STATE OF MICHIGAN

FRANK J. KELLEY, ATTORNEY GENERAL

Opinion No. 6042

February 25, 1982

FREEDOM OF INFORMATION:

Denial of request for township record by chief administrative officer of township

Time for making of decision to deny request for information

OPEN MEETINGS:

Application to denial of public record of township by chief administrative officer

TOWNSHIPS:

Authority of township board to deny freedom of information requests

Authority of township board to delay consideration of request for information

Authority of township board to review freedom of information decisions

Enactment of ordinance to implement freedom of information

The Legislature has designated the chief administrative officer of the township or his or her representative to make decisions denying access to public records of the township even though the records are in the possession of the township clerk.

A township board is not authorized to deny requests for information contained in township records.

A township board is without authority to review a freedom of information decision of the chief administrative officer of the township or his or her representative.

The administrative officer must make timely decisions to grant the request or withhold the information and the township board may not act to extend the time for consideration of the request.

The action of the chief administrative officer to deny a public record of the township is not subject to the provisions of the Open Meetings Act.

A township is not required to enact its own freedom of information act in order to comply with the provisions of the State Freedom of Information Act.

Honorable Frederick P. Dillingham

State Representative

The Capitol

Lansing, Michigan

You have requested my opinion on several questions involving the procedure to be followed by certain public bodies in responding to requests for copies of public records under the Freedom of Information Act, 1976 PA 442; MCLA 15.231 et seq; MSA 4.1801(1) et seq, and as to whether a conflict exists between certain provisions of 1976 PA 442, supra, and those of the Open Meetings Act, 1976 PA 267; MCLA 15.261 et seq; MSA 4.1800(11) et seq.

You state that your questions are prompted by a local township ordinance which provides that a request for a public record would not be considered to have been received by the township until the date of the township board's next regular meeting following receipt of the request. In an attempt to comply with the requirements of both the Freedom of Information Act, supra, and the Open Meetings Act, supra, the township now proposes to amend the ordinance to read as follows:

The first two questions are related and will, therefore, be considered together:

The Freedom of Information Act, 1976 PA 442, supra, Sec. 5, provides in pertinent part:

The Freedom of Information Act, supra, Sec. 6(1), expressly designates the official who, in the case of a township or other local unit of government, is to be responsible for approving a denial of a request:

It is clear from the statutory scheme employed that the Legislature intended requests for public records to be handled expeditiously. To achieve this goal, the Legislature established a five business day time period, with ten additional days in 'unusual circumstances,' as defined by the statute, within which a public body must either respond to the request or have its inaction considered a denial of the request. Within this five business day time limit, the public body must search for the requested record and determine whether one or more of the 20 exemptions applies and should be invoked with respect to all or portions of the requested records. Failure to complete this process within the statutory time period may render the public body liable for damages to the same extent as if it had improperly denied a request for a public record.

Most requests for public records will undoubtedly be granted routinely. However, if the contents of a document support an applicable exemption to disclosure, the Legislature has determined that it is the responsibility of the public body's chief administrative officer, or of an individual designated by that officer, not of the public body itself, to determine whether the exemption is appropriately invoked. The decision of the chief administrative officer or of his or her designee to deny all or a portion of a request is binding upon the public body.

In response to your first two questions, it is my opinion that a public body such as a township board may not treat a request for its public records as having been received as of the date of its next regularly scheduled meeting, and the request must be answered within five business days of the date the request was actually received by the public body, or within a total of 15 business days if unusual circumstances exist. It is my further opinion that, because the Freedom of Information Act, Sec. 6(1), supra, grants the full authority to deny such requests to the chief administrative officer of the public body, a collective public body such as a township board does not itself have the authority to deny a request for its public records.

Your third question states:

The Open Meetings Act, 1976 PA 267, Sec. 3; MCLA 15.263; MSA 4.1800(13), provides in pertinent part:

As is noted above, it is the public body's chief administrative officer or his or her designee who is charged under the Freedom of Information Act, supra, with the responsibility for denying a request made pursuant to that act.

OAG, 1977-1978, No 5183-A, p 97 (April 18, 1977), considered the question of whether the Open Meetings Act, supra, applies to such an officer. The opinion concluded, at p 98, that the Open Meetings Act, supra, 'is intended to apply only where a deliberative body consists of more than one person. . . .' and that, therefore, 'a single member officer, whether serving in an adjudicative capacity or rendering a policy decision is not subject to the requirements of the Open Meetings Act.' In so concluding, the opinion contrasted the limited definition of 'public body' contained in the Open Meetings Act, supra, with the more encompassing definition utilized by the Freedom of Information Act, supra. Noting that the latter act, unlike the Open Meetings Act, supra, expressly included state officers within the definition of 'public body,' the opinion stated:

Thus, by placing the responsibility for responding to such requests in the chief administrative officer of the public body, or his or her designee, the Legislature has avoided the need for a public body to call a special meeting in order to make a timely response to a request for public records. Because such an officer is not subject to the requirements of the Open Meetings Act, supra, there is no requirement that the decision to grant or deny such a request for public records be made at a public meeting.

It is my opinion, therefore, that the provisions of the Open Meetings Act, supra, and of the Freedom of Information Act, supra, are compatible.

Your fourth question concerns the relationship between the foregoing provisions of the Freedom of Information Act, supra, and the statutory duties and responsibilities of the township clerk. Specifically, you ask:

RS 1846, ch 16, Sec. 65; MCLA 41.65; MSA 5.57, provides, in pertinent part:

In addition, RS 1846, ch 16, supra, Sec. 66, as amended by 1977 PA 159, Sec. 1; MCLA 41.66; MSA 5.58, provides:

Thus, by law, certain records of the township are placed under the custody and control of the township clerk and are expressly made subject to the requirements of the Freedom of Information Act, supra.

You have suggested that the foregoing provisions of RS 1846, ch 16, supra, may conflict with the mandate of the Freedom of Information Act, Sec. 6(1), supra, that it is the public body's chief administrative officer who is to approve denials of requests for that body's public records.

As is noted above in response to your first two questions, the Freedom of Information Act, Sec. 6(1), supra, requires that the chief administrative officer of a township be responsible for approving a denial of a request for public records. This is so regardless of what official is, by law, designated as the custodian of those records. However, nothing in this provision affects the right and duty of the township clerk or other designated custodian of records to maintain the actual physical custody of those records as provided in RS 1846, ch 16, supra. Moreover, it should also be noted that the responsibility imposed upon the chief administrative officer of the township by the Freedom of Information Act, Sec. 6(1), supra, pertains only to the approval of a denial of a request for records. Nothing contained in that section would preclude the official having legal custody of a record from granting such a request and permitting the inspection or providing a copy of a record in his or her custody. It is only when the township proposes to deny such a request that the approval of the chief administrative officer becomes necessary.

It is my opinion, therefore, that the requirement of the Freedom of Information Act, Sec. 6(1), supra, that the chief administrative officer of the township must be responsible for approving a denial of a request for public records does not conflict with the provisions of RS 1846, ch 16, supra, vesting custody of certain of those records in the township clerk or other designated township official.

Your fifth question also concerns the Freedom of Information Act, Sec. 6(1), supra, and states:

Inasmuch as the Legislature has expressly designated the chief administrative officer of the public body, or his or her designee, as the individual responsible for determining whether requests for public documents shall be denied, it is my opinion that the public body is without authority to exercise this responsibility itself. Raven v City of Southfield, 399 Mich 853 (1977). However, in fulfilling this responsibility it would not be inappropriate for the chief administrative officer to consult with the public body within the time frame permitted by statute. It must be appreciated that an improper denial of a request for a public document may subject the public body to liability for damages under the Freedom of Information Act, supra, section 10(5).

Your sixth question refers to the proposed township ordinance amendment described above and inquires:

The primary effect of the proposed amendment would be to permit the township board to review and either approve or disapprove a request for township records following the decision of the township's chief administrative officer to deny that request. Consistent with the Freedom of Information Act, Sec. 6(1), supra, the amendment would require the chief administrative officer, acting on his or her own authority to issue that denial within five business days of receipt of the request; the board's review would come after the fact.

While there is nothing in the Freedom of Information Act, supra, nor in the Open Meetings Act, supra, which expressly prohibits a township board from reviewing and discussing a denial by the township's chief administrative officer, or his or her designee, of a request for public records, it must be recognized that, once the township's chief administrative officer denies a request for a public record, this constitutes a final determination by the public body to deny the request and becomes actionable by the party requesting the record at that time. Freedom of Information Act, supra, Sec. 5(4). The board has no authority to direct the chief administrative officer in making the determination to furnish or withhold the record.

It is my opinion, therefore, that the proposed amendment authorizing the township board to review and either approve or deny a request for township records, would be inconsistent with the requirements of the Freedom of Information Act, Sec. 6(1), supra.

In addition, it is also noted that the proposed amendment refers to exemptions set forth in section 5 of the ordinance. To the extent that the exemptions set forth in that ordinance differ in any request from those set forth in section 13 of the Freedom of Information Act, they would, of course, be invalid and of no effect.

Your final question states:

The Freedom of Information Act, supra, Sec. 3(2) authorizes a public body to make reasonable rules necessary to protect its public records. In addition, the Freedom of Information Act, supra, Sec. 4(3) requires the public body to establish and publish fee guidelines for providing copies of public records. There is, however, no requirement that a public body enact a local ordinance similar to the Freedom of Information Act in order to implement its provisions. The Freedom of Information Act's broad definition of the term 'public body' demonstrates the legislative intent that the Act's requirements apply to all public bodies, including townships, without requiring further action by those public bodies.

It is my opinion, therefore, in answer to your final question, that the Legislature has imposed no requirement upon a township to enact its own freedom of information ordinance in order for the township to comply with the requirements of the Freedom of Information Act, supra.

Frank J. Kelley