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



FREEDOM OF INFORMATION ACT:


Collecting fees under the Freedom of Information Act


Once copies of documents have been prepared pursuant to the FOIA, a public body may require that its fees be paid in full prior to actual delivery of the copies. However, a public body may not refuse to process a subsequent FOIA request on the ground that the requestor failed to pay fees charged for a prior FOIA request.

A public body may refuse to process a FOIA request if the requestor fails to pay a good faith deposit properly requested by the public body pursuant to section 4(2) of the FOIA.

It is within the sound discretion of the public body to determine how long it should wait before taking steps to collect fees charged for complying with a FOIA request. Although the FOIA does not specify a limitations period within which a public body must commence a lawsuit to collect fees charged for complying with a records request, the 6-year limitations period applicable to contract claims governs such a cause of action.


Opinion No. 6977

April 1, 1998


Honorable Jon Cisky Honorable Michael J. Hanley
State Senator State Representative
The Capitol The Capitol
Lansing, MI Lansing, MI


You have asked three questions regarding the authority of a public body to collect fees for providing records under the Freedom of Information Act (FOIA), 1976 PA 442, MCL 15.231 et seq; MSA 4.1801(1) et seq.

Your first question asks whether a public body may refuse to process a FOIA request on the ground that the requestor has failed to pay for a prior FOIA request.

The purpose of the FOIA is described in section 1(2) of the act.

It is the public policy of this state that all persons, except those persons incarcerated in state or local correctional facilities, are entitled to full and complete information regarding the affairs of government and the official acts of those who represent them as public officials and public employees, consistent with this act. The people shall be informed so that they may fully participate in the democratic process.

(Emphasis added.)

The FOIA is a pro-disclosure law and, thus, requires public bodies to provide access to or copies of public records unless those records fall within one or more of the specific exemptions found in section 13 of that statute. Swickard v Wayne County Medical Examiner, 438 Mich 536, 544; 475 NW2d 304 (1991). Once a public body denies a request under the FOIA, it bears the burden of establishing that the denial is statutorily supported. Penokie v Michigan Technological University, 93 Mich App 650, 287 NW2d 304 (1979).

Section 4 of the FOIA authorizes a public body to charge a fee for providing records pursuant to a request under the FOIA and spells out the nature and extent of that authority. Nothing in that section, nor in any other section of the FOIA, however, authorizes a public body to refuse to process a request for records solely on the ground that the requestor has failed to pay fees properly charged for the public body's compliance with a prior FOIA request. The public body is free, of course, to request payment of past due fees. However, the failure to pay a public body's fees charged for compliance with a prior FOIA request is not a lawful basis for denying a subsequent request under the statute.

This does not, of course, mean that a public body is powerless to collect its lawful fees for providing records under the FOIA. Pursuant to section 4(2) of the FOIA, where the projected cost of the requested records will exceed $50.00, the public body may require payment of a good faith deposit of up to one-half of the estimated copying fee at the time the request is made. Section 4(2). Moreover, once copies of the requested documents have been prepared, nothing in the FOIA precludes a public body from requiring that final payment in full be made prior to actual delivery of the copies to the requestor. See, e.g., Williams v Martimucci, 88 Mich App 198; 276 NW2d 876 (1979).

It is my opinion, therefore, in answer to your first question, that once copies of documents have been prepared pursuant to the FOIA, a public body may require that its fees be paid in full prior to actual delivery of the copies. However, a public body may not refuse to process a subsequent FOIA request on the ground that the requestor failed to pay fees charged for a prior FOIA request.

Your second question asks whether a public body may refuse to process a FOIA request if the requestor fails to pay a good faith deposit properly requested by the public body pursuant to section 4(2) of the FOIA.

Section 4(2) of the FOIA expressly authorizes a public body, under specified circumstances, to require payment of a deposit.

A public body may require at the time a request is made a good faith deposit from the person requesting the public record or series of public records, if the fee authorized under this section exceeds $50.00. The deposit shall not exceed 1/2 of the total fee.

(Emphasis added.)

OAG, 1995-1996, No 6923, p 224, 225 (October 23, 1996), addressed this provision and concluded that:

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.

Since the Legislature has authorized a public body to initially require a fee deposit at the time the request is made, it logically follows that the Legislature intended that copies need not be prepared nor provided unless and until the required deposit is first paid to the public body. The intent of the FOIA to create a mechanism allowing a public body to preliminarily recoup part of its estimated costs for searching, copying and providing copies would be defeated if a public body must prepare the copies, and thus incur its costs, without first receiving its required good faith deposit.

It is my opinion, therefore, in answer to your second question, that a public body may refuse to process a FOIA request if the requestor fails to pay a good faith deposit properly requested by the public body pursuant to section 4(2) of the FOIA.

Your final question asks how long a public body should wait before taking steps to collect fees charged for complying with a FOIA request.

There is no provision in the FOIA that specifies any set period of time during which a public body, once having delivered copies of records pursuant to a FOIA request, must wait before taking steps to collect fees charged for complying with the request. The appropriate period of time, then, rests within the sound discretion of the public body given the facts and circumstances of the particular case. Obviously, in such instances, it would be prudent to attempt to promptly communicate with the requestor in an attempt to seek payment of the fees owed, before formal collection efforts are commenced.

It is also noted that the FOIA does not specify a limitations period within which a public body must commence a lawsuit to collect fees charged for such services. Limitations periods for many causes of action are specified in Chapter 58 of the Revised Judicature Act of 1961, 1961 PA 236, MCL 600.5801 et seq; MSA 27A.5801 et seq. This act provides that the period of limitations is 6 years for most actions to recover damages or sums due for breach of contract. Section 5807(8). The 6-year limitations period for contracts applies to recovery for services on a mutual and open account. See, In re Dei's Estate, 293 Mich 651, 292 NW 513 (1940).

It is my opinion, therefore, in answer to your final question, that it is within the sound discretion of the public body to determine how long it should wait before taking steps to collect fees charged for complying with a FOIA request. Although the FOIA does not specify a limitations period within which a public body must commence a lawsuit to collect fees charged for complying with a records request, the 6-year limitations period applicable to contract claims governs such a cause of action.



FRANK J. KELLEY
Attorney General