The Michigan Freedom of Information Act (FOIA) provides for public access to certain public records, permits the charging of prescribed fees and deposits, and provides remedies and penalties for non-compliance. Kirtland Community College is a public body that must comply with the FOIA.
A person, except those persons incarcerated in state or local correctional facilities, has a right to inspect, copy, or receive copies of certain requested public records. A “person” is described for purposes of the FOIA to mean “an individual, corporation, limited liability company, partnership, firm, organization, association, governmental entity, or other legal entity.” Some public records are permitted or required by the FOIA not to be disclosed.
The president of the college shall designate a position responsible for responding to FOIA requests. The individual in that position is responsible to process or coordinate the processing of requests to inspect, copy, or receive copies of public records.
The college has established the following procedures to implement the FOIA effective July 1, 2015. Terms have the same meanings in these procedures as defined in the FOIA. A complete copy of the FOIA is available from the State of Michigan at www.legislature.mi.gov
FOIA requests must generally be in writing. An oral request, for information that is available on the college website, to a college employee who knows the information is available, will be answered by the college employee informing the requesting person that the information is available on the college’s website. Written requests may be made by various means, as follows:
- By US Mail to: FOIA Coordinator, Office of Human Resources, 10775 N St Helen Road, Roscommon, MI 48653
- By email to: HR@kirtland.edu
- By fax to: 989-275-8210
A request must describe the public record in sufficient detail to enable the college to find the requested record. A sample request form is appended to these procedures as Attachment A.
The requester may request that the college provide non-exempt public records via electronic media. The college is not required to do so if the college lacks the technological capability necessary to provide the requested records on the particular media requested. The college is not required to use technical media provided by the requestor, and generally will not do so.
A person may request a certified copy of a public record.
The receipt date for responding to a FOIA request depends upon the manner in which the request is delivered. A request sent by mail or delivered by hand is received for purposes of the FOIA on the day it arrives at the college. A request sent by email, fax, or other electronic means is deemed received one (1) business day after the date it was electronically transmitted.
If a request is sent by email and is diverted to the college’s spam or junk mail folder, the request is not received until one (1) day after the date it is discovered in the spam or junk mail folder. The FOIA Coordinator shall include in the college’s records both the time that a request was delivered to its spam or junk mail folder and the time that the college first became aware of that request. The FOIA Coordinator’s spam or junk mail folder shall be reviewed at least once every 30 days.
The college will respond to a written request under the FOIA within five (5) business days after receipt of the written request, unless otherwise agreed to in writing by the requestor, by doing one of the following:
- Granting the request;
- Sending written notice denying the request;
- Granting the request in part and issuing a written notice denying the request in part; or
- Issuing a notice extending for not more than ten (10) business days the period during which the college will respond to the request. The college shall not issue more than one (1) notice of extension for a particular request.
If a request is fully granted, the college will provide copies of, or an opportunity to inspect, all the public records that were requested, upon payment of the appropriate fee (if any). The college will provide reasonable facilities for a requestor to inspect non-exempt public records, during normal business hours. The FOIA Coordinator will establish rules regulating the manner in which records may be inspected to protect the college’s records from loss, alteration, mutilation, or destruction, or to prevent undue interference with the college’s normal operations.
If a request is denied in whole or in part, the college shall provide an explanation of the basis for the denial, and, if applicable, a certificate that the public record does not exist under the name given by the requestor or by another name reasonable known to the college. Exemptions to disclosure are set forth in Section 13 of the FOIA, available on the Michigan Legislature’s website indicated previously above. If a public record or information is separated and exempt from disclosure, the college will describe generally the material exempted unless that description would reveal the contents of the exempt information and thus defeat the purpose of the exemption.
If a request is partially denied, the college will provide copies of, or an opportunity to inspect, the non-exempt records, but exempt information (which may consist of entire documents, pages, or information on a page) may be withheld or redacted. The college will include in the written notice of denial-in-part an explanation of the basis for the denial-in-part and, if applicable, a certificate that one or more of the public records does not exist under the name given by the requestor or by another name reasonably known to the college.
Failure of the college to respond to a FOIA request within the prescribed timelines constitutes a denial of the request. The fee that the college is permitted to charge will be reduced by 5% per day, up to a 50% reduction, if the failure to timely respond was wilful or intentional, or if the request included language described in the FOIA as readily conveying a FOIA request.
The FOIA does not require the college to create any new records, or to make compilations, summaries, or reports of existing records. If a request seeks records that do not exist, the college will certify that no records responsive to the request exist under the name or description provided in the request or another name known to the college.
A fee shall not be charged for the cost to search, examine, review, and delete/separate/redact exempt from non-exempt information unless failure to charge a fee would result in unreasonably high costs to the college. In determining whether such costs are “unreasonably high,” the college will consider, on a case-by-case basis, the estimated costs given the volume and complexity of the request relative to the usual or typical costs incurred by the college in responding to FOIA requests.
If the college estimates that the fee for responding to a request will exceed fifty ($50) dollars, the college may require a good-faith deposit from the requestor before providing the requested records, not to exceed ½ of the total estimated fee. The FOIA Coordinator shall provide the requestor with a detailed itemization of allowable fees estimated to be incurred in processing the request, along with a non-binding, best efforts estimate of the time frame to provide the requested records.
If a requestor previously requested public records from the college, and the college made the requested records available on a timely basis but was not paid in full for the prior request, notwithstanding whether the requestor viewed or took possession of the requested material, the college is authorized under the FOIA to require a deposit of up to 100% of the estimated fee for subsequent request(s).
Fees may be calculated as follows, all charges shall be itemized and provided to the requestor:
- Labor costs incurred for searching for, locating, and examining public records. Labor costs are calculated in 15-minute increments (rounded down) and will not exceed the hourly rate of the lowest-paid employee capable of performing this work. No overtime will be charged unless requested by the requestor, approved by the college, and included in the fee itemization information. The lowest paid employee may vary depending upon the nature of the records sought and the corresponding qualifications or authorizations required to search for, locate, or examine the required record.
- Labor costs for separating and deleting exempt information from non–exempt information. Charges will be calculated as in (a) above. If the college FOIA Coordinator determines on a case-by-case basis that no employee of the college is capable of separating and deleting exempt from non-exempt material, the college may engage a contracted services provider and charge labor costs. Such labor costs shall be calculated in 15-minute increments (rounded down) and the hourly rate shall not exceed six (6) times the state minimum wage.
- Costs for non-paper physical media. A requestor may stipulate that records may be produced on non-paper physical media. If the college has the technological capabilities to comply with the request for production on non-paper physical media, the college may charge the actual and most reasonably economical cost of the media, and shall include such in the fee itemization.
- Actual cost of duplication for paper records. The college may charge the actual cost of duplication (not to exceed ten [.10] cents per sheet) for 8-1/2 by 11 or 8-1/2 by 14 sheets of paper. If the requested public records are in non-standard-sized sheets of paper, the college may charge the actual costs of duplication, which may exceed ten (.10) cents per sheet. The college shall utilize the most economical means available for making copies of the requested public records, including double-sided, if cost saving and available.
- Actual labor costs for duplication or publication. The college’s charges for duplication or publication will not exceed the hourly rate of the lowest-paid employee capable of performing this task. This employee may vary depending on the nature of the records sought. Duplication or publication fees are calculated in 15-minute increments (rounded down).
- Postal delivery charges. The college may charge the costs of the least expensive form of postal delivery. If the requestor asks for expedited mailing, and if the college agrees to provide expedited mailing, the actual costs may be charged.
- Fringe benefits. The college may add to the labor charges described above the actual cost of the employee’s fringe benefits, up to 50% of the labor costs.
- Overtime. No overtime will be charged unless requested by the requestor, approved by the college, and included in the itemization.
If a fee reduction is required, due to the college’s failure to timely respond under the provisions of the FOIA, the fee reduction will be fully noted in the itemization.
The FOIA Coordinator will require that payment be made in full for the allowable fees before the requested records are made available.
A search for a public record, or copies of public records may be furnished, without charge or at a reduced charge if the college determines, in its discretion, that a waiver or reduction of the fee is in the public interest because searching for or furnishing copies of the public records can be considered as primarily benefiting the general public.
Under the following circumstances, a public record search shall be made by the college and a copy of a non-exempt public record shall be furnished without charge for the first $20.00 of the fee:
- If an individual who is entitled to information under the FOIA:
- Submits an affidavit stating that the individual is receiving specific public assistance or is unable to pay the fee because of indigence and stating that the individual is not making the request in conjunction with outside parties in exchange for payment or other remuneration; and
- That individual has not [previously received discounted copies of public records from the college twice during the same calendar year.
- If a nonprofit corporation formally designated by the State of Michigan to carry out activities under subtitle C of the Developmental Disabilities Assistance and Bill of Rights Act of 200, Public Law 106-402, and the Protection and Advocacy for Individuals with Mental Illness Act, Public Law 99-319, or their successors, submits a request that meets all of the following requirements:
- Is made directly on behalf of the organization or it’s clients;
- Is made for a reason wholly consistent with the mission and provisions of those laws under section 931 of the Mental Health Code, 1974 PA 258, CL 330.1931; and
- Is accompanied by documentation of its designation by the state, if requested by the college.
A requestor may appeal any denial of records or any fee charged for public records by either:
- Appeal to the college’s president; or
- Commence an action in the circuit court in Roscommon County within 180 days of the denial.
If the requestor appeals to the college’s president, the appeal must specifically state the word “appeal” and state the reasons the denial should be reversed. The following rules apply to FOIA appeals to the college’s president:
- An appeal sent by mail or delivered by hand is deemed received on the day it arrives at the college. A request sent by email, fax, or other electronic means is deemed received one (1) business day after the date it was electronically transmitted. The Office of the President is not required to search its spam or junk mail folder.
- Within ten (10) business days after receiving the appeal, the president will do one of the following:
- Reverse the denial;
- Issue written notice upholding the denial;
- Reverse the denial in part and issue written notice upholding the denial, in part; or
- Issue written notice extending the time for response by not more than ten (10) business days.
If the college’s president fails to respond in a timely manner to the written appeal, or upholds all or a portion of the disclosure denial that is the subject of the written appeal, the requestor may seek judicial review by commencing a civil action in circuit court.
A requestor is not required to submit an appeal to the college’s president before commencing a civil action in circuit court to challenge a disclosure denial. If a circuit court determines that the requested record is not exempt from disclosure, the court will order the college to cease withholding or to produce all or a portion of the public record determined to be wrongly withheld. If the court determines that a disclosure denial was arbitrary or capricious, wilful and intentional, or made in bad faith, the court will order that the college pay a civil fine to the state and punitive damages to the requestor. If a person asserting the right to inspect, copy, or receive a copy of all or a portion of a public record prevails in an action commenced in the circuit court, the court shall also require that the college pay the requestor’s reasonable attorney’s fees, costs, and disbursements. If the requestor or the college prevails in part, the court may, in its discretion, award the college all or an appropriate portion of attorneys’ fees, costs, and disbursements.
If the college requires a fee (including deposit) that requestor believes exceeds the amount permitted under the FOIA or this procedure, the requesting person may, within 45 days of receiving notice of the required fee, commence an action in the circuit court for the county in which the public record or one of the college’s offices is located. If a court determines the fee exceeds the amount permitted under the FOIA or these procedures, the court will reduce the permissible amount, if any. If the requestor prevails in an action commenced under this section by receiving a reduction of 50% or more of the total fee, the court may, in its discretion, award all or an appropriate portion of reasonable attorneys’ fees, cost, and disbursements. If the court determines that the college arbitrarily and capriciously violated FOIA by charging an excessive fee, or acted in bad faith, the court will order that the college pay a civil fine to the state and punitive damages to the requestor.
Any questions about these procedures should be directed to the college’s FOIA Coordinator, Office of Human Resources, 10775 N St Helen Road, Roscommon, MI 48653, 989-275-5000 ext. 271 or 239, Fax 989-275-8210, HR@kirtland.edu
To view the policy, go to POL 2.275 Freedom of Information Act Requests