Freedom of Information Act (FOIA) (Policy)
Office of Origin: President
Responsibility: Executive Assistant to the President
Original Date Adopted: 06-23-15
Dates Reviewed: 05-04-17
Last Date Modified & Approved: 05-04-17, 06-08-22
This policy is published by Lake Michigan College (the College), consistent with the Michigan Freedom of Information Act (Act or FOIA), to inform the public – except individuals imprisoned in a county, state, or federal correctional facility – of its FOIA rights and to create a written public summary of the specific procedures to submit requests to the College and understand the College’s responses, deposit requirements, fee calculations, and avenues for challenge and appeal.
This policy is not intended to, and should not be read to, limit the rights actually created by FOIA. Accordingly, to the extent this policy is found to be inconsistent with FOIA, or inconsistent with a future amendment to FOIA, the Act governs. The College retains the right to revise this regulation and the guidelines.
Requesting Public Records
The Executive Assistant to the President is the College’s FOIA Coordinator. As used in this policy, “FOIA Coordinator” also includes the FOIA Coordinator’s designee(s) for purposes of accepting and processing FOIA requests and approving denials of same.
Public records may be requested by providing the FOIA Coordinator with a written request that identifies the public records with enough specificity to permit the College to locate them. For requesters other than indigent persons, the request must also include the requester’s complete name, address, and contact information or, if the requester is other than an individual person, such as a company or organization, the request must also include the complete name, address, and contact information of the requester’s agent who is an individual person. The written request may be on paper or it may be electronic or digital. FOIA requests may be sent to:
Executive Assistant to the President
2755 East Napier Avenue, Benton Harbor MI 49022
A person may subscribe to public records that are created, issued, or disseminated on a regular basis. A subscription is valid for up to six months and may be renewed.
The College will not accept or respond to a verbal request for public records. However, where an employee receives a verbal request and is aware the public records are available on the College website, the employee will notify the requestor of the website address.
Response to Request for Public Records
The College is required to respond, in writing, to a written request for public records. The College may grant the request, deny the request, or grant the request in part and deny the request in part.
The College has 5 business days to respond to a written request for public records. However, if the request was sent by email and delivered to the College spam or junk mail folder, the request is not considered received until the first day after the College actually becomes aware of the request. The College may extend the time for responding by 10 business days if the nature of the request justifies an extension by so notifying the person who made the request, in writing, and within the original 5 business day response window.
Types of College Responses
Granting a Request: The FOIA Coordinator will grant a request for public records by so notifying the requestor in a timely manner and in writing. The College will also provide notice if some or all of the public records are available on its website and will include a specific website address, if practicable.
Denying a Request: The FOIA Coordinator may deny a request if the request is not specific enough to allow the College to locate the public records in question by so certifying that fact to the requestor in writing. The FOIA Coordinator may also deny a request if the requested public records are exempt from disclosure under the Act. If only part of a public record is exempt, the FOIA Coordinator will redact the exempt part and, otherwise, grant the request.
FOIA allows the College to charge fees incurred for processing and responding to FOIA requests, as stated below.
Generally, FOIA does not permit the College to charge labor costs for searching for, locating, examining, separating, or reproducing public records unless a failure to charge a fee would result in unreasonably high costs to the College because of the nature of the request in the particular instance and the College specifically identifies the nature of these unreasonably high costs. Examples of requests that may cause such unreasonably high costs include, but are not limited to, voluminous requests, requests that require time-consuming searches, significant separation or redaction of exempt documents or information, significant IT personnel time, etc. In cases where labor costs are allowable, they will be charged according to the following guidelines:
- Searching for, Locating, and Examining Public Records. The College may charge labor costs directly associated with searching for, locating, and examining requested public records in conjunction with receiving and fulfilling a granted request. Except as provided by the Act, the College may not charge labor costs for searching for, locating, and examining public records that are on the College website at the time the request is made.
- Separating or Deleting Exempt Information. The College may charge labor costs directly associated with separating or deleting information that is exempt from disclosure under the Act, unless the College has previously redacted the public record(s) and the redacted version is still in the College’s possession. The College will not charge for separating documents that are available on its website.
- Reproducing Information. The College may charge labor costs directly associated with duplicating or publishing public records. This includes the time spent making paper copies, making digital copies, and transferring public records to non-paper physical media or through the internet, if so requested.
- Limitations on Labor Costs. Subject to the Itemization of Allowable Fees section of this policy, the College may charge no more than the hourly rate and actual fringe benefits of the lowest paid employee capable of performing the particular task for which the College may charge labor costs, even if the College assigns a more highly paid employee to perform the task. The charge for fringe benefits may not exceed 50% of the employee's hourly rate. The College may not charge overtime except at the request or stipulation of the requestor. If the FOIA Coordinator determines that no College employee is capable of separating or deleting exempt information with respect to a particular request, the College may hire contracted labor to perform the task. In such cases, the College will calculate the time spent by the contracted labor in the same manner it calculates the time of its own employees and the charge for the contracted labor will not exceed 6 times Michigan's minimum wage. In all cases, labor costs will be charged and estimated in increments of 15 minutes, with all partial time increments rounded down.
- Non-Paper Physical Media. The College may charge the actual and most reasonably economical cost of reproducing public records on non-paper physical media (e.g., computer discs, computer tapes, or other digital or similar media). The College is not required to reproduce public records on non-paper physical media if it does not have the technology necessary to do so.
- Paper Copies. The College may charge the actual incremental cost of reproducing paper copies of public records using the most economical means available (e.g., double-sided copies, if double-sided copies are available and more economical than single-sided copies). In no case will the College charge more than 10 cents per sheet. The College will not charge copying costs for copying documents on its website or the on-site inspection of public records unless the requestor requests paper copies.
The College may charge the actual cost of mailing requested public records and the least expensive method of confirming delivery. The College may not charge for expedited shipping or insurance unless specifically requested by the requestor.
Waiver, Reduction, or Discount of Allowable Fees
The College may waive or reduce allowable fees if the College determines a waiver or reduction is in the public interest, including as follows:
- Indigence. The College will discount allowable fees by $20.00 to a requestor who submits an affidavit stating that they are indigent and on public assistance or, if not receiving public assistance, stating facts showing inability to pay full allowable fees due to indigence. If the College determines a requestor who submits such an affidavit is not eligible for the discount, the College’s written response will inform the requestor of the reason(s) for its determination. The College will not provide an indigence discount to an otherwise eligible requestor if the requestor has already received discounted copies from the College twice during the calendar year or if the requestor has been offered or received payment or other remuneration by or from another person.
- Protection and Advocacy. The College will discount allowable fees and costs by $20.00 if the requestor is a non-profit agency designated by the Governor under Section 931 of the Michigan Mental Health Code, MCL 330.1931, and the following additional conditions are met: the request is made on behalf of the agency or its clients; the request is made for reasons wholly consistent with the agency's mission, as described in Section 931; and, the request is accompanied by documentation of its designation, if so requested by the College.
Itemization of Allowable Fees
The College will itemize allowable fees on a Detailed Itemization of Allowable FOIA Fees form.
The College may require a good-faith deposit from a requestor before providing public records if the total allowable fees exceed $50.00 and the College provides the requestor with an estimate of total allowable fees using the Itemization of Allowable Fees and Costs form. The good-faith deposit may not exceed 50% of the total allowable fees and costs. The College's request for a good-faith deposit will include a reasonable and best efforts estimate of the time frame within which the College will provide public records after receiving the good-faith deposit, along with notice that the good-faith deposit is due within 48 days of when the request was sent or else the request will be considered abandoned. The College is not required to fulfill abandoned requests. Requests are not considered abandoned if the requester has filed an appeal of the good-faith deposit request within the 48-day timeframe. The College may charge an increased good-faith deposit of up to 100% of the estimated fee before it begins a full public record search for a person who has previously failed to pay allowable fees in full if: the final allowable fees were not more than 105% of the total estimated fees; the public records provided contained the information sought in the prior request and are still in the College’s possession; the public records were provided within the College's reasonable best efforts estimate for the prior request; 90 days have passed since the College notified the requestor the public records were available for pickup or mailing; the requestor is not able to show proof of prior payment; and, the College provides a completed Detailed Itemization of Allowable FOIA Fees form that is the basis of the increased good-faith deposit. However, the College may not insist on an increased good-faith deposit if: the requestor shows proof of prior payment; the College is paid in full for the prior request; or, 365 days have passed since the requestor made the request for which full payment was not remitted.
Reduction of Labor Charges for Untimely Response
The College will reduce otherwise permitted labor charges by 5% per day (to a maximum of 50%) for each day the College's response is untimely if the late response was willful and intentional or the written request conveyed a request for information within the first 250 words or the request included the words, characters, or abbreviations for "freedom of information," "information," "FOIA," or a recognizable misspelling of such, or appropriate legal code reference on the front of the envelope or the subject line of the request.
The requestor may appeal the denial of all or part of a request in two ways: submit an appeal to the College President or file a civil action in the circuit court where the College is located. The requestor may also appeal an allowable fee calculation that violates the Act or this administrative regulation.
Appeal to President
An appeal to the President must include the word "appeal" and identify the reason(s) the President should reverse the denial or reduce the allowable fee calculation. The President will respond to the appeal, in writing, within 10 business days by reversing the denial or calculation, upholding the denial or calculation, or reversing the denial or calculation, in part, and upholding the denial or calculation, in part. In unusual circumstances, the President may issue not more than one notice extending their time for responding by not more than 10 additional business days. If the appeal is based on the College calculation of fees and the President upholds the calculation, in whole or in part, the President must certify and explain the College calculation.
The requestor may, in addition to appealing to the President, file a civil action in the circuit court where the College is located. The civil action may be based on the College's failure to timely provide public records or the College calculation of allowable fees. If the requestor prevails in a case concerning the timely provision of public records, he or she is entitled to reasonable attorneys' fees, costs, and disbursements. If the requestor or the College prevails in part the court may, in its discretion, award all or an appropriate portion of reasonable attorneys' fees, costs, and disbursements. Additionally, if the court determines the College has arbitrarily and capriciously violated the Act by refusing or delaying the request, the court will order the College to pay a fine of $1,000, which will be deposited in the Department of Treasury's general fund, and, in addition to any actual or compensatory damages, punitive damages to the requestor in the amount of $1,000.
If the requestor prevails in a case concerning the College calculation of allowable fees by receiving a reduction of 50% or more of the total fee, the court may, in its discretion, award the requestor all or an appropriate portion of their attorneys' fees, costs, and disbursements. If the court determines the College has arbitrarily and capriciously violated the Act by charging an excessive fee, the court will order the College to pay a fine of $500, which will be deposited in the Department of Treasury's general fund, and, in addition to any actual or compensatory damages, punitive damages to the requestor in the amount of $500. Separately, if the court determines the College willfully and intentionally failed to comply with the Act or has otherwise acted in bad faith, the court will order the College to pay a civil fine of not less than $2,500 and not more than $7,500 per occurrence, which will be deposited in the Department of Treasury's general fund.
A civil action based on a denial of public records must be filed within 180 days after the College’s final determination. A civil action based on the College calculation of allowable fees must be filed within 45 days of receiving the completed Detailed Itemization of Allowable FOIA Fees form or within 45 days of the President's decision concerning an appeal. If the requestor files a civil action based on the College's calculation of allowable fees, the College is not required to continue processing the request until the court resolves the fee dispute.
Attorney General Opinion 7083 of 2001
Bloch v. Davison Community Schools, Michigan Court of Appeals, Unpublished, April 26, 2011
Detailed Itemization of Allowable FOIA Fees form
Subtitle C of the federal Developmental Disabilities Assistance and Bill of Rights Act of 2000, Public Law 106-402, and the Protection and Advocacy for Individuals with Mental Illness Act, Public Law 99-319, or their successors
Section 931 of the Mental Health Code, 1974 PA 258, MCL 330.1931
Note: last legal review 9/9/21