Michigan
Requesters in Michigan
have a right to electronic format, although courts have found that databases
constitute a greater possible invasion of privacy than printed records. Fees
also are an issue for journalists there.
"Everybody’s
charging us now, any fees they can justify under FOIA," Dawn Phillips Hertz,
an attorney for the Michigan Press Association, said of the current state of
public records in Michigan. However, she said, a 1996 statute named Enhanced
Access to Public Records allows for governmental bodies to charge higher fees
for "enhanced access," as well as access to geographical information
systems. Meanwhile, she said requesters are often charged for only the cost
of the tape or other electronic format, and on occasion, staff time.
The law.
The Freedom of Information Act defines public records to include "every
. . . means of recording, and includes . . . magnetic or paper tapes, . . .
magnetic or punched cards, discs, drums or other means of recording or retaining
meaningful content." Mich. Comp. Laws § 15.232(2)(e).
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. 714 (1995) ("In Michigan,
computer records constitute public records subject to disclosure under the FOIA").
Payne v. Grand Rapids Police Chief, 178 Mich. App. 193 (1989) (plaintiff
entitled to copy of tape recording of 911 emergency calls, even where city offered
to provide transcript of tape). See also Mich. Comp. Laws § 15.232(f).
Cases &
opinions. In a 3-3 decision, the state supreme court let stand a ruling
that denied to a commercial requester a computer tape containing names and addresses
to be printed in a student directory. The high court found that providing the
tape "was a more serious invasion of privacy than disclosure in a directory
form" because "computer information is readily accessible and easily
manipulated." Dissenting justices wrote that "we cannot accept the
conclusion that the Legislature intended to allow a public body to exempt otherwise
public records from disclosure by the simple expedient of converting the public
record from one form to another." Kestenbaum v. Michigan State University,
327 N.W.2d 783 (Mich. 1982).
Access was denied
to a computer tape of information on traffic accidents even though the requester
wanted the tape for a statistical study. The court found a potential privacy
violation because the FOI Act has no provisions to control use of information
after it is disclosed. Mullin v. Detroit Police Dept., 348 N.W.2d 708
(Mich. Ct. App. 1984). The state supreme court let stand a decision that a requester
could not have copies of "bad jokes" files from the University of
Michigan student conference electronic mail system. The court side-stepped the
issue of access by ruling that the requester already had copies of the jokes
and, therefore, the agency did not have to disclose them. Ascher v. University
of Michigan, No. 113362 (Mich. Ct. App. 1st Dist., April 20, 1990), appeal
denied, 437 Mich. 897 (1991).
Computer data on
the conditions of streets and roads must be provided in electronic format, if
that is the format requested. Since the information was available in the desired
format at the assessor’s office, production of the data did not require
creation of a new public record. Zeeff v. City of Ann Arbor, No. 93-1548-CZ
(Mich. Cir. Ct. 1994). Similarly, a printer backup tape of computer records
that Detroit used to generate lists of taxpayers was a public record because
the tape was already in existence and not subject to any exemption. Farrell
v. City of Detroit, 530 N.W.2d 105, 209 (1995).
Washtenaw County
adopted an e-mail use policy that makes all information in the electronic mail
system subject to the open records law. Washtenaw County Res. 94-0030 (Feb.
2, 1994). The University of Michigan maintains a policy that "electronic
mail and computer files are considered private to the fullest extent permitted
by law." Access can occur only with "permission of the sender/receiver
of a message or the owner of the file . . . , court order, or other actions
defined by law." Privacy of Electronic Mail and Computer Files, General
University Policies, University of Michigan (Dec. 1, 1993) (on file with the
school).
Records in the
state police STATIS computer database meet the statutory definition of a public
record. Therefore, the state police department must search STATIS when complying
with a search request. Mich. Op. Atty. Gen. 6820 (Oct. 11, 1994).
The Michigan Court
of Appeals held in March 2002 that Wayne County employee salaries are not exempt
from the state’s FOI Act and required the county to release the records
to a local newspaper. The Detroit News brought action against Wayne County for
the names, job titles and pay rates of all county officials and employees for
2000 and 2001. The newspaper also requested the names of all employees who received
pay for leave of absences during 1999 and 2000, the names of all employees who
received pay for sick leave, as well as the amounts, and the names of all employees
who used a county vehicle. The county denied the requests, saying the records
were exempt under the Civil Service Act, which requires employee records to
be confidential and not open for public inspection. The state FOI Act prohibits
the release of any document exempted by another state or federal statute. The
court found that the Civil Service Act, in requiring confidentiality of employee
records, did not provide a statutory exemption from disclosure. Detroit News
v. County of Wayne, 2002 WL 410484 (Mich.App. 2002)
Fees.
A public body may charge a fee for "a public record search, the necessary
copying of a public record for inspection or for providing a copy of a public
record." Fees are limited to "actual mailing costs and to the actual
incremental cost of duplication or publication including labor, the cost of
the search, examination, review, and the deletion and separation of exempt from
nonexempt information." Search fees may be waived if the public body determines
that it is in the public interest to do so. A deposit may be required. Fees
for personnel costs shall be no more than the hourly wage of the lowest paid
public employee capable of performing the task. A public body shall utilize
the most economical means of making copies. Mich. Comp. Laws § 15.234 (1997).
If a public record
contains material that is not exempt under section 13, as well as material that
is exempt from disclosure under section 13, the public body shall separate the
exempt and nonexempt material and make the nonexempt material available for
examination and copying.[ . . . ] Under section 4(3) of the FOIA, a public body
may not charge a fee for the cost of its 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.
This fee limitation, however, does not apply to a public body’s costs incurred
in the necessary copying or publication of a public record for inspection, or
for providing a copy of a public record and mailing the copy." Mass. Op.
Att’y Gen. 7083 (June 7, 2001).
E-mail.
There is no specific case law on the issue of electronic mail. A recent amendment
to the FOIA recognizes that written requests can be transmitted by e-mail. Mich.
Comp. Laws § 15.232(i). A strong argument can be made that, under Farrell
and Payne, e-mail is subject to disclosure under the FOIA.
Software.
Computer software is expressly excluded from the definition of public record.
§ 15.232(2)(e). The law provides that a public body is not required "to
make a compilation, summary, or report of information." Mich. Comp. Laws
§ 15.233(3) (1993). A written request for records may now be transmitted
via e- mail or other electronic means. § 15.232(2)(i) (1997).