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

MIKE COX, ATTORNEY GENERAL

FREEDOM OF INFORMATION ACT:

COMPUTATION OF TIME:

 Meaning of "business day" under FOIA

The five business days within which a public body must respond to a request for a public record under section 5 of the Freedom of Information Act, MCL 15.235, means five consecutive weekdays, other than Saturdays, Sundays, or legal holidays, and not five consecutive days on which the particular public body receiving the request is open for public business.

Opinion No. 7172

March 17, 2005

Honorable Neal Nitz
State Representative
The Capitol
Lansing, MI

You have asked whether the five business days within which a public body must respond to a request for a public record under section 5 of the Freedom of Information Act (FOIA or Act), 1976 PA 442, MCL 15.235 et seq, means five consecutive weekdays, other than Saturdays, Sundays, or legal holidays, or five consecutive days on which the particular public body receiving the request is open for public business. Your request advises that some local units of government in your district are open for business on fewer than five days per week.

Section 5 of the FOIA sets forth the deadlines stated in "business days" that govern a public body's time for responding to FOIA requests:

(1) [A] person desiring to inspect or receive a copy of a public record shall make a written request for the public record to the FOIA coordinator of a public body. A written request made by facsimile, electronic mail, or other electronic transmission is not received by a public body's FOIA coordinator until 1 business day after the electronic transmission is made.

(2) Unless otherwise agreed to in writing by the person making the request, a public body shall respond to a request for a public record within 5 business days after the public body receives the request by doing 1 of the following:

(a) Granting the request.

(b) Issuing a written notice to the requesting person denying the request.

(c) Granting the request in part and issuing a written notice to the requesting person denying the request in part.

(d) Issuing a notice extending for not more than 10 business days the period during which the public body shall respond to the request. A public body shall not issue more than 1 notice of extension for a particular request.

(3) Failure to respond to a request pursuant to subsection (2) constitutes a public body's final determination to deny the request. [MCL 15.235(1)-(3); emphasis added.]

Thus, a public body must respond to a FOIA request within five business days after receiving a request, but it has the option of extending the deadline for 10 additional business days. While the FOIA defines a number of terms used in the Act, it does not define the term "business days."

The FOIA is one of a number of statutes that use the term "business day" without providing a definition of that term.1 Where a statute does not define a term, it should be accorded its plain and ordinary meaning. Donajkowski v Alpena Power Co, 460 Mich 243, 248-249; 596 NW2d 574 (1999). An anchoring rule of jurisprudence, and the foremost rule of statutory construction, is to effectuate legislative intent. Halloran v Bhan, 470 Mich 572, 576-578; 683 NW2d 129 (2004). A review of the text of the statute is the starting point in resolving a statutory construction issue. When the language of the statute is clear and unambiguous, further inquiry is precluded. Frankenmuth Mut Ins Co v Marlette Homes, Inc, 456 Mich 511, 515; 573 NW2d 611 (1998). If a statute is ambiguous, however, the courts seek to effectuate the Legislature's intent through a reasonable construction, considering the purpose of the statute and the object sought to be accomplished. Macomb County Prosecuting Attorney v Murphy, 464 Mich 149, 159-160; 627 NW2d 247 (2001). Moreover, other provisions of an act should be examined so as to construe the act as a whole and harmonize its provisions. Farrington v Total Petroleum, Inc, 442 Mich 201, 209; 501 NW2d 76 (1993). Unless such a construction would be inconsistent with the manifest intent of the Legislature, all words and phrases must be construed and understood according to the common and approved usage of the language. MCL 8.3 and 8.3a. But technical words and phrases and those that may have acquired a peculiar and appropriate meaning in the law shall be construed according to that peculiar and appropriate meaning.

Standard dictionaries do not define "business day," but numerous statutes defining the term exclude a Saturday, Sunday, or legal holiday. For example, the Stille-DeRossett-Hale Single State Construction Code Act, MCL 125.1502a(1)(h), defines "business day" as "a day of the year, exclusive of a Saturday, Sunday, or legal holiday." The Michigan Election Law, MCL 168.2(c), defines "business day" as "a day that is not a Saturday, Sunday, or legal holiday." Under the Home Solicitation Sales Statute, MCL 445.111(c), "business day" is defined as "Monday through Friday and does not include Saturday, Sunday," or certain listed business holidays. "Business day" is defined under the Condominium Act, MCL 559.103(6), as "a day of the year excluding a Saturday, Sunday, or legal holiday."2

In MCL 8.6, the Legislature addressed the calculation of time periods applicable to statutes and administrative rules:

In computing a period of days, the first day is excluded and the last day is included. If the last day of any period or a fixed or final day is a Saturday, Sunday or legal holiday, the period or day is extended to include the next day which is not a Saturday, Sunday or legal holiday.

Although this statute does not define "business day," by providing that a time period cannot end on a Saturday, Sunday, or legal holiday, but on the next day that is not a weekend day or legal holiday, its treatment of these days is consistent with the other statutes that exclude Saturdays, Sundays, and legal holidays from the definition of "business day." See also Michigan Court Rule 1.108(1) excluding a Saturday, Sunday, or legal holiday from the computation of time if the last day of the period to be calculated falls on one of those days. These provisions establish that a peculiar and appropriate meaning of the term "business day" has developed in the law that excludes a Saturday, Sunday, or legal holiday.

A review of other FOIA provisions reinforces the view that "business day" does not include Saturday, Sunday, or a legal holiday but is also not limited to days a public body is open to the public. Section 10 of the FOIA, MCL 15.240, affords an appeal process from a public body's decision denying a request in a manner that expressly takes into account the fact that a particular public body may not adhere to a five-weekday work schedule. That section provides:

(2) Within 10 days after receiving a written appeal pursuant to subsection (1)(a), the head of a public body shall do 1 of the following:

(a) Reverse the disclosure denial.

(b) Issue a written notice to the requesting person upholding the disclosure denial.

(c) Reverse the disclosure denial in part and issue a written notice to the requesting person upholding the disclosure denial in part.

(d) Under unusual circumstances, issue a notice extending for not more than 10 business days the period during which the head of the public body shall respond to the written appeal. The head of a public body shall not issue more than 1 notice of extension for a particular written appeal.

(3) A board or commission that is the head of a public body is not considered to have received a written appeal under subsection (2) until the first regularly scheduled meeting of that board or commission following submission of the written appeal under subsection (1)(a). If the head of the public body fails to respond to a written appeal pursuant to subsection (2), or if the head of the public body upholds all or a portion of the disclosure denial that is the subject of the written appeal, the requesting person may seek judicial review of the nondisclosure by commencing an action in circuit court under subsection (1)(b). [MCL 15.240(2) and (3); emphasis added.]

The above section evidences that, where the Legislature intended to accommodate the actual working schedule of a public body, it did so in express language, but it did not elect to do so in section 5. The Legislature established a period of five business days for a public body's response to a FOIA request in section 5 because it intended requests for public records to be handled expeditiously. OAG, 1981-1982, No 6042, pp 584, 586 (February 25, 1982).

The FOIA provides that, within a specified time period, public bodies shall respond to persons requesting information regarding the affairs of government and the acts of public officials and employees. MCL 15.231(2) and 15.235(2). The Act's emphasis on timeliness is underscored in section 3(1) of the FOIA, MCL 15.233(1), which provides that an employee of a public body who receives a public record request "shall promptly forward that request to the [FOIA] coordinator." (Emphasis added.) The FOIA's remedial provisions provide for the prompt determination of public information dissemination. Section 10(5), MCL 15.240(5), provides that, "[a]n action commenced under this section and an appeal from an action commenced under this section shall be assigned for hearing and trial or for argument at the earliest practicable date and expedited in every way." (Emphasis added.)

Where a public body is open for public business on fewer than five consecutive weekdays, the public body must arrange for the processing of FOIA requests in compliance with section 5 of the FOIA. Although a public body may choose to maintain a limited schedule for public access to its principal place of business, this does not serve to limit or reduce the obligation of its administrative officers to perform their legal duties and responsibilities. These duties must be discharged regardless of whether the public body's offices are open to the public on a given business day or not.

Finally, as a practical matter, it is difficult to conceive of a situation where a public body would be unable to issue a FOIA response within the time limitations of section 5(2) of the Act. To illustrate with an example, if a FOIA request is received on a Monday, the five-business-day response period starts the next day, Tuesday. But if made by electronic transmission on Monday, the Act deems it to have been received on Tuesday, starting the five-business-day response period the next day, Wednesday. Under these situations, a timely response under section 5(2) of the FOIA must be issued the following Monday or Tuesday, respectively, or, if the ten-business-day extension permitted under the Act is invoked, on Monday or Tuesday two weeks later.

It is my opinion, therefore, that the five business days within which a public body must respond to a request for a public record under section 5 of the Freedom of Information Act, MCL 15.235, means five consecutive weekdays, other than Saturdays, Sundays, or legal holidays, and not five consecutive days on which the particular public body receiving the request is open for public business.

MIKE COX
Attorney General

 1See, e.g., the Administrative Procedures Act of 1969, MCL 24.224(1); the Township Ordinances Act, MCL 41.185(3); the Food Law of 2000,  MCL 289.4113(1); the Public Health Code, MCL 333.18826(4); the State School Aid Act of 1979, MCL 388.1611f(5); and the Uniform Commercial Code, MCL 440.3501(4).

2These statutory provisions were cited by the Court in Key v Paw Paw Twp, 254 Mich App 508, 515; 657 NW2d 546 (2002).  The plaintiff in that case argued that "business day" under the FOIA should include Saturday because many commercial institutions, including banks, are open for business on Saturday.  The defendant maintained an office open to the public only on Monday, Wednesday, and Friday, and asserted that business day should only refer to the days a public body is open for business.  Id., at 513-514.  The Court concluded:  "We will leave it for another case to determine if 'business day' should exclude days (Monday through Friday) in which the governmental agency is not open for business."  The Court also declined to address whether Saturday constitutes a business day where a public body is open for public business on a Saturday.  Id., at 515-516.