CITY ATTORNEY OPINION 09-36
3Policies and Procedures are attached as Exhibit G. The Policies and Procedures used by other agencies are attached as Exhibit H.
THE OCA HANDLES FOIA APPEALS PURSUANT TO STATUTE, WHICH ISREFLECTED IN THE OCA’S FOIA POLICIES AND PROCEDURES.
As reflected in the OCA’s Policies and Procedures, Michigan’s Freedom of InformationAct allows a person whose FOIA request has been denied to either appeal to the head of the public body or bring an action in circuit court.
MCL 15.240(1). If, instead of filing the courtaction, an appeal is first taken to the City as the public body, the appeal is made to
“head of the public body.” Because FOIA does not define the term “head of the public body,” this office,in consultation with then Police Legal Advisor, Paul McComb, has previously concluded that theCity Council President is the head of the public body for purposes of FOIA appeals and, as such,appeals are solely to be considered by the City Council President and not the Council as a whole.To meet the formality of the FOIA, an appeal to the City Council President: (1) must bein writing, (2) must contain the word “appeal,” and (3) must identify the basis for reversing thedenial.
MCL 15.240(1)(a).Within 10 days of receiving an appeal, the City Council President must: (a) reverse thedenial, (b) uphold the denial in writing, (c) reverse the denial in part and uphold the denial, inwriting, in part, or (d) under unusual circumstances, extend, in writing, for up to 10 businessdays, the period for responding, after which time the City Council President must do (a), (b), or (c).
MCL 15.240(2). Unusual circumstances are defined as, to the extent necessary to properly process the request, “[t]he need to search for, collect, or appropriately examine or review a voluminous amount of separate and distinct public records pursuant to a single request”or “[t]he need to collect the requested public records from numerous field offices, facilities, or other establishments which are located apart from the particular office receiving or processingthe request.” MCL 15.232(g). Thus, in the absence of one of these situations, the City CouncilPresident has ten days to uphold the denial, reverse the denial, or uphold the denial in part andreverse the denial in part. Any denial that is upheld or upheld in part must be done in writing.“If the [City Council President] fails to respond to a written appeal . . . or if the [CityCouncil President] upholds all or a portion of the disclosure denial that is the subject of thewritten appeal, the requesting person may . . . commenc[e] an action in circuit court.” MCL15.240(3). The action must be commenced within 180 days of the final determination to denythe request.
MCL 15.240(1)(b). In such an appeal, “a court that determines a public recordis not exempt from disclosure shall order the public body to cease withholding or to produce allor a portion of a public record wrongfully withheld.” MCL 15.240(4). If the party seekingdisclosure completely prevails, “the court shall award reasonable attorneys’ fees, costs, anddisbursements.” MCL 15.240(6).Further, “[i]f the circuit court determines in an action commenced under this section thatthe public body has arbitrarily and capriciously violated [FOIA] by refusal or delay in disclosingor providing copies of a public record, the court shall award, in addition to any actual or compensatory damages, punitive damages in the amount of $500.00.” MCL 15.240(7). Finally,