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Michigan

Open Government Guide

Author

Herschel P. Fink
James L. Kresta
JAFFE RAITT HEUER & WEISS, P.C.
Grand Park Centre Building
Detroit, MI 48226-1686
(313) 800-6515
Email: hfink@jaffelaw.com

Brian D. Wassom
Kristina Araya
WARNER NORCROSS + JUDD LLP
2000 Town Center Dr., Ste. 2700
Southfield, MI 48075
(248) 784-5039
E-mail: bwassom@wnj.com

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Foreword

The public policy behind passage of Michigan's Freedom of Information Act ("FOIA"), Mich. Comp. Laws Ann. ("Mich. Comp. Laws Ann.") §§ 15.231 -.246, is set forth in its first section:

It is the public policy of this state that all persons, except those persons incarcerated in state or local correctional facilities, 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. The people shall be informed so that they may fully participate in the democratic process.

Mich. Comp. Laws Ann. § 15.231. This section was amended twice, in 1994 and 1997, before which it stated that FOIA's purpose was to provide all persons with information regarding "governmental decision making" and, before that, information regarding "the affairs of government and the official acts of those who represent them." It is not clear that these changes in FOIA's purpose have directly affected how courts interpret the statute, although a few key judicial decisions since those amendments have evidenced a disturbing disregard of  FOIA’s historical breadth.

The state's tradition of giving the public the broadest possible access to its records did not begin with enactment of the FOIA in 1977. Michigan courts throughout the state's history have both expressed and implemented the fundamental principle that the records of government belong to the public and not to the government officials who are their custodians. The public's access and inspection are a matter of fundamental right. The public does not have the burden of justifying the requested inspection but, to the contrary, the custodian has the duty to facilitate inspections and the heavy burden of justifying any exemptions, restrictions, or delays he or she may attempt to impose. Nowack v. Auditor Gen., 243 Mich. 200, 219 N.W. 749 (1928) (common law); Burton v. Tuite, 78 Mich. 363, 44 N.W. 282 (1889); Booth Newspapers Inc. v. Muskegon Probate Judge, 15 Mich. App. 203, 166 N.W.2d 546 (1968); Booth Newspapers Inc. v. University of Michigan Board of Regents, 444 Mich. 211, 507 N.W.2d 422 (1993) (FOIA). Nowack., a leading case both in Michigan and nationally, enforced a newspaper's right of inspection by the extraordinary remedy of mandamus, and contains one of the more noteworthy statements of this fundamental principle:

If there be any rule of the English common law that denies the public the right of access to public records, it is repugnant to the spirit of our democratic institutions. Ours is a government of the people. Every citizen rules. . . . Undoubtedly, it would be a great surprise to the citizens and taxpayers of Michigan to learn that the law denied them access to their own books for the purpose of seeing how their money was being expended and how their business was being conducted. There is no such law and never was either in this country or in England.

219 N.W. at 750.

The court then cites the 1889 case of Burton v. Tuite, supra, as an example of Michigan's historical commitment to the principle of free access, concluding, "There is no question as to the common-law right of the people at large to inspect public documents and records. The right is based on the interest which citizens necessarily have in the matter to which the records relate." 219 N.W. at 750 (citing Burton v. Tuite, supra, at 374 ("I do not think that any common law ever obtained in this free government that would deny to the people thereof right of free access to, and public inspection of, public records.")). This principle was affirmed in Muskegon Probate Judge, supra, which enforced a newspaper's right of inspection by the extraordinary remedy of superintending control:

The fundamental rule in Michigan on the matter before us, first enunciated in the case of Burton v. Tuite, (1889), 78 Mich. 363, is that citizens have the general right of free access to, and public inspection of, public records. . . . The Nowack decision has "placed Michigan at the vanguard of those states holding that a citizen's accessibility to public records must be given the broadest possible effect."

166 N.W.2d at 547-48 (quoting 1961-62 Op. Att'y Gen. 581, 587).

More recently, in Swickard v. Wayne County Medical Examiner, 438 Mich. 536, 475 N.W.2d 304 (1991), the Michigan Supreme Court declared that these same policies apply to FOIA:

One of the reasons prompting the legislation was concern over abuses in the operation of government. A policy of full disclosure underlies the FOIA.

. . .

In construing the provisions of the act we keep in mind that the FOIA is intended primarily as a prodisclosure statute and the exemptions to disclosure are to be narrowly construed.

475 N.W.2d at 307.

As discussed below, Michigan's FOIA also provides a procedure and remedy for improper governmental refusal to disclose public records, including the award of reasonable attorney’s fees and actual and punitive damages. Mich. Comp. Laws Ann. §§ 15.240 (6) and (7).

Since at least 1851 the policy of open access to public records also has been expressed and implemented by other Michigan statutes. For example, the Michigan Penal Code provides that: "[a]ll official books, papers or records created by or received in any office or agency of the state of Michigan or its political subdivisions, are declared to be public property, belonging to the people of the state of Michigan." Mich. Comp. Laws Ann. §§ 750.491. The next section enforces the policy:

Any officer having the custody of any county, city or township records in this state who shall when requested fail or neglect to furnish proper and reasonable facilities for the inspection and examination of the records and files in his office and for making memoranda of transcripts therefrom during the usual business hours, which shall not be less than 4 hours per day, to any person having an occasion to make examination of them for any lawful purpose shall be guilty of a misdemeanor, punishable by imprisonment in the county jail not more than 1 year, or by a fine of not more than $500.00; Provided, that the custodian of said records and files may make such reasonable rules and regulations with reference to the inspection and examination of them as shall be necessary for the protection of said records and files, and to prevent interference with the regular discharge of the duties of such officer.

Mich. Comp. Laws Ann. §§ 750.492.

Open Meetings. Michigan's Open Meetings Act ("OMA"), Mich. Comp. Laws Ann. §§ 15.261, et seq., discussed in detail, infra, also reinforces the state's policy of insuring open access to government operations by providing for open access to public meetings. In Booth Newspapers Inc. v. University of Michigan Board of Regents, supra, for example, the Michigan Supreme Court stated:

Legislators hailed [the OMA] as "a major step forward in opening the political process to public scrutiny." During this period, lawmakers perceived openness in government as a means of promoting responsible decision making. Moreover, it also provided a way to educate the general public about policy decisions and issues. It fostered belief in the efficacy of the system.  . . .  To further the OMA's legislative purposes, the Court of Appeals has historically interpreted the statute broadly, while strictly construing its exemptions and imposing on public bodies the burden of proving that an exemption exists.

507 N.W.2d at 427-28 (citations and footnote omitted).

Unlike Michigan's Freedom of Information Act, which complements existing laws, the Open Meetings Act ("OMA"), Mich. Comp. Laws Ann. § 15.261, et seq., was, in part, intended to resolve conflicting provisions of law and expressly provides that it "shall supersede all local charter provisions, ordinances, or resolutions which relate to requirements for meetings of local public bodies to be open to the public." Mich. Comp. Laws Ann. § 15.261(2).

The OMA also provides that public officials who intentionally violate the OMA have committed misdemeanors for which they can be fined and potentially imprisoned. Further, unlike FOIA, which provides for recovery of reasonable attorney’s fees to a prevailing plaintiff, OMA provides for the recovery of actual attorney’s fees. Mich. Comp. Laws Ann. § 15.271(4).

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Open Records

I. Statute

A. Who can request records?

1. Status of requester

The FOIA provides that "[e]xcept as expressly provided in [Mich. Comp. Laws Ann. § 15.243], upon providing a public body's FOIA coordinator with a written request that describes a public record sufficiently to enable the public body to find the public record, a person has a right to inspect, copy, or receive copies of the requested public record of the public body." Mich. Comp. Laws Ann. § 15.233(1) (emphasis added). Mich. Comp. Laws Ann. § 15.232 defines a "person" as an "individual, corporation, limited liability company, partnership, firm, organization, association, governmental entity, or other legal entity." Mich. Comp. Laws Ann. § 15.232(c). However, "person" does not include "an individual serving a sentence of imprisonment in a state or county correctional facility in this state or any other state, or in a federal correctional facility." Mich. Comp. Laws Ann. § 15.232(c); see Proctor v. White Lake Twp. Police Dep't, 248 Mich. App. 457, 639 N.W.2d 332 (2001) (FOIA prisoner exclusion not a constitutional deprivation). Before a 1996 amendment to the FOIA, oral requests were permissible.

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2. Purpose of request

The FOIA, in keeping with Michigan's historical tradition, does not impose upon the public any obligation to "justify" access to public records. The FOIA does not require the requester to reveal why it needs or wants the information — purpose is irrelevant. State Employees Ass'n v. Dep't of Management and Budget, 428 Mich. 104, 404 N.W.2d 606 (1987).

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3. Use of records

The particular use to which a person plans to put requested information is not restricted by the FOIA; "[t]he initial as well as future uses of the requested information are irrelevant." Id. at 404 N.W.2d 616; see also Mullin v. Detroit Police Dep't, 133 Mich. App. 46, 348 N.W.2d 708 (1984).  Likewise, “[t]he future use of the information is irrelevant to determining whether the privacy exemption of Mich. Comp. Laws 15.243(1)(a) applies.”  Practical Political Consulting v. Secretary of State, 287 Mich. App. 434, 789 N.W. 2d 178 (2010).

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B. Whose records are and are not subject to the act

"Public bodies" are the subjects regulated by the FOIA: "A public body shall furnish a requesting person a reasonable opportunity for inspection and examination of its public records, and shall furnish reasonable facilities for making memoranda or abstracts from its public records during the usual business hours." Mich. Comp. Laws Ann. § 15.233(3) (emphasis added). Mich. Comp. Laws Ann. § 15.232 defines various public bodies as follows:

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1. Executive branch

The definition of a "public body" includes "[a] state officer, employee, agency, department, division, bureau, board, commission, council, authority, or other body in the executive branch of the state government, but does not include the governor or lieutenant governor, the executive office of the governor or lieutenant governor, or employees thereof." Mich. Comp. Laws Ann. § 15.232(d)(i).  Therefore, FOIA does not require the Executive Office of the Governor to disclose records pursuant to a FOIA request.  See McCartney v. Attorney Gen., 231 Mich. App. 722, 730, 587 N.W.2d 824, 828 (1998) (noting copies of letters sought by a FOIA plaintiff from the Attorney General could not have been obtained through the Governor’s office).

However, the act specifically "does not authorize the withholding of a public record in the possession of the executive officer of the governor or lieutenant governor, or an employee of either executive office, if the public record is transferred to the executive office of the governor or lieutenant governor, or an employee of either executive office, after a request for the public record has been received by a state officer, employee, agency, department, division, bureau, board, commission, council, authority, or other body in the executive bench of government subject to this act" Mich. Comp. Laws Ann. § 15.243(4). The definition of a "public body" also includes "[a] county, city, township, village, intercounty, intercity, or regional governing body, council, school district, special district, or municipal corporation, or a board, department, commission, council, or agency thereof." Mich. Comp. Laws Ann. § 15.232(d)(iii). This includes corporations formed under The Summer Resort Owners Corporation Act. 1997 Op. Att'y Gen No. 6942 (1997). It does not include private, voluntary unincorporated associations of lake property owners. Id.

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2. Legislative bodies

Agencies, boards, commissions, or councils in the legislative branch of the state government are included in the FOIA's definition of "public body." Mich. Comp. Laws Ann. § 15.232(d)(ii). State legislators themselves are exempted from its provisions. 1985-86 Op. Att'y Gen. No. 6390 (1986).

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3. Courts

"The judiciary, including the office of the county clerk and employees thereof when acting in the capacity of clerk to the circuit court, is not included in the definition of public body." Mich. Comp. Laws Ann. § 15.232(d)(v).

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4. Nongovernmental bodies

The definition of "public body" includes "[a]ny other body which is created by state or local authority or which is primarily funded by or through state or local authority." Mich. Comp. Laws Ann. § 15.232(d)(iv); see Detroit News v. Policemen and Firemen Retirement System, 252 Mich. App. 59, 651 N.W.2d 127 (2002) (municipally chartered retirement system a public body subject to FOIA). One example of a body which has been held to be included in this definition is the President's Council of State Colleges and Universities, which is wholly funded by state universities and colleges. 1979-80 Op. Att'y Gen. 255, 262 (1979); but see Kubick v. Child and Family Services of Michigan Inc., 171 Mich. App. 304, 429 N.W. 2d 881 (1988) (government funding that amounts to less than half the total funding of a corporation does not amount to primary funding and such entity is not a public body for FOIA purposes). Also included is a state-funded university, such as the University of Michigan. Booth Newspapers Inc. v. University of Michigan Board of Regents, supra, 507 N.W.2d at 431. But see Mich. Comp. Laws Ann. § 15.243(x) (exemption for documents concerning certain universities' presidential searches).

A public body under the FOIA also includes any body that is "primarily funded" by or through state or local authority. Jackson v. Eastern Michigan University Foundation, 215 Mich. App. 240, 544 N.W. 2d 737 (1996). This is true regardless of whether the funding comes from one source or several. Scalfani v. Domestic Violence Escape, 255 Mich. App. 683, 660 N.W.2d 97 (2003) (legislative use of the word "authority" in the statute embraces the plural form as well). The term "funded" has been held not to include public monies paid in exchange for goods provided or services rendered. Breighner v. Michigan High School Athletic Ass'n, 471 Mich. 217, 683 N.W.2d 639 (2004) (private, nonprofit association of state high schools financed in part by public monies in exchange for scheduling and event hosting services not a public body subject to FOIA); see also State Defender Union Employees v. Legal Aid and Defender Ass'n of Detroit, 230 Mich. App. 426, 584 N.W. 2d 359 (1998) (private, nonprofit corporation established to provide legal services to indigent persons not a public body subject to FOIA); Howell Education Association v. Howell Board of Education, 287 Mich. App. 228, 789 N.W. 2d 495 (2010) (teachers’ emails regarding their union activities had nothing to do with their official governmental capacity and therefore were not covered by FOIA).

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5. Multi-state or regional bodies

The definition of "public body" includes "intercounty, intercity, or regional governing body, council, school district, special district, or municipal corporation, or a board, department, commission, council, or agency thereof." Mich. Comp. Laws Ann. § 15.232(d)(iii).

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6. Advisory boards and commissions, quasi-governmental entities

The definition of a "public body" includes "[a] state officer, employee, agency, department, division, bureau, board, commission, council, authority, or other body in the executive branch of the state government, but does not include the governor or lieutenant governor, the executive office of the governor or lieutenant governor, or employees thereof." Mich. Comp. Laws Ann. § 15.232(d)(i). The definition also includes "[a] county, city, township, village, intercounty, intercity, or regional governing body, council, school district, special district, or municipal corporation, or a board, department, commission, council, or agency thereof." Mich. Comp. Laws Ann. § 15.232(d)(iii).

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7. Others

N/A.

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C. What records are and are not subject to the act?

1. What kinds of records are covered?

"Public records" which must be disclosed are defined in Mich. Comp. Laws Ann. § 15.232(e) as follows: "'Public record' means 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. Public record does not include computer software." The FOIA separates public records into two classes: (a) those which are exempt from disclosure under Mich. Comp. Laws Ann. § 15.243 and (b) "all public records not exempt from disclosure under [Mich. Comp. Laws Ann. § 15.243] and which are subject to disclosure . . . ." Id. Recordings that are created by third parties and received by a government body are “public records” and are subject to disclosure. See Amberg v. City of Detroit, 497 Mich 28 (2014). But see Hopkins v. Duncan Twp., 294 Mich. App. 401 (2011) (a board member’s handwritten notes taken for personal use are not public records subject to disclosure.)

State agencies are also required to create certain records: final orders or decisions in contested cases, promulgated rules, and "other written statements that implement or interpret laws, rules, or policy, including but not limited to guidelines, manuals, and forms with instructions, adopted or used by the agency in the discharge of its functions." Mich. Comp. Laws Ann. § 15.241 (1)(c).

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2. What physical form of records are covered

It should be noted that the definition of "public record" refers to "writings." "Writing" is defined in Mich. Comp. Laws Ann. § 15.232(h) to include:

[H]andwriting, typewriting, printing, photostating, photographing, photocopying, and every other means of recording, and includes letters, words, pictures, sounds, or symbols, or combinations thereof, and papers, maps, magnetic or paper tapes, photographic films or prints, microfilm, microfiche, magnetic or punched cards, discs, drums, or other means of recording or retaining meaningful content.

Mich. Comp. Laws Ann. § 15.232(h).

Stenographer notes, tape recordings, or dictaphone records have been held to qualify as writings under this section, and therefore, such methods of recording municipal meetings are public records under FOIA. 1979-80 Op. Att'y Gen. 255, 264 (1979). See also Payne v. Grand Rapids Police Chief, 178 Mich. App. 193, 443 N.W.2d 481 (1989) (tape recording of emergency 911 call to police department was "public record" under FOIA). The requester must be permitted to inspect the original document if he wishes; providing copies is insufficient. Hubka v. Pennfield Twp., 443 Mich. 863, 504 N.W.2d 183 (1993); but see Lapeer County Abstract & Title v. Lapeer County Register of Deeds, 264 Mich. App. 167, 691 N.W.2d 11 (2004) (county register not required by FOIA to provide requester with microfilm copies rather than paper copies of the records at issue).

“[V]ideo recordings are ‘writings’ within the meaning of FOIA.” Amberg v. City of Detroit, 497 Mich 28; 859 N.W.2d 674, 676 (2014).

In addition, when a requester seeks a copy of computer records, a public body cannot satisfy the request by providing hard copies of the requested information. Farrell v. City of Detroit, 209 Mich. App. 7, 530 N.W.2d 105 (1995) (newspaper entitled to computer records used to generate lists of taxpayers and their properties; public body could not satisfy request by providing printout of information contained in computer records). The court in Farrell explicitly held that the computer records "constitute public records subject to disclosure under the FOIA." Id., 209 Mich. App. at 14.

However, computer software developed by and in the possession of a public body has been held not to be a record under the FOIA, since computer software is an instructional form which is an integral part of computer operation and not a writing used to record information or ideas. 1979-80 Op. Att'y Gen. 255, 264-65 (1979); see also Farrell, 209 Mich. App. at 17 (noting that the requested computer records did not require the public body's software to be "utilized or released."); City of Warren v. City of Detroit, 261 Mich. App. 165, 680 N.W.2d 57 (2004) (formula for calculating water rates kept by city on computer disk is not software and therefore is not exempt under FOIA). The recent amendments to FOIA have incorporated this interpretation into the statute. See Mich. Comp. Laws Ann. § 15.232(e), (f) ("Public record does not include computer software.").

Photographs such as mug shots are also public records. Patterson v. Allegan County Sheriff, 199 Mich. App. 638, 502 N.W.2d 638 (1993). Telephone bills for calls to and from mayor's home and office, even though prepared by a private company, are public records. Detroit News Inc. v. City of Detroit, 22 Med. L. Rptr., 2028 (Mich. App. 1994). Likewise, tapes containing tax information developed by a municipality and used in performing the government's official function of property tax billing, are public records subject to FOIA disclosure, even though they are in the possession of a third-party contractor. MacKenzie v. Wales Twp., 247 Mich. App. 124, 635 N.W.2d 335 (2001).

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3. Are certain records available for inspection but not copying?

"The custodian of a public record shall, upon written request, furnish a requesting person a certified copy of a public record." Mich. Comp. Laws Ann. § 15.233(6). No section of the FOIA limits the availability of these records any further and a public body may not impose a more restrictive schedule for access to its public records for certain persons than it does for the public generally, based solely on the purpose for which the records are sought. 2001 Op. Att'y Gen. No. 7095 (2001). Moreover, the fact that public records being sought under this section are voluminous does not excuse the public body from permitting inspection of the public record or from providing copies thereof upon payment of a reasonable fee as provided in Mich. Comp. Laws Ann. § 15.234. 1979-80 Op. Att'y Gen. 255, 267 (1979).

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4. Telephone call logs

Cf. Booth v. Department of Corrections, Case Nos. 331807, 332014, 2016 Mich. App. LEXIS 2229 (Mich. App. Dec. 1, 2016) (requiring production of “a log indicating what DOC employees listened to the [prisoner] telephone call[s]”).

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5. Electronic records

a. Can the requester choose a format for receiving records?

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. 7, 530 N.W.2d 105 (1995) ("In Michigan, computer records constitute public records subject to disclosure under the FOIA"); Payne v. Grand Rapids Police Chief, 178 Mich. App. 193, 443 N.W.2d 481 (1989) (plaintiff entitled to copy of tape recording of 911 emergency calls, even where city offered to provide transcript of tape); but see, Lapeer County Abstract & Title v. Lapeer County Register of Deeds, 264 Mich. App. 167, 691 N.W.2d 11 (2004) (public bodies are not required by the FOIA to provide microfilm copies rather than paper copies of the records at issue, even when the public body keeps the records on mircrofilm). See also Mich. Comp. Laws Ann. § 15.232(f) (software — which is not a public record — excludes "computer-stored information or data, or a field name if disclosure of that field name does not violate a software license.").

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b. Can the requester obtain a customized search of computer databases to fit particular needs

There are no decisions regarding whether a requester can obtain a customized search of computer databases to fit its particular needs. A computerized database is, however, a writing.  For example, an insurance database maintained by Department of State, which contained names, addresses, vehicle ID numbers, registration and insurance audit information was a writing and therefore a public record subject to disclosure under FOIA. However, the individual seeking the information must still pay the fee associated with obtaining the file. See Ellison v. Department of State, 320 Mich. App. 169 (2017).

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c. Does the existence of information in electronic format affect its openness?

Information in electronic format is subject to disclosure under the FOIA. See Farrell, supra. See also Mich. Comp. Laws Ann. § 15.232(f) (definition of software, which is not a public record, excludes "computer-stored information or data, or a field name if disclosure of that field name does not violate a software license."); City of Warren v. City of Detroit, 261 Mich. App. 165, 680 N.W.2d 57 (2004) (formula for calculating water rates kept on computer disk is not software and is therefore not exempt from disclosure).

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d. Online dissemination

Not specifically addressed.

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6. How is email treated?

At least one unpublished decision has directly confirmed that “[t]he FOIA definition of ‘writing’ is broad enough to include electronic recording of meaningful content, including email.” Edwards v. Oakland Twp., No. 320133, 2015 Mich. App. LEXIS 590, *30 (March 19, 2015) (unpublished). No published decision has ever held otherwise, and in fact several have evaluated requests for the production of emails by assuming they are “writings” and moving on to examine the applicability of other defenses. See, e.g., Howell Education Association v. Howell Board of Education, 287 Mich. App. 228, 238, 789 N.W. 2d 495 (2010) (noting that “E-mail has in essence replaced mailboxes and paper memos in government offices,” and focusing instead on whether the emails at issue were public or private records). Nevertheless, the courts have also implored the legislature to clarify the application of FOIA to emails, complaining that the issues related to email “could not have been foreseen”, id. at 234, when FOIA was last updated, resulting in a “situation akin to that of a court being asked to apply the laws governing transportation adopted in a horse and buggy world to the world of automobiles and air transportation.” Id. at 235. The holding of the Howell decision was that personal emails are not public records, however, merely because the emails are retained by the public body computer system, “at least ...[when the agency’s acceptable use policy] does not expressly provide that e-mails are subject to FOIA.” Howell Education Association v. Howell Board of Education, 287 Mich. App. 228, 231, 789 N.W. 2d 495 (2010).

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7. How are text messages and instant messages treated?

Text messages and instant messages are likely records subject to FOIA.  Although there is no published case law on the subject, the Wayne County Circuit Court issued an order in a FOIA case requiring a third-party service provider to produce the text messages that eventually caused the resignation and conviction of Detroit Mayor Kwame Kilpatrick.  Detroit Free Press, Inc. v. City of Detroit, No. 08-100214-CZ (June 26, 2008). But cf. Howell Educ. Ass'n MEA/NEA v. Howell Bd. of Educ., 287 Mich. App. 228, 245, 789 N.W.2d 495, 505 (2010) (noting that, in denying leave to appeal in Detroit Free Press, Inc. v. City of Detroit, “the Supreme Court did not rule that the text messages themselves were public records”).

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8. How are social media postings treated?

Not specifically addressed.

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9. Computer software

Computer software is exempt from the definition of public record under Mich. Comp. Laws 15.232(e). The statute and case law do not specifically address metadata.

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D. Fee provisions or practices

1. Levels or limitations on fees

The FOIA allows public bodies to charge fees for a public record search, the necessary copying of a public record for inspection, or for providing copies of public records. These fees are to be limited to actual costs of mailing and the actual incremental cost of duplication or publication, "including labor, the cost of search, examination, review, and the deletion and separation of exempt from nonexempt information." Mich. Comp. Laws Ann. § 15.234(1). This is so even when the labor is performed by a public employee during business hours and does not add extra costs to the public body's normal budget. 2001 Op. Att'y Gen. No. 7083 (2001).

But a court must first determine whether the person retrieving the information is an employee or independent contractor since §15.234(1) does not mention independent contractors.  Coblentz v. City of Novi, 475 Mich. 588, 719 N.W. 2d 73 (2006): The FOIA also provides that "[a] fee . . .  shall not be charged for the cost of 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 because of the nature of the request in the particular instance, and the public body specifically identifies the nature of these unreasonably high costs." Mich. Comp. Laws Ann. § 15.234(3).

The fee limitation, however, does not apply to the 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. 2001 Op. Att'y Gen. No. 7083 (2001). The phrase "unreasonably high" prohibits a public body from charging a fee for the costs of a search unless the costs incurred by a public body for those activities in the particular instance would be excessive and beyond the normal or usual amount for those services. Id. The Court of Appeals has held that the “key factor in determining whether the costs are unreasonably high is the extent to which the particular request differs from the usual request.”  Bloch v. Davison Community Schools, 2011 Mich. App. LEXIS 771, at *6. (Apr. 26, 2011).  Also, “nothing in the language of Mich. Comp. Laws 15.243(2) suggests that the determination of whether costs incurred are unreasonably high is to be determined according to the public body’s operating budget.” Id.  

The 2015 amendment requires that a public body establish procedures and guidelines to implement the FOIA and create specific procedures and guidelines to the public regarding fee information. Mich. Comp. Laws Ann. § 15.234. The summary shall be in writing and at a minimum will include: how to make a request, how to understand the public body’s written response, what the fees are and how they are calculated, when deposits are required, what the fee appeals process looks like, and a standard form to itemize the FOIA charges. Id. If a public body fails to establish procedures and guidelines, has not created a written summary, or has not made these items publicly available it must still comply with the other requirements of the FOIA and “shall not require deposits or charge fees otherwise permitted under this act until it is in compliance.” Id.

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2. Particular fee specifications or provisions

Labor costs incurred in duplication, mailing, separation of material, etc., are to be calculated at no more than "the hourly wage of the lowest paid public body employee capable of retrieving the information necessary to comply with a request . . ." Mich. Comp. Laws Ann. § 15.234(3).  After the 2015 amendment, labor costs are calculated hourly and should be billed and estimated in 15 minute increments with partial time being rounded down. Mich. Comp. Laws Ann. § 15.234(1)(b). If the public body contracts out labor work, the maximum hourly rate cannot exceed 6 times the minimum wage. Id. Additionally, a fee shall not be charged for the cost of “search, examination, review and deletion and separation of exempt and nonexempt information. . . unless a failure to charge a fee would result in unreasonably high costs to the public body . . . and the public body specifically identifies the nature of these unreasonably high costs.”  Mich. Comp. Laws Ann. § 15.234(3)(emphasis added).

Further, public bodies are charged to "utilize the most economical means available for providing copies." Id.; see also Tallman v. Cheyboygan Area Schools, 183 Mich. App. 123, 454 N.W.2d 171, 174-75 (1990) (school district not permitted to employ its own method of computing copying charges, even if reasonable, to save money because a public body may not on its own deviate from computation method set forth in FOIA).

If there is an act or statute specifically authorizing the sale of public records, including the amount of the fee for providing a copy of the public record, the FOIA fee provisions do not apply. Title Office Inc. v. Van Buren County Treasurer, 496 Mich. 516, 676 N.W.2d 207 (2004) (The fees for copies of property tax records requested from a county treasurer are to be computed according to the fee schedule provided in the Transcripts and Abstracts of Records Act [TARA].).  “A public body shall utilize the most economical means available for providing copies of public records. A fee shall not be charged for the cost of search, examination, review, and the deletion and separation of exempt from nonexempt information as provided in section 14 unless failure to charge a fee would result in unreasonably high costs to the public body because of the nature of the request in the particular instance, and the public body specifically identifies the nature of these unreasonably high costs.”  See Tallman, supra.

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3. Provisions for fee waivers

The FOIA provides for fee waivers for both searches and copies in at least two circumstances:

  1. Where the public body "determines that a waiver or reduction of the fee is in the public interest because searching for or furnishing copies of the public record can be considered as primarily benefiting the general public." Mich. Comp. Laws Ann. § 15.234(2); see also Kearney v. Dep’t of Mental Health, 168 Mich. App. 406, 425 N.W2d 161, 162 (1988) (mental health patient not entitled to receive copy of his 800-page treatment record without charge because such disclosure not a matter of public interest); and
  2. Where an individual submits an affidavit stating that he or she is receiving public assistance or otherwise shows inability to pay the cost because of indigency. In such cases, the statute provides that a copy of the public record shall be furnished without charge for the first $20.00 of the fee for each request. Mich. Comp. Laws Ann. § 15.234(l); but see Kearney, supra, 425 N.W2d at 162-63 (because patient failed to attach indigency affidavit to his request, charging $80 copying fee was not improper. At best, patient was entitled to a $20 waiver). However, the individual is ineligible for a fee reduction if the individual has received discounted copies of public records twice during the calendar year or if the individual is making the request on behalf of another individual who is not indigent. Mich. Comp. Laws Ann. § 15.234(2)

The FOIA provides that the fee structure set forth in Mich. Comp. Laws Ann. § 15.234 does not apply "to public records prepared under an act or statute specifically authorizing the sale of those public records to the public, or if the amount of the fee for providing a copy of the public record is otherwise specifically provided by an act or statute." Mich. Comp. Laws Ann. § 15.234(4). In Grebner v. Clinton Charter Township, 216 Mich. App. 736, 550 N.W.2d 265 (1996), the Michigan Court of Appeals ruled that the Michigan Election Law, Mich. Comp. Laws Ann. § 16.522(1), did not specifically authorize the sale of voter registration rolls, and therefore held that the usual FOIA fee structure applied to requests for voter registration rolls.

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4. Requirements or prohibitions regarding advance payment

A public body may request a "good faith deposit" from the person requesting a record if the fee will exceed $50.00, so long as the deposit does not exceed half of the total fee. Mich. Comp. Laws Ann. § 15.234(8). A public body may refuse to process a FOIA request if the requester fails to pay such good faith deposit properly requested by the public body. 1998 Op. Att'y Gen. No. 6977 (1998). Moreover, a public body may require that its fees be paid in full prior to actual deliveries of copies. Id. However, a public body may not refuse to process a subsequent FOIA request on the ground that the requester failed to pay fees charged for a prior FOIA request. Id. But, after the 2015 amendment, the public body can require a 100 percent of the estimated fee paid up front if a previous fee was not paid by the requestor if all of the following apply:

  1. The final fee of the prior written request was not more than 105% of the estimated fee;
  2. the prior requested copy of the records still exist;
  3. the prior request was done within the time frame required by the FOIA;
  4. ninety or more days passed since the requestor was told the previously requested records are ready to pick up;
  5. the requestor cannot show proof of payment; and
  6. the public body has done a detailed itemization of an estimate

Mich. Comp. Laws Ann. § 15.234(11).

However, a full deposit cannot be required if the requestor shows proof of prior payment made in full, the public body was paid, or 365 days have passed since the individual made the written request. Id. at (12).

If a public body responded to a FOIA request by stating that the “request is granted as to existing, non-exempt records in the possession of the [public body] that fall within the scope of the request,” and requests a deposit based on the estimated labor costs for separating exempt from nonexempt material, then the response is considered a “denial in part” for the purpose of a FOIA appeal.  See Arabo v. Michigan Gaming Control Bd., 310 Mich. App. 370, 384–85, 872 N.W.2d 223, 232 (2015).  However, “a final determination is not required until plaintiff has paid the deposit required by the Board.”  Id. at 388 (“The deposit required ‘at the time the request is made’ must therefore be made before the public body becomes obligated to process the request to enable it to formally respond with a final determination.”).  Accordingly, the court will dismiss a FOIA appeal where the plaintiff has failed to pay the good faith deposit.  Id. at 388-389.

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5. Have agencies imposed prohibitive fees to discourage requesters?

Some public bodies have attempted to impose prohibitive fees to discourage requesters. These attempts can take the form of a high copying fee or a high labor rate, among other means. Although Michigan courts have not definitely resolved what rate for copying is acceptable, requesters are advised to take the position that any charge in excess of 10-15 cents per page is unreasonable, as this is comparable to the charges that would be incurred through a commercial copying source where a labor charge is also being paid.

In one case, where the requester sought a computer tape of driving license records, the public body asserted that the requester would have to pay a transaction fee for each record under an allegedly applicable state statute. The fee would have totaled almost $50 million. A Circuit Court held that the statute was not applicable, and that the requester would have to pay only for the required computer tape and programming needed to provide non-exempt information — a fee totaling a few thousand dollars. Gilmore v. Secretary of State, Oakland County Circuit Court Case No. 92-432519 CZ, affirmed in an unpublished decision May 16, 1997, Michigan Court of Appeals, No. 188313.

However, it should be noted that the 1996 amendment to Mich. Comp. Laws Ann. § 15.234(3), which permits a public body to charge no more than the hourly wage of the "lowest paid public body employee capable of retrieving the information necessary to comply with a request" may give public bodies the authority to charge a higher search fee than would have been permitted under the previous version of Mich. Comp. Laws Ann. § 15.234(3). Courts have interpreted this provision to allow a city attorney to conduct the FOIA review. Coblentz v. City of Novi, 264 Mich. App. 450, 691 N.W.2d 22 (2004) (city attorney was lowest paid employee capable of retrieving the information when it was necessary to determine whether requested material is exempt under the law). Additionally, "public employee" has been extended to include independent contractors hired by a public body. Id.

To combat excessive fees which discourage requesters, FOIA explicitly provides that "[a] fee shall not be charged for the cost of 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 because of the nature of the request in the particular instance, and the public body specifically identifies the nature of these unreasonably high costs." Mich. Comp. Laws Ann. § 15.234(3). Notwithstanding that provision, many public bodies have been routinely assessing search fees for every request, ignoring the "unreasonably high costs" language. The Michigan Attorney General has opined that such routine labor charges are illegal. The opinion is binding on state government departments. 2001 Op. Att'y Gen. No. 7083 (2001).

If a public body requires a fee that exceeds the amount permitted under its publicly available procedures under § 15.234, the requesting party has options to challenge the fee. If the public body provides for fee appeals to the head of the body in its procedures and guidelines, the requesting party may submit to the head a written appeal for a fee reduction that specifically states “appeal” and identifies how the fee exceeds the guidelines. Mich. Comp. Laws Ann. § 15.240a(a). Or the requesting party may commence an action in the court of claims for a decision of a state public body within 45 days of receiving the notice of required fee. Mich. Comp. Laws Ann. § 15.240a(b). The public body is not obligated to complete the processing of the written request until after the court resolves the fee issue. Id. An action may not be filed under § 15.240a unless one of the following applies: (i) the public body does not provide for appeals, (ii) the head of the public body failed to respond to a written appeal, or (iii) the head of the public body issued a determination to a written appeal. Within 10 days of receiving a written appeal, the head of the body shall either waive the fee, reduce the fee, uphold the fee, or issue a notice extending the period of decision for no more than 10 days. Mich. Comp. Laws Ann. § 15.240. If a court determines that a fee is excessive it shall reduce the fee to a permissible amount. Moreover, if the requesting party receives a reduction of 50% or more of the fee, the court may award reasonable attorney fees and costs.

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6. How are fees for electronic records determined?

Not specifically addressed.

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E. Who enforces the act?

The requesting person is the only party which may bring an action under the FOIA. See Mich. Comp. Laws Ann. § 15.240(1)(b) (the requesting party may commence an action in the circuit court to compel the public body's disclosure of the public records within 180 days after a public body's final determination to deny a request).

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1. Attorney General's role

The Attorney General plays no role in the enforcement of the FOIA.

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2. Availability of an ombudsman

The FOIA does not provide for an ombudsman.

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3. Commission or agency enforcement

There is no commission or agency enforcement of the FOIA.

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F. Are there sanctions for noncompliance?

"The court shall award reasonable attorney’s fees, costs, and disbursements" to a requesting person that prevails under the FOIA. Mich. Comp. Laws Ann. § 15.240(6). If the requesting person only prevails in part, "the court may, in its discretion, award all or an appropriate portion of reasonable attorney’s fees, costs, and disbursements." Id. Moreover, under the 2015 amendment, “[i]f the court determines . . . that a public body willfully and intentionally failed to comply with this act or otherwise acted in bad faith, the court shall order the public body to pay, in addition to any other award or sanction, a civil fine of not less than $2,500.00 or more than $7,500.00 for each occurrence.” Mich. Comp. Laws Ann. § 15.240b.

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G. Record-holder obligations

1. Processing records requests

Within five business days of receiving a FOIA request, MCL 15.235(2) requires the public body to do one of the following: (a) grant the request; (b) issue a written notice denying the request; (c) grant the request in part and issue a written notice denying the request in part; or (d) issue a notice extending the time to respond to the request for not more than ten business days.  Id.  The public body may not issue more than one notice of extension for a particular request.  MCL 15.235(2)(d).  If the public body issues a notice extending the period of time to respond, it must specify the reasons for the extension and the date by which the public body will respond.  MCL 15.235(7).  In addition, the public body and the requestor may agree in writing to a different response time.  MCL  15.235(2).

Failure to respond to the request pursuant to MCL 15.235(2) within five business days constitutes a final determination to deny a request if either: (a) the failure was willful and intentional; or (2) the request included language conveying a request for information within the first 250 words of the correspondence, or the envelope or subject line specifically included words such as “FOIA” or “freedom of information.”  Id.

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2. Proactive disclosure requirements

Not specifically addressed.

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3. Records retention requirements

FOIA also does not contain any provisions explicitly requiring a public body to maintain a public document for any length of time.  The Court of Appeals has held, however, that once a public body receives a FOIA request for a record, “FOIA inherently includes the duty to preserve and maintain such records until access has been provided or a court executes an order finding the record to be exempt from disclosure.”  Walloon Lake Water Sys., Inc. v. Melrose Twp., 163 Mich. App. 726, 732, 415 N.W.2d 292, 295 (1987).  In addition, FOIA gives a person the “right to subscribe to future instances of public records that are created, issued, or disseminated on a regular basis.”  M.C.L. § 15.233(1).  A subscription is valid for up to 6 months.  Id.  If a public document is subject to a valid subscription, it must also be preserved until it is disclosed or found to be exempt. See Farrell v. City of Detroit, 209 Mich. App. 7, 16, 530 N.W.2d 105, 110 (1995) (holding that where plaintiff requested a subscription for future copies of a report, the defendant had to maintain regularly created printer backup tapes containing the report until it complied with the requests).

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A. Exemptions in the open records statute

1. Character of exemptions

A public body may meet in closed session only for the purposes listed in Mich. Comp. Laws Ann. § 15.268. The closed session exemptions are to be construed strictly to limit the types of situations that are not open to the public. Wexford County Prosecuting Attorney v. Pranger, 83 Mich. App. 197, 268 N.W.2d 344 (1978); see also Booth Newspapers Inc. v. University of Michigan Board of Regents, 168 Mich. App. 459, 425 N.W.2d 695 (1988).

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2. Discussion of each exemption

  1. A public body may meet in a closed session "[t]o consider the dismissal, suspension, or disciplining of, or to hear complaints or charges brought against, or to consider a periodic personnel evaluation of, a public officer, employee, staff member, or individual agent, if the named person requests a closed hearing. Mich. Comp. Laws Ann. § 15.268(a). A person may rescind a request for a closed hearing at any time, after which the matter will be considered after the rescission only in open sessions. Mich. Comp. Laws Ann. § 15.268(a). The phrase "after the rescission" was recently added to the last sentence of Mich. Comp. Laws Ann. § 15.268(a), suggesting that matters do not need to be reheard from the beginning if a request for a closed hearing is rescinded.
  2. A public body may meet in a closed session to consider the dismissal, suspension, or disciplining of a student under two conditions: if the public body is part of the school district or institution which the student is attending, and if the student's parent or guardian requests a closed hearing. Mich. Comp. Laws Ann. § 15.268(b).
  3. "[S]trategy and negotiation sessions connected with the negotiation of a collective bargaining agreement' may be closed to the public if either negotiating party requests a closed hearing. Mich. Comp. Laws Ann. § 15.268(c). This exemption has been interpreted strictly to permit closed strategy sessions only when negotiation of a labor agreement is in progress or about to commence. Wexford County Prosecuting Attorney, supra, 268 N.W.2d at 348. Thus, a city commission's May meeting to discuss the residency policy for city employees did not qualify for exemption, since a mandatory collective bargaining subject was involved and since collective bargaining was not to begin until August for renewal of a labor contract to expire December 31. Id. "Negotiation sessions" as used in this exemption, refers to "actual collective bargaining sessions between employer and employee." Id. In Moore v. Fenville Public Schools Board of Education, 223 Mich. App. 196, 566 N.W. 2d 31 (1997), it was held that the members could meet in a closed session to reach consensus on a union's proposal because consensus reflected a goal in negotiations and not a final determination.
  4. A public body may meet in closed session "[t]o consider the purchase or lease of real property up to the time an option to purchase or lease that real property is obtained." Mich. Comp. Laws Ann. § 15.268(d). Under this section, it has been held proper for a public body to meet in closed session to vote upon rejection of an owner's offer to sell real property at a designated price, or to direct its agents as to their limits in negotiating for the purchase of real property. 1977-78 Op. Att'y Gen. 606 (1978). A public body may not hold a closed meeting for the purpose of disposing of a building through sale or lease, although it may hold a closed meeting for the purpose of acquiring or leasing a building up to the time that an option is obtained. 1977-78 Op. Att'y Gen. 389 (1978).
  5. Closed sessions may be held "[t]o consult with [an] attorney regarding trial or settlement strategy in connection with specific pending litigation, but only if an open meeting would have a detrimental financial effect on the litigating or settlement position of the public body." Mich. Comp. Laws Ann. § 15.268(e); see also The Detroit News Inc. v. City of Detroit, 185 Mich. App. 296, 460 N.W.2d 312, 315 (1990) (rejecting defendant's claim that closed meeting to review consent judgment regarding City's acquisition of Chrysler/Jefferson plant was exempt because settlement had already been accepted and there was no longer any issue in dispute); Manning v. City of East Tawas, 243 Mich. App. 244, 593 N.W. 2d 649 (1999) (the attorney does not need to be the attorney who is actually responsible for the litigation). People v Whitney, 228 Mich. App. 230, 578 N.W. 2d 329 (1998) (settlement negotiations occurring before initiation of a judicial or ADR proceeding is not "pending" litigation).
  6. A public body may meet in closed session "[t]o review the specific contents of an application for employment or appointment to a public office if the candidate requests that the application remain confidential." Mich. Comp. Laws Ann. § 15.268(f). However, the public body must hold open meetings to interview such candidates. Mich. Comp. Laws Ann. § 15.268(f). The Attorney General has interpreted this "open interview" rule as applying only for those positions for which employment interviews must be conducted by the public body itself, since requiring public interviews for all positions, with all the attendant public notice requirements, would force public bodies to spend an inordinate amount of time on hiring procedures. Thus, in all other cases, where the public body itself is not required to interview the applicant, interviews for employment may be conducted in private by the staff of the public body. 1977-78 Op. Att'y Gen. 21, 38 (1977). However, under a 1996 amendment to the OMA, Mich. Comp. Laws Ann. § 15.268(f) does not apply to searches for the selection of a president of an institution of higher education established under Section 4, 5, or 6 of Article VIII of the Michigan Constitution. Instead, other rules apply to such searches. See Mich. Comp. Laws Ann. § 15.268(j). An Ingham County Circuit Court in May, 1997, ruled, however, that a university governing body must interview finalist university presidential candidates in public, and only advisory presidential selection committees may conduct preliminary interviews in closed session. Detroit Free Press v. Northern Michigan University, Ingham County Circuit Court No. 97-860046-CZ. But see, Federated Publications Inc. v. Board of Trustees of Michigan State University, supra.

Although Mich. Comp. Laws Ann. § 15.263(5) affords members of the public an opportunity to address a public body at some point during an open meeting according to rules established and recorded by the public body, they do not have the right to ask questions of applicants for employment during open interviews. 1981-82 Op. Att'y Gen. 507 (1981).

  1. "Partisan caucuses of members of the state legislature" may meet in closed session. Mich. Comp. Laws Ann. § 15.268(g).
  2. A public body may meet in closed session "[t]o consider material exempt from discussion or disclosure by state or federal statute." Mich. Comp. Laws Ann. § 15.268(h). Thus, public bodies may meet in closed session to consider matters which are exempt from disclosure under the state or federal FOIAs. 1979-80 Op. Att'y Gen. 255, 270-71 (1979). Ridenour v. Board of Education, 111 Mich. App. 798, 314 N.W. 2d 760 (1981) (information may be discussed at a closed meeting if it is exempt from disclosure under the FOIA as information of a personal nature, the public disclosure of which would constitute a clearly unwarranted invasion of the individual's privacy); Booth Newspapers Inc. v. Regents of the University of Michigan, 93 Mich. App. 100, 286 N.W. 2d 55 (1979) (written opinion of counsel to the University Board of Regents need not have been disclosed under the FOIA, and thus was exempt from open meeting requirements even though the opinion was not rendered in regard to specific pending litigation and so did not fall under Mich. Comp. Laws Ann. § 15.268(e)). But, when faced with FOIA exempt material as applied to the OMA, a public body must state on the record those documents it deems exempt under the FOIA together with the associated FOIA exemption justifying nondisclosure, describe those documents — unless description would defeat the purpose of nondisclosure — and complete this process on the record in open session before conducting a closed session. Herald Company Inc. v. Tax Tribunal, 258 Mich. App. 78, 669 N.W.2d 862 (2003). Note, however, that the exemption contained in the FOIA regarding communications and notes within a public body or between public bodies (Mich. Comp. Laws Ann. § 15.243(l)(n)) does not constitute an exemption for purposes of the OMA, because that section specifically states that it does not constitute an exemption for purposes of section 8(h) of the OMA [Mich. Comp. Laws Ann. § 15.268(h)]. See 1979-80 Op. Att'y. Gen 496 (1979).

Any exemption based on a claim of attorney-client privilege under OMA is narrowly construed. Closed sessions may not be held to receive oral legal opinions and a proper discussion of a written legal opinion at a closed meeting is limited to any strictly legal advice presented in a written opinion. People v Whitney, 228 Mich. App. 230, 578 N.W. 2d 329 (1998). However, one court has reasoned that the term “consider” in 15.268(h) permits discussion and deliberation with respect to matters of attorney-client privilege. Berryman v. Madison Sch. Dist., No. 265996, 2007 Mich. App. LEXIS 464, at *4 (February 22, 2007).

Other statutes for which Mich. Comp. Laws Ann. § 15.268(h) has been held to apply are Mich. Comp. Laws Ann. § 400.9, involving administrative hearings which can be closed to the general public if the matters to be discussed involve records concerning categorical assistance, medical assistance, or federally funded assistance and service programs protected from disclosure under federal and state statutes. 1979-80 Op. Att'y Gen. 31, 33-35 (1979). Also exempt are proceedings involving the Youth Parole and Review Board pursuant to Mich. Comp. Laws Ann. § 803.308, part of which may be closed when confidential records, as defined by that section, are under discussion. 1979-80 Op. Att'y Gen. at 32-33 (1979). The meetings of several other public bodies are exempt, when they are deliberating on the merits of a case. See Mich. Comp. Laws Ann. § 15.263(8).

  1. A public body may meet in closed session "for a compliance conference conducted by the department of commerce under [Mich. Comp. Laws Ann. § 333.16231] before a complaint is issued.
  2. In another 1996 amendment to the OMA, a public body may meet in closed session "in the process of searching for and selection of a president of an institution of higher education established under Section 4, 5, or 6 of Article VIII of the Michigan Constitution, to review the specific contents of an application, to conduct an interview with a candidate, or to discuss the specific qualifications of a candidate. However, this exemption only applies if the institution's process for searching for and selecting a candidate meets all of the following requirements:

(1) the search committee has at least one student, one faculty member, one administrator, one alumnus, and one representative of the general public. The search committee may also include one or more members of the governing board, but not a quorum of the governing board. No one of these groups can constitute a majority of the search committee.

(2) After the search committee recommends the five final candidates, the governing board does not take a vote on a final section until at least 30 days after the five final candidates have been publicly identified by the search committee.

(3) The deliberations and vote of the governing board of the institution on selecting the president take place in an open session of the governing board. An Ingham County Circuit Court ruling has held that this provision applies to interviews of candidates, as well.

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B. Other statutory exclusions

The FOIA creates a broad right of access to all public records "except as expressly provided in [Mich. Comp. Laws Ann. § 15.243]." Mich. Comp. Laws Ann. § 15.233(1). Mich. Comp. Laws Ann. § 15.243 includes in its list of exemptions a broad "catch-all" exemption that incorporates by reference other statutes which expressly exempt records or information from disclosure. Mich. Comp. Laws Ann. § 15.243(1)(d).

There is a pending bill that adds an eighth exemption to Mich. Comp. Laws 15.243: “disclos[ure] of any of the following in the case of a record pertaining to a crime of child abuse, criminal sexual conduct, sexual assault or molestation, or similar crime in which one or more victims are less than 18 years of age: (a) the name and address of any victim; (b) the names and addresses of the victim’s immediate family members of the victim’s relatives who have the same surname as that victim, other than the name and address of the accused; (c) any other information that would reveal the identity of the victim, including any reference to a victim’s familial or other relationship to the accused.”  H.B. 4261, 96th Leg., 1st Sess. (Mich. 2011).

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C. Court-derived exclusions, common law prohibitions, recognized privileges against disclosure

Mich. Comp. Laws Ann. §§ 15.243(l)(g) and (1)(h) also exempt records subject to the attorney-client privilege, physician-patient privilege, and other privileges "recognized by statute or court rule." See Swickard, 438 Mich. at 547 (regarding physician-patient privilege).

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D. Are segregable portions of records containing exempt material available?

The FOIA expressly provides for the availability of segregable portions of records containing exempt material: "[i]f a public record contains material which is not exempt under section 13, [Mich. Comp. Laws Ann. § 15.243], as well as material which 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." Mich. Comp. Laws Ann. § 15.244(l). The Michigan Supreme Court has strictly enforced this provision, forbidding public bodies from withholding documents without separating exempt from nonexempt material. Evening News Ass'n v. City of Troy, supra, 339 N.W.2d at 436 (1983). Moreover, the FOIA orders public bodies to facilitate the separation of exempt from nonexempt information, "to the extent practicable," when designing public records and, if the separation will be "readily apparent to a person requesting to inspect or receive copies of a form, public bodies are required to "generally describe the material exempted unless that description would reveal the contents of the exempt information and thus, defeat the purpose of the exemption." Mich. Comp. Laws Ann. § 15.244(2). The public body may not charge a fee for the cost of separating exempt from non-exempt information, unless failure to do so would result in unreasonably high costs. 2001 Att'y Gen. Op. No. 7083 (2001).  See also Ritzer v. St. Lockport-Fabius-Park Township, 2005 Mich. App. LEXIS 302 (Feb 8. 2005) (public body may have to create a new disc in order to separate nonexempt material from exempt material)

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III. Record categories - open or closed

A. Autopsy and coroners reports

Open. See, Swickard v. Wayne County Medical Examiner, 438 Mich. 536, 475 N.W.2d 304 (1991).  There is no physician patient relationship at the time a physician performs an autopsy.

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B. Administrative enforcement records (e.g., worker safety and health inspections, or accident investigations)

See § 15.243(1)(m).

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C. Bank records

Bank examiners' manuals and minutes of the Financial Institutions Bureau supervisory examiners meetings are subject to disclosure under the FOIA, because Mich. Comp. Laws Ann. § 15.241(1)(c) requires state agencies to publish and make available to the public "written statements that implement or interpret laws, rules or policy," although the Bureau may delete exempt material when making such disclosures. 1979-80 Op. Att'y Gen. at 289-90.

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D. Budgets

Not specifically addressed.

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E. Business records, financial data, trade secrets

Trade secrets or commercial or financial information voluntarily provided to an agency for use in developing governmental policy" are exempt from disclosure when under certain conditions. Mich. Comp. Laws Ann. § 15.243(1)(f). See also Booth Newspapers Inc. v. University of Michigan Board of Regents, 444 Mich. 211, 507 N.W.2d 422 (1993); see City of Novi for interpretation and application of 15.243(1)(f).

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F. Contracts, proposals and bids

A public body need not disclose a bid or proposal 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 time for the receipt of bids or proposals has expired." Mich. Comp. Laws Ann. § 15.243(1)(i); see also Nicita v. City of Detroit, 194 Mich. App. 657, 487 N.W.2d 814, 819 (1992) (exemption applies only to a competitive bidding process where bids are solicited but not to unsolicited bids).

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G. Collective bargaining records

Presumably open; but see, Traverse City Record Eagle, 184 Mich. App. 609, 459 N.W.2d 28 (1990) (tentative collective bargaining agreement between school district and unions exempt from disclosure because it was message from school board and union representatives to their respective bodies, advisory in nature, and because premature disclosure would have negative impact on negotiation process).

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H. Economic development records

Not specifically addressed.

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I. Election Records

Not specifically addressed.

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J. Emergency Medical Services records

Not specifically addressed.

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K. Gun permits

Not specifically addressed.

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L. Homeland security and anti-terrorism measures

In the wake of September 11, 2001, the legislature amended the FOIA to address certain concerns regarding homeland security. A public body may exempt from disclosure "[r]ecords 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 that those designs relate to the ongoing security measures of a public body, capabilities and plans for responding to a violation of the Michigan anti-terrorism act . . . emergency response plans, risk planning documents, threat assessments, and domestic preparedness strategies." Mich. Comp. Laws Ann. § 15.243(1)(y).

However, an exception exists that requires an examination of the disclosure's effect. If the disclosure of the information "would not impair a public body's ability to protect the security or safety of persons or property," such information is not exempt from the FOIA's disclosure requirements. Id. Likewise, the information is not exempt from disclosure if "the public interest in disclosure outweighs the public interest in nondisclosure in the particular instance." Id.

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M. Hospital reports

See generally, Mich. Comp. Laws Ann. § 15.243(1)(a) (privacy exemption).

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N. Personnel records

See generally Mich. Comp. Laws Ann. § 15.243(1)(s)(ix) (law enforcement personnel record).  The term “personnel” includes “all aspects of the employment process . . . so the phrase “personnel records” presumably encompasses a retiree’s individualized records.”  Detroit Free Press v. City of Southfield, 269 Mich. App. 275, 286-7.  713 N.W. 2d 28 (2005).

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1. Salary

The Court of Appeals held that employees’ names and salary information were not “intimate details” of a highly “personal nature” and even if the disclosure was an invasion of privacy, the invasion was not “clearly unwarranted.”  Penokie v. Michigan Technological University, 93 Mich. App. 650, 287 N.W. 2d 304 (1979).

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2. Disciplinary records

The Supreme Court in Bradley held that the disclosure of the disciplinary record of a public school teacher was permissible under FOIA.

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3. Applications

See Landry v. City of Dearborn, 259 Mich. App. 416, 674 N.W. 2d 697 (2003) for analysis of whether the disclosure of employment applications is in the public interest.

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4. Personally identifying information

Not specifically addressed.

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5. Expense reports

Travel expense reports did not meet an exemption because the reports could lead to discovery of personal information.  Booth Newspapers, supra.

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6. Other

O. Police records

1. Accident reports

“The disclosure of accident reports merely for the identification of potentially injured individuals is an unwarranted invasion of privacy, so government entities are not required to make reports public.”  Michigan Rehabilitation Clinic v. City of Detroit, 2006 Mich. App. LEXIS 25, at *4 (Jan. 10, 2006).

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2. Police blotter

Not specifically addressed.

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3. 911 tapes

The Court of Appeals held that the City acted whimsically in denying the plaintiff immediate access to the 911 tapes.  Meredith Corporation v. City of Flint, 256 Mich. App. 703 671 N.W. 2d 101 (2003).

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4. Investigatory records

Internal investigations were exempt from disclosure because otherwise, “employees are reluctant to give statements about the actions of other employees.”  Kent County Deputy Sheriffs Association v. Kent County Sheriff, 463 Mich. 353 616 N.W.2d 677 (2000).  Internal affairs investigatory records fall within the meaning of the term “personnel record of law enforcement” as used in the FOIA.  Newark Morning Ledger Company v. Saginaw County Sheriff, 204 Mich. App. 215, 514 N.W. 2d 213 (1994).  To show that disclosure of investigation record would interfere with the enforcement proceedings, “the government must show, by more than a conclusory statement, how the particular kinds of records would interfere with a pending enforcement investigation.”  Evening News, supra 417 Mich. at 497.  See Mich. Comp. Laws § 15.231.

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5. Arrest records

Not specifically addressed.

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6. Compilations of criminal histories

While there “is undoubtedly some public interest in anyone's criminal history [or autopsy report and toxicology test results], especially if the history is in some way related to” a public official, “the FOIA's central purpose is to ensure that the Government's activities be opened to the sharp eye of public scrutiny, not that information about private citizens that happens to be in the warehouse of the Government” be disclosed.  Swickard, supra at 575 (quoting Reporters Committee).

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7. Victims

Not specifically addressed.

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8. Confessions

Not specifically addressed.

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9. Confidential informants

In Hyson v. Department of Correction, 205 Mich. App. 402, 521 N.W. 2d 841 (1994), the Court of Appeals held that the identities of confidential informants must be undisclosed because of the security risk posed to the informants.

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10. Police techniques

Not specifically addressed.

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11. Mugshots

A booking photograph or “mugshot” of a county jail inmate is a public record under FOIA.  Disclosure of these photographs cannot be withheld on the basis of the privacy exemption.  Patterson v. Allegheny County Sheriff, 199 Mich. App. 638, 502 N.W. 2d 368 (1993).  Booking photographs are not entitled to exemption from disclosure under FOIA where individuals involved have been arrested, charged in open court and awaiting trial for bank robbery; in such cases, the booking photograph reveals no information that would constitute an unwarranted invasion of privacy.  Detroit Free Press, Inc v. Oakland County Sheriff, 164 Mich. App. 656, 418 N.W. 2d 124 (1987).  The photograph of a convicted individual contained in the file arrest must, upon request, be disclosed.  Op. Atty. Gen. November 14, 1979 Op. 5593.  If the release of a photograph would constitute an unwarranted invasion of privacy, a public body may refuse to permit a person access to the photograph.  Id.

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12. Sex offender records

Not specifically addressed.

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13. Emergency medical services records

14. Police video (i.e., “body camera footage”)

P. Prison, parole and probation reports

Not specifically addressed.

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Q. Professional licensing records

Not specifically addressed.

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R. Public utility records

Not specifically addressed.

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S. Real estate appraisals, negotiations

1. Appraisals

See Mich. Comp. Laws 15.243(1)(j).

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2. Negotiations

Not specifically addressed.

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3. Transactions

Not specifically addressed.

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4. Deeds, liens, foreclosures, title history

Names and addresses of those involved in the conveyance of real property are open to public inspection in the Office of the Register of Deeds.  Mich. Comp. Laws 565.25.  Mich. Comp. Laws 600.2567 provides that a register of deeds is entitled to a fee of $1 per page of any copies of any records of papers.  The Inspection of Records Act (IORA)  allows the register of deeds to provide paper copies in response to a request for a copy of the records, even if the register keeps the original records on microfilm.  See Lapeer County, supra.

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5. Zoning records

Not specifically addressed.

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T. School and university records

1. Athletic records

Not specifically addressed.

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2. Trustee records

Not specifically addressed.

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3. Student records

The Family Educational Rights and Privacy Act provides for access to student records by eligible students and parents, and establishes the privacy of those records.  Michigan State University falls under this statute because it is a recipient of federal funds.  See Kestenbaum v. Michigan State University, 414 Mich. 510, 327 N.W. 2d 783 (1982).

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4. Other

U. State guard records

Not specifically addressed.

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V. Tax records

Not specifically addressed.

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W. Vital Statistics

1. Birth certificates

Not specifically addressed.

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2. Marriage and divorce

Not specifically addressed.

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3. Death certificates

Death certificates are public records by Mich. Comp. Laws 333.2882.

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4. Infectious disease and health epidemics

Not specifically addressed.

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IV. Procedure for obtaining records

A. How to start

1. Who receives a request?

Mich. Comp. Laws Ann. § 15.236 generally assigns responsibility for responding to FOIA requests to the public body's FOIA coordinator:

  1. For a public body which is a city, village, township, county, or state department, or under the control thereof, an individual shall be designated as the public body's FOIA coordinator, who shall be responsible for accepting and processing requests for public records and for approving a denial under the FOIA. In a county not having an executive form of government, the chairperson of the county board of commissioners shall be considered the FOIA coordinator for purposes of this subsection. A FOIA coordinator may designate another individual to act on his or her behalf.
  2. For all other public bodies, the chief administrative officer of the respective public body, or an individual designated in writing by that chief administrative officer, shall be responsible for approving a denial. Mich. Comp. Laws Ann. § 15.236.
  3. If another employee receives a request for a public record, the employees must promptly forward the request to the FOIA coordinator. Mich. Comp. Laws Ann. § 15.233.

Mich. Comp. Laws Ann. § 15.241, which provides for disclosure of records developed or submitted pursuant to administrative adjudications, does not require a specific request. Blue Cross and Blue Shield of Michigan v. Insurance Bureau Hearing Officer, 104 Mich. App. 113, 304 N.W.2d 499, 504 (1981). The items which state agencies must make available under Mich. Comp. Laws Ann. § 15.241 include:

  1. Final orders or decisions in contested cases and the records on which they were made.
  2. Promulgated rules.
  3. Other written statements that implement or interpret laws, rules, or policy, including but not limited to guidelines, manuals, and forms with instructions, adopted or used by the agency in the discharge of its functions. Mich. Comp. Laws Ann. § 15.241(1).
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2. Does the law cover oral requests?

"A person desiring to inspect or receive a copy of a public record shall make a written request for the public record to the FOIA coordinator of a public body." Mich. Comp. Laws Ann. § 15.235(1) (emphasis added). See also Mich. Comp. Laws Ann. § 15.233(1) ("Upon providing a public body's FOIA coordinator with a written request . . . ") This is a change effective in 1997 from previous law, which permitted a request to be made orally. Further, a written request made by fax, electronic mail, or other electronic transmission "is not received by [the FOIA coordinator] until 1 business day after the electronic transmission is made."

Public bodies may make "reasonable rules necessary to protect public records and to prevent excessive and unreasonable interference with the discharge of [agency] functions." Mich. Comp. Laws Ann. § 15.233(2). Thus, while public bodies must provide "reasonable opportunity" for inspection of records, it would be wise for the requester to make arrangements to see records beforehand.

Further, in another 1996 revision, the FOIA instructs a public body to "protect public records from loss, unauthorized alteration, mutilation, or destruction." Mich. Comp. Laws Ann. § 15.233(3).  The FOIA originally provided that upon an oral or written request which describes the public record sufficiently to enable the public body to find the public record, a person has the right to inspect, copy or receive copies of a public record of a public body, except as otherwise provided by the act.  Hoffman v. Bay City School District, 137 Mich. App. 333, 357 N.W. 2d 686 (1984).  The 1996 amendment deleted “oral.”

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3. Contents of a written request

An FOIA request must describe the public record "sufficiently to enable the public body to find the public record." Mich. Comp. Laws Ann. § 15.233(1). While Mich. Comp. Laws Ann. § 15.235(2) gives the public body five business days in which to respond to requests, if the request does not contain sufficient information it may be denied on that ground. If additional information is provided that sufficiently describes the public record, the period within which the response must be made dates from the time the additional information is received. 1979-80 Op. Att'y Gen. 255, 268-69 (1979).  See Coblentz, supra, for discussion of the word “sufficiently.”

Under Mich. Comp. Laws Ann. § 15.233, one has a right to subscribe to "future issuances of public records which are created, issued, or disseminated on a regular basis." This section provides that such subscriptions be valid for up to six months at the request of the subscriber, and that the subscriptions are renewable. Mich. Comp. Laws Ann. § 15.233(1).

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B. How long to wait

1. Statutory, regulatory or court-set time limits for agency response

A public body has five business days in which to respond to requests for public records, unless otherwise agreed to in writing by the person making the request. Mich. Comp. Laws Ann. § 15.235(2). The five "business days" means five consecutive weekdays, other than Saturdays, Sundays, or legal holidays, and not five consecutive days on which the particular body receiving the request is open for public business. 2005 Op. Att'y Gen. No. 7172 (2005). Any of the following will be considered a response:

(a) Granting the request.

(b) Issuing a written notice denying the request.

(c) Granting the request in part and issuing a written notice denying the request in part.

(d) Under unusual circumstances, as defined in Mich. Comp. Laws Ann. § 15.232(i), issuing a notice extending for not more than 10 business days the period during which the public body shall respond to the request. A public body shall not issue more than 1 notice of extension for a particular request. Mich. Comp. Laws Ann. § 15.235(2)(d). The five-business day time limit begins when a sufficient description of the public record is received by the public body at the office where the records are kept. 1979-80 Op. Att'y Gen. 255, 268-69 (1979). A public body may not treat a request for its records as having been received as of the date of its next regularly scheduled meeting; the request must be answered within five business days of the date the request was actually received by the public body. 1981-82 Op. Att'y Gen. 584, 586 (1982). Where a public body issues a notice extending the period for response to the request under Mich. Comp. Laws Ann. § 15.235(2)(d), it is required to set forth in the notice the reasons for the extension and the date by which the public body will either grant the request, issue a written notice denying the request, or grant the request in part and issued a written notice denying the request in part. Mich. Comp. Laws Ann. § 15.235(6). Once a public body timely claims the 10-day extension, the new response deadline is fifteen business days after receipt of the request, regardless of when the notice of extension is issued. Key v. Twp. of Paw Paw, 254 Mich. App. 508, 657 N.W.2d 546 (2002). A public body may not use a loss of time attributed to unnecessary delay by its agents in forwarding the request to the proper person as grounds for extending the time during which the response must be made. 1979-80 Op. Att'y Gen. 255, 269-70 (1979).

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2. Informal telephone inquiry as to status

Not addressed.

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3. Is delay recognized as a denial for appeal purposes?

Failure to respond to a request within the five-business day statutory period is recognized for appeal purposes as a final determination by the public body to deny the request. Mich. Comp. Laws Ann. § 15.235(3); see also Hartzell v. Maryville Community School District, 183 Mich. App. 782, 455 N.W.2d 411 (1990) (awarding costs and attorney’s fees to plaintiff because, instead of advising plaintiff that requested document did not exist, agency simply did not respond to request.)

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4. Any other recourse to encourage a response

The party may resubmit its request and bring suit. A party that resubmits an FOIA request does not lose the right to file suit on the issue of the initial denial. Krug v. Ingham County Sheriff's Office, 264 Mich. App. 475, 691 N.W.2d 50 (2004).

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C. Administrative appeal

The FOIA was amended in 1996 to permit administrative appeals. If a request is denied, a requester may (but is not required to) submit to the head of the public body "a written appeal that specifically states the word ‘appeal’ and identifies the reason or reasons for reversal of the denial." Mich. Comp. Laws Ann. § 15.240(1)(a). Within 10 days after receiving a written appeal, the head of the public body must do one of the following:

(a) reverse the disclosure denial;

(b) issue a written notice to the requesting person upholding the disclosure denial;

(c) reverse the disclosure denial in part and issue a written notice to the requesting person upholding the disclosure denial in part; or

(d) under unusual circumstances, as defined in Mich. Comp. Laws Ann. 15.232(i), issuing a notice extending for not more than 10 business days the period during which the head of the public body shall respond to the appeal. Not more than one notice of extension shall be issued for a particular appeal. Mich. Comp. Laws Ann. § 15.240(2)(d). Under Mich. Comp. Laws Ann. § 15.240(3), a board or commission that is the head of a public body is not considered to have received a written appeal until the first regularly scheduled meeting following submission of the written appeal.  See Federated Publications, supra for discussion of this provision.

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1. Time limit

A requesting party may within 180 days of a public body’s final determination initiate an action in circuit court to compel the public body’s disclosure of the public records.  Mich. Comp. Laws 15.240(1)(b).

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2. To whom is an appeal directed?

See Mich. Comp. Laws 15.240 for how the requested person should appeal. If a “public body makes a final determination to deny all or a portion of a request,” the requestor can do one of two things. First, he or she can “submit to the head of the public body a written appeal that specifically states the word “appeal” and identifies the reason or reasons for reversal of the denial,” or second, he or she can “commence a civil action in the circuit court . . . to compel the public body’s disclosure of the public records within 180 days after a public body’s final determination to deny a request.”

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3. Fee issues

4. Contents of appeal letter

Not specifically addressed.

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5. Waiting for a response

Not specifically addressed.

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6. Subsequent remedies

Not specifically addressed.

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D. Court action

1. Who may sue?

Any person whose FOIA request has been denied in whole or in part may commence an action in circuit court under Mich. Comp. Laws Ann. § 15.240.

Several items under Mich. Comp. Laws Ann. § 15.241 must be published and made available to the public even when not specifically requested. A person may commence an action in the court of claims to compel a state agency to comply with Mich. Comp. Laws Ann. § 15.241. Mich. Comp. Laws Ann. § 15.241(5).

A person seeking to enjoin rather than compel disclosure of public records may file a "reverse FOIA" action, but the FOIA analysis applies in those cases and a "reverse FOIA" plaintiff may not have standing to raise certain exemptions. Bradley, supra, 455 Mich. 285.  A plaintiff’s right to prohibit disclosure must have a basis independent of FOIA.  Tobin v. Michigan Civil Service, 416 Mich. 661, 331 N.W. 2d 184 (1980).

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2. Priority

Actions brought under the FOIA and appeals from FOIA decisions are to be "assigned for hearing and trial or for argument at the earliest practicable date and expedited in every way." Mich. Comp. Laws Ann. § 15.240(5).

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3. Pro se

The availability of attorney’s fees to a plaintiff who prevails in an FOIA action is intended to make access to legal services easier. Mich. Comp. Laws Ann. § 15.240(6).   See Omdahl v. Iron County Board of Education, 478 Mich. 423, 733 N.W. 2d 380 (2007) (the fact that a plaintiff is a licensed attorney does not mean that the plaintiff has an attorney, and therefore, the plaintiff may not recover attorney’s fees); Watkins v. Manchester, 220 Mich. App. 337, 559 N.W. 2d 81 (1996) (pro se plaintiff-attorney cannot recover attorney’s fees under FOIA).

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4. Issues the court will address

a. Denial

The plaintiff in a FOIA suit need only show that a request was made and denied. The burden then shifts to the defendant agency to show a viable defense — insufficient description of the record, the fact that no record existed, or exemption from disclosure. Pennington v. Washtenaw County Sheriff, 125 Mich. App. 556, 336 N.W.2d 828, 832 (1983). A written notice denying a request for a public record in whole or in part is considered a final determination by the public body and must contain:

(1) An explanation of the basis under the FOIA or other statute for the determination that the public record, or the portion thereof, is exempt from disclosure, if that is the reason for denying the request or a portion thereof;

(2) A certificate that the public record does not exist under the name given by the requester or by another name reasonably known to the public body, if that is the reason for denying the request or a portion thereof;

(3) A description of a public record or information on a public record which is separated or deleted if a separation or deletion is made; and

(4) A full explanation of the requesting person's right to seek judicial review, including the right to receive attorney’s fees and damages, if the circuit court determines that the public body has not complied with Mich. Comp. Laws Ann. § 15.235 and orders disclosure of all or part of a public record. Mich. Comp. Laws Ann. § 15.235(4).

The individual designated in Mich. Comp. Laws Ann. § 15.236 as responsible for denying requests is to sign the written notice of denial. Mich. Comp. Laws Ann. § 15.235(5).

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b. Fees for records

Fees charged must be computed in accordance with the FOIA's requirements, not on a basis established by the agency to save money. See Mich. Comp. Laws Ann. § 15.234(1).

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c. Delays

Failure to respond to a request for information pursuant to Mich. Comp. Laws Ann. § 15.235(2) is considered a final determination by the public body to deny the request. See Local Area Watch v. City of Grand Rapids, 262 Mich. App. 136, 683 N.W. 2d 745 (2004) (defendant’s failure to timely respond qualifies as a violation of the provision even if the defendant acted in good faith).  If a circuit court later orders a public body which has failed to respond to a request to disclose or provide copies of the public record in question, the circuit court may assess punitive damages against the public body under Mich. Comp. Laws Ann. § 15.240(7). Mich. Comp. Laws Ann. § 15.235(3).  But under 15.235(2)(d), a public body may issue a notice extending for not more than ten business days the period during which the public body shall respond to the request.  For the purposes of FOIA, “business day” means Monday through Friday and not Saturday or Sunday (or legal holiday).  Key v. Township of Paw Paw, 254 Mich. App. 508 657 N.W. 2d 546 (2002). Moreover, under the 2015 amendment, “[i]f the court determines . . . that a public body willfully and intentionally failed to comply with this act or otherwise acted in bad faith, the court shall order the public body to pay, in addition to any other award or sanction, a civil fine of not less than $2,500.00 or more than $7,500.00 for each occurrence.” Mich. Comp. Laws Ann. § 15.240b.

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d. Patterns for future access (declaratory judgment)

Not addressed.

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5. Pleading format

Public records are prima facie disclosable to any person who makes an adequate request. Booth Newspapers Inc. v. Regents of the University of Michigan, 93 Mich. App. 100, 286 N.W.2d 55, 59 n.9 (1979). The complainant need not allege that the materials sought are not subject to statutory exemption. Exemption is a defense in actions brought under the FOIA. Booth Newspapers Inc. v. Regents of the University of Michigan, 286 N.W.2d at 60. The application of exemptions requiring legal determinations are reviewed de novo, while the application of exemptions requiring determinations of a discretionary nature are reviewed under a clearly erroneous standard. Federated Publications Inc. v. City of Lansing, 467 Mich. 98, 649 N.W.2d 383 (2002) abrogated on other grounds by Herald Co. Inc. v. Eastern Michigan University Bd. of Regents, 475 Mich. 463 (2006).  The burden is on the public body to sustain denial of the request, Mich. Comp. Laws Ann. § 15.240(4), but in applying the public interest balancing test, the circuit court should consider the fact that records have been made exemptible under § 15.243(1)(s). Federated Publications Inc. v. City of Lansing, supra, 649 N.W.2d at 385.

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6. Time limit for filing suit

A 1996 amendment to the FOIA requires an action to be commenced within 180 days after a public body's final determination to deny a request. Mich. Comp. Laws Ann. § 15.240(b). Previously, there was no time limit.

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7. What court

A person may commence an action in the court of claims to compel a state agency to comply with Mich. Comp. Laws Ann. § 15.241. Mich. Comp. Laws Ann. § 15.241(5).

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8. Judicial remedies available

Where exemption is claimed, the court may consider allowing plaintiff’s counsel to have access to contested documents in camera under special agreement whenever possible. Evening News Ass'n v. City of Troy, 417 Mich. 481, 339 N.W.2d 421 (1983). In all cases, if the court determines that the public record is not exempt from disclosure, the court "shall order the public body to cease withholding or to produce all or a portion of a public record wrongfully withheld, regardless of the location of the public record." Mich. Comp. Laws Ann. § 15.240(4). The FOIA contains no provision imposing liability upon public officials who release information which may be exempt under the FOIA, but liability may be grounded upon statute or common law protection of records which are also exempt from disclosure under the Act. 1979-80 Op. Att'y Gen. 255, 299-300 (1979).

A party is not required to resubmit an FOIA request to ensure that it receives the requested information if the public body determines that the information has become non-exempt during the course of litigation. Rather, the trial court should properly consider a plaintiff's lawsuit a continuing request for information under the FOIA. Krug v. Ingham County Sheriff's Office, 264 Mich. App. 475, 691 N.W.2d 50 (2004).

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9. Litigation expenses

"[R]easonable attorney’s fees, costs, and disbursements" will be awarded to any person who prevails in an action to compel disclosure under Mich. Comp. Laws Ann. § 15.240(6). If the complainant prevails in part, the court may use its discretion to award reasonable fees, costs, and disbursements, "or an appropriate portion." Mich. Comp. Laws Ann. § 15.240(6). Thus, the complainant is entitled to fees and costs if he or she prevails, and an award of fees and costs is discretionary if the complainant prevails in part. Walloon Lake Water System v. Melrose Twp, 163 Mich. App. 726, 415 N.W.2d 292, 296 (1987).

A plaintiff who files an action pro se is not entitled to a mandatory award of attorney’s fees; however, such a person is entitled to recover his or her actual costs, exclusive of attorney’s fees. Laracey v. Financial Institutions Bureau, 163 Mich. App. 437, 414 N.W.2d 909 (1987); see also, Michigan Tax Management Services Co. v. City of Warren, 437 Mich. 506, 473 N.W.2d 263, 265 (1991) (although fees and other expenses must be awarded to a requester who prevails completely, trial court has obligation to exercise its sound judgment in determining a reasonable fee); Tallman v. Cheboygan Area Schools, 183 Mich. App. 123, 454 N.W.2d 171 (1990) (public body not at liberty to choose how much it will charge; must compute charges according to statutory method); but see Easley v. University of Michigan, 178 Mich. App. 723, 444 N.W.2d 820, 823 (1989) (because record below did not indicate that plaintiff prevailed, any award under FOIA was discretionary; trial court did not err in declining to award costs or sanctions because there was a "balance of unreasonableness as to both parties").

In order for an FOIA plaintiff to demonstrate that he or she has prevailed so as to be entitled to a mandatory award of costs and fees, the rule has been that plaintiff must demonstrate that prosecution of the action was necessary to and had causative effect on delivery or access to the documents in question. Walloon Lake, supra, 415 N.W.2d at 296; see also Schinzel, supra, 313 N.W.2d at 169 (citing Bredemeier v. Kentwood Bd. of Education, 95 Mich. App. 767, 291 N.W.2d 199, 201 (1980)) (the test is whether the action was reasonably necessary to compel disclosure and whether the action had a substantial effect on the delivery of information to the plaintiff). However, the Michigan Court of Appeals has held that a strict application of the "prevailing party" rule is inappropriate where the litigation has been rendered moot by unilateral actions of the public body in disposing of requested materials. See, Thomas v. City of New Baltimore, 254 Mich. App. 196, 657 N.W.2d 530 (2002) (fact that plaintiff's substantive claim under the FOIA was rendered moot by disclosure after plaintiff commenced the circuit court action not held determinative of plaintiff's entitlement to attorney’s fees and costs).

Because the cost provision was intended to encourage plaintiffs unable to afford the expense of litigation to obtain judicial review of wrongful denials, where such a plaintiff "is successful with respect to the central issue, that the requested materials were subject to disclosure under the FOIA, he or she has . . . prevailed" for purposes of mandatory attorney’s fees. Walloon Lake, supra, 415 N.W.2d at 296.

Moreover, a defendant's good faith in a FOIA action has no bearing on a plaintiffs claim for discretionary attorney’s fees where plaintiff has prevailed in part: "The appropriateness of the portion awarded is not to be measured by the good faith of the defendant or the novelty of the litigation, but rather by the amount of attorney’s fees, costs, and disbursements fairly allocable to the successful portion of the plaintiffs case." Kestenbaum v. Mich State University, 414 Mich. 510, 565-66, 327 N.W.2d 783 (1982), quoted in Dawkins v. Dep't of Civil Service, 130 Mich. App. 669, 344 N.W.2d 43 (1983). As long as an action for disclosure of public records is initiated pursuant to the FOIA, the prevailing party's entitlement to an award of reasonable attorney’s fees, costs, and disbursements includes "all such fees related to achieving production of the public records." Meredith Corp. v. City of Flint, 256 Mich. App. 703, 715, 671 N.W.2d 101 (2003). "The fact that a portion of the requested attorney’s fees were incurred in a separate, related matter does not preclude recovery of that portion of the attorney's fees." Id.

Fees are also available where a court determines that a state agency has failed to comply with Mich. Comp. Laws Ann. § 15.241, which requires that state agencies publish and make available automatically a specified list of records. In such cases of noncompliance, "the court shall order the state agency to comply and shall award reasonable attorney’s fees, costs, and disbursements to the person commencing the action." Mich. Comp. Laws Ann. § 15.241(5). In Swickard v. Wayne County Medical Examiner, 196 Mich. App. 98, 102, 492 N.W.2d 497 (1992), aff'd, 438 Mich. 536, 475 N.W.2d 304 (1991), the Court held that an award of attorney’s fees to a newspaper reporter who prevailed in his action was proper, even though the newspaper employer of the reporter actually paid the attorney.

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a. Attorney fees

See Mich. Comp. Laws § 15.240(6) (if plaintiff prevails in an action commenced under this section, plaintiff shall be awarded attorney’s fees).  But see Detroit Free Press v. Department of Attorney General, 271 Mich. App. 418, 722 N.W. 2d 277 (2006) (since the plaintiff did not commence the action under 15.240, it was not entitled to attorney’s fees).  The controlling criterion in reviewing an award of attorney’s fees under the act is the reasonableness of the fees awarded.  Michigan Tax Management Services Co v. Warren, 437 Mich. 506, 473 N.W. 2d 263 (1991).

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b. Court and litigation costs

See Mich. Comp. Laws § 15.240(6)

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10. Fines

If the circuit court finds that the public body has "arbitrarily and capriciously" violated the FOIA by refusing to disclose or delaying in disclosing or providing copies of a public record, the court will award, in addition to any actual or compensatory damages, punitive damages in the amount of $1,000.00 to the person seeking the right to inspect or receive a copy of a public record." Mich. Comp. Laws Ann. § 15.240(7). Previously, the amount of punative damages was $500.00, but the 2015 amendment doubled the amount. These damages are not to be assessed against an individual but against "the next succeeding public body that is not an individual and that kept or maintained the public record as part of its public function." Mich. Comp. Laws Ann. § 15.240(7).

A plaintiff is not, of course, entitled to punitive damages or attorney’s fees and costs where he or she was not found to be entitled to the requested information. Bredemeier v. Kentwood Board of Education, 95 Mich. App. 767, 291 N.W.2d 199 (1980) (defendant's failure to provide plaintiff with written notice of denial constituted a violation of FOIA, but plaintiff could not collect fees, costs, or damages where requested information was not in recorded form). Moreover, a party must raise an argument for compensatory damages or the claim is abandoned. See Prins v. Michigan State Police, 299 Mich. App. 634 (2013).

One example of a case where punitive damages were granted is Walloon Lake, supra, 415 N.W.2d at 296, where the actions of township officials in refusing FOIA requests without explanation and in rendering judicial order of disclosure impossible by disposing of the only copy of a document was considered an arbitrary and capricious violation of the FOIA as a matter of law. See also Kincaid v. Dep't of Corrections, 180 Mich. App. 176, 446 N.W.2d 604, 607 (1989) (affirming award of $500 in punitive damages against defendant which arbitrarily and capriciously denied request on basis that requests were not sufficiently specific despite fact that defendant's own records established the opposite to be true).

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11. Other penalties

Not specified.

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12. Settlement, pros and cons

Not specified.

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E. Appealing initial court decisions

1. Appeal routes

Usual appeal procedures under Michigan Court Rules are available.

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2. Time limits for filing appeals

Usual time limits for appeals under Michigan Court Rules apply. The FOIA, however, specifies that court actions and appeals therefrom must be expedited in every way. Mich. Comp. Laws Ann. § 15.240(5).  A trial court’s order denying a motion for summary judgment and dismissing the only claim is a final appealable order. See Mlive Media Group v. City of Grand Rapids, 321 Mich. App. 263 (2017).

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3. Contact of interested amici

Usual procedures under Michigan Court Rules apply to amicus briefs.

The Reporters Committee for Freedom of the Press often files amicus briefs in cases involving significant media law issues before a state's highest court.

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F. Addressing government suits against disclosure

A plaintiff may bring an action to prevent disclosure of information held by a public body. See Bradley v. Saranac Community Schools, supra (a teacher may seek an injunction preventing disclosure of her personnel files); Tobin v. Michigan Civil Service Comm’n, supra (state employees may seek an injunction preventing the disclosure of the names and addresses of all civil service employees). Such an action, often referred to as a "reverse FOIA" action, usually alleges that the information is exempt from disclosure, and thus is analyzed under the FOIA. Bradley, supra, 455 Mich. at 292.

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Open Meetings

I. Statute - basic application

Unlike Michigan's Freedom of Information Act, which complements existing laws, the Open Meetings Act ("OMA"), Mich. Comp. Laws Ann. § 15.261, et seq., was, in part, intended to resolve conflicting provisions of law and expressly provides that it "shall supersede all local charter provisions, ordinances, or resolutions which relate to requirements for meetings of local public bodies to be open to the public." Mich. Comp. Laws Ann. § 15.261(2). The purpose of the OMA "is to promote openness and accountability in government; it is therefore to be interpreted broadly to accomplish this goal. Because the OMA is interpreted liberally in favor of openness, we construe the closed-session exceptions strictly to limit the situations that are not open to the public. The burden of establishing that a meeting is exempt from the OMA is on [the]defendant." Booth Newspapers Inc. v. University of Michigan Board of Regents, 192 Mich. App. 574, 481 N.W.2d 778, 782 (1992).

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A. Who may attend?

The OMA provides generally that "all persons" may attend "all meetings of a public body," except as otherwise provided. Mich. Comp. Laws Ann. § 15.263(1). A person cannot be required as a condition of attendance "to register or otherwise provide his name or other information or otherwise to fulfill a condition precedent to attendances Mich. Comp. Laws Ann. § 15.263(4). The OMA also provides for attendees to address public meetings "under rules established and recorded by the public body." Mich. Comp. Laws Ann. § 15.263(5); see Lysogorski v. Charter Twp. of Bridgeport, 256 Mich. App. 297, 662 N.W.2d 108 (2003) (under the OMA, public bodies have the authority to establish and enforce rules regarding public comment); see also, 1977-78 Op. Att'y Gen. 536 (1978) (the right to address a meeting of a school board may not be limited to persons who are residents of or members of the educational community of a school district). One cannot be excluded from public meetings "except for a breach of the peace actually committed at the meeting." Mich. Comp. Laws Ann. § 15.263(6). The public body is under a duty to exercise sincere efforts to accommodate the number of people who may reasonably be expected to attend a meeting. 1977-78 Op. Att'y Gen. 21, 33 (1977); 1979-80 Op. Att'y Gen. 519, 521 (1979).

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B. What governments are subject to the law?

The OMA applies to state and local bodies. Mich. Comp. Laws Ann. § 15.262(a). The OMA supersedes all local provisions requiring meetings of local public bodies to be open to the public. However, nothing in the OMA prohibits public bodies from adopting provisions which would require a greater degree of openness than is required by the standards provided for in the OMA. Mich. Comp. Laws Ann. § 15.261.

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1. State

See above.

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2. County

See above.

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3. Local or municipal

See above.

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C. What bodies are covered by the law?

"All meetings of a public body" are to be open to the public. Mich. Comp. Laws Ann. § 15.263(l). A "public body" is defined as:

[A]ny state or local legislative or governing body, including a board, commission, committee, subcommittee, authority, or council, which is empowered by state constitution, statute, charter, ordinance, resolution, or rule to exercise governmental or proprietary authority or perform a governmental or proprietary function, or a lessee there of performing an essential public purpose and function pursuant to the lease agreement.

Mich. Comp. Laws Ann. § 15.262(a).

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1. Executive branch agencies

Examples of executive branch agencies which have been found to be covered under the OMA are the Huron River Watershed Council, 1977-78 Op. Att'y Gen. 329 (1978), the State Safety Commission, 1977-78 Op. Att'y Gen. 21 (1977), a county concealed weapons licensing board, 2001 Op. Att'y Gen. No. 7073 (2001), and local medical control authorities, 2004 Op. Att'y Gen. No. 7165 (2004). Michigan Parole Board proceedings have been held to be exempted from OMA, Glover v. Michigan Parole Board, 460 Mich. 511, 596 N.W.2d 598 (1999). The term "public body" connotes a collective entity; A single individual is not generally recognized as a "board," "commission," "committee," "subcommittee," "authority," or "council." Herald Company Inc. v. City of Bay City, 463 Mich. 111, 129-30, 614 N.W. 2d 873 (2000) (city manager acting in his executive capacity not a public body for purposes of OMA and a committee appointed by the manager in selecting a fire chief is also not a public body). An individual acting in his official capacity, even if required to perform the functions of a previous school board (which constitutes a public body) is not a public body for the purposes of the OMA.Craig v. Detroit Pub. Sch. Chief Exec. Officer, 265 Mich. App. 572, 579 (Mich. Ct. App. 2005); Davis v City of Detroit Fin Review Team, 296 Mich App 568; 821 NW2d 896 (2012). (“The State Treasurer, whether acting in his executive capacity or as a ‘one man committee’ of the Detroit Financial Review Team, is not a ‘public body.’)

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a. What officials are covered?

“MCL 15.273(1) provides: ‘A public official who intentionally violates this act shall be personally liable in a civil action for actual and exemplary damages of not more than $ 500.00 total, plus court costs and actual attorney’s fees to a person or group of persons bringing the action.’ Accordingly, this statute mandates personal liability for a public official who intentionally violates the OMA.” Leemreis v. Sherman Twp., 273 Mich. App. 691, 701-702 (Mich. Ct. App. 2007).

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b. Are certain executive functions covered?

N/A.

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c. Are only certain agencies subject to the act?

N/A.

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2. Legislative bodies

The OMA covers state and local legislative bodies. A joint legislative committee is a "public body" within the meaning of the OMA. 1977-78 Op. Att'y Gen. 451 (1978). Further, any state or local body that is empowered by resolution to exercise governmental or proprietary authority is a public body under the OMA. See Jackson v. Eastern Michigan University Foundation, 215 Mich. App. 240, 246-47, 544 N.W.2d 737 (1996) (University foundation which was empowered to manage university's endowment was a public body); Jude v. Heselschwerdt , 228 Mich. App. 667, 578 N.W. 2d 704 (1998) (board of review appointed to review county drain commissioner's apportionment of benefits subject to OMA); Morrison v. City of East Lansing, 255 Mich. App. 505, 660 N.W.2d 395 (2003) (committee appointed by city council to be in charge of development of community center is public body subject to OMA); Davis v City of Detroit Fin Review Team, 296 Mich App 568; 821 NW2d 896 (2012) (financial review team appointed for city not a public body subject to OMA, since it did not involve independent decision-making and could only make recommendations, not act on them.).

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3. Courts

The OMA does not apply to judicial proceedings but it does apply to a court "while exercising rule-making authority and while deliberating or deciding upon the issuance of administrative orders." Mich. Comp. Laws Ann. § 15.263(7). However, this provision was held to be an unconstitutional legislative intrusion on judicial powers in In re "Sunshine Law", 1976 P.A. 267, 400 Mich. 660, 255 N.W.2d 635 (1977). Nevertheless, the law has not been repealed. In Herald Co, Inc v Tax Tribunal, 258 Mich App 78, 90; 669 NW2d 862, 870 (2003) abrogated on other grounds by Speicher v Columbia Tp Bd of Trustees, 497 Mich 125; 860 NW2d 51 (2014) the Michigan Court of Appeals determined that the Michigan Tax Tribunal is a public body subject to the OMA. The Court of Appeals has also held that it is not unconstitutional to apply the OMA to constitutionally established universities when they are selecting a president. Federated Publications Inc. v. Board of Trustees of Michigan State University, 221 Mich. App. 103, 111-114, 561 N.W.2d 433 (1997). However, the Michigan Supreme Court reversed, holding that the application of OMA to the internal operations of a university in selecting a president infringes the University Board of Trustees' constitutional power to supervise the institution, Federated Publications Inc. v. Board of Trustees of Michigan State University, 460 Mich. 75, 594 N.W. 2d 491 (1999).

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4. Nongovernmental bodies receiving public funds or benefits

See generally, Mich. Comp. Laws Ann. § 15.263(1) ("lessee[s] . . . performing an essential public purpose and function pursuant to the lease agreement are included in definition of a public body); see also, Stablein v. Schuster, 183 Mich. App. 477, 455 N.W. 2d 315, 318 (1990) ("Plaintiff's claim that the school board meeting was not a public and official proceeding has no merit."); Booth Newspapers Inc. v. University of Michigan Board of Regents, 192 Mich. App. 574, 581, 481 N.W.2d 778, 782 (1992) ("There is no doubt that defendant [University of Michigan Board of Regents] is a public body as defined in the OMA."); Jackson v. Eastern Michigan University Foundation, 215 Mich. App. 240, 544 N.W.2d 737 (1996) (body primarily funded by state or local authority is a public body under FOIA and OMA), and 2001 Op. Att'y Gen No. 7087 (2001) (the board of trustees of a retirement system established and administered by a home rule city is public body subject to OMA).

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5. Nongovernmental groups whose members include governmental officials

These do not appear to fit the definition of a "public body." Even if they did, they presumably would be covered by the OMA only to the extent that their decisions "effectuate and formulate public policy." Mich. Comp. Laws Ann. § 15.262(d).

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6. Multi-state or regional bodies

The definition of "public body" in Mich. Comp. Laws Ann. § 15.262(a) refers to only state and local bodies. Compare the FOIA's definition, which includes "regional" governing bodies. Mich. Comp. Laws Ann. § 15.232(b)(iii).

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7. Advisory boards and commissions, quasi-governmental entities

Mich. Comp. Laws Ann. § 15.263(7) specifies that the OMA does not apply to the following entities when they are deliberating the merits of a case:

(a) The workers compensation appeal board created under Mich. Comp. Laws Ann. § 418.101-.941.

(b) The employment security appeals board created under Mich. Comp. Laws Ann. § 421.1-.67.

(c) The teacher tenure commission created under Mich. Comp. Laws Ann. § 38.71-.191.

(d) An arbitrator or arbitration panel appointed by the employment relations commission pursuant to the authority given the commission by Mich. Comp. Laws Ann. § 423.1-3.

(e) An arbitration panel covering health care arbitration selected pursuant to Mich. Comp. Laws Ann. § 600.5040-.5065.

The definition of a "public body" is also tempered by the definition of "meeting," which is "the convening of a public body at which a quorum is present for the purpose of deliberating toward or rendering a decision on a public policy." Mich. Comp. Laws Ann. § 15.262(b). Thus, the Attorney General has surmised that the OMA does not apply to committees and subcommittees of public bodies which are merely advisory or only capable of making recommendations concerning the exercise of governmental authority, but which are not legally capable of rendering a final decision. 1977-78 Op. Att'y Gen. 21, 40 (1977). See, Edwards v Oakland Tp, No. 320133, 2015 WL 1277009, at *1 (Mich Ct App March 19, 2015) (subcommittee formed by the Township Board to study the use of a cider mill property had no authority to render decisions and was therefore not subject to OMA).

However, the Attorney General has also opined that a meeting of a standing committee of a county board of commissioners, composed of less than a quorum of the full board, is subject to the OMA when the committee is effectively authorized to determine what items of county business are referred for action by the full board.  2009 Op. Att'y Gen. No. 7235 (2009)(emphasis added)(quoting 1998 Op. Att'y Gen. No. 7000 (1998)).

Additionally, the Michigan Court of Appeals has taken a broad view of such committees. See Schmiedicke v. Clare Sch. Bd., 228 Mich. App. 259, 577 N.W. 2d 706 (1998) abrogated on other grounds by Speicher v Columbia Tp Bd of Trustees, 497 Mich 125; 860 NW2d 51 (2014)  (school board's referral to a committee for a recommendation regarding method of evaluating administrators and length of their contracts was a delegation of authority to perform a public function and meetings are subject to OMA); Morrison v. City of East Lansing, 255 Mich. App. 505, 520, 660 N.W.2d 395 (where city council "effectively authorized" committee to perform a governmental function and the committee held public meetings to solicit public input, despite the fact that the committee was not capable of rendering a final decision, it was still a public body subject to OMA).

Of course, where such a subcommittee contains the entire body of the public body which it serves, it would be a violation of the OMA to allow such subcommittees to meet in closed session. 1977-78 Op. Att'y Gen. at 40. Similarly, the Michigan Environmental Review Board and the Interdepartmental Environmental Review Committee are not subject to the provisions of the OMA as "public bodies," because they are advisory bodies created by the Governor (who in fact is not authorized under Michigan law to create public bodies which exercise governmental or proprietary functions). 1977-78 Op. Att'y Gen. 21, 29-30 (1977). See also 1997 Op. Att'y Gen. No. 6935 (1997) (OMA not applicable to advisory committee formed by a board of education to study eligibility standards for participation in athletics). The State Board of Ethics, on the other hand, has been held to be subject to the OMA because, although its function is advisory and it is not empowered to take direct action against a person or agency, the Board cannot be considered merely an advisory body since the compulsory language of the act which creates the Board obligates the appointing authority to act upon the Board's recommendation. 1979-80 Op. Att'y Gen. 935, 937 (1980).

An urban redevelopment corporation organized under the law is subject to OMA and FOIA. 2000 Op. Att'y Gen. No. 7066 (2000). A corporation formed under the summer resort owners corporation act is subject to OMA and FOIA. 1997 Op. Att'y Gen. No. 6942 (1997).

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8. Other bodies to which governmental or public functions are delegated

A Board of Tax Review is a local governing body empowered by statute to exercise governmental authority and a finding of the Board of Review is a "decision" within the meaning of the OMA. Because its determinations effectuate public policy, meetings of boards of review are subject to requirements of the OMA. 1977-78 Op. Att'y Gen. 377 (1978).

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9. Appointed as well as elected bodies

The OMA's definition of public bodies does not distinguish between appointed and elected bodies. See Mich. Comp. Laws Ann. § 15.262(a).

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D. What constitutes a meeting subject to the law

When a quorum of the members of a public body meet to consider and discuss public business, it is a “meeting” within meaning of Open Meetings Act (OMA). Nicholas v. Meridian Charter Tp. Bd., 239 Mich.App. 525, 609 N.W.2d 574 (2000). However, a chance gathering of members of public body, during which members do not engage in deliberations or render decisions, is not a “meeting,” and thus is not subject to requirements of the OMA. Ryant v. Cleveland Township, 239 Mich.App. 430, 608 N.W.2d 101 (2000). Even email exchanges involving a quorum of members where not every member responds (seemingly not participating) may constitute a “meeting” so long as there is a “deliberation.” Markel v Mackley, No. 327617, 2016 WL 6495941, at *1 (Mich Ct App November 1, 2016).

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1. Number that must be present

Mich. Comp. Laws Ann. § 15.262 defines those meetings which are subject to the OMA as: "'Meeting' means the convening of a public body at which a quorum is present for the purpose of deliberating toward or rendering a decision on a public policy." Mich. Comp. Laws Ann. § 15.262(b). See also Mich. Comp. Laws Ann. § 15.263(3) ("All deliberations of a public body constituting a quorum of its members shall take place at a meeting open to the public except as otherwise provided in [the exemption sections of the OMA]"). Any exceptions to the requirement of an open meeting when a quorum is present have been based on the purpose for which the quorum is present. See 1979-80 Op. Att'y Gen. 386 (1979) (a quorum of a local board of education may meet with the State Board of Education to listen to the State Board's position on issues of concern to the local board without complying with the requirements of the OMA, as long as the local board does not, at such a meeting, deliberate upon or decide matters of public policy); 1977-78 Op. Att'y Gen. 21, 35 (1977) (where members of a public body are invited to address a civic organization and a sufficient number of the members of the body are present to constitute a quorum, such a situation is neither the "convening" of a public body nor is the quorum present "for the purpose of deliberating toward or rendering a decision"; thus, such an occasion is not a "meeting" within the definition of the OMA); Ryant v. Cleveland Twp., 239 Mich. App. 430, 608 N.W. 2d 101 (2000) (planning commission meeting in which quorum of township board present not a meeting subject to OMA where the board members other than the supervisor, were observers only and did not engage in discussion).

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a. Must a minimum number be present to constitute a "meeting"?

By definition, a gathering of less than a quorum of a public body generally does not constitute a "meeting" within the meaning of the OMA and need not comply with the requirements set forth in the OMA.  2009 Op. Att'y Gen. No. 7235 (2009) Quorum is not defined in the act, so the dictionary definition is applicable; Black’s Law Dictionary defines a quorum as the minimal number of members (usually a majority of all of the members) who must be present for a deliberative assembly to legally transact business. 8th ed. p. 1284.

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b. What effect does absence of a quorum have?

See above.

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2. Nature of business subject to the law

Mich. Comp. Laws Ann. § 15.263(10) specifically provides that the OMA does not apply to "a meeting which is a social or chance gathering or conference not designed to avoid this act." The Attorney General opined that the legislature included this exception so that members of a public body, even though constituting a quorum, could listen to the concerns of members of the public or persons with special knowledge in the presence of other interested persons. Examples would be a conference of the American Association of State Transportation Officials or a conference of educators designed to provide information of professional interest to the participants.

However, when a gathering is designed to receive input from officers or employees of a public body, the OMA requires that the gathering be held at a public meeting. 1979-80 Op. Att'y Gen. 29 (1979). Furthermore, since this exception includes meetings "not designed to avoid the act," this suggests a legislative intent that the OMA should apply to those meetings designed to avoid the OMA. Thus, a public body cannot avoid the OMA by deliberately dividing itself into groups of less than a quorum to deliberate on public policy, because doing so would circumvent this apparent legislative intent, as well as the overall objective of the OMA to promote openness and accountability in government. Booth Newspapers Inc. v. Wyoming City Council, 168 Mich. App. 459, 425 N.W.2d 695 (1988); see also Booth Newspapers Inc. v. University of Michigan Board of Regents, supra, 481 N.W.2d at 782, "Because defendant, a public body, deliberately divided itself into sub-quorum groups to deliberate on public business [the selection of a new university president], in direct circumvention of the OMA's objective of promoting openness and accountability in government, we hold that "they constituted a constructive quorum under the OMA."

All "decisions" of a public body are to be made at meetings which are open to the public. Mich. Comp. Laws Ann. § 15.263(2). A "decision" is defined in Mich. Comp. Laws Ann. § 15.262(d) to include "a determination, action, vote, or disposition upon a motion, proposal, recommendation, resolution, order, ordinance, bill, or measure on which a vote by members of a public body is required and by which a public body effectuates or formulates public policy. All deliberations of a public body constituting a quorum of its members" must also take place at open meetings. Mich. Comp. Laws Ann. § 15.263(3). Thus, when a public body meets to consider information from its staff relating to issues of fact and law contained in a proposal for decision, it is deliberating toward a decision within the scope of the OMA and must do so at a meeting to which the public will be admitted. 1977-78 Op. Att'y. Gen. 465, 467 (1978). The discussion of the form and style of a decision or order is also part of the deliberation toward and rendering of the final decision. 1977-78 Op. Att'y Gen. at 467; see also Booth Newspapers Inc. v. University of Michigan Board of Regents, supra, 481 N.W.2d at 783 ("The shortening of the candidate list [by subquorum groups] consisted of an undisputed decision-making process that was carried out with the full consensus of the board . . . and these decisions should have been made only at open meetings."). Some loopholes in the general "decision" rule have been recognized in terms of content, since the definition of "decision" is restricted to actions "by which a public body effectuates or formulates public policy." Mich. Comp. Laws Ann. § 15.262. For example, when members of a public body meet to discuss their individual elections and political concerns, they are not considering matters of public policy within the OMA, and need not follow its requirements. 1979-80 Op. Att'y Gen. 55 (1979).

Since "decisions" must be made at open meetings under Mich. Comp. Laws Ann. § 15.263(2), a number of methods of decision-making which would skirt this requirement have been struck down by the courts. Thus, a legislative committee may not engage in the practice of "round-robining" by which votes on a measure are obtained by a member of the committee going to other members and obtaining their signatures on a tally sheet. 1979-80 Op. Att'y Gen. 216 (1977). Moreover, any voting procedure at a public meeting which prevents citizens from knowing how members of a public body have voted is prohibited. 1977-78 Op. Att'y Gen. 338 (1978). The OMA thus prohibits public bodies from voting by secret ballot, Esperance v. Chesterfield Township, 89 Mich. App. 456, 280 N.W.2d 559, 563 (1979) and from holding phone call conference meetings, 1977-78 Op. Att'y Gen. 21, 32 (1977).

A provision in the bylaws of a city's downtown development authority that allows board members to vote by proxy violates the Open Meetings Act because proxy voting fails to make the important deliberative aspects of the absent board member's decision-making process open to the public when rendering a decision that effectuates public policy. Op. Att’y. Gen. 7227 (2009). The OMA's requirements are met when vote is by roll call, show of hands, or "any other method whereby the way a public official voted is made known to the public." Esperance, supra, 280 N.W.2d at 563.

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a. "Information gathering" and "fact-finding" sessions

See above.

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b. Deliberation toward decisions

See above.

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3. Electronic meetings

Open Meetings Act [§ 15.261 et seq.] was not violated by Department of Social Services in contested case hearings in which teleconference calls were conducted over speaker phones and all interested persons who wished to attend hearings were allowed to do so; furthermore, release of a written opinion to public, rather than convening a second hearing for sole purpose of announcing hearing officer's decision, would meet requirements of the Act. Goode v. Department of Social Services, 143 Mich.App. 756, 373 N.W.2d 210 (1985).

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a. Conference calls and video/Internet conferencing

Interactive television can be used to enable some directors to participate in a meeting if a central site is set up so that interaction among all the directors, whether they be on or off that site, and interested members of the public is possible. 1995 Op. Att’y Gen 6835 (1995).

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b. E-mail

Email exchanges involving a quorum of members may constitute a “meeting” so long as the other requirements for a meeting are met. Markel v Mackley, No. 327617, 2016 WL 6495941, at *1 (Mich Ct App November 1, 2016).

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c. Text messages

Not addressed by the law.

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d. Instant messaging

Not addressed by the law.

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e. Social media and online discussion boards

Not addressed by the law.

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E. Categories of meetings subject to the law

1. Regular meetings

a. Definition

Regular meetings, which are regulated under Mich. Comp. Laws Ann. § 15.265, are not defined within the OMA, nor does the Act specifically require public bodies to establish regular meetings schedules. 1977-78 Op. Att'y Gen. 21, 37 (1977). However, where such a schedule is established, it must be posted yearly. See Mich. Comp. Laws Ann. § 15.265(2).

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b. Notice

Notice is required for all meetings under the OMA: "A meeting of a public body shall not be held unless public notice is given as provided in this section by a person designated by the public body." Mich. Comp. Laws Ann. § 15.265(1). The requirement that a person be "designated" to carry out the posting of public notice means that such a person must be formally chosen by resolution noticed in the minutes of the public body. 1977-78 Op. Att'y Gen. 21, 36 (1977).

For regular meetings, a public body must post within ten days after the first meeting in each calendar or fiscal year a public notice stating the dates, times, and places of its regular meetings. Mich. Comp. Laws Ann. § 15.265(2). If there is a change in the schedule of regular meetings, the public body is required to post, within three days after the meeting at which the change is made, a public notice stating the new dates, times, and places of regular meetings. Mich. Comp. Laws Ann. § 15.265(3).The OMA provides for interested parties to request copies of required notices:

(a) Upon the written request of an individual, organization, firm, or corporation, and upon the requesting party's payment of a yearly fee of not more than the reasonable estimated cost for printing and postage of such notices, a public body shall send to the requesting party by first class mail a copy of any notice required to be posted pursuant to section 5(2) to (5) [Mich. Comp. Laws Ann. § 15.265(2) to (5)].

(b) Upon written request, a public body, at the same time a public notice of a meeting is posted pursuant to section 5 [Mich. Comp. Laws Ann. § 15.265], shall provide a copy public notice of that meeting to any newspaper published in the state and to any radio and television station located in the state, free of charge. Mich. Comp. Laws Ann. § 15.266.

Public notices must be posted at the principal office of the public body, as well as at "any other locations considered appropriate by the public body." Mich. Comp. Laws Ann. § 15.264(b). In addition, if the public body is part of a state department, the legislative or judicial branch, an institution of higher education, or a political subdivision or school district, public notices are also to be posted "in the respective principal office of the state department, the institute of higher education, clerk of the house of representatives, secretary of the state, senate, clerk of the supreme court, or political subdivision or school district." Mich. Comp. Laws Ann. § 15.264(c). Cable television may be used as a medium for posting public notices. Mich. Comp. Laws Ann. § 15.264(b).

Public notices must contain the name of the public body to which the notice applies ,its telephone number, and its address. Mich. Comp. Laws Ann. § 15.264(a). See Lysogorski v. Bridgeport Charter Tp., 256 Mich.App. 297, 662 N.W.2d 108 (2003) (Despite an attendee's contention that he was unable to determine from the agenda the precise matter that the township board planned to discuss, the agenda contained the public body's name, address, and telephone number, and was properly published and therefore satisfied the statutory requirement of public notice).

When the place where the meeting of a public body is to be held is different from the address of the public body, the notice must contain both addresses in order to comply with the OMA. 1977-78 Op. Att'y Gen. 21, 36 (1977). The OMA sets forth special notice requirements for meetings which take place in residential dwellings. First, such meetings may only be held if a nonresidential building is not available within the boundary of the local government unit or school system without cost to the public body. Second, notice of such a meeting must be published as a display advertisement in a newspaper of general circulation in the city in which the meeting is to be held at least two days before the meeting and must state the date, time, and place of the meeting. The notice, which must be at the bottom of the display ad and set off in a conspicuous manner, must include the following language: "This meeting is open to all members of the public under Michigan's open meetings act." Mich. Comp. Laws Ann. § 15.265(6).

An action of a public body may be invalidated under Mich. Comp. Laws Ann. § 15.270; a court may compel compliance with the OMA or enjoin further noncompliance under Mich. Comp. Laws Ann. § 15.271. An action for mandamus against a public body may be commenced in the Court of Appeals under Mich. Comp. Laws Ann. § 15.271(3). Public officials who are found to have intentionally violated the OMA may be fined up to $1,000 under Mich. Comp. Laws Ann. § 15.272(1).

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c. Minutes

Public bodies are required to keep minutes of each meeting showing the date, time, place, members present, members absent, any decisions made if the meeting was open to the public, and the purpose or purposes for which a closed session was held. The minutes must also include all roll call votes taken at the meeting. Mich. Comp. Laws Ann. § 15.269(1). Corrections must be made to the minutes no later than the next meeting after the meeting to which the minutes refer. Corrected minutes, then, must be available no later than the next subsequent meeting after correction, and must show both the original entries and the correction. Mich. Comp. Laws Ann. § 15.269(l).

Minutes are considered public records under the OMA and must be available for public inspection at the address designated on the public notices posted pursuant to Mich. Comp. Laws Ann. § 15.264. Mich. Comp. Laws Ann. § 15.269(2). Although, generally, neither advance notice nor supervision should be required for the inspection of copies of open meeting minutes, a public body may, under rules established and recorded by the body, request advance notice of and require supervision of any copy of the public body’s record copy of open meeting minutes to protect the record from loss, unauthorized alteration, mutilation, or destruction. 2010 Op. Att’y. Gen. 7244 (2010).  Thus, as with other public records under the FOIA, copies of the minutes must be available to the public at the reasonable estimated costs for printing and copying. Mich. Comp. Laws Ann. § 15.269(2). Since the OMA requires that minutes be available for public inspection at the address designated on the public notice, it is reasonable to conclude that a public body having no permanent location may select a readily accessible location to store its minutes and may state in its notice where that location is. 1977-78 Op. Att'y Gen. 21, 36 (1977). Proposed minutes must be available for public inspection no more than eight business days after the meeting to which the minutes refer, while approved minutes are to be available within five business days after the meeting at which the minutes are approved by the public body. Mich. Comp. Laws Ann. § 15.269(3).

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2. Special or emergency meetings

a. Definition

Special meetings are not defined under the OMA.

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b. Notice requirements

In 2012 the legislature amended the notice requirements under the OMA to reflect the prominence of the internet and the use of websites by public bodies to disseminate information. Because of the 2012 amendments, at least 18 hours before rescheduled regular meeting or a special meeting, public notice must be posted on the public body’s website. This requirement only applies, however, if the public body maintains an official internet presence that includes, at a minimum, monthly updates of public meeting agendas or minutes. “The public notice on the website shall be included on either the homepage or on a separate webpage dedicated to public notices for nonregularly scheduled public meetings and accessible via a prominent and conspicuous link on the website’s homepage that clearly describes its purpose for public notification of those nonregularly scheduled public meetings.” Mich. Comp. Laws Ann. § 15.265(4).

The eighteen-hour notice requirement is not fulfilled if the public is denied access to notice for any part of the eighteen hours. 1979-80 Op. Att'y Gen. 840 (1980). It does not apply to special meetings of subcommittees of a public body or conference committees of the state legislature. Mich. Comp. Laws Ann. § 15.265(4). Conference committees operate under shorter time limits. A conference committee must give six-hour notice. A second conference committee must give one-hour notice. Notice of a conference committee meeting must include written notice to each member of the conference committee and to the majority and minority leaders of each house indicating the time and place of the meeting. Mich. Comp. Laws Ann. § 15.265(4).

There are also special notice requirements for meetings which have reconvened. A meeting recessed for more than 36 hours can be reconvened only after a public notice is posted which meets the requirements above. Mich. Comp. Laws Ann. § 15.265(5). Beyond all this, the OMA has a broad emergency provision: "Nothing in this section [Mich. Comp. Laws Ann. § 15.265] bars a public body, however, from meeting in emergency session in the event of a severe and imminent threat to the health, safety, or welfare of the public when 2/3 of the members serving on the body decide that delay would be detrimental to efforts to lessen or respond to the threat." Mich. Comp. Laws Ann. § 15.265(5).  The 2012 amendments do now require that a public body holding an emergency public meeting, that does not comply with the 18-hour posted notice requirement, “[m]ake paper copies of the public notice for the emergency meeting available to the public at that meeting,” and post the notice online. The notice must explain (with specifics) why the 18-hour posted notice requirement was not followed. Within 48 hours after the emergency meeting, the public body must send notice to the county commissioner explaining that an emergency meeting was held without posting public notice 18-hours prior. “Compliance with the notice requirements for emergency meetings in this subsection does not create, and shall not be construed to create, a legal basis or defense for failure to comply with other provisions of [the OMA] and does not relieve the public body from the duty to comply with any provision of” the OMA.

Public notices which are posted to meet the above requirements must be made available upon the written request of interested parties as described in Mich. Comp. Laws Ann. § 15.264(b).

Posting requirements for special meetings are the same as those for regular meetings. See Mich. Comp. Laws Ann. § 15.264(b) and (c).

The OMA sets forth special notice requirements for meetings which take place in residential dwellings. First, such meetings may only be held if a nonresidential building is not available within the boundary of the local government unit or school system without cost to the public body. Second, notice of such a meeting must be published as a display advertisement in a newspaper of general circulation in the city in which the meeting is to be held at least two days before the meeting and must state the date, time, and place of the meeting. The notice, which must be at the bottom of the display ad and set off in a conspicuous manner, must include the following language: "This meeting is open to all members of the public under Michigan's open meetings act." Mich. Comp. Laws Ann. § 15.265(6).

 Generally, the same remedies for failure to give adequate notice of regular meetings applies.

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c. Minutes

The information required for the minutes of special meetings is the same as for regular meetings. In both instances the minutes are considered public record.

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3. Closed meetings or executive sessions

a. Definition

The OMA contains no express definition of closed meetings. A person intruding upon a closed session of a public body may be forcibly removed by a law enforcement officer, or removal may be accomplished by recessing and moving the closed session to another location. 1985-86 Op. Att'y Gen. 268, 271 (1986).

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b. Notice requirements

While the OMA contains no express definition of closed meetings, it does state: "A meeting of a public body shall not be held unless public notice is given as provided in this section by a person designated by the public body." Mich. Comp. Laws Ann. § 15.265(1). A public body must meet in public before closing a meeting and take a 2/3 roll call vote of its members to enter into a closed session. Mich. Comp. Laws Ann. § 15.267(1). Additionally, for purposes of calling a closed meeting, there must be a two-thirds roll call vote of all the members of the public body appointed to and serving, not merely two-thirds of those attending the particular meeting. 1977 Op. Att’y. Gen. 5183, p. 21. (1977). Thus, notice of the public meeting during which the 2/3 vote is taken must be given in accordance with Mich. Comp. Laws Ann. § 15.264.

Pursuant to Mich. Comp. Laws Ann. § 15.265, notice for regular meetings must be posted within 10 days of the first meeting of the body with all the dates, times and places of the regular meetings.  Mich. Comp. Laws Ann. § 15.265(2). Rescheduled or special meetings must provide at least 18 hours notice, conference calls, 6 hour notice.  Mich. Comp. Laws Ann. § 15.265(4).

Notice of meetings must be posted at the principal office of the public body and “any other locations considered appropriate by the public body.” Mich. Comp. Laws Ann. § 15.264(a), (b).  Cable television may also be used.  Id.  For public bodies without a “principal office,” notice must be posted at the county clerk’s office in which the public body serves.  Mich. Comp. Laws Ann. § 15.264(d).  For state public bodies without a principal office, notice must be posted in the office of the secretary of state.  Id.

Nothing more is required in the notice/agenda other than the public body’s name, telephone number and address.  Mich. Comp. Laws Ann. § 15.264(a);  See also Lysogorski v. Bridgeport Charter Tp. 662 N.W.2d 108 (Mich. App. 2003) (finding that an agenda containing only the public body’s name, address and telephone number was properly published and satisfied the notice requirement).  The nature of the business to be conducted at the meeting does not need to be set forth in advance. Mich. Comp. Laws Ann. § 15.264(a). See Haven v. City of Troy, 197 N.W.2d 496 (Mich. App. 1972).

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c. Minutes

As a 2/3 roll call vote of members is required to call a closed session, the roll call vote and the purpose or purposes for calling the closed session must be entered into the minutes of the meeting at which the vote is taken. Mich. Comp. Laws Ann. § 15.267(1). See also Mich. Comp. Laws Ann. § 15.269(l).

Minutes of closed meetings, which are to be retained by the clerk of the public body, are not available to the public and will only be disclosed if required by a civil action filed under Mich. Comp. Laws Ann. §§ 15.270, 15.271, or 15.273. See Mich. Comp. Laws Ann. § 15.267. Transcripts of closed sessions are part of the minutes and are exempt from disclosure. Titus v. Shelby Charter Twp., 226 Mich. App. 611, 574 N.W. 2d 391 (1997). A public official who disseminates closed session minutes to the public risks criminal prosecution and civil penalties. 2000 Op. Att'y Gen. No. 7061 (2000).

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d. Requirement to meet in public before closing meeting

A public body must meet in public before closing a meeting in order to take the 2/3 roll call vote of its members which is required to call a closed session. Mich. Comp. Laws Ann. § 15.267(1). No final action may be taken during a closed meeting, since Mich. Comp. Laws Ann. § 15.263 requires that "decisions" be made at open meetings. 1979-80 Op. Att'y Gen. 57 (1979).

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e. Requirement to state statutory authority for closing meetings before closure

Not specified.

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f. Tape recording requirements

Audiotape of a closed session meeting of city council was part of the minutes of the session meeting, and thus audiotape was required under OMA to be filed with the city clerk for retention, despite claim that retention of such audiotapes would be overly burdensome; audiotape of public meetings could be disposed of once written minutes were officially adopted, and audiotapes of closed meetings was sufficiently rare to not be overly burdensome. Kitchen v. Ferndale City Council, 253 Mich.App. 115, 654 N.W.2d 918 (2002).

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F. Recording/broadcast of meetings

The right to attend a meeting of a public body now includes the right to tape-record, videotape, broadcast live on radio, or telecast live on television the proceedings of a public body, subject to the prior approval of the public body. Public bodies may establish reasonable rules and regulations in order to minimize the disruption of their meetings. Mich. Comp. Laws Ann. § 15.263(l).

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1. Sound recordings allowed

See above.

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2. Photographic recordings allowed

See above.

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G. Access to meeting materials, reports and agendas

H. Are there sanctions for noncompliance?

The Attorney General, prosecuting attorney of the county where the public body serves, or a person may commence a civil action to obtain an injunction requiring compliance with the OMA. Mich. Comp. Laws Ann. § 15.271(1). If a person is successful in obtaining this injunctive relief, the person is entitled to recover "court costs and actual attorney’s fees." Id. “A person cannot recover court costs and actual attorney fees under MCL 15.271(4) unless he or she succeeds in obtaining injunctive relief in the action.” Speicher v Columbia Tp Bd of Trustees, 497 Mich 125, 144; 860 NW2d 51, 61 (2014).

Moreover, the OMA provides criminal penalties for noncompliance. A public official who intentionally violates the OMA is guilty of a misdemeanor punishable by a maximum fine of $1,000.00. Mich. Comp. Laws Ann. § 15.272(1). If the public official intentionally violates the OMA a second time within the same term, the public official will again be guilty of a misdemeanor and receive a maximum fine of $2,000.00 or imprisonment for a maximum of 1 year, or both. Mich. Comp. Laws Ann. § 15.272(2).

A person may also bring a civil action for damages against a public official who violates the OMA. A public official who has intentionally violated the OMA will be held personally liable for "actual and exemplary damages of not more than $500.00 total, plus court costs and actual attorney’s fees." Mich. Comp. Laws Ann. § 15.273(1). This action may be joined with an action for injunctive relief. Mich. Comp. Laws Ann. § 15.273(3).

The OMA provides for substantial fines against universities in certain circumstances. If an institution of higher education violates the OMA with respect to the process of selecting the institution's president at any time after the recommendation of final candidates to the governing board, the institution is responsible for a maximum civil fine of $500,000.00. Mich. Comp. Laws Ann. § 15.273a. This civil fine is in addition to any other remedy or penalty under the OMA. Id.

However, Mich. Comp. Laws Ann. §15.270(3) limits when actions to invalidate a decision can be brought to 60 days after the minutes have been made available to the public. §15.273 limits causes of action against public officials for intentional violations of OMA to 180 days after the date of violation. See Maiberger v. City of Livonia, 724 F.Supp.2d 759 E.D.Mich. (2010).

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A. Exemptions in the open meetings statute

1. Character of exemptions

A public body may meet in closed session only for the purposes listed in Mich. Comp. Laws Ann. § 15.268. The closed session exemptions are to be construed strictly to limit the types of situations that are not open to the public. Wexford County Prosecuting Attorney v. Pranger, 83 Mich. App. 197, 268 N.W.2d 344 (1978); see also Booth Newspapers Inc. v. University of Michigan Board of Regents, 168 Mich. App. 459, 425 N.W.2d 695 (1988).

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2. Description of each exemption

  1. A public body may meet in a closed session "[t]o consider the dismissal, suspension, or disciplining of, or to hear complaints or charges brought against, or to consider a periodic personnel evaluation of, a public officer, employee, staff member, or individual agent, if the named person requests a closed hearing. Mich. Comp. Laws Ann. § 15.268(a). A person may rescind a request for a closed hearing at any time, after which the matter will be considered after the rescission only in open sessions. Mich. Comp. Laws Ann. § 15.268(a). The phrase "after the rescission" was recently added to the last sentence of Mich. Comp. Laws Ann. § 15.268(a), suggesting that matters do not need to be reheard from the beginning if a request for a closed hearing is rescinded.
  2. A public body may meet in a closed session to consider the dismissal, suspension, or disciplining of a student under two conditions: if the public body is part of the school district or institution which the student is attending, and if the student's parent or guardian requests a closed hearing. Mich. Comp. Laws Ann. § 15.268(b).
  3. "[S]trategy and negotiation sessions connected with the negotiation of a collective bargaining agreement' may be closed to the public if either negotiating party requests a closed hearing. Mich. Comp. Laws Ann. § 15.268(c). This exemption has been interpreted strictly to permit closed strategy sessions only when negotiation of a labor agreement is in progress or about to commence. Wexford County Prosecuting Attorney, supra, 268 N.W.2d at 348. Thus, a city commission's May meeting to discuss the residency policy for city employees did not qualify for exemption, since a mandatory collective bargaining subject was involved and since collective bargaining was not to begin until August for renewal of a labor contract to expire December 31. Id. "Negotiation sessions" as used in this exemption, refers to "actual collective bargaining sessions between employer and employee." Id. In Moore v. Fenville Public Schools Board of Education, 223 Mich. App. 196, 566 N.W. 2d 31 (1997), it was held that the members could meet in a closed session to reach consensus on a union's proposal because consensus reflected a goal in negotiations and not a final determination.
  4. A public body may meet in closed session "[t]o consider the purchase or lease of real property up to the time an option to purchase or lease that real property is obtained." Mich. Comp. Laws Ann. § 15.268(d). Under this section, it has been held proper for a public body to meet in closed session to vote upon rejection of an owner's offer to sell real property at a designated price, or to direct its agents as to their limits in negotiating for the purchase of real property. 1977-78 Op. Att'y Gen. 606 (1978). A public body may not hold a closed meeting for the purpose of disposing of a building through sale or lease, although it may hold a closed meeting for the purpose of acquiring or leasing a building up to the time that an option is obtained. 1977-78 Op. Att'y Gen. 389 (1978).
  5. Closed sessions may be held "[t]o consult with [an] attorney regarding trial or settlement strategy in connection with specific pending litigation, but only if an open meeting would have a detrimental financial effect on the litigating or settlement position of the public body." Mich. Comp. Laws Ann. § 15.268(e); see also The Detroit News Inc. v. City of Detroit, 185 Mich. App. 296, 460 N.W.2d 312, 315 (1990) (rejecting defendant's claim that closed meeting to review consent judgment regarding City's acquisition of Chrysler/Jefferson plant was exempt because settlement had already been accepted and there was no longer any issue in dispute); Manning v. City of East Tawas, 243 Mich. App. 244, 593 N.W. 2d 649 (1999) (the attorney does not need to be the attorney who is actually responsible for the litigation). People v Whitney, 228 Mich. App. 230, 578 N.W. 2d 329 (1998) (settlement negotiations occurring before initiation of a judicial or ADR proceeding is not "pending" litigation).
  6. A public body may meet in closed session "[t]o review the specific contents of an application for employment or appointment to a public office if the candidate requests that the application remain confidential." Mich. Comp. Laws Ann. § 15.268(f). However, the public body must hold open meetings to interview such candidates. Mich. Comp. Laws Ann. § 15.268(f). The Attorney General has interpreted this "open interview" rule as applying only for those positions for which employment interviews must be conducted by the public body itself, since requiring public interviews for all positions, with all the attendant public notice requirements, would force public bodies to spend an inordinate amount of time on hiring procedures. Thus, in all other cases, where the public body itself is not required to interview the applicant, interviews for employment may be conducted in private by the staff of the public body. 1977-78 Op. Att'y Gen. 21, 38 (1977). However, under a 1996 amendment to the OMA, Mich. Comp. Laws Ann. § 15.268(f) does not apply to searches for the selection of a president of an institution of higher education established under Section 4, 5, or 6 of Article VIII of the Michigan Constitution. Instead, other rules apply to such searches. See Mich. Comp. Laws Ann. § 15.268(j). An Ingham County Circuit Court in May, 1997, ruled, however, that a university governing body must interview finalist university presidential candidates in public, and only advisory presidential selection committees may conduct preliminary interviews in closed session. Detroit Free Press v. Northern Michigan University, Ingham County Circuit Court No. 97-860046-CZ. But see, Federated Publications Inc. v. Board of Trustees of Michigan State University, supra.

Although Mich. Comp. Laws Ann. § 15.263(5) affords members of the public an opportunity to address a public body at some point during an open meeting according to rules established and recorded by the public body, they do not have the right to ask questions of applicants for employment during open interviews. 1981-82 Op. Att'y Gen. 507 (1981).

  1. "Partisan caucuses of members of the state legislature" may meet in closed session. Mich. Comp. Laws Ann. § 15.268(g).
  2. A public body may meet in closed session "[t]o consider material exempt from discussion or disclosure by state or federal statute." Mich. Comp. Laws Ann. § 15.268(h). Thus, public bodies may meet in closed session to consider matters which are exempt from disclosure under the state or federal FOIAs. 1979-80 Op. Att'y Gen. 255, 270-71 (1979). Ridenour v. Board of Education, 111 Mich. App. 798, 314 N.W. 2d 760 (1981) (information may be discussed at a closed meeting if it is exempt from disclosure under the FOIA as information of a personal nature, the public disclosure of which would constitute a clearly unwarranted invasion of the individual's privacy); Booth Newspapers Inc. v. Regents of the University of Michigan, 93 Mich. App. 100, 286 N.W. 2d 55 (1979) (written opinion of counsel to the University Board of Regents need not have been disclosed under the FOIA, and thus was exempt from open meeting requirements even though the opinion was not rendered in regard to specific pending litigation and so did not fall under Mich. Comp. Laws Ann. § 15.268(e)). But, when faced with FOIA exempt material as applied to the OMA, a public body must state on the record those documents it deems exempt under the FOIA together with the associated FOIA exemption justifying nondisclosure, describe those documents — unless description would defeat the purpose of nondisclosure — and complete this process on the record in open session before conducting a closed session. Herald Company Inc. v. Tax Tribunal, 258 Mich. App. 78, 669 N.W.2d 862 (2003). Note, however, that the exemption contained in the FOIA regarding communications and notes within a public body or between public bodies (Mich. Comp. Laws Ann. § 15.243(l)(n)) does not constitute an exemption for purposes of the OMA, because that section specifically states that it does not constitute an exemption for purposes of section 8(h) of the OMA [Mich. Comp. Laws Ann. § 15.268(h)]. See 1979-80 Op. Att'y. Gen 496 (1979).

Any exemption based on a claim of attorney-client privilege under OMA is narrowly construed. Closed sessions may not be held to receive oral legal opinions and a proper discussion of a written legal opinion at a closed meeting is limited to any strictly legal advice presented in a written opinion. People v Whitney, 228 Mich. App. 230, 578 N.W. 2d 329 (1998). However, one court has reasoned that the term “consider” in 15.268(h) permits discussion and deliberation with respect to matters of attorney-client privilege. Berryman v. Madison Sch. Dist., No. 265996, 2007 Mich. App. LEXIS 464, at *4 (February 22, 2007).

Other statutes for which Mich. Comp. Laws Ann. § 15.268(h) has been held to apply are Mich. Comp. Laws Ann. § 400.9, involving administrative hearings which can be closed to the general public if the matters to be discussed involve records concerning categorical assistance, medical assistance, or federally funded assistance and service programs protected from disclosure under federal and state statutes. 1979-80 Op. Att'y Gen. 31, 33-35 (1979). Also exempt are proceedings involving the Youth Parole and Review Board pursuant to Mich. Comp. Laws Ann. § 803.308, part of which may be closed when confidential records, as defined by that section, are under discussion. 1979-80 Op. Att'y Gen. at 32-33 (1979). The meetings of several other public bodies are exempt, when they are deliberating on the merits of a case. See Mich. Comp. Laws Ann. § 15.263(8).

  1. A public body may meet in closed session "for a compliance conference conducted by the department of commerce under [Mich. Comp. Laws Ann. § 333.16231] before a complaint is issued.
  2. In another 1996 amendment to the OMA, a public body may meet in closed session "in the process of searching for and selection of a president of an institution of higher education established under Section 4, 5, or 6 of Article VIII of the Michigan Constitution, to review the specific contents of an application, to conduct an interview with a candidate, or to discuss the specific qualifications of a candidate. However, this exemption only applies if the institution's process for searching for and selecting a candidate meets all of the following requirements:

(1) the search committee has at least one student, one faculty member, one administrator, one alumnus, and one representative of the general public. The search committee may also include one or more members of the governing board, but not a quorum of the governing board. No one of these groups can constitute a majority of the search committee.

(2) After the search committee recommends the five final candidates, the governing board does not take a vote on a final section until at least 30 days after the five final candidates have been publicly identified by the search committee.

(3) The deliberations and vote of the governing board of the institution on selecting the president take place in an open session of the governing board. An Ingham County Circuit Court ruling has held that this provision applies to interviews of candidates, as well.

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B. Any other statutory requirements for closed or open meetings

Not specified.

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C. Court mandated opening, closing

Not specified.

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III. Meeting categories - open or closed

A. Adjudications by administrative bodies

Some administrative adjudications are specifically exempted in Mich. Comp. Laws Ann. § 15.263(8). In other cases, statutes governing certain administrative adjudications may render some information confidential. See Mich. Comp. Laws Ann. § 15.268(h).

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1. Deliberations closed, but not fact-finding

Some administrative adjudications are specifically exempted in Mich. Comp. Laws Ann. § 15.263(8). In other cases, statutes governing certain administrative adjudications may render some information confidential. See Mich. Comp. Laws Ann. § 15.268(h).

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2. Only certain adjudications closed, i.e. under certain statutes

Some administrative adjudications are specifically exempted in Mich. Comp. Laws Ann. § 15.263(8). In other cases, statutes governing certain administrative adjudications may render some information confidential. See Mich. Comp. Laws Ann. § 15.268(h).

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B. Budget sessions

Presumably open.

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C. Business and industry relations

Presumably open.

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D. Federal programs

Presumably open.

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E. Financial data of public bodies

Presumably open.

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F. Financial data, trade secrets, or proprietary data of private corporations and individuals

Not addressed.

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G. Gifts, trusts and honorary degrees

Presumably open.

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H. Grand jury testimony by public employees

Not addressed, but presumably closed.

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I. Licensing examinations

Not addressed.

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J. Litigation, pending litigation or other attorney-client privileges

Not addressed. See generally Mich. Comp. Laws Ann. § 15.268(e). A closed session may be held "[t]o consult with [an] attorney regarding trial or settlement strategy in connection with specific pending litigation, but only if an open meeting would have a detrimental financial effect on the litigating or settlement position of the public body." Id. See also, People v. Whitney, supra.

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K. Negotiations and collective bargaining of public employees

See generally Mich. Comp. Laws Ann. § 15.268(c). Strategy and negotiation sessions connected with the negotiation of a collective bargaining agreement' may be closed to the public if either negotiating party requests a closed hearing. See also, Moore v. Fenville Public Schools, 223 Mich. App. 196, 566 N.W. 2d 31 (1997)(“In order to conduct a meaningful strategic session, the public body must be allowed to make determinations concerning its goals and tactics relative to the negotiations. Thus, the OMA must be interpreted so as to allow a public body to make strategic determinations during its closed-door deliberations”).

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1. Any sessions regarding collective bargaining

2. Only those between the public employees and the public body

L. Parole board meetings, or meetings involving parole board decisions

Not subject to OMA. Glover v. Michigan Parole Board, supra.

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M. Patients, discussions on individual patients

Not addressed.

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N. Personnel matters

1. Interviews for public employment

Interviews for public employment are to be open, although meeting to review the specific contents of an application for employment may be closed. See also Booth Newspapers Inc. v. University of Michigan Board of Regents, supra, 481 N.W.2d at 783 (public body may meet to review specific content of applications for employment if candidate requests confidentiality but all interviews must be conducted at open meeting).

Exception: Searches and interviews for presidents of certain educational institutions, as set forth in Mich. Comp. Laws Ann. § 15.268(j). But see Federated Publications v. Board of Trustees of Michigan State University, supra.

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2. Disciplinary matters, performance or ethics of public employees

A public body may meet in a closed session "[t]o consider the dismissal, suspension, or disciplining of, or to hear complaints or charges brought against, or to consider a periodic personnel evaluation of, a public officer, employee, staff member, or individual agent, if the named person requests a closed hearing. Mich. Comp. Laws Ann. § 15.268(a).

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3. Dismissal, considering dismissal of public employees

A public body may meet in a closed session "[t]o consider the dismissal, suspension, or disciplining of, or to hear complaints or charges brought against, or to consider a periodic personnel evaluation of, a public officer, employee, staff member, or individual agent, if the named person requests a closed hearing. Mich. Comp. Laws Ann. § 15.268(a).

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O. Real estate negotiations

A public body may meet in closed session "[t]o consider the purchase or lease of real property up to the time an option to purchase or lease that real property is obtained." Mich. Comp. Laws Ann. § 15.268(d).

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P. Security, national and/or state, of buildings, personnel or other

Not addressed.

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Q. Students, discussions on individual students

A public body may meet in a closed session to consider the dismissal, suspension, or disciplining of a student under two conditions: if the public body is part of the school district or institution which the student is attending, and if the student's parent or guardian requests a closed hearing. Mich. Comp. Laws Ann. § 15.268(b).

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IV. Procedure for asserting right of access

A. When to challenge

The OMA does not provide for administrative review.

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1. Does the law provide expedited procedure for reviewing request to attend upcoming meetings?

2. When barred from attending

3. To set aside decision

4. For ruling on future meetings

5. Other

B. How to start

The OMA does not provide for administrative review.

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1. Where to ask for ruling

a. Administrative forum

N/A.

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b. State attorney general

N/A.

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1. Applicable time limits

2. Contents of request

3. How long should you wait for a response?

c. Court

N/A.

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2. Applicable time limits

N/A.

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3. Contents of request for ruling

N/A.

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4. How long should you wait for a response

N/A.

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5. Are subsequent or concurrent measures (formal or informal) available?

N/A.

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C. Court review of administrative decision

1. Who may sue?

"The attorney general, the prosecuting attorney of the county in which the public body serves, or any person may commence a civil action in the circuit court to challenge the validity of a decision of a public body made in violation of [the OMA]." Mich. Comp. Laws Ann. § 15.270(1).

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2. Will the court give priority to the pleading?

No provision of the OMA specifically gives priority to complaints under the Act.

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3. Pro se possibility, advisability

The availability of actual attorney’s fees for a plaintiff who prevails in an action under the act is intended to provide access to legal services. Mich. Comp. Laws Ann. § 15.271(4).

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4. What issues will the court address?

a. Open the meeting

"[I]f a public body is not complying with [the OMA], the attorney general, prosecuting attorney of the county in which the public body serves, or person may commence a civil action to compel compliance or enjoin further noncompliance with [the Act]." Mich. Comp. Laws Ann. § 15.271 (1). Injunctive relief is an extraordinary remedy which issues only when justice requires and there is no adequate remedy at law, and when there is real and imminent danger of irreparable injury. Wexford County Prosecuting Attorney, supra, 268 N.W.2d at 348; see also Booth Newspapers Inc. v . University of Michigan Board of Regents, supra, 507 N.W.2d at 431 (enjoining university board of regents from future use of subquorum committees to reach decision or hiring new university president). A person commencing an action for injunctive relief is not required to post security as a condition for obtaining a preliminary injunction or a temporary restraining order. Mich. Comp. Laws Ann. § 15.271(2).

A court may order that the minutes of an improperly closed meeting be subject to disclosure. The Detroit News v. City of Detroit, supra, 460 N.W.2d at 315-316.

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b. Invalidate the decision

A decision made by a public body may be invalidated (a) if the body has not complied with the requirements of Mich. Comp. Laws Ann. § 15.263(1), (2), and (3) in making the decision or if the failure to give notice in accordance with Mich. Comp. Laws Ann. § 15.265 has "interfered with substantial compliance with" Mich. Comp. Laws Ann.§ 15.263. However, a decision will only be invalidated if the court finds that the noncompliance or failure "has impaired the rights of the public under the OMA]." Mich. Comp. Laws Ann. § 15.270(2). For example, deficiencies in the maintenance of meeting minutes do not provide grounds for invalidating an action taken by a public body. Willis v. Deerfield Twp., 257 Mich. App. 541, 669 N.W.2d 279 (2003).

Further limitations on a circuit court's jurisdiction to invalidate a decision are that the action must be commenced within 60 days after the approved minutes are made available to the public — unless the decision involves "the approval of contracts, the receipt or acceptance of bids, the making of assessments, the procedures pertaining to the issuance of bonds or other evidences of indebtedness, or the submission of a borrowing proposal to the electors," in which case the action must be commenced within 30 days after the approved minutes relating to that decision are made available to the public. Mich. Comp. Laws Ann. § 15.270(3). Invalidation of decisions made in contravention of the OMA is discretionary with the court. Esperance, supra, 280 N.W.2d at 559. Moreover, in any case where an action has been initiated to invalidate a public body's decision, that body may reenact the disputed decision, in conformity with the OMA "without being deemed to make any admission contrary to its interest . . . ." Mich. Comp. Laws Ann. § 15.270(5). "A decision reenacted in this manner [will] be effective from the date of reenactment and [will] not be declared invalid [because of any] deficiency in the procedure used for its initial enactment." Mich. Comp. Laws Ann. § 15.270(5).

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c. Order future meetings open

A court may order future meetings open. However, where the court finds that there is no reason to believe that a public body will deliberately fail to comply with OMA in the future, injunctive relief is unwarranted. Nicholas v. Meridian Charter Twp. Board, 239 Mich. App. 525, 609 N.W.2d 574 (2000).

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5. Pleading format

Those seeking to have a decision of a public body invalidated under the OMA must allege not only that the public body failed to comply with the OMA, but also that this failure impaired the rights of the public. See Mich. Comp. Laws Ann. § 15.270(2); Esperance, supra, 280 N.W.2d at 563; and Cape v. Howell Board of Education, 145 Mich. App. 459, 378 N.W.2d 506, 510 (1985). "A mere recital that the rights of the public were impaired is insufficient to support a request for invalidation. . . . Rather, the plaintiff must present factual allegations to support the conclusion that the rights of the public were impaired." Jude, supra, 228 Mich. App. 667. The similar structure of the FOIA and OMA suggests that, as with the FOIA, an OMA plaintiff need not allege that the meetings in question were not subject to statutory exemption, since exemption is a defense to actions under the OMA. Booth Newspapers Inc. v. Regents of the University of Michigan, 93 Mich. App. 100, 286 N.W.2d 55, 59 (1979).

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6. Time limit for filing suit

An action to invalidate a decision of a public body must be commenced within 60 days after the approved minutes are made available to the public, unless a decision involves "the approval of contracts, the receipt or acceptance of bids, the making of assessments, the procedures pertaining to the issuance of bonds or other evidences of indebtedness, or the submission of a borrowing proposal through the electors," in which case an action must be commenced within 30 days after the approved minutes are made available to the public. Mich. Comp. Laws Ann. § 15.270(3). There are no specific time limits for filing actions for injunctive relief under Mich. Comp. Laws Ann. § 15.271. An action seeking damages for intentional violation of the OMA, which may be brought under Mich. Comp. Laws Ann. § 15.273, must be commenced within 180 days after the date of the violation which gave rise to the cause of action. Mich. Comp. Laws Ann. § 15.273(2).

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7. What court

Venue for an invalidation action under Mich. Comp. Laws Ann. § 15.270 will be in any county in which a local public body serves or, if the decision of a state public body is at issue, in Ingham County. Mich. Comp. Laws Ann. § 15.270(4). Venue in an action for injunctive relief against a local body under Mich. Comp. Laws Ann. § 15.271 will also be in any county in which that body serves or, if the action is against a state public body, in any county in which that body has its principal office, or in Ingham County. Mich. Comp. Laws Ann. § 15.271(2).

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8. Judicial remedies available

An action of a public body may be invalidated under Mich. Comp. Laws Ann. § 15.270; a court may compel compliance with the OMA or enjoin further noncompliance under Mich. Comp. Laws Ann. § 15.271. An action for mandamus against a public body may be commenced in the Court of Appeals under Mich. Comp. Laws Ann. § 15.271(3).

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9. Availability of court costs and attorney's fees

Court costs and actual attorney’s fees (as opposed to reasonable attorney’s fees under the FOIA) are available to persons bringing actions for injunctive relief where they are successful in obtaining such relief (Mich. Comp. Laws Ann. § 15.271(4)) and to persons who prevail in civil actions for damages for intentional violations of the OMA (Mich. Comp. Laws Ann. § 15.273(3)). The Michigan Court of Appeals has held that where a trial court granted declaratory judgment in favor of plaintiff who contended that a closed meeting violated the OMA and where, but for the defendants promise to comply with the decision, the court would have granted a permanent injunction, an award of attorney’s fees and costs to the plaintiff was proper. Ridenour, supra, 314 N.W.2d at 764. Ridenour was subsequently overruled regarding available remedies by the Michigan Supreme Court in Speicher v Columbia Tp Bd of Trustees, 497 Mich 125, 134; 860 NW2d 51, 55 (2014) (“court costs and actual attorney fees may only be awarded under MCL 15.271 when a plaintiff seeks and obtains injunctive relief”).

Requesters of a special use permit issued for construction of a condominium project were not entitled to court costs and attorney’s fees, although there was an admitted violation of the OMA, where they had withdrawn their claim for injunctive relief by stipulation prior to or at the hearing in the matter and no court order or judgment was rendered compelling compliance or enjoining noncompliance, or invalidating any decision of the zoning commission. Felice v. Cheboygan County Zoning Commn, 103 Mich. App. 742, 304 N.W.2d 1 (1981).

See, Willis, supra (a technical violation of the OMA which does not provide the plaintiff relief in the action held not to be grounds for an award of attorney’s fees). The Michigan Court of Appeals has also emphasized that the OMA provides for actual attorney’s fees and court costs. A trial court's reduction of the fees and costs award to 1/2 of the amount requested out of concern for the burden on the taxpayers was improper, since the statute leaves no room for discretion. Booth Newspapers, supra, 425 N.W.2d at 701-702. Deposition costs for depositions not filed with the clerk of the court, however, are not included in the actual attorney’s fees proscribed by the OMA. Morrison, supra, 660 N.W.2d at 404.

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10. Fines

Public officials who are found to have intentionally violated the OMA may be fined up to $1,000 under Mich. Comp. Laws Ann. § 15.272(1). A public official who is convicted of intentionally violating the act for a second time within the same term may be fined up to $2,000, or imprisoned for up to one year, or both. Mich. Comp. Laws Ann. § 15.272(2). This is a specific intent crime and the offender must have a subjective desire to violate OMA or knowledge that the offender is committing an act violative of OMA. People v Whitney, supra. The phrase "official" used in this section and in Mich. Comp. Laws Ann. § 15.273 is limited to the definition contained in People v. Freeland, 308 Mich. 449, 14 N.W.2d 62 (1944), and may not be expanded to public employees. 1977-78 Op. Att'y Gen. 21, 42 (1977). Five elements are indispensable in any position of public employment, in order to make it a public office of a civil nature:

  1. It must be created by the Constitution or by the legislature or created by a municipality or other body through authority conferred by the legislature;
  2. It must possess a delegation of a portion of the sovereign power of government, to be exercised for the benefit of the public;
  3. The powers conferred, and the duties to be discharged, must be defined, directly or impliedly, by the legislature or through legislative authority;
  4. The duties must be performed independently and without control of a superior power other than the law, unless they be those of an inferior or subordinate office, created or authorized by the legislature, and by it placed under the general control of a superior officer or body; and

e. It must have some permanency and continuity, and not be only temporary or occasional.

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11. Other penalties

A public official who intentionally violates the OMA may be personally liable in a civil action for actual and exemplary damages of up to $500, plus costs and attorney’s fees to the person or group of persons bringing the action. Mich. Comp. Laws Ann. § 15.273(1). An action for damages under this section may be joined with an action for injunctive or exemplary relief under Mich. Comp. Laws Ann. § 15.271. Mich. Comp. Laws Ann. § 15.272(3). A 1996 amendment to the OMA provides for penalties if the governing board of an institution of higher education covered under Mich. Comp. Laws Ann. § 15.268(j) violates the OMA with respect to the process of selecting a president any time after the recommendation of final candidates to the governing board. In this situation, the institution is responsible for the payment of a civil fine of "not more than $500,000." Mich. Comp. Laws Ann. § 15.273a. This fine is in addition to other remedies or penalties in the OMA. Mich. Comp. Laws Ann. § 15.273a also provides that "[t]o the extent possible, any payment of fines imposed under this section shall be paid from funds allocated by the institution . . . to pay for the travel and expenses of the members of the governing board."

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D. Appealing initial court decisions

1. Appeal routes

Usual appeal proceedings under Michigan Court Rules are available.

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2. Time limits for filing appeals

No time limit is expressed generally. Nevertheless, if the relief sought is invalidation of a decision of a public body, the action must be commenced within 60 days after the approved minutes are made available to the public, except in the case of certain contracts, bids, assessments and issuance of bonds and evidences of indebtedness, where the action must be commenced within 30 days. Mich. Comp. Laws Ann. § 15.270(3).

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3. Contact of interested amici

The general rules for filing amicus briefs found in the Michigan Court Rules apply.

The Reporters Committee for Freedom of the Press often files amicus briefs in cases involving significant media law issues before a state's highest court.

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V. Asserting a right to comment

The right to comment is not covered by the Open Meetings Act. This right is typically provided for by provisions in the charters of the specific local governmental unit.

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A. Is there a right to participate in public meetings?

N/A.

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B. Must a commenter give notice of intentions to comment?

N/A.

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C. Can a public body limit comment?

N/A.

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D. How can a participant assert rights to comment?

N/A.

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E. Are there sanctions for unapproved comment?

N/A.

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Appendix