The following opinion is presented on-line for informational use only and does not replace the official version. (Mich Dept of Attorney General Web Site - www.ag.state.mi.us)


STATE OF MICHIGAN

FRANK J. KELLEY, ATTORNEY GENERAL

Opinion No. 6923

October 23, 1996

FREEDOM OF INFORMATION ACT:

Charging deposits and calculating fees under the Freedom of Information Act

Section 4(2) of the Freedom of Information Act permits a public body to charge a deposit of not more than one-half of the projected total fee if that fee exceeds $50.00.

A public body may establish a fee in advance of compiling the records responsive to a request under the Freedom of Information Act so long as the fee represents the actual cost of responding to the request based on prior experience and it is calculated in accordance with section 4 of the Freedom of Information Act.

Honorable David Anthony

State Representative

The Capitol

Lansing, MI 48933

You have asked two questions regarding a public body's authority to charge a fee for providing records pursuant to the Freedom of Information Act (FOIA), MCL 15.231 et seq; MSA 4.1801(1) et seq. You first ask whether a deposit may be required before providing the records sought.

Section 4 of the FOIA is very specific in authorizing charges, regulating those charges and permitting deposits. The portions of that section that address the concerns you raise are set forth as follows:

(1) A public body may charge a fee for providing a copy of a public record. Subject to subsection (3), the fee shall be limited to actual mailing costs, and to 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 ....

(2) At the time the request is made, a public body may request a good faith deposit from the person requesting the public record or series of public records, if the fee provided in subsection (1) exceeds $50.00. The deposit shall not exceed 1/2 of the total fee.

(3) In calculating the costs under subsection (1), a public body may not attribute more than the hourly wage of the lowest paid, full time, permanent clerical employee of the employing public body to the cost of labor incurred in duplication and mailing and to the cost of examination, review, separation, and deletion. 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. A public body shall establish and publish procedures and guidelines to implement this subsection. [ Emphasis added.]

Section 4(2) of the FOIA expressly permits a public body to request a good faith deposit where the fee authorized in section 4(1) will exceed $50.00. Obviously, a provision for a deposit "[a]t the time the request is made" contemplates a projection or estimate as to what the ultimate charge will be. In making such a projection the public body must proceed in good faith predicated on the number of records involved and the permissible statutory charges that will be sought. The deposit may not exceed one-half of the projected fee.

It is my opinion, therefore, in answer to your first question, that section 4(2) of the Freedom of Information Act permits a public body to charge a deposit of not more than one-half of the projected total fee if that fee exceeds $50.00.

You next ask if a public body may establish a fee in advance of compiling the records responsive to a request under the FOIA. The Michigan Court of Appeals expressly addressed the issue of calculating fees in Tallman v Cheboygan Area Schools, 183 Mich App 123; 454 NW2d 171 (1990). In that case the court emphatically stated that the legislative provisions are controlling and must be complied with as follows:

A public body is not at liberty to simply "choose" how much it will charge for records. To permit such action would effectively allow the public body to override the directive of the Legislature. It should be remembered that under the FOIA statute the public body may, but is not required, to charge for the copying of public records. [ Emphasis in original.]

The FOIA clearly provides a method for determining the charge for records. It is incumbent on a public body, if it chooses to exercise its legislatively granted right to charge a fee for providing a copy of a public record, to comply with the legislative directive on how to charge. The statute contemplates only a reimbursement to the public body for the cost incurred in honoring a given request -- nothing more, nothing less. If the statutorily computed charge is $1 per page for the request, then $1 per page may be charged. However, if the computed charge is $0.09 per page, no more can be charged, regardless of the ease of application of a "policy" or the difficulty in determining the legislatively mandated computation. Similarly, if the appropriate charge for a given request is $10 per page, the legislative scheme does not provide that a less costly request should subsidize the more expensive request through an adopted "policy" of the school board to charge a flat amount per page to produce appropriate information. The Legislature specifically mandated the method of charging a fee, if a fee is to be charged, and did so after clearly stating the public policy of this state on providing public records. If change in the calculation of a fee is to occur, then it must come from the Legislature and not the courts. [ Emphasis added.]

Id., 130.

Based on the foregoing, it is clear that a public body must abide by the fee provisions of the FOIA in calculating fees. A public body may not establish an arbitrary fee that is calculated in a manner that is inconsistent with the FOIA. The FOIA does not preclude a public body from establishing a fee in advance of compiling the records responsive to a request so long as the fee represents the actual cost of responding to the request based on prior experience and it is calculated in accordance with section 4 of the act.

It is my opinion, therefore, in answer to your second question, that a public body may establish a fee in advance of compiling the records responsive to a request under the Freedom of Information Act so long as the fee represents the actual cost of responding to the request based on prior experience and it is calculated in accordance with section 4 of the Freedom of Information Act.

Frank J. Kelley

Attorney General