The Michigan Freedom of Information Act Rebecca Nelson Director

The Michigan Freedom of Information Act Rebecca Nelson Director and Freedom of Information Act Officer Jacquelynn Kittel Assistant General Counsel Michigan State University

Organizational Chart President Samuel L. Stanley Jr., M.D. Acting Vice President and General Counsel Brian Quinn Deputy General Counsel Associate General Counsels Assistant General Counsels FOIA Office 2

FOIA Office Staff Rebecca Nelson, Director & Freedom of Information Act Officer Susan Green, Assistant Freedom of Information Act Officer Jackie Kittel, Assistant General Counsel Carrie Latourette, Administrative Assistant Karen Romig, Administrative Assistant

A few words of comfort . . . This presentation provides general background information about the MIFOIA. If you have any questions about any of this information, do not hesitate to call the FOIA Office.

Michigan Freedom of Information Act (“MIFOIA” or “the Act”) State law designed to guarantee public access to public records of government bodies at all levels of Michigan government. Purpose of MIFOIA: “It is the public policy of this state that all persons, except those persons incarcerated . . ., 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.” MIFOIA provides that all public records are subject to disclosure unless specifically exempted by the Act.

What governmental bodies are subject to the law? A state officer, employee, agency, department, division, bureau, board, commission, council, or other body in the executive branch of the state government. Agencies, boards, commission, or councils in the state legislature. Local government. Any entity created by state or local authority or which is primarily funded by or through state or local authority.

Governmental agencies or officials not subject to the law: The governor, lieutenant governor, and their executive offices and employees. State legislators. The judiciary. Private, non-profits that receive public monies in exchange for goods provided or services rendered.

What communications constitute a “public record” under MIFOIA? A writing (which includes handwriting, typewriting, printing, photographing, photocopying, and every other means of recording, and includes letters, words, pictures, sounds, or symbols, or a combination thereof, or other means of recording or retaining meaningful content) prepared, owned, used, in the possession of, or retained by a public body in the performance of an official function, from the time it is created. A record includes e-mails, computer disks, tapes, videotapes or information stored on any form of electronic or other media.

Points of Clarification Where a record is kept does not matter for purposes of FOIA – Personal emails on a work account – Work emails on a personal account – Documents in your car or home office The email address one uses does not matter Cell phones – Text messages and voicemail messages may be subject to FOIA if they meet the definition of a public record

Who can make a request for records under MIFOIA? Any person other than someone incarcerated in a state or local correctional facility may request public records in Michigan.

How does a person make a request for records? In writing Addressed to the FOIA Coordinator* Just states “I want” *Note: Just because a request isn’t addressed to the FOIA coordinator does not mean that it is not a FOIA request.

Informal Requests If you receive an informal request for information, and you feel comfortable responding, you should feel free to do so – No FOIA deadlines – No FOIA requirements If you receive an informal request for information that you know is available on the MSU webpage, you must notify the requester of the web address.

What use can be made of the documents? “The initial as well as future uses of the requested information are irrelevant.” Mullin v. Detroit Police Dep’t.

What is the time to respond to a request for information under MIFOIA? A public body must respond to a request for public records within five business days after receipt of the request. Five possible initial ways to respond to a FOIA request (all responses must be in writing): Grant the request; Deny the request; Grant the request in part and deny the request in part; Extend the time to respond for not more than ten business days; Issue a fee and deposit notice. 1. 2. 3. 4. 5.

Section 13 -- Exceptions to Disclosure under MIFOIA Information of a personal nature if public disclosure of the information would constitute a clearly unwarranted invasion of an individual’s privacy. Investigating records compiled for law enforcement purposes. Records or information specifically described and exempted from disclosure by statute. – For example, FERPA, Confidential Research and Investment Information Act (“CRIIA”), Bullard-Plawecki Employee Right to Know Act, Holmes Youthful Trainee Act. Certain trade secret information.

Section 13 -- Exceptions to Disclosure under MIFOIA (continued) Information or records subject to the attorney-client privilege. Information or records subject to the physician-patient privilege, the psychologist-patient privilege, the minister, priest or Christian Science practitioner privilege, or other privilege recognized by statute or court rule. A bid or proposal by a person to enter into a contract or agreement, until the time for the public opening of bids or proposals, or if a public opening is not to be conducted, until the deadline for the submission of bids or proposals has expired. Appraisals of real property to be acquired by the public body.

Section 13 -- Exceptions to Disclosure under MIFOIA (continued) Test questions and answers. Medical, counseling, or psychological facts or evaluations if they reveal a patient’s identity. Communications and notes within a public body or between public bodies of an advisory nature to the extent that they cover other than purely factual materials and are preliminary to a final agency determination of policy or action. There is also a balancing test required to use this exemption. Records of law enforcement communication codes, or plans for deployment of law enforcement personnel, that if disclosed would prejudice a public body’s ability to protect the public safety.

Section 13 -- Exceptions to Disclosure under MIFOIA (continued) Academic transcripts of an institution of higher education, if the transcript pertains to a student who is delinquent in the payment of financial obligations to the institution. Records of a law enforcement agency, the release of which would identify or provide a means of identifying an informant or undercover officer or agent. Records of a public body’s security measures, including security plans, codes, combinations, passwords, passes, keys, and security procedures. Records or information relating to a civil action in which the requesting party and the public body are parties.

Section 13 -- Exceptions to Disclosure under MIFOIA (continued) Information or records that would disclose the social security number of any individual. An application for the position of president of an institution of higher education (until finalists are identified). Records or information of measures designed to protect the security or safety of persons or property, whether public or private, including, but not limited to, building, public works, and public water supply designs to the extent those designs relate to the ongoing security measures of a public body.

Responsibility Who determines whether information is released or withheld? – The FOIA Officer for MSU Consistency Accountability

Procedures If you receive a FOIA request, the first thing you should do is send it directly to the FOIA Office at MSU: – Email: [email protected] – Fax: 3-1794 – Phone: 3-3929 The FOIA Office is responsible for processing all of the FOIA requests received by the University.

Procedures (continued) Once the FOIA Office receives a FOIA request, the office will send the affected MSU party(ies) a copy of the request and a Query Form. The Query Form will: – State when the documents are due to the FOIA Office; – Request a signature attesting that all of the responsive documents have been provided; and/or – Ask how much time it has taken or will take to gather the responsive documents.

Procedures (continued) If processing the request will cost the University 50 or more, the FOIA Office will likely issue a fee deposit notice along with a non-binding, good-faith estimate of when the documents will be ready for release. If processing the request will cost the University less than 50, the FOIA Office will either provide the responsive documents within five business days, or take advantage of the extension allowed by the Act and provide the responsive documents within 15 business days from receipt. The University will not charge for processing the request.

Procedures (continued) *A Note about Fees* Pursuant to the Act, the University calculates fees by multiplying the number of hours it will take to process the FOIA request by the hourly rate of the lowest paid employee capable of performing the work. All fees collected are deposited into the General Fund and do not go to the FOIA Office or the affected unit.

Follow Up Once the University issues a final response to the requester, the requester has options: – accept the documents and move on. – file an appeal with the University. – sue the University. – file an appeal with the University and sue the University. The FOIA Office processes the appeals, but the appeals are reviewed and decided by President Stanley.

Examples of Recent FOIA Requests – – – – – – – Tenure and promotion files Police reports OIE reports Animal research and care records Personnel files Faculty and staff emails Contracts

A Few Things to Remember Any document can be requested (and emails are documents!). FOIA pro-disclosure – Document must be released unless there is a specific exemption – Documents are seldom completely withheld – Marking a document “confidential” does not prevent disclosure Financial documents and contracts tend to go to the very core purpose of FOIA and are therefore likely to be released If you have any questions, don’t hesitate to contact the FOIA Office. We are happy to help.