Sunlight is said to be the best of disinfectants...

Michigan's Freedom of Information Act

FOIA (pronounced FOY-YA) stands for Freedom of Information Act.

FOIA regulates and sets requirements for the disclosure of "public records" held by "public bodies" in the state. The Michigan Legislature passed Public Act 442 of 1976, a law that created an explicit statutory right for individuals to access governmental records and provided penalties for governmental non-compliance.

The law has since been amended numerous times and been subject to various judicial decisions that affect its reach, requirements, and strength. It is commonly used by journalist, legal practitioners, and students conducting research into governmental functions, decisions, and expenses yet is also available for use by everyone.

State Law vs. Federal Law

It is important to note that Michigan's FOIA law only covers state and local governmental agencies. A similar but different federal law, also called FOIA, controls access to records held by federal governmental agencies and employees. That statute is located at 5 U.S.C. 552 et seq.

Public Bodies

All state agencies, county and other local governments, school boards, other boards, departments, commissions, councils, and public colleges and universities are subject to the disclosure requirements of FOIA.

However, FOIA does not apply to the judicial branch and it does not apply to legislators themselves.

FOIA also applies to any program primarily funded by the state or local authority. For example, a college foundation, which is a legally separate entity than the university, is considered a public body within FOIA. See Jackson v. Eastern Michigan University Foundation, 544 N.W.2d 737 (Mich. Ct. App. 1996).

Public Records

What constitutes a covered "public record" is one of the most litigated areas of FOIA. A public record is defined as "a writing 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." MCL 15.232(e). Actual records are requestable but public body is not required to make a compilation, summary, or report of information based on those records. MCL 15.233(4).

The Legislature also created a class of exempted records known Section 13 exemptions. This means that certain records need not be disclosed when requested. These exemptions include:
  • 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 that
    • interferes with law enforcement proceedings;
    • deprives a person of the right to a fair trial or impartial administrative adjudication,
    • constitutes an unwarranted invasion of personal privacy,
    • identities a confidential source,
    • discloses law enforcement investigative techniques or procedures, or
    • endangers the life or physical safety of law enforcement personnel.
  • Records that would prejudice a public body's ability to maintain the physical security of custodial or penal institutions occupied by persons arrested or convicted of a crime or admitted because of a mental disability, unless the public interest in disclosure under this act outweighs the public interest in nondisclosure.
  • Records or information specifically described and exempted from disclosure by [another] statute.
  • Trade secrets or commercial or financial information voluntarily provided to government if given with a number of conditions.
  • Records subject to the attorney-client privilege, 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
  • Appraisals of real property to be acquired by the public body prior to certain occurring events.
  • Test questions and answers, scoring keys, and other examination instruments or data used to administer a license, public employment, or academic examination, unless the public interest in disclosure under this act outweighs the public interest in nondisclosure.
  • Medical, counseling, or psychological facts or evaluations concerning an individual if the individual's identity would be revealed by a disclosure of those facts or evaluation
  • 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.
  • Records of law enforcement communication codes, or plans for deployment of law enforcement personnel
  • Information that would reveal the exact location of archaeological sites.
  • Testing data developed by a public body in determining whether bidders' products meet the specifications for purchase of those products by the public body, if disclosure of the data would reveal that only 1 bidder has met the specifications.
  • Academic transcripts of an institution of higher education established under section 5, 6, or 7 of article VIII of the state constitution of 1963, if the transcript pertains to a student who is delinquent in the payment of financial obligations to the institution.
  • Records of a campaign committee.
  • records and information pertaining to an investigation or a compliance conference under the Public Health Code
  • Records of a public body's security measures
  • Records or information relating to a civil action in which the requesting party and the public body are parties
  • Information or records that would disclose the social security number of an individual.
  • Certain materials submitted for the position of president of an institution of higher education under the State Constitution
  • Records or information of measures designed to protect the security or safety of persons or property, whether public or private
  • Records protected under the federal Family Educational Rights and Privacy Act of 1974 (FERPA)
While the list is quite large and extensive, a governmental body looking to prevent disclosure of a public record must find a reason from the above list of exemptions. Many court cases have been litigated as to whether an exemption used by governmental bodies properly fits within one of the exemptions, especially the "privacy" exemption and the "internal communications" exemption.

In legal parlance, the burden of proving need for an exemption rests on the public body asserting its application. See Bradley v. Saranac Community Schools Bd. of Ed., 455 Mich. 285; 565 N.W.2d 650 (1997).

Separate the Exempt from the Non-Exempt

If a record contains information that need not be disclosed pursuant to Section 13, the public body is required to separate the exempt and nonexempt material and make the nonexempt material available for examination and copying. MCL 15.244. In short, a governmental body cannot withhold an entire record if only a portion contains nonexempt material.

Availability of Public Records

Any person may ask to inspect, copy or receive a copy of a public record. However, FOIA is not available to "persons incarcerated in state or local correctional facilities."
 - What is FOIA
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 - FOIA Request Generator
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 - What is OMA
 - Basic Rights and Responsibilites
 - Notice Requirements
 - Closed Meetings and Sessions
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 - Enforcement and Penalties
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 - About the Project

Publicity is justly commended as a remedy for social and industrial diseases. Sunlight is said to be the best of disinfectants...

Louis D. Brandeis
in Other People's Money

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