limiting her free use of the university's viewing and copying equipment, personnel, and office space to a period of two weeks, thereafter requiring her to cover her own expenses, was upheld as a reasonable means of limiting undue interference with the day-to-day operations of the university. Cashel v. Regents of the Univ. of Mich., 141 Mich. App. 541, 367 N.W.2d 841 (1985). This general rule-making authority does not, however, allow public bodies to create new exemptions under the Act. Cashel v. Smith, 117 Mich. App. 405, 324 N.W.2d 336, 338 (1982) (rule allegedly promulgated by the University of Michigan which stated that "[t]he idly or maliciously curious need not be accommodated" under the FOIA was invalid because it purported to create an exemption under the FOIA which the legislature had not chosen to include).

The exemptions in Mich. Comp. Laws Ann. § 15.243(1) are discretionary. They do not render confidential the types of information listed, but only authorize a public body to decline disclosure of exempt material if it so chooses. 1979-80 Op. Att'y Gen. 468, 469 (1979). The Michigan Supreme Court has held that the FOIA authorizes, but does not require, nondisclosure of public records which fall within the enumerated exemptions. Tobin v. Mich. Civil Serv. Comm’n, 98 Mich. App. 604, 296 N.W.2d 320 (1980), aff'd, 416 Mich. 661, 331 N.W.2d 184 (1982). In cases where public bodies do, in their discretion, choose to claim exemptions from disclosure, the Michigan Supreme Court has established the following guidelines for use in analyzing such claims:

(1) The burden of proof is on the public body claiming exemption from disclosure;

(2) Exemptions must be interpreted narrowly;

(3) The public body must separate the exempt and nonexempt material and make the nonexempt material available for inspection and copying;

(4) Detailed affidavits describing the matter withheld must be supplied by the public body;

(5) Justification for a claimed exemption must be more than conclusory, i.e., more than a simple repetition of statutory language. A bill of particulars is in order. Justification must indicate factually how a particular document, or category of documents, interferes with law enforcement proceedings; and

(6) The mere showing of a direct relationship between records sought and an investigation is inadequate.

Evening News Ass'n v. City of Troy, 417 Mich. 481, 339 N.W.2d 421, 431-32 (1983). The same guidelines apply to all exemptions. Id.

The Evening News court also established a three-step procedure to be used to determine whether a sufficient justification for exemption exists:

(1) The court should receive a complete particularized justification as set forth in the six above rules; or

(2) The court should conduct a hearing in camera based on de novo review to determine whether a complete particularized justification pursuant to the six rules exists; or

(3) The court can consider allowing plaintiff's counsel to have access to the contested documents in camera under special agreement whenever possible. Id. at 432; see also Post-Newsweek Stations, Mich. Inc. v. City of Detroit, 179 Mich. App. 331, 445 N.W.2d 529, 532 (1989) (remanding case to trial court because its order permitting city to redact material rather than making full disclosure of requested police report "clearly falls far short of the standards given in Evening News . . . . The order is wholly conclusory."); Payne v. Grand Rapids Police Chief, 443 N.W.2d 481 (1989) (trial court should have appointed master at plaintiff's expense to review requested tape recordings to protect them and to prevent interference with police department's functions); Nicita v. City of Detroit, 194 Mich. App. 657, 487 N.W.2d 814 (1992) (Evening News does not require court to proceed to in camera review and the dispute should usually be resolved under step one). But see Detroit News v. Policemen & Firemen Ret. Sys., 252 Mich. App. 59, 651 N.W.2d 127 (2002) (court remanded to the trial court so that it could determine in camera whether the exemption applied).

When ruling that an exemption under the FOIA prevents disclosure of particular documents, a trial court must make particularized findings of fact indicating why the claimed exemption is appropriate. Messenger v. Mich. Dep't of Consumer & Indus. Servs., 238 Mich. App. 524, 606 N.W. 2d 35 (1999). If a trial court cannot determine whether the claimed exemption is appropriate without reviewing the documents, then it must conduct an in camera review. Rotta v. City of Manistee, No. 342776, 2019 WL 1780673, at *6 (Mich. Ct. App. Apr. 23, 2019).

Michigan’s exemptions are generally more narrow than the exemptions found in the federal FOIA. But for the Michigan exemptions that are similar to the exemptions found in the federal FOIA, Michigan courts have analogized to federal cases interpreting the federal act in interpreting the Michigan statute. Evening News Ass'n, 339 N.W.2d at 428; see also Kestenbaum v. Mich. State Univ., 97 Mich. App. 5, 294 N.W.2d 228, 235 (1980), aff'd, 414 Mich. 510, 327 N.W.2d 783 (1982). However, in some circumstances, courts have noted that the exemptions in the Michigan FOIA differ from those in the federal FOIA. See, e.g., Mich. Fed’n of Teachers & Sch. Related Personnel v. Univ. of Mich., 481 Mich. 657, 753 N.W.2d 28 (2008) (noting that a federal exemption covers personnel and medical files, whereas the corresponding Michigan exemption covers information of a personal nature).

Compare

2. Discussion of each exemption

The FOIA exempts "[i]nformation of a personal nature if public disclosure of the information would constitute a clearly unwarranted invasion of an individual's privacy." Mich. Comp. Laws Ann. § 15.243(1)(a). Michigan courts have tended to interpret the privacy exemption as requiring a weighing process between the harm to the individual and the public policy served by disclosure. For example, the Michigan Court of Appeals has held that although one seeking information under the Act is not generally required to divulge the reasons for the request where an invasion of privacy may occur, the person seeking disclosure must show that the benefit to the public interest in releasing the information outweighs the possibility of harm to the people involved. Kestenbaum v. Mich. State Univ., 294 N.W.2d 228, 235, aff'd, 327 N.W.2d 783 (1982); see also Tobin v. Mich. Civ. Serv. Comm’n, 296 N.W.2d 320 (1980), aff'd, 331 N.W.2d 184 (1982) (agency should weigh interests of those whose privacy is affected against public purpose to be served by releasing the information).

The Michigan Supreme Court remained divided on the issue for a number of years. In International Union, United Plant Guard Workers of America (UPGWA) v. Dep’t of State Police, 422 Mich. 432, 373 N.W.2d 713 (1985), the court declined to determine whether the FOIA requires courts to balance the benefits of disclosure against the intrusion of privacy, or to simply measure the nature and extent of the asserted privacy invasion, because the information requested in that case did not constitute a clearly unwarranted invasion of privacy under either approach. 373 N.W.2d at 715.

However, an evenly divided court considered the question in State Employees Ass’n v. Dep’t of Mgmt. & Budget, 428 Mich. 104, 404 N.W.2d 606 (1987). In an opinion by Justice Cavanagh with two justices concurring, the court held that the legislature did not intend a balancing of interests to occur in judicial evaluations of the privacy exemption. They reasoned that the legislature specifically indicated five exemptions where it intended a balancing of interests to occur (Mich. Comp. Laws Ann. §§ 15.243(c), (l), (n), (o), and (t)) and the privacy exemption is not among those exemptions. Id. at 118. The court held that, in determining whether to withhold information under the privacy exemption, the agency should not consider the requester's identity or evaluate the purpose for which the information would be used. Id. at 119-20 . The sole issue in the case was whether disclosure of the home addresses of various public employees would constitute a clearly unwarranted invasion of privacy. That inquiry was guided by common law and constitutional principles:

“The legislature made no attempt to define the right of privacy. We are left to apply the principles of privacy developed under the common law and our constitution. The contours and limits are thus to be determined by the court, as the trier of fact, on a case-by-case basis in the tradition of the common law. Such an approach permits, and indeed requires, scrutiny of the particular facts of each case, to identify those in which ordinarily impersonal information takes on ‘an intensely personal character’ justifying nondisclosure under the privacy exemption.”

Id. at 123 (footnotes omitted).

The court concluded that disclosure in that case would not constitute a clearly unwarranted invasion of privacy. Id. at 124-25.

The judicial balancing test advocated by three other justices in State Employees is the one proposed by Justice Ryan in Kestenbaum, and has two parts. First, it must be determined whether the requested information is "of a personal nature" which thereby gives rise to a cognizable privacy interest. If the information is of a personal nature, then the public's interest in disclosure is balanced against the privacy interest to determine whether disclosure would amount to a "clearly unwarranted invasion of an individual's privacy" within the meaning of the privacy exemption. When applying this test, the court must balance the public interest against the privacy interest with a tilt in favor of disclosure. The court is obligated to remember that the alleged invasion of privacy must be clearly unwarranted. Id. at 107.

Analyses of the privacy exemption have evolved into a two part inquiry: (1) whether the information is of a "personal nature" and (2) whether the disclosure of such information would be a "clearly unwarranted invasion of privacy." Bradley v. Saranac Cmty. Sch., 455 Mich. 285, 565 N.W.2d 650 (1997). If the information is not of a "personal nature," the inquiry ends. Id. In cases interpreting the privacy exemption, the Michigan Supreme Court has fleshed out what courts should look at in determining whether information is of a "personal nature." In Swickard v. Wayne County Medical Examiner, 438 Mich. 536, 475 N.W.2d 304 (1991), the Michigan Supreme Court held that in determining whether information withheld is of a "personal nature," "the customs, mores, or ordinary views of the community" must be taken into account. Id. at 547. Applying this standard, courts have held that autopsy reports and toxicology test results of a deceased judge, travel expense reports of a public body, business documents submitted to a public body in connection with a redevelopment proposal, and the names of elected officials and public employees for whom the city was paying attorney’s fees related to a grand jury investigation were not records of a "personal nature." See Swickard; Booth Newspapers, Inc. v. Univ. of Mich. Bd. of Regents, 444 Mich. 211, 507 N.W. 2d 422 (1993); Nicita v. City of Detroit, 216 Mich. App. 746, 550 N.W.2d 269 (1996); Detroit Free Press v. City of Warren, 250 Mich. App. 164 (2002).

In Bradley, the Michigan Supreme Court succinctly stated the test: "[W]e conclude that information is of a personal nature if it reveals intimate or embarrassing details of an individual's private life. We evaluate this standard in terms of the customs, mores, or ordinary views of the community." 455 Mich. at 294 (internal quotations omitted). A mere "deleterious effect" on the individual who is the focus of the requested record is not equivalent to the disclosure of "intimate or embarrassing details." Detroit Free Press, 250 Mich. App. at 170. Further, the fact that the disclosure of information "could conceivably lead to the revelation of personal information is not sufficient to satisfy the "personal nature" exemption. Booth Newspapers, 444 Mich. at 233; Nicita, 550 N.W.2d at 273.

Analogizing to the federal FOIA, the Michigan Supreme Court in Booth Newspapers, Inc. v. University of Michigan Board of Regents held that Mich. Comp. Laws Ann. § 15.243(1)(a) is "directed at threats to privacy interests more palpable than mere possibilities." 444 Mich. at 233 (quoting Dep’t of Air Force v. Rose, 425 U.S. 352, 380 n. 19 (1976)). More recently, the Michigan Supreme Court held that “private or confidential information, including embarrassing or intimate details, is information of a personal nature. Mich. Fed’n of Teachers v. Univ. of Mich., 481 Mich. 657, 753 N.W.2d 28 (2008).

As to the second prong, whether disclosure would be a "clearly unwarranted invasion of privacy," the Michigan Supreme Court stated in Bradley that "[p]rinciples of common-law privacy do come into play when the court is determining whether information of a personal nature constitutes a clearly unwarranted invasion of an individual's privacy." 455 Mich. at 302. Further, in Mager v. Dep’t of State Police, 460 Mich. 134, 595 N.W.2d 142 (1999), the court looked to federal decisions concerning the federal FOIA and found that "a court must balance the public interest in disclosure against the interest [the Legislature] intended the exemption to protect.'" 460 Mich. at 140-45 (quoting U.S. Dep’t of Def. v. Fed. Labor Relations Auth., 510 U.S. 487, 495 (1994)). The court further held that the relevant "public interest" to be weighed in this balance "is the extent to which disclosure would serve the core purpose of the FOIA, which is contributing significantly to public understanding of the operations or activities of the government." 460 Mich. at 145 (quoting Dep’t of Def., 510 U.S. at 495). The court held that fulfilling a request for personal information concerning private citizens, where the request was "entirely unrelated to any inquiry regarding the inner workings of government," would constitute a clearly unwarranted invasion of privacy. 460 Mich. at 146. The Michigan Court of Appeals held in Rataj v. City of Romulus that disclosure of a video recording of an officer assaulting a citizen was not an unwarranted invasion of privacy even though the assault victim requested that the video not be disclosed. 306 Mich. App. 735, 749 (2015). The court determined that the names of the citizen and the officer were subject to disclosure because they are not information of personal nature, but the home addresses, dates of birth, and telephone numbers of the individuals were exempt. Id. at 753-54.

Previously, Michigan decisions had rejected the "core purpose" requirement in applying the privacy exception. But the Michigan Federation court affirmatively held that the Mager core purpose test should be applied under the second prong (and Bradley should be applied under the first prong). 481 Mich. at 675. Moreover, in Practical Political Consulting v. Secretary of State, the Michigan Supreme Court held that the test articulated in Michigan Federation must be applied consistently with the overarching principles found in common and constitutional law.287 Mich. 434, 789 N.W.2d 178 (2010).

Information held to be exempt under the privacy exemption includes salaries paid to university employees, Penokie v. Mich. Tech. Univ., 93 Mich. App. 650, 287 N.W.2d 304 (1979); retirement and pension information of retired employees, 1979-80 Op. Att'y Gen. 255, 273 (1979); disciplinary memos in an employee's personnel file, 1979-80 Op. Att'y. Gen. at 272-73; a crime victim's past sexual history, address, and telephone number, Pennington v. Washtenaw Cty. Sheriff, 125 Mich. App. 556, 336 N.W.2d 828 (1983); identity of a teacher charged with allegations of sexual misconduct, but not documents related to the charges, with the teacher's name redacted, Booth Newspapers, Inc. v. Kalamazoo Sch. Dist., 181 Mich. App. 752, 450 N.W.2d 286, 289 (1989); addresses of donors to university, Clerical-Tech. Union of Mich. State Univ., 190 Mich. App. 300, 475 N.W.2d 373, 375 (1991); names and addresses of persons who owned registered handguns, Mager; addresses of persons who had unclaimed property, Kocher v. Dep’t of Treasury, 241 Mich. App. 378, 615 N.W. 2d 767 (2000); municipal information regarding the death of private citizens by traffic accident, Larry S. Baker, P.C. v. City of Westland, 245 Mich. App. 90, 627 N.W.2d 27 (2001); and names and addresses of people who receive lottery winnings over $10,000 by assignment, Stone Street Capital, Inc. v. Mich. Bureau of State Lottery, 263 Mich. App. 683, 689 N.W.2d 541 (2004).

Information held not to qualify under this exemption, and therefore required to be disclosed under the FOIA, includes home addresses of various public employees, State Emps. Ass'n, 404 N.W.2d at 607 and Tobin, 331 N.W.2d at 327; the arrest records of someone eventually convicted of the crime in question, 1979-80 Op. Att'y. Gen. at 203; mug shots of persons charged with bank robbery, Detroit Free Press v. Oakland Cty. Sheriff, 164 Mich. App. 656, 418 N.W.2d 124 (1987); the names and addresses of persons who leased suites at Pontiac Stadium, Oakland Press v. Pontiac Stadium Building Auth., 173 Mich. App. 41, 433 N.W.2d 317, 319 (1988); business records submitted to a public body in connection with a redevelopment proposal, Nicita, 487 N.W.2d at 819; records regarding taxes paid by hotels and motels in Kent County, Booth Newspapers, Inc. v. Kent Cty. Treasurer, 175 Mich. App. 523, 438 N.W.2d 317, 320 (1989); school file of minor student requested by his mother, Lepp v. Cheboygan Area Sch., 190 Mich. App. 726, 476 N.W.2d 506, 509-10 (1991); autopsy reports and toxicology test results regarding a deceased district court judge, Swickard, 475 N.W.2d at 313; travel expense records of public bodies, Booth Newspapers, Inc. v. Univ. of Mich. Regents; names, current employment, age and residence of candidates for fire chief, Herald Co. v. Bay City, 463 Mich. 111, 614 N.W. 2d 873 (2000); consumer complaints filed with a state agency against property insurers, Detroit Free Press v. Dep't of Consumer & Industry, 246 Mich. App. 311, 631 N.W.2d 769 (2001) (names and addresses of private individuals required to be redacted); information concerning a police deputy's psychological counseling and treatment, Herald Co. v. Kent Cty. Sheriff's Dep't, 261 Mich. App. 32, 680 N.W.2d 529 (2004); personnel records of public employees, other than law enforcement agencies, including disciplinary records, are public records subject to FOIA, Bradley; Herald Co. v. Ann Arbor Pub. Sch., 224 Mich. App. 266, 568 N.W.2d 411 (1997); and names of donors to village police funds, Bitterman v. Vill. of Oakley, 309 Mich. App. 53, 868 N.W.2d 642 (2015).

Pension benefits of retired police officers and firemen were not of personal nature despite the fact that they were drawn from private assets; these amounts reflected the government’s decision-making and hence were more comparable to public salaries. Detroit Free Press v. City of Southfield, 269 Mich. App. 275, 713 N.W. 2d 28 (2005).

Mich. Comp. Laws Ann. § 15.243(l)(b) exempts "[i]nvestigating records compiled for law enforcement purposes" where disclosure 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; or

(vi) Endanger the life or physical safety of law enforcement personnel.

To establish that this exemption applies, “the public body must show that (1) an investigation was open and ongoing, and (2) release of the requested documents ‘would’ interfere with law enforcement proceedings.” Cox v. Grosse Ile Twp., No. 341518, 2018 WL 6252546, at *2 (Mich. Ct. App. Nov. 29, 2018) (citing King v. Oakland Cty. Prosecutor, 303 Mich. App. 222, 231, 842 N.W.2d 403 (2013)).

The Michigan Court of Appeals has held that these exemptions for investigative records are to be construed narrowly and "must be supported by substantial justification and explanation, not merely by conclusory assertions." Pennington v. Washtenaw Cty. Sheriff, 125 Mich. App. 556, 336 N.W.2d 828 (1983) (quoting Penokie v. Mich. Tech. Univ., 93 Mich. App. 650, 658-59, 287 N.W.2d 304, 308 (1979)). The Michigan Court of Appeals reaffirmed this principle: the “justification of [an] exemption must be more than conclusory, i.e., simple repetition of statutory language.” State News v. Mich. State Univ., 274 Mich. App. 558, 570, 735 N.W.2d 649, 658 (2007), rev’d in part on other grounds. Specifically, “a bill of particulars is in order.” Id. The Michigan Supreme Court has likewise interpreted the law enforcement exemptions strictly. Evening News Ass'n v. City of Troy, 417 Mich. 481, 486, 339 N.W.2d 421, 423 (1983) (error to use "generic determination" standard that release of police reports along with the information contained in them would "interfere with law enforcement proceedings" and would have a "chilling effect on the investigation,” without a showing by defendants of particular risk); Payne, 443 N.W.2d at 481 (error to deny request to review tape recording of 911 emergency calls made to police department on grounds that, unless names, addresses and telephone numbers of the callers were deleted, disclosure could interfere with law enforcement procedures or disclose the identity of confidential sources because trial court failed to find with sufficient particularity that defendant had justified its claimed exemption); Herald Co. v. City of Kalamazoo, 229 Mich. App. 376, 581 N.W.2d 295 (1998) (an open investigation cannot be construed to continue until the expiration of the applicable period of limitation for criminal prosecution without actual, ongoing law enforcement investigation); Herald Co. v. Kent Cty. Sheriff's Dep't, 261 Mich. App. 32, 680 N.W.2d 529 (2004) (internal affairs investigation records not exempt because not compiled for law enforcement purposes and disclosure would not interfere with an ongoing investigation). However, this exemption is not limited in application to police investigations of criminal matters, and can apply to investigations of sexual harassment. Yarbrough v. Dep't of Corr., 199 Mich. App. 180, 501 N.W.2d 207 (1993).

Public bodies are not required to disclose records where disclosure "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 . . . outweighs the public interest in nondisclosure." Mich. Comp. Laws Ann. § 15.243(1)(c). The Michigan Court of Appeals has held that, because of the public policy of disclosure of complete information concerning the affairs of government, this exemption must be given a narrow construction, balancing the public interests in institutional security and freedom of information on a case-by-case basis. Ballard v. Dep’t of Corr., 122 Mich. App. 123, 332 N.W.2d 435 (1982). But see Walen v. Dep’t of Corr., 443 Mich. 240, 505 N.W.2d 519 (1993) (holding that FOIA applied to disciplinary hearings and that final orders and decisions of such hearings should be made available to the public); see also Mithrandir v. Dep’t of Corr., 164 Mich. App. 143, 416 N.W.2d 352 (1987) (maximum security prisoner who had made previous escape attempt must either accept copies of requested files or appoint a representative to inspect the original files because files were located outside the maximum security area); Lee v. Assistant Records Supervisor of Marquette Branch Prison, No. 105932 (Mich. Ct. App. July 12, 1989) (per curiam) (upholding denial of prisoner's request for information about other inmates because defendant's affidavit adequately explained why release of the information would jeopardize prison security). The 1996 amendments to FOIA narrowed the definition of "persons" who may request records under the act by excluding "an individual serving a sentence of imprisonment." Mich. Comp. Laws Ann. § 15.232(g).

Moreover,

“ . . . from a policy standpoint, a blanket exemption should apply for requests by inmates for information about other inmates under the prison security exemption . . . That approach is consistent with the high public interest in maintaining security of penal institutions and the relatively low interest in disclosure when the requested documents do not pertain to the inmate making the request, but rather to other inmates.”

Mackey v. Dep’t of Corr., 205 Mich. App. 330, 333, 517 N.W.2d 303, 305 (1994).

Public bodies need not disclose "[r]ecords or information specifically described and exempted from disclosure by statute." Mich. Comp. Laws Ann. § 15.243(1)(d). For example, Mich. Comp. Laws § 38.104 allows the Teacher Tenure Commission to hold private hearings at the request of the affected teacher only at the administrative level. However, beyond that, there is no basis for statutory exemption. Hagen v. Dep’t of Educ., 431 Mich. 118, 427 N.W.2d 879 (1988). Similarly, since Mich. Comp. Laws Ann. § 207.511(a) exempts affidavits stating the value of real estate from disclosure to any person except for county fund auditing purposes, such affidavits need not be disclosed under the FOIA. 1981-82 Op. Att'y. Gen. 518 (1982). This exemption was found not to apply in Oakland County Prosecutor v. Dep’t of Corrections, 222 Mich. App. 654, 564 N.W.2d 922 (1997) where a prosecutor's request for a parolee's psychological records was granted under a statute that states disclosure is allowed when “necessary to comply with another provision of law.” Id. at 660. Voter registration records were exempt from Mich. Comp. Laws § 168.495(a)(2), but the “separate records” in this case did not meet the definition and were not exempt from disclosure, Prac. Pol. Consulting, 287 Mich. App. at 450; Messenger v. Consumer & Indus. Servs., 238 Mich. App. 524, 606 N.W.2d 38 (1999) (passive collection of data does not qualify as "investigation" under the public health code). But see Anzaldua v. Neogen Corp., 292 Mich. App. 626, 808 N.W.2d 804 (2011) (“investigation” under the Whistleblower's Protection Act is defined differently from “investigation” under the Public Health Code); 2010 Op. Att’y Gen. 7247 (2010) (voting ballots were not exempt from FOIA because there is no statute that explicitly exempts them).
Where a public record fitting the description of exempt information under Mich. Comp. Laws Ann. § 15.243 is furnished by the public body which originally compiled, prepared, or received the information to another public officer or body in connection with the duties of that officer or body, such information remains exempt from disclosure, so long as "the considerations originally giving rise to the exempt nature of the public record remain applicable." Mich. Comp. Laws Ann. § 15.243(1)(e) (formerly Mich. Comp. Laws Ann. § 15.243(1)(f)).
"Trade secrets or commercial or financial information voluntarily provided to an agency for use in developing governmental policy" are exempt from disclosure when:

“(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.”

Mich. Comp. Laws Ann. § 15.243(1)(f) (formerly Mich. Comp. Laws Ann. § 15.243(1)(g)). The Michigan Supreme Court interpreted section 15.243(1)(f)(iii) in Coblentz v. City of Novi: “Whether the time it takes to record a description of the material is reasonable is measured from the date the material is submitted. It is not measured from the date the parties designate it as confidential. Reasonableness is a discretionary determination.” 475 Mich. 588, 719 N.W.2d 73 (2006).

The trade secrets exemption does not apply to information submitted as required by law or as a condition of receiving a governmental contract, license or other benefit. Blue Cross & Blue Shield v. Ins. Bureau Hearing Officer, 104 Mich. App. 113, 304 N.W.2d 499 (1981). Information submitted to the insurance bureau in support of a request for a rate hike is not subject to exemption from public disclosure under FOIA as a trade secret where competitors of the party seeking nondisclosure can acquire the information sought to be exempted “without substantial difficulty by direct contract” with the individual subscriber groups covered by policies issued by the party seeking nondisclosure. Id. at 131.

"Information or records subject to the attorney-client privilege." Mich. Comp. Laws Ann. § 15.243(1)(g) (formerly Mich. Comp. Laws Ann. § 15.243(1)(h)). Thus, for example, when the Attorney General or State Public Administrator acting in his or her capacity as Assistant Attorney General is representing the state, his or her files and work-product are subject to the attorney-client privilege and may be exempt from disclosure. This exemption continues regardless of whether the files and work-product are retained by the Attorney General or delivered to the agency for preservation and safe keeping. 1979-80 Op. Att'y Gen. 255, 291-92 (1979); see also McCartney v. Att’y Gen., 231 Mich. App. 722, 587 N.W.2d 824 (1998) (letters received from third parties forwarded by Governor's office to Attorney General were exempt from disclosure); Estate of Nash by Nash v. City of Grand Haven, 321 Mich. App. 587, 909 N.W.2d 862 (2017) (documents created under the common legal interest doctrine are exempt under the attorney-client privilege exemption when the parties undertake a joint effort with respect to a common legal interest). But see Herald Co. v. Ann Arbor Pub. Sch., 224 Mich. App. 266, 568 N.W.2d 411 (1997) (tape recording of interview between school district teacher and school district's attorney not exempt because the interview was adversarial and was not about how school was going to defend itself in legal action).
Likewise, information or records subject to "other privilege recognized by statute or court rule," including confidential communications between physicians or psychologists and their patients, and between ministers, priests, or Christian Science practitioners and those they counsel, are also exempt from disclosure. Mich. Comp. Laws Ann. § 15.243(1)(h) (formerly Mich. Comp. Laws Ann. § 15.243(1)(i). See Herald Co., 224 Mich. App. 276-77 (medical records submitted by teacher to schools were protected by physician-patient privilege).
A public body need not disclose a bid or proposal 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." Mich. Comp. Laws Ann. § 15.243(1)(i) (formerly Mich. Comp. Laws Ann. § 15.243(1)(j)); see also Nicita, 194 Mich. App at 665-66 (1992) (exemption applies only to a competitive bidding process where bids are solicited but not to unsolicited bids).
Appraisals of real property to be acquired by a public body need not be disclosed until "(i) an agreement is entered into or (ii) three years has elapsed since the making of the appraisal, unless litigation relative to the acquisition has not yet terminated." Mich. Comp. Laws Ann. § 15.243(1)(j) (formerly Mich. Comp. Laws Ann. § 15.243(i)(k)).
"Test questions and answers, scoring keys, and other examination instruments or data used to administer a license, public employment, or academic examination" need not be disclosed "unless the public interest in disclosure outweighs the public interest in nondisclosure." Mich. Comp. Laws Ann. § 15.243(1)(k) (formerly Mich. Comp. Laws Ann. § 15.243 (1)(1)). See Schroeder v. City of Detroit, 221 Mich. App. 364, 561 N.W.2d 497 (1997) (the public interest in disclosure of psychological evaluation used by city to determine applicants' fitness for police officer position was outweighed by strong public interest in preserving integrity of hiring process through nondisclosure).
The Act exempts from disclosure "[m]edical, 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." Mich. Comp. Laws Ann. § 15.243(1)(l) (formerly Mich. Comp. Laws Ann. § 15.243(1)(m)). In Bradley, the Michigan Supreme Court found that performance evaluations of teachers are not "counseling" evaluations and that the exemption was not applicable when the requester asked for records of a particular individual; in that case, the patient's identity would not be revealed because it was already known. 455 Mich. at 297-98.
"[C]ommunications 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" are also exempt from disclosure. Mich. Comp. Laws Ann. § 15.243(1)(m) (formerly Mich. Comp. Laws Ann. § 15.243(1)(n)). However, in order for this exemption to apply, the public body must show that "in the particular instance the public interest in encouraging frank communications between officials and employees of public bodies clearly outweighs the public interest in disclosure." Id. Thus, portions of preliminary drafts of documents which do not exist as final drafts may be exempt from disclosure unless they contain purely factual material. In the statute, the phrase “preliminary to a final agency determination” modifies “communications and notes.” The inclusion of this limiting phrase signifies the Michigan Legislature’s intent “to exclude from the ambit of the frank communication exemption those communications and notes that were not preliminary to a final agency determination of policy or action when they were created.” Bulowski v. City of Detroit, 478 Mich. 268, 276, 732 N.W.2d 75, 80 (2007). Preliminary and advisory communications between and within public bodies are also exempt. 1979-80 Op. Att'y Gen. 255, 297-98 (1979). However, the mere showing that a document falls within this exemption is not adequate where the public body does not prove specifically that the need for nondisclosure clearly outweighs the public interest in disclosure. Nicita v. City of Detroit (After Remand), 216 Mich. App. 746 (1996) (documents ordered produced where city failed to make such showing with regard to each document). In Bradley, the Michigan Supreme Court held that only a public body had standing to assert this exemption and that the person whose records were sought could not raise this exemption in a "reverse FOIA" action. 455 Mich. at 296.

Further, this section specifically states that it does not constitute an exemption under state law for purposes of section 8(h) of Michigan's Open Meetings Act (Mich. Comp. Laws Ann. § 15.268(h)), which allows public bodies to meet in closed session "[t]o consider material exempt from discussion or disclosure by state or federal statute." Thus, information which is exempt from disclosure under Mich. Comp. Laws Ann. § 15.243(1)(m) may not for that reason be discussed in closed session under Mich. Comp. Laws Ann. § 15.268(h). Also, the phrase "determination of policy or action" includes determinations relating to collective bargaining, "unless the public record is otherwise required to be made available under [Mich. Comp. Laws Ann. § 423.201-.217, which are labor regulations governing public employees]." Mich. Comp. Laws Ann. § 15.243(1)(m); see also McCartney v. Attorney Gen., 231 Mich. App. 722, 587 N.W.2d 824 (1998) (internal memoranda written by Assistant Attorney General exempt from disclosure); Herald Co. v. Ann Arbor Pub. Sch., 224 Mich. App. 266, 568 N.W.2d 411 (1997) (significant public interest in disclosing a memorandum that contains public observations of a teacher who has been convicted of carrying a concealed weapon not outweighed by public interest in encouraging frank communications within a public body); Mich. Prof’l Emps. Soc’y v. Dep’t of Natural Res., 192 Mich. App. 483, 482 N.W.2d 460 (1991) (request by employee who was an unsuccessful candidate for promotion for all screening and interview documents, including handwritten interview notes and evaluations regarding him were properly denied because any personal benefit to plaintiff through disclosure was greatly outweighed by the public interest in protecting the discretionary employment decision-making process and encouraging frank communications regarding employment of public officers); Favors v. Dep’t of Corr., 192 Mich. App. 131, 480 N.W.2d 604 (1991) (request by prisoner for copy of worksheet used by disciplinary credit committee to determine whether to recommend good-time credits was properly denied because release of document could discourage frank appraisals by the committee and thus inhibit accurate assessment of inmate's merits); 1979 Op. Att'y Gen. 5500, 275-76, 287-88 (1979) (observation sheets used by state police that contained review board members' candid impressions of candidates for promotion exempt from disclosure); Traverse City Record Eagle v. Traverse City Area Pub. Sch., 184 Mich. App. 609, 459 N.W.2d 28 (1990) (tentative collective bargaining agreement between school district and unions exempt from disclosure because it was message from school board and union representatives to their respective bodies, advisory in nature, and because premature disclosure would have negative impact on negotiation process); Herald Co. v. E. Mich. Univ. Bd. of Regents, 265 Mich. App. 185, 204, 693 N.W.2d 850 (2005) (letter from university VP to a Regent regarding expenditures at the university president's home exempt because disclosure "would likely hurt, not advance, the public interest").

"Records of law enforcement communication codes, or plans for deployment of law enforcement personnel" need not be disclosed if disclosure "would prejudice a public body's ability to protect the public safety unless the public interest in disclosure . . . outweighs the public interest in nondisclosure in the particular instance." Mich. Comp. Laws Ann. § 15.243(1)(n) (formerly Mich. Comp. Laws Ann. § 15.243(1)(o)).
"Information that would reveal the exact location of archeological sites" is exempt. However, the section allows the secretary of state to promulgate rules to provide for the disclosure of the location of such sites "for purposes relating to the preservation or scientific examination of sites." Mich. Comp. Laws Ann. § 15.243(1)(o) (formerly Mich. Comp. Laws Ann. § 15.243(1)(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" are exempt from disclosure if it would reveal that only one bidder has met the specifications. However, this exemption applies only until one year has elapsed from the time the public body completes the testing. Mich. Comp. Laws Ann. § 15.243(1)(p) (formerly Mich. Comp. Laws Ann. § 15.243(1)(q)).
Academic transcripts of state colleges and universities are exempt from disclosure "if the transcript pertains to a student who is delinquent in the payment of financial obligations to the institution." Mich. Comp. Laws Ann. § 15.243(1)(q) (formerly Mich. Comp. Laws Ann. § 15.243(1)(r)).
Disclosure of campaign committee records, including those of committees that receive money from a state campaign fund, is not required. Mich. Comp. Laws Ann. § 15.243(1)(r) (formerly Mich. Comp. Laws Ann. § 15.2431(1)(s)).
Mich. Comp. Laws Ann. § 15.243(1)(s) (formerly Mich. Comp. Laws Ann. § 15.243(1)(t)), the section regulating police records, explicitly requires use of a balancing process: "Unless the public interest in disclosure outweighs the public interest in nondisclosure in the particular instance, public records of a law enforcement agency" are exempt from disclosure where the release of such records 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 law enforcement officers or agents or any special skills that they may have;

(iv) Disclose the name, address, or telephone numbers of family members, relatives, children, or parents of 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. See, e.g., Kent Cty. Deputy Sheriff's Ass'n v. Kent Cty. Sheriff, 463 Mich. 353 (2000) (union's request for copies of reports on which sheriff based disciplinary decisions properly denied because the public interest in meaningful arbitration of grievances did not outweigh public interest in nondisclosure to preserve sheriff's department's ability to effectively conduct such investigations); Landry v. City of Dearborn, 259 Mich. App. 416, 674 N.W.2d 697 (2003) (employment applications for all individuals applying for the position of police officer are exempt); Sutton v. City of Oak Park, 251 Mich. App. 345, 650 N.W.2d 404 (2002) (internal investigation records of a police officer constitute personnel records and are exempt where public interest favors nondisclosure). But see Herald Co. v. Kent Cty. Sheriff's Dep't, 261 Mich. App. 32, 680 N.W.2d 259 (2004) (internal affairs investigation report not exempt as personnel record when the document "shed[s] light on the official acts and workings of the government"); Rudd v. City of Norton Shores, No. 343759, 2019 WL 2517404, at *4 (Mich. Ct. App. June 18, 2019) (noting that the “location of a document is not determinative of the applicability of the personnel records exemption” and holding that citizen complaints located in a “personnel file” are not exempt under the personnel records exemption) (citing Newark Morning Ledger Co. v. Saginaw Cty. Sheriff, 204 Mich. App. 215, 219, 514 N.W.2d 213 (1994)); or,

(x) Identify or provide a means of identifying residences which law enforcement agencies are requested to check in the absence of their owners or tenants. See Haskins v. Oronoko Twp. Supervisor, 172 Mich. App. 73, 431 N.W.2d 210 (1988) (prisoner's request for all police reports regarding his case properly denied as to documents protected by various subsections of this exemption).

The Michigan Court of Appeals held that a plaintiff, under Mich. Comp. Laws 15.243(1)(s)(ix), should have been given an opportunity to show at the trial level that public interest in disclosure outweighed the public interest in nondisclosure. Liddell v. Wayne Cty. Records, No. 283839, 2009 WL 2170663 (Mich. Ct. App. July 21, 2009). The Michigan Supreme Court held that “in light of this language . . . public records reviewed under the FOIA balancing test must be organized within reasonably specific categories that enable the circuit court to weigh similar competing aspects of the public interest.” Federated Publ’ns v. City of Lansing, 467 Mich. 98, 110, 649 N.W. 2d 383, 389 (2002) abrogated on other grounds by Herald Co. v. E. Mich. Univ. Bd. of Regents, 475 Mich. 463, 719 N.W.2d 19 (2006).

Records and information pertaining to an investigation or a compliance conference conducted by the department of consumer and industry services under Mich. Comp. Laws § 333.16101-333.18838 are exempt from disclosure as a public record "before a complaint is issued" except for the following information:

(i) the fact that an allegation has been received, the date the allegation was received, and the fact that an investigation is being conducted;

(ii) the fact that an allegation was received by the department of consumer and industry services, the fact that the department did not issue a complaint for the allegation, and the fact that the allegation was dismissed. Mich. Comp. Laws Ann. § 15.243(1)(t) (formerly Mich. Comp. Laws Ann. § 15.243(1)(u)).

Records of a public body's security measures "to the extent that the records relate to the ongoing security of the public body." Mich. Comp. Laws Ann. § 15.243(1)(u) (formerly Mich. Comp. Laws Ann. § 15.243(1)(v)).
Records of information relating to a civil action in which the requesting party and the public body are parties. Mich. Comp. Laws Ann. § 15.243(1)(v) (formerly Mich. Comp. Laws Ann. § 15.243(1)(w)). The Michigan Court of Appeals held that “the plain language . . . applies to only to information relating to a civil action in which both the requesting party and the public body are parties.” Taylor v. Lansing Bd. of Water & Light, 272 Mich. App. 200, 205–06, 725 N.W. 2d 84, 87 (2006). It does not apply to a person acting on behalf of a “party.” Id. For the definition of “parties,” the court relied on the Black Law’s Dictionary: “those by or against whom a legal suit is brought.” Id. at 206. A proceeding in the State Tax Tribunal is an “administrative proceeding,” and “not the equivalent of a civil action.” Fed.-Mogul Corp. v. Dep’t of Treasury, 161 Mich. App. 346, 368 (1987). Similarly, the exception does not apply to arbitration. Kent Cty. Deputy Sherriff’s Ass’n v. Kent Cty. Sheriff, 463 Mich. 353, 364 n. 18 (2002).
Information or records that would disclose the Social Security number of any individual. Mich. Comp. Laws Ann. § 15.243(1)(w) (formerly Mich. Comp. Laws Ann. § 15.243(1)(x)).
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 Michigan Constitution, the materials submitted with the application, letters of recommendation or references concerning the applicant, and records or information relating to the process of searching for and selecting an individual for such a position, "if the records or information could be used to identify a candidate for the position." Mich. Comp. Laws Ann. § 15.243(1)(x) (formerly Mich. Comp. Laws Ann. § 15.243(1)(y)). However, after one or more individuals have been identified as finalists, this exemption does not apply to a public record described in this exemption, "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." Id. The effect of this 1996 provision is to override, in part, the Michigan Supreme Court's decision in Booth Newspapers, Inc. v. University of Michigan Board of Regents, 444 Mich. 211, 507 N.W.2d 422 (1993).
Records or information of measures designed to protect the security or safety of persons or property, or the confidentiality, integrity, or availability of information systems, 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, domestic preparedness strategies, and cybersecurity plans, assessments, or vulnerabilities, 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. The portions concerning cybersecurity were added by an amendment signed into law in March 2018.
Information that would identify or provide a means of identifying a person that may, as a result of disclosure of the information, become a victim of a cybersecurity incident or that would disclose a person’s cybersecurity plans or cybersecurity-related practices, procedures, methods, results, organizational information system infrastructure, hardware, or software. This entire exemption was signed into law in March 2018.
Research data on road and attendant infrastructure collected, measured, recorded, processed, or disseminated by a public agency or private entity, or information about software or hardware created or used by the private entity for such purposes. This entire exemption was signed into law in March 2018.

Additionally, "[a] public body shall be exempt from disclosure of information that, if released, would prevent the public body from complying with section 444 of subpart 4 of part C of the General Education Provisions Act, Title IV of Public Law 90-247, 20 U.S.C. 1232(g), commonly referred to as the Family Educational Rights and Privacy Act of 1974." Mich. Comp. Laws Ann. § 15.243(2) (formerly Mich. Comp. Laws Ann. § 15.243(1)(e)). Under that act, "an educational institution may not disclose the education records or any personally identifiable information contained in the record other than directory information to any third parties without the written consent of the student's parents, . . . or the written consent of the student when the student attends an institution of post-secondary education . . . ." Connoisseur Commcn’s of Flint v. Univ. of Mich., 230 Mich. App. 732, 735, 584 N.W.2d 647 (1998).

Mich. Comp. Laws Ann. § 15.243(3) provides that “[t]his 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.” Mich. Comp. Laws Ann. § 15.243(4) makes it clear that an employee or public body subject to the FOIA cannot withhold a public record that would not otherwise be exempt by transferring the public record "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 the employee or public body.

Compare

B. Other statutory exclusions

The FOIA creates a broad right of access to all public records "except as expressly provided in [Mich. Comp. Laws Ann. § 15.243]." Mich. Comp. Laws Ann. § 15.233(1). Mich. Comp. Laws Ann. § 15.243 includes in its list of exemptions a broad "catch-all" exemption that incorporates by reference other statutes which expressly exempt records or information from disclosure. Id. § 15.243(1)(d).

Compare

C. Court-derived exclusions, common law prohibitions, recognized privileges against disclosure

Mich. Comp. Laws Ann. §§ 15.243(l)(g) and (1)(h) also exempt records subject to the attorney-client privilege, physician-patient privilege, and other privileges "recognized by statute or court rule." See Swickard v. Wayne Cty. Med. Examiner, 438 Mich. 536, 547 (1991) (regarding physician-patient privilege).

G. Agency obligation to identify basis of redaction or withholding

Compare

7. Complaints filed against employees

Compare

8. Other

Compare

Not specifically addressed.

Compare

13. Emergency medical services records

Compare

14. Police video (e.g, body camera footage, dashcam videos)

The Body-Worn Camera Privacy Act of 2017 (“BWCPA”), codified at MCL 780.311 et seq., went into effect on January 8, 2018. Section 3(1) of MCL 780.313 incorporates certain privacy protections of the William Van Regenmorter Crime Victim's Rights Act, MCL 780.758 et seq. Section 3(2) of MCL 780.313, provides that a recording made by a law enforcement officer with a body-worn camera in a private place is exempt from disclosure under the freedom of information act.

However, MCL 780.314 permits the following persons to “request a copy of an audio and video recording recorded by a law enforcement officer with a body-worn camera in a private place”:

- (a) An individual who is the subject of the audio and video recording.
- (b) An individual whose property has been seized or damaged in relation to a crime to which the audio and video recording is related.
- (c)-(d) A parent/legal guardian of an individual who is less than 18 years of age described in subdivision (a) or (b).
- (e) An attorney who represents an individual described in subdivision (a) or (b).

Additionally, MCL 780.315 provides that body-worn camera footage retained in connection with an ongoing law enforcement investigation is exempt from FOIA, but only to the extent that disclosure would cause one of several listed harms, including interfering with law enforcement proceedings, depriving someone of the right to a fair trial, constituting an unwarranted invasion of personal privacy, disclosing the identities of confidential sources or investigative techniques, disclosing certain information about a crime victim, and endangering the life or physical safety of officers. The same provision clarifies that, as with other public records, body-worn camera footage cannot be obtained through FOIA when the requester is in active civil litigation with the agency from which they are requesting.

MCL 780.316 also requires that law enforcement keep body-worn camera audio and video for no fewer than three years after the recording was made if the recording “is relevant to a formal complaint against a law enforcement officer or agency.”

Compare

15. Biometric data (e.g., fingerprints)

Compare

16. Arrest/search warrants and supporting affidavits

Compare

17. Physical evidence

Compare

P. Prison, parole and probation reports

Not specifically addressed.

Compare

Q. Professional licensing records

Not specifically addressed.

Compare

R. Public utility records

Not specifically addressed.

Compare

Compare

1. Athletic records

Not specifically addressed.

Compare

2. Trustee records

Not specifically addressed.

Compare

3. Student records

The Family Educational Rights and Privacy Act provides for access to student records by eligible students and parents, and establishes the privacy of those records. Michigan State University falls under this statute because it is a recipient of federal funds. See Kestenbaum v. Mich. State Univ., 414 Mich. 510, 327 N.W.2d 783 (1982).

Compare

4. School foundation/fundraising/donor records

Compare

5. Research material or publications

Compare

6. Other

Compare

U. State guard records

Not specifically addressed.

Compare

V. Tax records

Not specifically addressed.

Compare

W. Vital Statistics

Compare

1. Birth certificates

Not specifically addressed.

Compare

2. Marriage and divorce

Not specifically addressed.

Compare

3. Death certificates

Death certificates are public records by Mich. Comp. Laws § 333.2882.

Compare

4. Infectious disease and health epidemics

Not specifically addressed.

Compare

IV. Procedure for obtaining records

Compare

A. How to start

Compare

1. Who receives a request?

Mich. Comp. Laws Ann. § 15.236 generally assigns responsibility for responding to FOIA requests to the public body's FOIA coordinator:

a. For a public body which is a city, village, township, county, or state department, or under the control thereof, an individual shall be designated as the public body's FOIA coordinator, who shall be responsible for accepting and processing requests for public records and for approving a denial under the FOIA. In a county not having an executive form of government, the chairperson of the county board of commissioners shall be considered the FOIA coordinator for purposes of this subsection. A FOIA coordinator may designate another individual to act on his or her behalf. See Mich. Comp. Laws Ann. § 15.236(1).

b. For all other public bodies, the chief administrative officer of the respective public body, or an individual designated in writing by that chief administrative officer, shall be responsible for approving a denial. See id. § 15.236(2).

c. If another employee receives a request for a public record, the employee must promptly forward the request to the FOIA coordinator. Id. § 15.233(1).

Mich. Comp. Laws Ann. § 15.241, which provides for disclosure of records developed or submitted pursuant to administrative adjudications, does not require a specific request. Blue Cross & Blue Shield of Mich. v. Ins. Bureau Hearing Officer, 104 Mich. App. 113, 304 N.W.2d 499, 504 (1981). The items which state agencies must make available under Mich. Comp. Laws Ann. § 15.241 include:

“a. Final orders or decisions in contested cases and the records on which they were made.

b. Promulgated rules.

c. Other written statements that implement or interpret laws, rules, or policy, including but not limited to guidelines, manuals, and forms with instructions, adopted or used by the agency in the discharge of its functions.”

Mich. Comp. Laws Ann. § 15.241(1).

Compare

2. Does the law cover oral requests?

"[A] person desiring to inspect or receive a copy of a public record shall make a written request for the public record to the FOIA coordinator of a public body." Mich. Comp. Laws Ann. § 15.235(1) (emphasis added); see also id. § 15.233(1) ("[U]pon providing a public body's FOIA coordinator with a written request . . . .") This is a change effective in 1997 from previous law, which permitted a request to be made orally. Further, a written request made by fax, electronic mail, or other electronic transmission "is not received by [the FOIA coordinator] until 1 business day after the electronic transmission is made." Id. § 15.235(1).

Public bodies may make "reasonable rules necessary to protect public records and to prevent excessive and unreasonable interference with the discharge of [agency] functions." Id. § 15.233(2). Thus, while public bodies must provide "reasonable opportunity" for inspection of records, it would be wise for the requester to make arrangements to see records beforehand.

Further, in another 1996 revision, the FOIA instructs a public body to "protect public records from loss, unauthorized alteration, mutilation, or destruction." Id. § 15.233(3). The FOIA originally provided that upon an oral or written request which describes the public record sufficiently to enable the public body to find the public record, a person has the right to inspect, copy or receive copies of a public record of a public body, except as otherwise provided by the act. Hoffman v. Bay City Sch. Dist., 137 Mich. App. 333, 357 N.W.2d 686 (1984). The 1996 amendment deleted “oral.”

Compare

3. Required contents of a written request

A FOIA request must describe the public record "sufficiently to enable the public body to find the public record." Mich. Comp. Laws Ann. § 15.233(1). While Mich. Comp. Laws Ann. § 15.235(2) gives the public body five business days to respond to requests, if the request does not contain sufficient information it may be denied on that ground. If additional information is provided that sufficiently describes the public record, the period within which the response must be made dates from the time the additional information is received. 1979-80 Op. Att'y Gen. 255, 268-69 (1979). See Coblentz v. City of Novi, 719 N.W.2d 73 (2006) for a discussion of the word “sufficiently.”

A person has a right to subscribe to "future issuances of public records which are created, issued, or disseminated on a regular basis." Mich. Comp. Laws Ann. § 15.233(1). This section provides that such subscriptions be valid for up to six months at the request of the subscriber, and that the subscriptions are renewable. Id.

A requestor must provide contact information pursuant to an amendment to FOIA effective December 2018. “A request from a person, other than an individual who qualifies as indigent under section 4(2)(a), must include the requesting person’s complete name, address, and contact information, and if the request is made by a person other than an individual, the complete name, address, and contact information of the person’s agent who is an individual.” Id. The address must by written in compliance with U.S. Postal Service addressing standards. Id. The contact information must also include a valid telephone number or email address. Id.

Compare

4. Can the requester choose a format for receiving records?

Where a computer record exists, a requester generally has the right to the record in that form. See Farrell v. City of Detroit, 209 Mich. App. 7, 530 N.W.2d 105 (1995) ("In Michigan, these computer records constitute public records subject to disclosure under the FOIA."); Payne v. Grand Rapids Police Chief, 178 Mich. App. 193, 443 N.W.2d 481 (1989) (plaintiff entitled to copy of tape recording of 911 emergency calls, even where city offered to provide transcript of tape). But see Lapeer Cty. Abstract & Title v. Lapeer Cty. Register of Deeds, 264 Mich. App. 167, 691 N.W.2d 11 (2004) (public bodies are not required by the FOIA to provide microfilm copies rather than paper copies of the records at issue, even when the public body keeps the records on mircrofilm); see also Mich. Comp. Laws Ann. § 15.232(j) (software — which is not a public record — excludes "computer-stored information or data, or a field name if disclosure of that field name does not violate a software license").

Compare

5. Availability of expedited processing

Compare

B. How long to wait

Compare

1. Statutory, regulatory or court-set time limits for agency response

A public body has five business days to respond to requests for public records unless otherwise agreed to in writing by the person making the request. Mich. Comp. Laws Ann. § 15.235(2). The five "business days" means five consecutive weekdays; excludes Saturdays, Sundays, or legal holidays; and does not mean five consecutive days on which the particular body receiving the request is open for public business. 2005 Op. Att'y Gen. No. 7172 (2005). Per Mich. Comp. Laws Ann. § 15.235(2), any of the following will be considered a response:

(a) Granting the request.

(b) Issuing a written notice denying the request.

(d) Under unusual circumstances, as defined in Mich. Comp. Laws Ann. § 15.232(k), issuing a notice extending for not more than 10 business days the period during which the public body shall respond to the request. A public body shall not issue more than 1 notice of extension for a particular request.

The five-business day time limit begins when a sufficient description of the public record is received by the public body at the office where the records are kept. 1979-80 Op. Att'y Gen. 255, 268-69 (1979). A public body may not treat a request for its records as having been received as of the date of its next regularly scheduled meeting; the request must be answered within five business days of the date the request was actually received by the public body. 1981-82 Op. Att'y Gen. 584, 586 (1982). Where a public body issues a notice extending the period for response to the request under Mich. Comp. Laws Ann. § 15.235(2)(d), it is required to set forth in the notice the reasons for the extension and the date by which the public body will either grant the request, issue a written notice denying the request, or grant the request in part and issued a written notice denying the request in part. Mich. Comp. Laws Ann. § 15.235(6). Once a public body timely claims the 10-day extension, the new response deadline is fifteen business days after receipt of the request, regardless of when the notice of extension is issued. Key v. Paw Paw Twp., 254 Mich. App. 508, 657 N.W.2d 546 (2002). A public body may not use a loss of time attributed to unnecessary delay by its agents in forwarding the request to the proper person as grounds for extending the time during which the response must be made. 1979-80 Op. Att'y Gen. 255, 269-70 (1979).

Compare

2. Informal telephone inquiry as to status

Not addressed.

Compare

3. Is delay recognized as a denial for appeal purposes?

Failure to respond to a request within the five-business day statutory period is recognized for appeal purposes as a final determination by the public body to deny the request. Mich. Comp. Laws Ann. § 15.235(3); see also Hartzell v. Maryville Cmty. Sch. Dist., 183 Mich. App. 782, 455 N.W.2d 411 (1990) (awarding costs and attorney’s fees to plaintiff because, instead of advising plaintiff that requested document did not exist, agency simply did not respond to request).

Compare

4. Any other recourse to encourage a response

The party may resubmit its request and bring suit. A party that resubmits a FOIA request does not lose the right to file suit on the issue of the initial denial. Krug v. Ingham Cty. Sheriff's Off., 264 Mich. App. 475, 691 N.W.2d 50 (2004).

Compare

C. Administrative appeal

The FOIA was amended in 1996 to permit administrative appeals. If a request is denied, a requester may (but is not required to) submit to the head of the public body "a written appeal that specifically states the word ‘appeal’ and identifies the reason or reasons for reversal of the denial." Mich. Comp. Laws Ann. § 15.240(1)(a). Within 10 days after receiving a written appeal, the head of the public body must do one of the following, per Mich. Comp. Laws Ann. § 15.240(2):

(a) reverse the disclosure denial;

(b) issue a written notice to the requesting person upholding the disclosure denial;

(c) reverse the disclosure denial in part and issue a written notice to the requesting person upholding the disclosure denial in part; or

(d) under unusual circumstances, as defined in Mich. Comp. Laws Ann. 15.232(k), issuing a notice extending for not more than 10 business days the period during which the head of the public body shall respond to the appeal. Not more than one notice of extension shall be issued for a particular appeal.

Under Mich. Comp. Laws Ann. § 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 following submission of the written appeal. See Federated Publ’ns v. City of Lansing, 467 Mich. 98, 649 N.W.2d 383 (2002) for a discussion of this provision.

Compare

1. Time limit to file an appeal

A requesting party may, within 180 days of a public body’s final determination, initiate an action in a state circuit court to compel the public body’s disclosure of the public records. Mich. Comp. Laws § 15.240(1)(b).

Compare

2. To whom is an appeal directed?

See Mich. Comp. Laws § 15.240 for how the requester should appeal. If a “public body makes a final determination to deny all or a portion of a request,” the requester can do one of two things. First, he or she can “submit to the head of the public body a written appeal that specifically states the word “appeal” and identifies the reason or reasons for reversal of the denial,” or second, he or she can “commence a civil action in the circuit court . . . to compel the public body’s disclosure of the public records within 180 days after a public body’s final determination to deny a request.”

Compare

Compare

1. Who may sue?

Any person whose FOIA request has been denied in whole or in part may commence an action in the state circuit court under Mich. Comp. Laws Ann. § 15.240.

Several items under Mich. Comp. Laws Ann. § 15.241 must be published and made available to the public even when not specifically requested. A person may commence an action in the court of claims to compel a state agency to comply with Mich. Comp. Laws Ann. § 15.241. Mich. Comp. Laws Ann. § 15.241(5).

A person seeking to enjoin rather than compel disclosure of public records may file a "reverse FOIA" action, but the FOIA analysis applies in those cases and a "reverse FOIA" plaintiff may not have standing to raise certain exemptions. Bradley v. Saranac Cmty. Sch., 455 Mich. 285 (1997).

A plaintiff’s right to prohibit disclosure must have a basis independent of FOIA. Tobin v. Mich. Civil Serv., 416 Mich. 661, 331 N.W.2d 184 (1980).

Compare

2. Priority

Actions brought under the FOIA and appeals from FOIA decisions are to be "assigned for hearing and trial or for argument at the earliest practicable date and expedited in every way." Mich. Comp. Laws Ann. § 15.240(5).

Compare

3. Pro se

The availability of attorney’s fees to a plaintiff who prevails in an FOIA action is intended to make access to legal services easier. Mich. Comp. Laws Ann. § 15.240(6). See Omdahl v. W. Iron Cty. Bd. of Educ., 478 Mich. 423, 733 N.W.2d 380 (2007) (the fact that a plaintiff is a licensed attorney does not mean that the plaintiff has an attorney, and therefore, the plaintiff may not recover attorney’s fees); Watkins v. Manchester, 220 Mich. App. 337, 559 N.W.2d 81 (1996) (pro se plaintiff-attorney cannot recover attorney’s fees under FOIA).

Compare

4. Issues the court will address

Compare

a. Denial

The plaintiff in a FOIA suit need only show that a request was made and denied. The burden then shifts to the defendant agency to show a viable defense — insufficient description of the record, the fact that no record existed, or exemption from disclosure. Pennington v. Washtenaw Cty. Sheriff, 125 Mich. App. 556, 336 N.W.2d 828 (1983). A written notice denying a request for a public record in whole or in part is considered a final determination by the public body and must contain:

(1) An explanation of the basis under the FOIA or other statute for the determination that the public record, or the portion thereof, is exempt from disclosure, if that is the reason for denying the request or a portion thereof;

(2) A certificate that the public record does not exist under the name given by the requester or by another name reasonably known to the public body, if that is the reason for denying the request or a portion thereof;

(3) A description of a public record or information on a public record which is separated or deleted if a separation or deletion is made; and

(4) A full explanation of the requesting person's right to seek judicial review, including the right to receive attorney’s fees and damages, if the circuit court determines that the public body has not complied with Mich. Comp. Laws Ann. § 15.235 and orders disclosure of all or part of a public record.

See Mich. Comp. Laws Ann. § 15.235(5).

Compare

b. Court and litigation costs

See Mich. Comp. Laws § 15.240(6).

Compare

11. Fines

Under the 2015 amendment to the Act, “[i]f the court determines . . . that a public body willfully and intentionally failed to comply with this act or otherwise acted in bad faith, the court shall order the public body to pay, in addition to any other award or sanction, a civil fine of not less than $2,500.00 or more than $7,500.00 for each occurrence.” Id. § 15.240b.

In addition, if the circuit court finds that the public body has "arbitrarily and capriciously" violated the FOIA by refusing to disclose or delaying in disclosing or providing copies of a public record, the court will award, in addition to any actual or compensatory damages, punitive damages in the amount of $1,000.00 to the person seeking the right to inspect or receive a copy of a public record." Mich. Comp. Laws Ann. § 15.240(7). Previously, the amount of punitive damages was $500.00, but the 2015 amendment doubled the amount. These damages are not to be assessed against an individual but against "the next succeeding public body that is not an individual and that kept or maintained the public record as part of its public function." Id.

Before a court can assess punitive damages against a public body for failing to grant a FOIA request, the court must: (1) order the public body to disclose all or a portion of the requested public record; and (2) determine that the public body’s refusal or delay in disclosing the record was arbitrary and capricious. Ostaszewski v. City of Lansing, No. 343537, 2018 WL 6004488, at *2 (Mich. Ct. App. Nov. 15, 2018) (citing Mich. Comp. Laws §§ 15.235(4) and 15.240(7); Loc. Area Watch v. City of Grand Rapids, 262 Mich. App. 136, 153, 683 N.W.2d 745, 754 (2004) (same).

A plaintiff is not, of course, entitled to punitive damages or attorney’s fees and costs where he or she was not found to be entitled to the requested information. Bredemeier v. Kentwood Bd. of Educ., 95 Mich. App. 767, 291 N.W.2d 199 (1980) (defendant's failure to provide plaintiff with written notice of denial constituted a violation of FOIA, but plaintiff could not collect fees, costs, or damages where requested information was not in recorded form). Moreover, a party must raise an argument for compensatory damages or the claim is abandoned. See Prins v. Mich. State Police, 299 Mich. App. 634, 831 N.W.2d 867 (2013).

One example of a case where punitive damages were granted is Walloon Lake Water System v. Melrose Twp., 415 N.W.2d 292, 296 (1987) where the actions of township officials in refusing FOIA requests without explanation and in rendering judicial order of disclosure impossible by disposing of the only copy of a document was considered an arbitrary and capricious violation of the FOIA as a matter of law. See also Kincaid v. Dep't of Corrs., 180 Mich. App. 176, 446 N.W.2d 604, 607 (1989) (affirming award of $500 in punitive damages against defendant which arbitrarily and capriciously denied request on basis that requests were not sufficiently specific despite fact that defendant's own records established the opposite to be true).

Compare

12. Other penalties

Compare

13. Settlement, pros and cons

Compare

F. Appealing initial court decisions

Compare

1. Appeal routes

Usual appeal procedures under Michigan Court Rules are available.

Compare

2. Time limits for filing appeals

Usual time limits for appeals under Michigan Court Rules apply. The FOIA, however, specifies that court actions and appeals therefrom must be expedited in every way. Mich. Comp. Laws Ann. § 15.240(5). A trial court’s order denying a motion for summary judgment and dismissing the only claim is a final appealable order. See MLive Media Grp. v. City of Grand Rapids, 321 Mich. App. 263, 909 N.W.2d 282 (2017).

Compare

3. Contact of interested amici

Usual procedures under Michigan Court Rules apply to amicus briefs.

The Reporters Committee for Freedom of the Press often files amicus briefs in cases involving significant media law issues before a state's highest court.

Compare

G. Addressing government suits against disclosure

A plaintiff may bring an action to prevent disclosure of information held by a public body. See Bradley v. Saranac Cmty. Sch., 455 Mich. 285 (1997) (a teacher may seek an injunction preventing disclosure of her personnel files); Tobin v. Mich. Civil Serv. Comm’n, 331 N.W. 2d 184 (1980) (state employees may seek an injunction preventing the disclosure of the names and addresses of all civil service employees). Such an action, often referred to as a "reverse FOIA" action, usually alleges that the information is exempt from disclosure, and thus is analyzed under the FOIA. Bradley, 455 Mich. at 292.

Compare

See above.

Compare

C. What bodies are covered by the law?

"All meetings of a public body" are to be open to the public. Mich. Comp. Laws Ann. § 15.263(l). A "public body" is defined as:

[A]ny state or local legislative or governing body, including a board, commission, committee, subcommittee, authority, or council, which is empowered by state constitution, statute, charter, ordinance, resolution, or rule to exercise governmental or proprietary authority or perform a governmental or proprietary function, or a lessee there of performing an essential public purpose and function pursuant to the lease agreement.

Id. § 15.262(a).

Compare

1. Executive branch agencies

Examples of executive branch agencies which have been found to be covered under the OMA are the Huron River Watershed Council, 1977-78 Op. Att'y Gen. 329 (1978), the State Safety Commission, 1977-78 Op. Att'y Gen. 21 (1977), a county concealed weapons licensing board, 2001 Op. Att'y Gen. No. 7073 (2001), and local medical control authorities, 2004 Op. Att'y Gen. No. 7165 (2004). Michigan Parole Board proceedings have been held to be exempted from OMA, Glover v. Mich. Parole Bd., 460 Mich. 511, 596 N.W.2d 598 (1999). The term "public body" connotes a collective entity; a single individual is not generally recognized as a "board," "commission," "committee," "subcommittee," "authority," or "council." Herald Co. v. City of Bay City, 463 Mich. 111, 129-30, 614 N.W.2d 873 (2000) (city manager acting in his executive capacity not a public body for purposes of OMA and a committee appointed by the manager in selecting a fire chief is also not a public body). An individual acting in his official capacity, even if required to perform the functions of a previous school board (which constitutes a public body) is not a public body for the purposes of the OMA. Craig v. Detroit Pub. Sch. Chief Exec. Officer, 265 Mich. App. 572, 697 N.W>2d 529 (2005), abrogated on other grounds by Speicher v. Columbia Twp. Bd. of Trs., 497 Mich. 125, 860 N.W.2d 51 (2014); Davis v City of Detroit Fin. Rev. Team, 296 Mich. App 568, 821 N.W.2d 896 (2012) (“The State Treasurer, whether acting in his executive capacity or as a ‘one man committee’ of the Detroit Financial Review Team, is not a ‘public body.’”).

Compare

a. What officials are covered?

“MCL 15.273(1) provides: ‘A public official who intentionally violates this act shall be personally liable in a civil action for actual and exemplary damages of not more than $ 500.00 total, plus court costs and actual attorney’s fees to a person or group of persons bringing the action.’ Accordingly, this statute mandates personal liability for a public official who intentionally violates the OMA.”

Mich. Comp. Laws Ann. § 15.263(7) specifies that the OMA does not apply to the following entities when they are deliberating the merits of a case:

(a) The workers compensation appeal board created under Mich. Comp. Laws Ann. § 418.101-.941.

(b) The employment security appeals board created under Mich. Comp. Laws Ann. § 421.1-.67.

(d) An arbitrator or arbitration panel appointed by the employment relations commission pursuant to the authority given the commission by Mich. Comp. Laws Ann. § 423.1-3.

(e) An arbitration panel covering health care arbitration selected pursuant to Mich. Comp. Laws Ann. § 600.5040-.5065.

The definition of a "public body" is also tempered by the definition of "meeting," which 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." Mich. Comp. Laws Ann. § 15.262(b). Thus, the Attorney General has surmised that the OMA does not apply to committees and subcommittees of public bodies which are merely advisory or only capable of making recommendations concerning the exercise of governmental authority, but which are not legally capable of rendering a final decision. 1977-78 Op. Att'y Gen. 21, 40 (1977). See Edwards v. Oakland Twp., No. 320133, 2015 WL 1277009, at *1 (Mich Ct App March 19, 2015) (subcommittee formed by the Township Board to study the use of a cider mill property had no authority to render decisions and was therefore not subject to OMA).

However, the Attorney General has also opined that a meeting of a standing committee of a county board of commissioners, composed of less than a quorum of the full board, is subject to the OMA when the committee is effectively authorized to determine what items of county business are referred for action by the full board. 2009 Op. Att'y Gen. No. 7235 (2009) (emphasis added) (quoting 1998 Op. Att'y Gen. No. 7000 (1998)).

Additionally, the Michigan Court of Appeals has taken a broad view of such committees. See Schmiedicke v. Clare Sch. Bd., 228 Mich. App. 259, 577 N.W. 2d 706 (1998) abrogated on other grounds by Speicher v. Columbia Twp. Bd. of Trustees, 497 Mich 125, 860 NW2d 51 (2014) (school board's referral to a committee for a recommendation regarding method of evaluating administrators and length of their contracts was a delegation of authority to perform a public function and meetings are subject to OMA); Morrison v. City of E. Lansing, 255 Mich. App. 505, 520, 660 N.W.2d 395 (where city council "effectively authorized" committee to perform a governmental function and the committee held public meetings to solicit public input, despite the fact that the committee was not capable of rendering a final decision, it was still a public body subject to OMA).

Of course, where such a subcommittee contains the entire body of the public body which it serves, it would be a violation of the OMA to allow such subcommittees to meet in closed session. 1977-78 Op. Att'y Gen. at 40. Similarly, the Michigan Environmental Review Board and the Interdepartmental Environmental Review Committee are not subject to the provisions of the OMA as "public bodies," because they are advisory bodies created by the Governor (who in fact is not authorized under Michigan law to create public bodies which exercise governmental or proprietary functions). 1977-78 Op. Att'y Gen. 21, 29-30 (1977); see also 1997 Op. Att'y Gen. No. 6935 (1997) (OMA not applicable to advisory committee formed by a board of education to study eligibility standards for participation in athletics). The State Board of Ethics, on the other hand, has been held to be subject to the OMA because, although its function is advisory and it is not empowered to take direct action against a person or agency, the Board cannot be considered merely an advisory body since the compulsory language of the act which creates the Board obligates the appointing authority to act upon the Board's recommendation. 1979-80 Op. Att'y Gen. 935, 937 (1980).

Since "decisions" must be made at open meetings under Mich. Comp. Laws Ann. § 15.263(2), a number of methods of decision-making which would skirt this requirement have been struck down by the courts. Thus, a legislative committee may not engage in the practice of "round-robining" by which votes on a measure are obtained by a member of the committee going to other members and obtaining their signatures on a tally sheet. 1979-80 Op. Att'y Gen. 216 (1977). Moreover, any voting procedure at a public meeting which prevents citizens from knowing how members of a public body have voted is prohibited. 1977-78 Op. Att'y Gen. 338 (1978). The OMA thus prohibits public bodies from voting by secret ballot, Esperance v. Chesterfield Twp., 89 Mich. App. 456, 280 N.W.2d 559, 563 (1979), and from holding phone call conference meetings, 1977-78 Op. Att'y Gen. 21, 32 (1977).

Compare

E. Categories of meetings subject to the law

Compare

1. Regular meetings

Compare

a. Definition

Regular meetings, which are regulated under Mich. Comp. Laws Ann. § 15.265, are not defined within the OMA, nor does the Act specifically require public bodies to establish regular meetings schedules. 1977-78 Op. Att'y Gen. 21, 37 (1977). However, where such a schedule is established, it must be posted yearly. See Mich. Comp. Laws Ann. § 15.265(2).

Compare

b. Notice

Notice is required for all meetings under the OMA: "A meeting of a public body shall not be held unless public notice is given as provided in this section by a person designated by the public body." Mich. Comp. Laws Ann. § 15.265(1). The requirement that a person be "designated" to carry out the posting of public notice means that such a person must be formally chosen by resolution noticed in the minutes of the public body. 1977-78 Op. Att'y Gen. 21, 36 (1977).

For regular meetings, a public body must post within ten days after the first meeting in each calendar or fiscal year a public notice stating the dates, times, and places of its regular meetings. Mich. Comp. Laws Ann. § 15.265(2). If there is a change in the schedule of regular meetings, the public body is required to post, within three days after the meeting at which the change is made, a public notice stating the new dates, times, and places of regular meetings. Id. § 15.265(3). The OMA provides for interested parties to request copies of required notices:

(a) Upon the written request of an individual, organization, firm, or corporation, and upon the requesting party's payment of a yearly fee of not more than the reasonable estimated cost for printing and postage of such notices, a public body shall send to the requesting party by first class mail a copy of any notice required to be posted pursuant to section 5(2) to (5) [Mich. Comp. Laws Ann. § 15.265(2) to (5)].

(b) Upon written request, a public body, at the same time a public notice of a meeting is posted pursuant to section 5 [Mich. Comp. Laws Ann. § 15.265], shall provide a copy public notice of that meeting to any newspaper published in the state and to any radio and television station located in the state, free of charge. Mich. Comp. Laws Ann. § 15.266.

Public notices must be posted at the principal office of the public body, as well as at "any other locations considered appropriate by the public body." Id. § 15.264(b). In addition, if the public body is part of a state department, the legislative or judicial branch, an institution of higher education, or a political subdivision or school district, public notices are also to be posted "in the respective principal office of the state department, the institute of higher education, clerk of the house of representatives, secretary of the state, senate, clerk of the supreme court, or political subdivision or school district." Id. § 15.264(c). Cable television may be used as a medium for posting public notices. Id. § 15.264(b).

Public notices must contain the name of the public body to which the notice applies, its telephone number, and its address. Id. § 15.264(a); see also Lysogorski v. Bridgeport Charter Twp., 256 Mich. App. 297, 662 N.W.2d 108 (2003)(despite an attendee's contention that he was unable to determine from the agenda the precise matter that the township board planned to discuss, the agenda contained the public body's name, address, and telephone number, and was properly published and therefore satisfied the statutory requirement of public notice).

When the place where the meeting of a public body is to be held is different from the address of the public body, the notice must contain both addresses in order to comply with the OMA. 1977-78 Op. Att'y Gen. 21, 36 (1977). The OMA sets forth special notice requirements for meetings which take place in residential dwellings. First, such meetings may only be held if a nonresidential building is not available within the boundary of the local government unit or school system without cost to the public body. Second, notice of such a meeting must be published as a display advertisement in a newspaper of general circulation in the city in which the meeting is to be held at least two days before the meeting and must state the date, time, and place of the meeting. The notice, which must be at the bottom of the display ad and set off in a conspicuous manner, must include the following language: "This meeting is open to all members of the public under Michigan's open meetings act." Mich. Comp. Laws Ann. § 15.265(6).

An action of a public body may be invalidated under Mich. Comp. Laws Ann. § 15.270; a court may compel compliance with the OMA or enjoin further noncompliance under Mich. Comp. Laws Ann. § 15.271. An action for mandamus against a public body may be commenced in the Court of Appeals under Mich. Comp. Laws Ann. § 15.271(3). Public officials who are found to have intentionally violated the OMA may be fined up to $1,000 under Mich. Comp. Laws Ann. § 15.272(1).

Compare

c. Minutes

Public bodies are required to keep minutes of each meeting showing the date, time, place, members present, members absent, any decisions made if the meeting was open to the public, and the purpose or purposes for which a closed session was held. The minutes must also include all roll call votes taken at the meeting. Mich. Comp. Laws Ann. § 15.269(1). Corrections must be made to the minutes no later than the next meeting after the meeting to which the minutes refer. Corrected minutes, then, must be available no later than the next subsequent meeting after correction, and must show both the original entries and the correction. Id. § 15.269(l).

Minutes are considered public records under the OMA and must be available for public inspection at the address designated on the public notices posted pursuant to Mich. Comp. Laws Ann. § 15.264. Id. § 15.269(2). Although, generally, neither advance notice nor supervision should be required for the inspection of copies of open meeting minutes, a public body may, under rules established and recorded by the body, request advance notice of and require supervision of any copy of the public body’s record copy of open meeting minutes to protect the record from loss, unauthorized alteration, mutilation, or destruction. 2010 Op. Att’y. Gen. 7244 (2010). Thus, as with other public records under the FOIA, copies of the minutes must be available to the public at the reasonable estimated costs for printing and copying. Mich. Comp. Laws Ann. § 15.269(2). Since the OMA requires that minutes be available for public inspection at the address designated on the public notice, it is reasonable to conclude that a public body having no permanent location may select a readily accessible location to store its minutes and may state in its notice where that location is. 1977-78 Op. Att'y Gen. 21, 36 (1977). Proposed minutes must be available for public inspection no more than eight business days after the meeting to which the minutes refer, while approved minutes are to be available within five business days after the meeting at which the minutes are approved by the public body. Mich. Comp. Laws Ann. § 15.269(3).

Compare

2. Special or emergency meetings

Compare

a. Definition

Special meetings are not defined under the OMA.

Compare

b. Notice requirements

In 2012, the legislature amended the notice requirements under the OMA to reflect the prominence of the internet and the use of websites by public bodies to disseminate information. Because of the 2012 amendments, at least 18 hours before a rescheduled regular meeting or a special meeting, public notice must be posted on the public body’s website. This requirement only applies, however, if the public body maintains an official internet presence that includes, at a minimum, monthly updates of public meeting agendas or minutes. “The public notice on the website shall be included on either the homepage or on a separate webpage dedicated to public notices for nonregularly scheduled public meetings and accessible via a prominent and conspicuous link on the website’s homepage that clearly describes its purpose for public notification of those nonregularly scheduled public meetings.” Mich. Comp. Laws Ann. § 15.265(4).

The eighteen-hour notice requirement is not fulfilled if the public is denied access to notice for any part of the eighteen hours. 1979-80 Op. Att'y Gen. 840 (1980). It does not apply to special meetings of subcommittees of a public body or conference committees of the state legislature. Mich. Comp. Laws Ann. § 15.265(4). Conference committees operate under shorter time limits. A conference committee must give six-hour notice. A second conference committee must give one-hour notice. Notice of a conference committee meeting must include written notice to each member of the conference committee and to the majority and minority leaders of each house indicating the time and place of the meeting. Id. § 15.265(4).

There are also special notice requirements for meetings which have reconvened. A meeting recessed for more than 36 hours can be reconvened only after a public notice is posted which meets the requirements above. Id. § 15.265(5). Beyond all this, the OMA has a broad emergency provision: "Nothing in this section [Mich. Comp. Laws Ann. § 15.265] bars a public body, however, from meeting in emergency session in the event of a severe and imminent threat to the health, safety, or welfare of the public when 2/3 of the members serving on the body decide that delay would be detrimental to efforts to lessen or respond to the threat." Id. § 15.265(5). The 2012 amendments now require that a public body holding an emergency public meeting that does not comply with the 18-hour posted notice requirement “[m]ake paper copies of the public notice for the emergency meeting available to the public at that meeting,” and post the notice online. Id. The notice must explain (with specifics) why the 18-hour posted notice requirement was not followed. Within 48 hours after the emergency meeting, the public body must send notice to the county commissioner explaining that an emergency meeting was held without posting public notice 18-hours prior. “Compliance with the notice requirements for emergency meetings in this subsection does not create, and shall not be construed to create, a legal basis or defense for failure to comply with other provisions of [the OMA] and does not relieve the public body from the duty to comply with any provision of” the OMA. Id.

Public notices which are posted to meet the above requirements must be made available upon the written request of interested parties as described in Mich. Comp. Laws Ann. § 15.264(b).

Posting requirements for special meetings are the same as those for regular meetings. See id. § 15.264(b) and (c).

The OMA sets forth special notice requirements for meetings which take place in residential dwellings. First, such meetings may only be held if a nonresidential building is not available within the boundary of the local government unit or school system without cost to the public body. Second, notice of such a meeting must be published as a display advertisement in a newspaper of general circulation in the city in which the meeting is to be held at least two days before the meeting and must state the date, time, and place of the meeting. The notice, which must be at the bottom of the display ad and set off in a conspicuous manner, must include the following language: "This meeting is open to all members of the public under Michigan's open meetings act." Id. § 15.265(6).

Generally, the same remedies for failure to give adequate notice of regular meetings applies.

Compare

c. Minutes

The information required for the minutes of special meetings is the same as for regular meetings. In both instances the minutes are considered public record.

Compare

3. Closed meetings or executive sessions

Compare

a. Definition

The OMA contains no express definition of closed meetings. A person intruding upon a closed session of a public body may be forcibly removed by a law enforcement officer, or removal may be accomplished by recessing and moving the closed session to another location. 1985-86 Op. Att'y Gen. 268, 271 (1986).

Compare

b. Notice requirements

While the OMA contains no express definition of closed meetings, it does state: "A meeting of a public body shall not be held unless public notice is given as provided in this section by a person designated by the public body." Mich. Comp. Laws Ann. § 15.265(1). A public body must meet in public before closing a meeting and take a 2/3 roll call vote of its members to enter into a closed session. Id. § 15.267(1). Additionally, for purposes of calling a closed meeting, there must be a two-thirds roll call vote of all the members of the public body appointed and serving, not merely two-thirds of those attending the particular meeting. 1977 Op. Att’y. Gen. 5183, p. 21. (1977). Thus, notice of the public meeting during which the 2/3 vote is taken must be given in accordance with Mich. Comp. Laws Ann. § 15.264.

Pursuant to Mich. Comp. Laws Ann. § 15.265, notice for regular meetings must be posted within 10 days of the first meeting of the body with all the dates, times and places of the regular meetings. Mich. Comp. Laws Ann. § 15.265(2). Rescheduled or special meetings must provide at least 18 hours’ notice, and for conference calls, 6 hours’ notice. Id. § 15.265(4).

Notice of meetings must be posted at the principal office of the public body and “any other locations considered appropriate by the public body.” Id. § 15.264(a), (b). Cable television may also be used. Id. For public bodies without a “principal office,” notice must be posted at the county clerk’s office in which the public body serves. Id. § 15.264(d). For state public bodies without a principal office, notice must be posted in the office of the secretary of state. Id.

Nothing more is required in the notice/agenda other than the public body’s name, telephone number and address. Id. § 15.264(a); see also also Lysogorski v. Bridgeport Charter Twp., 256 Mich. App. 297, 662 N.W.2d 108 (2003) (finding that an agenda containing only the public body’s name, address and telephone number was properly published and satisfied the notice requirement). The nature of the business to be conducted at the meeting does not need to be set forth in advance. Mich. Comp. Laws Ann. § 15.264(a); see also Haven v. City of Troy, 39 Mich. App. 219, 197 N.W.2d 496 (1972).

Compare

c. Minutes

As a 2/3 roll call vote of members is required to call a closed session, the roll call vote and the purpose or purposes for calling the closed session must be entered into the minutes of the meeting at which the vote is taken. Mich. Comp. Laws Ann. § 15.267(1); see also id. § 15.269(l).

See above.

Compare

G. Access to meeting materials, reports and agendas

Compare

H. Are there sanctions for noncompliance?

The state’s Attorney General, the prosecuting attorney of the county where the public body serves, or any person may commence a civil action to obtain an injunction requiring compliance with the OMA. Mich. Comp. Laws Ann. § 15.271(1). If a person is successful in obtaining this injunctive relief, the person is entitled to recover "court costs and actual attorney’s fees." Id. “A person cannot recover court costs and actual attorney fees under MCL 15.271(4) unless he or she succeeds in obtaining injunctive relief in the action.” Speicher v. Columbia Twp. Bd. of Trs., 497 Mich. 125, 144, 860 N.W.2d 51, 61 (2014).

Moreover, the OMA provides criminal penalties for noncompliance. A public official who intentionally violates the OMA is guilty of a misdemeanor punishable by a maximum fine of $1,000.00. Mich. Comp. Laws Ann. § 15.272(1). If the public official intentionally violates the OMA a second time within the same term, the public official will again be guilty of a misdemeanor and receive a maximum fine of $2,000.00 or imprisonment for a maximum of 1 year, or both. Id. § 15.272(2).

A person may also bring a civil action for damages against a public official who violates the OMA. A public official who has intentionally violated the OMA will be held personally liable for "actual and exemplary damages of not more than $500.00 total, plus court costs and actual attorney’s fees." Id. § 15.273(1). This action may be joined with an action for injunctive relief. Id. § 15.273(3).

The OMA provides for substantial fines against universities in certain circumstances. If an institution of higher education violates the OMA with respect to the process of selecting the institution's president at any time after the recommendation of final candidates to the governing board, the institution is responsible for a maximum civil fine of $500,000.00. Id. § 15.273a. This civil fine is in addition to any other remedy or penalty under the OMA. Id.

However, Mich. Comp. Laws Ann. §15.270(3) limits when actions to invalidate a decision can be brought to 60 days after the minutes have been made available to the public. Section 15.273 limits causes of action against public officials for intentional violations of OMA to 180 days after the date of violation. See Maiberger v. City of Livonia, 724 F. Supp. 2d 759 (E.D. Mich. 2010).

Compare

II. Exemptions and other legal limitations

Compare

A. Exemptions in the open meetings statute

Compare

1. Character of exemptions

A public body may meet in closed session only for the purposes listed in Mich. Comp. Laws Ann. § 15.268. The closed session exemptions are to be construed strictly to limit the types of situations that are not open to the public. Wexford Cty. Prosecuting Attorney v. Pranger, 83 Mich. App. 197, 268 N.W.2d 344 (1978); see also Booth Newspapers, Inc. v. Univ. of Mich. Bd. of Regents, 168 Mich. App. 459, 425 N.W.2d 695 (1988).

Compare

2. Description of each exemption

A public body may meet in a closed session “[t]o consider the dismissal, suspension, or disciplining of, or to hear complaints or charges brought against, or to consider a periodic personnel evaluation of, a public officer, employee, staff member, or individual agent, if the named person requests a closed hearing.” Mich. Comp. Laws Ann. § 15.268(a). A person may rescind a request for a closed hearing at any time, after which the matter will be considered after the rescission only in open sessions. Id. The phrase “after the rescission” was recently added to the last sentence of Mich. Comp. Laws Ann. § 15.268(a), suggesting that matters do not need to be reheard from the beginning if a request for a closed hearing is rescinded.
A public body may meet in a closed session to consider the dismissal, suspension, or disciplining of a student under two conditions: if the public body is part of the school district or institution which the student is attending, and if the student’s parent or guardian requests a closed hearing. Id. § 15.268(b).
“[S]trategy and negotiation sessions connected with the negotiation of a collective bargaining agreement” may be closed to the public if either negotiating party requests a closed hearing. Mich. Comp. Laws Ann. § 15.268(c). This exemption has been interpreted strictly to permit closed strategy sessions only when negotiation of a labor agreement is in progress or about to commence. Wexford Cty. Prosecuting Att’y v. Pranger, 83 Mich. App. 197, 268 N.W.2d 344, 348 (1978). Thus, a city commission’s May meeting to discuss the residency policy for city employees did not qualify for exemption, since a mandatory collective bargaining subject was involved and since collective bargaining was not to begin until August for renewal of a labor contract to expire December 31. Id. "Negotiation sessions" as used in this exemption, refers to "actual collective bargaining sessions between employer and employee." Id. In Moore v. Fenville Pub. Schs. Bd. of Educ., 223 Mich. App. 196, 566 N.W.2d 31 (1997), it was held that the members could meet in a closed session to reach consensus on a union's proposal because consensus reflected a goal in negotiations and not a final determination.
A public body may meet in closed session "[t]o consider the purchase or lease of real property up to the time an option to purchase or lease that real property is obtained." Mich. Comp. Laws Ann. § 15.268(d). Under this section, it has been held proper for a public body to meet in closed session to vote upon rejection of an owner's offer to sell real property at a designated price, or to direct its agents as to their limits in negotiating for the purchase of real property. 1977-78 Op. Att'y Gen. 606 (1978). A public body may not hold a closed meeting for the purpose of disposing of a building through sale or lease, although it may hold a closed meeting for the purpose of acquiring or leasing a building up to the time that an option is obtained. 1977-78 Op. Att'y Gen. 389 (1978).
Closed sessions may be held "[t]o consult with [an] attorney regarding trial or settlement strategy in connection with specific pending litigation, but only if an open meeting would have a detrimental financial effect on the litigating or settlement position of the public body." Mich. Comp. Laws Ann. § 15.268(e); see also Detroit News, Inc. v. City of Detroit, 185 Mich. App. 296, 460 N.W.2d 312, 315 (1990) (rejecting defendant's claim that closed meeting to review consent judgment regarding City's acquisition of Chrysler/Jefferson plant was exempt because settlement had already been accepted and there was no longer any issue in dispute); Manning v. City of E. Tawas, 243 Mich. App. 244, 593 N.W.2d 649 (1999) (the attorney does not need to be the attorney who is actually responsible for the litigation). People v. Whitney, 228 Mich. App. 230, 578 N.W.2d 329 (1998) (settlement negotiations occurring before initiation of a judicial or ADR proceeding is not "pending" litigation).
A public body may meet in closed session "[t]o review the specific contents of an application for employment or appointment to a public office if the candidate requests that the application remain confidential." Mich. Comp. Laws Ann. § 15.268(f). However, the public body must hold open meetings to interview such candidates. Id. The Attorney General has interpreted this "open interview" rule as applying only for those positions for which employment interviews must be conducted by the public body itself, since requiring public interviews for all positions, with all the attendant public notice requirements, would force public bodies to spend an inordinate amount of time on hiring procedures. Thus, in all other cases, where the public body itself is not required to interview the applicant, interviews for employment may be conducted in private by the staff of the public body. 1977-78 Op. Att'y Gen. 21, 38 (1977). However, under a 1996 amendment to the OMA, Mich. Comp. Laws Ann. § 15.268(f) does not apply to searches for the selection of a president of an institution of higher education established under section 4, 5, or 6 of article VIII of the Michigan Constitution. Instead, other rules apply to such searches. See Mich. Comp. Laws Ann. § 15.268(j). An Ingham County Circuit Court in May, 1997, ruled, however, that a university governing body must interview finalist university presidential candidates in public, and only advisory presidential selection committees may conduct preliminary interviews in closed session. Detroit Free Press v. N. Mich. Univ., Ingham County Circuit Court No. 97-860046-CZ. But see Federated Publ’ns Inc. v. Bd. of Trs. of Mich. State Univ., 594 N.W.2d 491 (1999).

Although Mich. Comp. Laws Ann. § 15.263(5) affords members of the public an opportunity to address a public body at some point during an open meeting according to rules established and recorded by the public body, they do not have the right to ask questions of applicants for employment during open interviews. 1981-82 Op. Att'y Gen. 507 (1981).

"Partisan caucuses of members of the state legislature" may meet in closed session. Mich. Comp. Laws Ann. § 15.268(g).
A public body may meet in closed session "[t]o consider material exempt from discussion or disclosure by state or federal statute." Id. § 15.268(h). Thus, public bodies may meet in closed session to consider matters which are exempt from disclosure under the state or federal FOIAs. 1979-80 Op. Att'y Gen. 255, 270-71 (1979); Ridenour v. Bd. of Educ., 111 Mich. App. 798, 314 N.W.2d 760 (1981) (information may be discussed at a closed meeting if it is exempt from disclosure under the FOIA as information of a personal nature, the public disclosure of which would constitute a clearly unwarranted invasion of the individual's privacy); Booth Newspapers, Inc. v. Regents of the Univ. of Mich., 93 Mich. App. 100, 286 N.W.2d 55 (1979) (written opinion of counsel to the University Board of Regents need not have been disclosed under the FOIA, and thus was exempt from open meeting requirements even though the opinion was not rendered in regard to specific pending litigation and so did not fall under Mich. Comp. Laws Ann. § 15.268(e)). But, when faced with FOIA-exempt material as applied to the OMA, a public body must state on the record those documents it deems exempt under the FOIA together with the associated FOIA exemption justifying nondisclosure, describe those documents — unless description would defeat the purpose of nondisclosure — and complete this process on the record in open session before conducting a closed session. Herald Co. v. Tax Tribunal, 258 Mich. App. 78, 669 N.W.2d 862 (2003). Note, however, that the exemption contained in the FOIA regarding communications and notes within a public body or between public bodies (Mich. Comp. Laws Ann. § 15.243(l)(n)) does not constitute an exemption for purposes of the OMA, because that section specifically states that it does not constitute an exemption for purposes of section 8(h) of the OMA [Mich. Comp. Laws Ann. § 15.268(h)]. See 1979-80 Op. Att'y. Gen 496 (1979).

Any exemption based on a claim of attorney-client privilege under OMA is narrowly construed. Closed sessions may not be held to receive oral legal opinions and a proper discussion of a written legal opinion at a closed meeting is limited to any strictly legal advice presented in a written opinion. People v. Whitney, 228 Mich. App. 230, 578 N.W.2d 329 (1998). However, one court has reasoned that the term “consider” in section 15.268(h) permits discussion and deliberation with respect to matters of attorney-client privilege. Berryman v. Madison Sch. Dist., No. 265996, 2007 WL 549230, at *1-2 (February 22, 2007).

Other statutes to which Mich. Comp. Laws Ann. § 15.268(h) has been held to apply are Mich. Comp. Laws Ann. § 400.9, involving administrative hearings which can be closed to the general public if the matters to be discussed involve records concerning categorical assistance, medical assistance, or federally funded assistance and service programs protected from disclosure under federal and state statutes. 1979-80 Op. Att'y Gen. 31, 33-35 (1979). Also exempt are proceedings involving the Youth Parole and Review Board pursuant to Mich. Comp. Laws Ann. § 803.308, part of which may be closed when confidential records, as defined by that section, are under discussion. 1979-80 Op. Att'y Gen. at 32-33 (1979). The meetings of several other public bodies are exempt, when they are deliberating on the merits of a case. See Mich. Comp. Laws Ann. § 15.263(8).

All records and documents of a compliance conference held before a complaint is issued are subject to Mich. Comp. Laws Ann. § 16238. Mich. Comp. Laws Ann. § 333.16231.
In another 1996 amendment to the OMA, a public body may meet in closed session "in the process of searching for and selecting a president of an institution of higher education established under section 4, 5, or 6 of article VIII” of the Michigan Constitution, to review the specific contents of an application, to conduct an interview with a candidate, or to discuss the specific qualifications of a candidate. Id. § 15.268(j). However, this exemption only applies if the institution's process for searching for and selecting a candidate meets all of the following requirements:

(1) the search committee has at least one student, one faculty member, one administrator, one alumnus, and one representative of the general public. The search committee may also include one or more members of the governing board, but not a quorum of the governing board. No one of these groups can constitute a majority of the search committee.

(2) After the search committee recommends the five final candidates, the governing board does not take a vote on a final section until at least 30 days after the five final candidates have been publicly identified by the search committee.

(3) The deliberations and vote of the governing board of the institution on selecting the president take place in an open session of the governing board. An Ingham County Circuit Court ruling has held that this provision applies to interviews of candidates, as well.

See id.

Compare

B. Any other statutory requirements for closed or open meetings

Not specified.

Compare

C. Court mandated opening, closing

Not specified.

Compare

III. Meeting categories - open or closed

Compare

A. Adjudications by administrative bodies

Some administrative adjudications are specifically exempted in Mich. Comp. Laws Ann. § 15.263(8). In other cases, statutes governing certain administrative adjudications may render some information confidential. See Mich. Comp. Laws Ann. § 15.268(h).

Compare

1. Deliberations closed, but not fact-finding

Compare

See generally Mich. Comp. Laws Ann. § 15.268(c). Strategy and negotiation sessions connected with the negotiation of a collective bargaining agreement may be closed to the public if either negotiating party requests a closed hearing. See also Moore v. Fenville Pub. Sch., 223 Mich. App. 196, 566 N.W. 2d 31 (1997) (“In order to conduct a meaningful strategic session, the public body must be allowed to make determinations concerning its goals and tactics relative to the negotiations. Thus, the OMA must be interpreted so as to allow a public body to make strategic determinations during its closed-door deliberations.”).

Compare

1. Any sessions regarding collective bargaining

Compare

2. Only those between the public employees and the public body

Compare

L. Parole board meetings, or meetings involving parole board decisions

Not subject to OMA. Glover v. Mich. Parole Bd., 460 Mich. 511, 596 N.W.2d 598 (1999).

Compare

M. Patients, discussions on individual patients

Not addressed.

Compare

N. Personnel matters

Compare

1. Interviews for public employment

The OMA does not provide for administrative review.

Compare

Compare

1. Who may sue?

"The attorney general, the prosecuting attorney of the county in which the public body serves, or any person may commence a civil action in the circuit court to challenge the validity of a decision of a public body made in violation of [the OMA]." Mich. Comp. Laws Ann. § 15.270(1).

Compare

2. Will the court give priority to the pleading?

No provision of the OMA specifically gives priority to complaints under the Act.

Compare

3. Pro se possibility, advisability

The availability of actual attorney’s fees for a plaintiff who prevails in an action under the act is intended to provide access to legal services. Mich. Comp. Laws Ann. § 15.271(4).

A court may order future meetings open. However, where the court finds that there is no reason to believe that a public body will deliberately fail to comply with OMA in the future, injunctive relief is unwarranted. Nicholas v. Meridian Charter Twp. Bd., 239 Mich. App. 525, 609 N.W.2d 574 (2000).

Compare

5. Pleading format

Those seeking to have a decision of a public body invalidated under the OMA must allege not only that the public body failed to comply with the OMA, but also that this failure impaired the rights of the public. See Mich. Comp. Laws Ann. § 15.270(2); Esperance v. Chesterfield Twp., 280 N.W.2d 559, 563 (1979); Cape v. Howell Bd. of Educ., 145 Mich. App. 459, 378 N.W.2d 506, 510 (1985). "A mere recital that the rights of the public were impaired is insufficient to support a request for invalidation. . . . Rather, the plaintiff must present factual allegations to support the conclusion that the rights of the public were impaired." Jude v. Heselschwerdt, 228 Mich. App. 667, 672 (1998). The similar structure of the FOIA and OMA suggests that, as with the FOIA, an OMA plaintiff need not allege that the meetings in question were not subject to statutory exemption, since exemption is a defense to actions under the OMA. Booth Newspapers, Inc. v. Regents of the Univ. of Mich., 93 Mich. App. 100, 286 N.W.2d 55, 59 (1979).

Compare

6. Time limit for filing suit

An action to invalidate a decision of a public body must be commenced within 60 days after the approved minutes are made available to the public, unless a decision involves "the approval of contracts, the receipt or acceptance of bids, the making of assessments, the procedures pertaining to the issuance of bonds or other evidences of indebtedness, or the submission of a borrowing proposal through the electors," in which case an action must be commenced within 30 days after the approved minutes are made available to the public. Mich. Comp. Laws Ann. § 15.270(3). There are no specific time limits for filing actions for injunctive relief under Mich. Comp. Laws Ann. § 15.271. An action seeking damages for intentional violation of the OMA, which may be brought under Mich. Comp. Laws Ann. § 15.273, must be commenced within 180 days after the date of the violation which gave rise to the cause of action. Id. § 15.273(2).

c. The powers conferred, and the duties to be discharged, must be defined, directly or impliedly, by the legislature or through legislative authority;

d. The duties must be performed independently and without control of a superior power other than the law, unless they be those of an inferior or subordinate office, created or authorized by the legislature, and by it placed under the general control of a superior officer or body; and

e. It must have some permanency and continuity, and not be only temporary or occasional.

See Mich. Cont. art. 11, § 1.

Compare

11. Other penalties

A public official who intentionally violates the OMA may be personally liable in a civil action for actual and exemplary damages of up to $500, plus costs and attorney’s fees to the person or group of persons bringing the action. Mich. Comp. Laws Ann. § 15.273(1). An action for damages under this section may be joined with an action for injunctive or exemplary relief under Mich. Comp. Laws Ann. § 15.271. Id. § 15.272(3). A 1996 amendment to the OMA provides for penalties if the governing board of an institution of higher education covered under Mich. Comp. Laws Ann. § 15.268(j) violates the OMA with respect to the process of selecting a president any time after the recommendation of final candidates to the governing board. In this situation, the institution is responsible for the payment of a civil fine of "not more than $500,000." Id. § 15.273a. This fine is in addition to other remedies or penalties in the OMA. Mich. Comp. Laws Ann. § 15.273a also provides that "[t]o the extent possible, any payment of fines imposed under this section shall be paid from funds allocated by the institution . . . to pay for the travel and expenses of the members of the governing board."

Compare

D. Appealing initial court decisions

Compare

1. Appeal routes

Usual appeal proceedings under Michigan Court Rules are available.

Compare

2. Time limits for filing appeals

No time limit is expressed generally. Nevertheless, if the relief sought is invalidation of a decision of a public body, the action must be commenced within 60 days after the approved minutes are made available to the public, except in the case of certain contracts, bids, assessments and issuance of bonds and evidences of indebtedness, where the action must be commenced within 30 days. Mich. Comp. Laws Ann. § 15.270(3).

Compare

3. Contact of interested amici

The general rules for filing amicus briefs found in the Michigan Court Rules apply.

Foreword

Open Records

I. Statute

A. Who can request records?

1. Status of requester

2. Purpose of request

3. Use of records

4. Can an individual request records on behalf of a third party or organization?

B. Whose records are and are not subject to the Act

1. Executive branch

2. Legislative bodies

3. Courts

4. Nongovernmental bodies

5. Multi-state or regional bodies

6. Advisory boards and commissions, quasi-governmental entities

7. Others

C. What records are and are not subject to the act?

1. What kinds of records are covered?

2. What physical form of records are covered

3. Are certain records available for inspection but not copying?

4. Telephone call logs

5. Electronic records (e.g., databases, metadata)

a. Can the requester choose a format for receiving records?

b. Can the requester obtain a customized search of computer databases to fit particular needs

c. Does the existence of information in electronic format affect its openness?

d. Online dissemination

6. Email

7. Text messages and other electronic messages

8. Social media posts

9. Computer software

10. Can a requester ask for the creation or compilation of a new record?

D. Fee provisions

1. Types of assessable fees (e.g., for search, review, duplication) and levels or limitations on fees

2. Particular fee specifications or provisions

3. Provisions for fee waivers

4. Requirements or prohibitions regarding advance payment

5. Have agencies imposed prohibitive fees to discourage requesters?

6. Fees for electronic records

E. Who enforces the Act?

1. Attorney General's role

2. Availability of an ombudsman

3. Commission or agency enforcement

F. Are there sanctions for noncompliance?

G. Record-holder obligations

1. Search obligations

2. Proactive disclosure requirements

3. Records retention requirements

4. Provisions for broad, vague, or burdensome requests

II. Exemptions and other legal limitations

A. Exemptions in the open records statute

1. Character of exemptions

2. Discussion of each exemption

B. Other statutory exclusions

C. Court-derived exclusions, common law prohibitions, recognized privileges against disclosure

D. Protective orders and government agreements to keep records confidential

E. Interaction between federal and state law

1. HIPAA

2. DPPA

3. FERPA

4. Other

F. Segregability requirements

G. Agency obligation to identify basis of redaction or withholding

III. Record categories - open or closed

A. Autopsy and coroners reports

B. Administrative enforcement records (e.g., worker safety and health inspections, or accident investigations)

C. Bank records

D. Budgets

E. Business records, financial data, trade secrets

F. Contracts, proposals and bids

G. Collective bargaining records

H. Economic development records

I. Election Records

J. Emergency Medical Services records

K. Gun permits

L. Homeland security and anti-terrorism measures

M. Hospital reports

N. Personnel records

1. Salary