guidelines; creation of written public summary; detailed itemization; availability of
information on website; notification to requestor; deposit; failure to respond in timely
manner; increased estimated fee deposit; deposit as fee; failure to pay or appeal deposit;
request abandoned.
Sec. 4.
(1) A public body may charge a fee for a public record search, for the necessary copying of
a public record for inspection, or for providing a copy of a public record if it has established,
makes publicly available, and follows procedures and guidelines to implement this section as
described in subsection (4). Subject to subsections (2), (3), (4), (5), and (9), the fee must 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 as provided in section 14. Except as otherwise provided
in this act, if the public body estimates or charges a fee in accordance with this act, the total
fee must not exceed the sum of the following components:
(a) That portion of labor costs directly associated with the necessary searching for, locating,
and examining of public records in conjunction with receiving and fulfilling a granted written
request. The public body shall not charge more than the hourly wage of its lowest-paid
employee capable of searching for, locating, and examining the public records in the particular
instance regardless of whether that person is available or who actually performs the labor.
Labor costs under this subdivision shall be estimated and charged in increments of 15 minutes
or more, with all partial time increments rounded down.
(b) That portion of labor costs, including necessary review, if any, directly associated with
the separating and deleting of exempt information from nonexempt information as provided in
section 14. For services performed by an employee of the public body, the public body shall
not charge more than the hourly wage of its lowest-paid employee capable of separating and
deleting exempt information from nonexempt information in the particular instance as
provided in section 14, regardless of whether that person is available or who actually performs
the labor. If a public body does not employ a person capable of separating and deleting exempt
information from nonexempt information in the particular instance as provided in section 14
as determined by the public body's FOIA coordinator on a case-by-case basis, it may treat
necessary contracted labor costs used for the separating and deleting of exempt information
from nonexempt information in the same manner as employee labor costs when calculating
charges under this subdivision if it clearly notes the name of the contracted person or firm on
the detailed itemization described under subsection (4). Total labor costs calculated under this
subdivision for contracted labor costs must not exceed an amount equal to 6 times the state
minimum hourly wage rate determined under section 4 of the improved workforce opportunity
wage act, 2018 PA 337, MCL 408.934. Labor costs under this subdivision shall be estimated
and charged in increments of 15 minutes or more, with all partial time increments rounded
down. A public body shall not charge for labor directly associated with redaction under section
14 if it knows or has reason to know that it previously redacted the public record in question
and the redacted version is still in the public body's possession.
(c) For public records provided to the requestor on any form of nonpaper physical media,
the actual and most reasonably economical cost of the nonpaper physical media. The requestor
may stipulate that the public records be provided on nonpaper physical media, electronically
mailed, or otherwise electronically provided to him or her in lieu of paper copies. This
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subdivision does not apply if a public body lacks the technological capability necessary to
provide records on the particular nonpaper physical media stipulated in the particular instance.
(d) For paper copies of public records provided to the requestor, the actual total incremental
cost of necessary duplication or publication, not including labor. The cost of paper copies shall
be calculated as a total cost per sheet of paper and shall be itemized and noted in a manner that
expresses both the cost per sheet and the number of sheets provided. The fee must not exceed
10 cents per sheet of paper for copies of public records made on 8-1/2- by 11-inch paper or
8-1/2- by 14-inch paper. A public body shall utilize the most economical means available for
making copies of public records, including using double-sided printing, if cost saving and
available.
(e) The cost of labor directly associated with duplication or publication, including making
paper copies, making digital copies, or transferring digital public records to be given to the
requestor on nonpaper physical media or through the internet or other electronic means as
stipulated by the requestor. The public body shall not charge more than the hourly wage of its
lowest-paid employee capable of necessary duplication or publication in the particular
instance, regardless of whether that person is available or who actually performs the labor.
Labor costs under this subdivision may be estimated and charged in time increments of the
public body's choosing; however, all partial time increments shall be rounded down.
(f) The actual cost of mailing, if any, for sending the public records in a reasonably
economical and justifiable manner. The public body shall not charge more for expedited
shipping or insurance unless specifically stipulated by the requestor, but may otherwise charge
for the least expensive form of postal delivery confirmation when mailing public records.
(2) When calculating labor costs under subsection (1)(a), (b), or (e), fee components shall be
itemized in a manner that expresses both the hourly wage and the number of hours charged.
The public body may also add up to 50% to the applicable labor charge amount to cover or
partially cover the cost of fringe benefits if it clearly notes the percentage multiplier used to
account for benefits in the detailed itemization described in subsection (4). Subject to the 50%
limitation, the public body shall not charge more than the actual cost of fringe benefits, and
overtime wages shall not be used in calculating the cost of fringe benefits. Overtime wages
shall not be included in the calculation of labor costs unless overtime is specifically stipulated
by the requestor and clearly noted on the detailed itemization described in subsection (4). A
search for a public record may be conducted or copies of public records may be furnished
without charge or at a reduced charge if the public body determines that a waiver or reduction
of the fee is in the public interest because searching for or furnishing copies of the public
record can be considered as primarily benefiting the general public. A public record search
shall be made and a copy of a public record shall be furnished without charge for the first
$20.00 of the fee for each request by either of the following:
(a) An individual who is entitled to information under this act and who submits an affidavit
stating that the individual is indigent and receiving specific public assistance or, if not
receiving public assistance, stating facts showing inability to pay the cost because of
indigency. If the requestor is eligible for a requested discount, the public body shall fully note
the discount on the detailed itemization described under subsection (4). If a requestor is
ineligible for the discount, the public body shall inform the requestor specifically of the reason
for ineligibility in the public body's written response. An individual is ineligible for this fee
reduction if any of the following apply:
(i) The individual has previously received discounted copies of public records under this
subsection from the same public body twice during that calendar year.
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(ii) The individual requests the information in conjunction with outside parties who are
offering or providing payment or other remuneration to the individual to make the request. A
public body may require a statement by the requestor in the affidavit that the request is not
being made in conjunction with outside parties in exchange for payment or other
remuneration.
(b) A nonprofit organization formally designated by the state to carry out activities under
subtitle C of the developmental disabilities assistance and bill of rights act of 2000, Public
Law 106-402, and the protection and advocacy for individuals with mental illness act, Public
Law 99-319, or their successors, if the request meets all of the following requirements:
(i) Is made directly on behalf of the organization or its clients.
(ii) Is made for a reason wholly consistent with the mission and provisions of those laws
under section 931 of the mental health code, 1974 PA 258, MCL 330.1931.
(iii) Is accompanied by documentation of its designation by the state, if requested by the
public body.
(3) A fee as described in subsection (1) 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.
(4) A public body shall establish procedures and guidelines to implement this act and shall
create a written public summary of the specific procedures and guidelines relevant to the
general public regarding how to submit written requests to the public body and explaining how
to understand a public body's written responses, deposit requirements, fee calculations, and
avenues for challenge and appeal. The written public summary shall be written in a manner so
as to be easily understood by the general public. If the public body directly or indirectly
administers or maintains an official internet presence, it shall post and maintain the procedures
and guidelines and its written public summary on its website. A public body shall make the
procedures and guidelines publicly available by providing free copies of the procedures and
guidelines and its written public summary both in the public body's response to a written
request and upon request by visitors at the public body's office. A public body that posts and
maintains procedures and guidelines and its written public summary on its website may
include the website link to the documents in lieu of providing paper copies in its response to a
written request. A public body's procedures and guidelines must include the use of a standard
form for detailed itemization of any fee amount in its responses to written requests under this
act. The detailed itemization must clearly list and explain the allowable charges for each of the
6 fee components listed under subsection (1) that compose the total fee used for estimating or
charging purposes. Other public bodies may use a form created by the department of
technology, management, and budget or create a form of their own that complies with this
subsection. A public body that has not established procedures and guidelines, has not created a
written public summary, or has not made those items publicly available without charge as
required in this subsection is not relieved of its duty to comply with any requirement of this
act and shall not require deposits or charge fees otherwise permitted under this act until it is in
compliance with this subsection. Notwithstanding this subsection and despite any law to the
contrary, a public body's procedures and guidelines under this act are not exempt public
records under section 13.
(5) If the public body directly or indirectly administers or maintains an official internet
presence, any public records available to the general public on that internet site at the time the
request is made are exempt from any charges under subsection (1)(b). If the FOIA coordinator
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knows or has reason to know that all or a portion of the requested information is available on
its website, the public body shall notify the requestor in its written response that all or a
portion of the requested information is available on its website. The written response, to the
degree practicable in the specific instance, must include a specific webpage address where the
requested information is available. On the detailed itemization described in subsection (4), the
public body shall separate the requested public records that are available on its website from
those that are not available on the website and shall inform the requestor of the additional
charge to receive copies of the public records that are available on its website. If the public
body has included the website address for a record in its written response to the requestor and
the requestor thereafter stipulates that the public record be provided to him or her in a paper
format or other form as described under subsection (1)(c), the public body shall provide the
public records in the specified format but may use a fringe benefit multiplier greater than the
50% limitation in subsection (2), not to exceed the actual costs of providing the information in
the specified format.
(6) A public body may provide requested information available in public records without
receipt of a written request.
(7) If a verbal request for information is for information that a public body believes is
available on the public body's website, the public employee shall, where practicable and to the
best of the public employee's knowledge, inform the requestor about the public body's
pertinent website address.
(8) In either the public body's initial response or subsequent response as described under
section 5(2)(d), the public body may require a good-faith deposit from the person requesting
information before providing the public records to the requestor if the entire fee estimate or
charge authorized under this section exceeds $50.00, based on a good-faith calculation of the
total fee described in subsection (4). Subject to subsection (10), the deposit must not exceed
1/2 of the total estimated fee, and a public body's request for a deposit must include a detailed
itemization as required under subsection (4). The response must also contain a best efforts
estimate by the public body regarding the time frame it will take the public body to comply
with the law in providing the public records to the requestor. The time frame estimate is
nonbinding upon the public body, but the public body shall provide the estimate in good faith
and strive to be reasonably accurate and to provide the public records in a manner based on
this state's public policy under section 1 and the nature of the request in the particular instance.
If a public body does not respond in a timely manner as described under section 5(2), it is not
relieved from its requirements to provide proper fee calculations and time frame estimates in
any tardy responses. Providing an estimated time frame does not relieve a public body from
any of the other requirements of this act.
(9) If a public body does not respond to a written request in a timely manner as required
under section 5(2), the public body shall do the following:
(a) Reduce the charges for labor costs otherwise permitted under this section by 5% for each
day the public body exceeds the time permitted under section 5(2) for a response to the
request, with a maximum 50% reduction, if either of the following applies:
(i) The late response was willful and intentional.
(ii) The written request included language that conveyed a request for information within
the first 250 words of the body of a letter, facsimile, electronic mail, or electronic mail
attachment, or specifically included the words, characters, or abbreviations for "freedom of
information", "information", "FOIA", "copy", or a recognizable misspelling of such, or
appropriate legal code reference for this act, on the front of an envelope, or in the subject line
of an electronic mail, letter, or facsimile cover page.
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(b) If a charge reduction is required under subdivision (a), fully note the charge reduction on
the detailed itemization described under subsection (4).
(10) This section does not apply to public records prepared under an act or statute
specifically authorizing the sale of those public records to the public, or if the amount of the
fee for providing a copy of the public record is otherwise specifically provided by an act or
statute.
(11) Subject to subsection (12), after a public body has granted and fulfilled a written
request from an individual under this act, if the public body has not been paid in full the total
amount under subsection (1) for the copies of public records that the public body made
available to the individual as a result of that written request, the public body may require a
deposit of up to 100% of the estimated fee before it begins a full public record search for any
subsequent written request from that individual if all of the following apply:
(a) The final fee for the prior written request was not more than 105% of the estimated fee.
(b) The public records made available contained the information being sought in the prior
written request and are still in the public body's possession.
(c) The public records were made available to the individual, subject to payment, within the
time frame estimate described under subsection (8).
(d) Ninety days have passed since the public body notified the individual in writing that the
public records were available for pickup or mailing.
(e) The individual is unable to show proof of prior payment to the public body.
(f) The public body calculates a detailed itemization, as required under subsection (4), that
is the basis for the current written request's increased estimated fee deposit.
(12) A public body shall no longer require an increased estimated fee deposit from an
individual as described under subsection (11) if any of the following apply:
(a) The individual is able to show proof of prior payment in full to the public body.
(b) The public body is subsequently paid in full for the applicable prior written request.
(c) Three hundred sixty-five days have passed since the individual made the written request
for which full payment was not remitted to the public body.
(13) A deposit required by a public body under this act is a fee.
(14) If a deposit that is required under subsection (8) or (11) is not received by the public
body within 45 days from receipt by the requesting person of the notice that a deposit is
required, and if the requesting person has not filed an appeal of the deposit amount pursuant to
section 10a, the request shall be considered abandoned by the requesting person and the public
body is no longer required to fulfill the request. Notice of a deposit requirement under
subsection (8) or (11) is considered received 3 days after it is sent, regardless of the means of
transmission. Notice of a deposit requirement under subsection (8) or (11) must include notice
of the date by which the deposit must be received, which date is 48 days after the date the
notice is sent.§ 15.234Fee; limitation on total fee; labor costs; establishment of procedures and
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