Agencies Have Until Whenever To Fulfill Open Records Law Requests

The state's Freedom of Information Act does not impose a time limit on public agencies once they make an initial response, the Michigan attorney general said in an opinion released on Monday.

According to the opinion, a government body is not required to produce the requested information in a specific amount of time. But, the opinion continues, the law does require a public office to give a nonbinding estimate of the time required to fulfill the open records request. Opinions from the Department of Michigan Attorney General are considered to have the force of law unless courts later rule differently.

The opinion also mentions that government offices must make estimates in good faith, which they reasonably believe they can fulfill. But since those estimates are nonbinding, a government office isn’t violating any laws by failing to turn over requested documents by the time laid out in the estimate.

The Mackinac Center for Public Policy, which publishes Michigan Capitol Confidential, settled a lawsuit with the Michigan Department of Environmental Quality on Nov. 8 over its delayed response to an open records request.

The opinion signed by Attorney General Bill Schuette does not mention the Mackinac Center, responding instead to state Rep. Gary Glenn, R-Larkin Township. Glenn had asked for an opinion defining a reasonable amount of time for a government body to deliver documents to a requester once officials have determined they will turn them over.

In the past twelve months, the Mackinac Center has had to wait an extended amount of time to receive open records information from several government bodies.

The DEQ took 84 days to deliver documents to the Mackinac Center after cashing its check.The free-market think tank also faced an extended wait for documents from the University of Michigan and the Office of Retirement Services.

On Oct. 4, the Center settled a lawsuit with U-M after the school took over 100 days to fulfill an open records request. University staffers had said it would take less than three hours to fulfill the request. Additionally, the school initially withheld seven emails, but later turned them over to the Mackinac Center as a part of the settlement.

The Office of Retirement Services took over a month to deliver documents to the Mackinac Center after receiving the initial deposit payment, while at the same time charging it 40 times what it had charged the previous year. The Mackinac Center was requesting the salaries of public school and state employees.

“AG opinions are binding on state agencies. To state and local government, they are merely persuasive. It would be best if the Legislature provided a firm deadline,” said Patrick Wright, vice president for legal affairs at the Mackinac Center.

Rep. Martin Howrylak, R-Troy, said the public has a right to timely access to public information. He believes the recent attorney general opinion doesn’t address his concerns.

“Absent anything else, there needs to be a legislative remedy to it,” Howrylak said.

Rep. Phil Phelps, D-Flushing, agreed with Howrylak and said he plans to introduce legislation reforming the state’s FOIA law before his legislative term is over.

“A strong democracy requires a transparent and open government,” Phelps said. “I feel so strongly about the importance of FOIA that I will devote the time while I’m still in the legislature to get this done.”