PRESS RELEASES AND STATEMENTS


Michigan FOIA: 180 Day Time Limit Starts at Mailing of Denial

For Immediate Release | Posted February 28, 2011
http://www.olcplc.com/public/media?1298924990

In a published decision by the Michigan Court of Appeals, the Court ruled that a Freedom of Information Act (FOIA) denial occurs when the public body issues, rather than drafts, a written response.

The recently issued opinion, Prins v. Michigan State Police, answered the question of whether the 180-day period of limitation pursuant to MCL 15.240(1)(b) begins to run when a public body writes a letter denying access to information, or when the public body places the denial letter in the mail.

In May 2008, a Michigan State Trooper ticketed a passenger for not wearing a seat belt. The driver submitted a written FOIA request asking for a copy of the dash-cam recording during the incident. The Michigan State Police responded in a letter dated July 26, 2008, a Saturday, denying her request claiming that “any in car video that may have existed is no longer available.” The letter was postmarked July 29, 2008, a Tuesday.

The passenger later appeared in court to contest the ticket only to discover that the prosecutor had the videotape depicting the traffic stop.

When a public body denies a FOIA request, the requestor has two options: submit an appeal to the head of the public body or file a lawsuit in the local Circuit Court.

In this case, the driver filed her lawsuit on January 26, 2009--184 days after the date of the letter and 181 days after the mailing of the letter. However, because the 180th day fell on Sunday, the law treats the date from the letter's mailing as within 180 days.

The Ionia County Circuit Court dismissed the lawsuit as beyond the 180 day limit.

The Court of Appeals reversed. In a unanimous decision, the Court ruled the time frame for filing a FOIA lawsuit starts when the public body responds to a request for public records, namely the mailing of the response letter rather than the date of the letter.

Looking to the definition of the word “issuing,” the Court ruled that a public body cannot fulfill its statutory obligation to issue a notice merely by creating a document denying a record request. A public body must undertake an affirmative step reasonably calculated to bring the denial notice to the attention of the requesting party. Therefore, a response is not effectuated until the public body “sends out” or officially circulates its denial of a public record request.

For more information about Michigan's Freedom of Information Act, visit our online FOIA webpage.

Philip L. Ellison, MBA, JD, Esq is an attorney, business counselor, and civil litigator with Michigan-based Outside Legal Counsel PLC. He has extensive experience in law, business management, corporate operations as well as internal and external communications. Visit his online profile at www.olcplc.com

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