MCC Freedom of Information Act (FOIA) Procedures and Guidelines

Transcription

1 MCC Freedm f Infrmatin Act (FOIA) Prcedures and Guidelines It is the plicy f Muskegn Cmmunity Cllege (MCC) that all persns, except thse incarcerated, cnsistent with the Michigan Freedm f Infrmatin Act (FOIA), are entitled t full and cmplete infrmatin regarding the affairs f gvernment and the fficial acts f thse wh represent them as public fficials and emplyees. The peple shall be infrmed s that they fully participate in the demcratic prcess. MCC shall cmply with FOIA State law in all respects and will respnd t FOIA requests in a cnsistent, fair, and even-handed manner regardless f wh makes such a request. MCC acknwledges that it has a legal bligatin t disclse all nnexempt public recrds in its pssessin pursuant t a FOIA request. MCC acknwledges that smetimes it is necessary t invke the exemptins identified under FOIA in rder t ensure the effective peratin f gvernment and t prtect the privacy f individuals. MCC will prtect the public s interest in disclsure, while balancing the requirement t withhld r redact prtins f certain recrds. MCC s plicy is t disclse public recrds cnsistent with and in cmpliance with State law. This details the written prcedures and guidelines t implement the FOIA. The Cllege has als created a written public summary f the specific prcedures and guidelines relevant t the general public regarding hw t submit written requests t the public bdy and explaining hw t understand a public bdy s written respnses, depsit requirements, fee calculatins, and avenues fr challenge and appeal. The public summary is written in a manner s as t be easily understd by the general public. A. General Plicies The FOIA Crdinatr is authrized t designate ther Cllege staff t act n his/her behalf t accept and prcess written requests fr MCC s public recrds and apprve denials. If a request fr a public recrd is received by fax r , the request is deemed t have been received n the fllwing business day. If a request is sent by and delivered t MCC s spam r junk-mail flder, the request is nt deemed received until ne day after the FOIA Crdinatr first becmes aware f the request. The FOIA Crdinatr shall nte in the FOIA lg bth the date the request was delivered t the spam r junk-mail flder and the date the FOIA Crdinatr became aware f the request. The FOIA Crdinatr may, in his/her discretin, implement administrative rules, cnsistent with State law and the Prcedures and Guidelines t administer the acceptance and prcessing f FOIA requests. MCC is nt bligated t create a new public recrd r make a cmpilatin r summary f infrmatin which des nt already exist. Neither the FOIA Crdinatr nr ther Cllege staff are bligated t prvide answers t questins cntained in requests fr public recrds r regarding the cntent f the recrds themselves. The FOIA Crdinatr shall keep a cpy f all written requests fr public recrds received by the Cllege n file fr a perid f at least ne year. 1

2 MCC will make this Prcedure and Guidelines dcument and the Written Public Summary available withut charge. If it des nt, MCC cannt require depsits r charge fees therwise permitted under the FOIA until it is in cmpliance. A cpy f this Prcedures and Guidelines dcument and MCC s Written Public Summary will be made available by prviding free cpies bth in MCC s respnse t a written request and upn request by visitrs at FOIA Crdinatr s Office. This dcument and MCC s Written Public summary will be maintained n the Cllege website at s a link t these dcuments will be prvided in lieu f prviding paper cpies. B. Requesting a Public Recrd N specific frm t submit a request fr a public recrd is required. Hwever the FOIA Crdinatr may make available a FOIA Request Frm fr use by the public. Requests t inspect r btain cpies f public recrds prepared, wned, used, pssessed r retained by MCC may be submitted n MCC s FOIA Request Frm, in any ther frm f writing (letter, fax, , etc.), r by verbal request. Verbal requests fr recrds may be dcumented by the Cllege n the MCC FOIA Request Frm. If a persn makes a verbal, nn-written request fr infrmatin believed t be available n MCC s website, where practicable and t the best ability f the emplyee receiving the request, the party shall be infrmed f the pertinent website address. A request must sufficiently describe a public recrd s as t enable MCC persnnel t identify and find the requested public recrd. Written requests fr public recrds may be submitted in persn r by mail t any Cllege ffice. Requests may als be submitted electrnically by fax and . The Cllege shall maintain a FOIA bx fiarequest@muskegncc.edu. Upn their receipt, requests fr public recrds shall be prmptly frwarded t the FOIA Crdinatr fr prcessing. A persn may request that public recrds be prvided n nn-paper physical media, ed r therwise prvided t him r her in digital frm in lieu f paper cpies. MCC will cmply with the request nly if it pssesses the necessary technlgical capability t prvide recrds in the requested nn-paper physical media frmat. A persn may subscribe t future issues f public recrds that are created, issued r disseminated by MCC n a regular basis. A subscriptin is valid fr up t 6 mnths and may be renewed by the subscriber. A persn serving a sentence f imprisnment in a lcal, state r federal crrectinal facility is nt entitled t submit a request fr a public recrd. The FOIA Crdinatr will deny all such requests. 2

3 C. Prcessing a Request Unless therwise agreed t in writing by the persn making the request, MCC will issue a respnse within 7 business days f receipt f a FOIA request. If a request is received by fax, r ther electrnic transmissin, the request is deemed t have been received n the fllwing business day. MCC will respnd t a request in ne f the fllwing ways: Grant the request. Issue a written ntice denying the request. Grant the request in part and issue a written ntice denying in part the request. Issue a ntice indicating that due t the nature f the request MCC needs an additinal 10 business days t respnd fr a ttal f n mre than 15 business days. Only ne such extensin is permitted. Issue a written ntice indicating that the public recrd requested is available at n charge n MCC s website. When a request is granted: If the request is granted, r granted in part, the FOIA Crdinatr will require that payment be made in full fr the allwable fees assciated with respnding t the request befre the public recrd is made available. The FOIA Crdinatr shall prvide a detailed itemizatin f the allwable csts incurred t prcess the request t the persn making the request. A cpy f the Prcedures and Guidelines and the Written Public Summary will be prvided t the requestr free f charge with the respnse t a written request fr public recrds, prvided hwever, that because these Prcedures and Guidelines, and the Written Public Summary are maintained n MCC s website at: a link t the Prcedures and Guidelines and the Written Public Summary will be prvided in lieu f prviding paper cpies f thse dcuments. If the cst f prcessing a FOIA request is $50.00 r less, the requester will be ntified f the amunt due and where t dcuments can be btained. If the cst f prcessing a FOIA request is expected t exceed $50.00 based n a gd-faith calculatin, r if the requestr has nt paid in full fr a previusly granted request, MCC will require a gd-faith depsit pursuant t Sectin 4 f this plicy befre prcessing the request. In making the request fr a gd-faith depsit, the FOIA Crdinatr shall prvide the requestr with a detailed itemizatin f the allwable csts estimated t be incurred by MCC t prcess the request and als prvide a best effrts estimate f a time frame it will take MCC t prvide the recrds t the requestr. The best effrts estimate shall be nnbinding n MCC, but will be made in gd faith and will strive t be reasnably accurate, given the nature f the request in the particular instance, s as t prvide the requested recrds in a manner based n the public plicy expressed by Sectin 1 f the FOIA. 3

4 When a request is denied r denied in part: If the request is denied r denied in part, the FOIA Crdinatr will issue a Ntice f Denial which shall prvide in the applicable circumstance: An explanatin as t why a requested public recrd is exempt frm disclsure; r A certificate that the requested recrd des nt exist under the name r descriptin prvided by the requestr, r anther name reasnable knwn by MCC; r An explanatin r descriptin f the public recrd r infrmatin within a public recrd that is separated r deleted frm the public recrd; and An explanatin f the persn s right t submit an appeal f the denial t either the ffice f MCC President r seek judicial review in the Muskegn cunty Circuit Curt; An explanatin f the right t receive attrneys fees, csts, and disbursements as well actual r cmpensatry damages, and punitive damages f $1,000, shuld they prevail in Circuit Curt. The Ntice f Denial shall be signed by the FOIA Crdinatr. If a request des nt sufficiently describe a public recrd, the FOIA Crdinatr may, in lieu f issuing a Ntice f Denial indicating that the request is deficient, seek clarificatin r amendment f the request by the persn making the request. Any clarificatin r amendment will be cnsidered a new request subject t the timelines described in the Sectin. Request t inspect public recrds: MCC shall prvide reasnable facilities and pprtunities fr persns t examine and inspect public recrds during nrmal business hurs. The FOIA Crdinatr is authrized t prmulgate rules regulating the manner in which recrds may be viewed s as t prtect MCC recrds frm lss, alteratin, mutilatin r destructin and t prevent excessive interference with nrmal Cllege peratins. Requests fr certified cpies: The FOIA Crdinatr shall, upn written request, furnish a certified cpy f the public recrd at n additinal cst t the persn requesting the public recrd. Fee Depsits If the fee estimated is expected t exceed $50.00 based n a gd-faith calculatin, the requestr will be asked t prvide a depsit nt exceeding ne-half f the ttal estimated fee. If a request fr public recrds is frm a persn wh has nt paid MCC in full fr cpies f public recrds made in fulfillment f a previusly granted written request, the FOIA Crdinatr will required a depsit f 100% f the estimated prcessing fee befre beginning t search fr a public recrd fr any subsequent written request by that persn when all f the fllwing cnditins exist: The final fee fr the prir written request is nt mre that 105% f the estimated fee; 4

5 The public recrds made available cntain the infrmatin sught in the prir written request and remain in MCC s pssessin; The public recrds were made available t the individual, subject t payment, within the time frame estimated by MCC t prvide the recrds; Ninety (90) days have passed since the FOIA Crdinatr ntified the individual in writing that the public recrds were available fr pickup r mailing; The individual is unable t shw prf f prir payment t MCC; and The FOIA Crdinatr has calculated a detailed itemizatin that is bases fr the current written request s increased estimated fee depsit. The FOIA Crdinatr will nt require an increased estimated fee depsit if any f the fllwing apply: The persn making the request is able t shw prf f prir payment in full t MCC; MCC is subsequently paid in full fr the applicable prir written request; r Three hundred sixty five (365) days have passed since the persn made the request fr which full payment was nt remitted t MCC. D. Calculatin f Fees A fee may be charged fr the labr cst f cpying/duplicatin. A fee will nt be charged fr the labr cst f search, examinatin, review and the deletin and separatin f exempt frm nnexempt infrmatin unless failure t charge a fee wuld result in unreasnably high csts t MCC because f the nature f the request in the particular instance, and MCC specifically identifies the nature f the unreasnably high csts. Csts fr the search, examinatin, review, and deletin and separatin f exempt frm nn-exempt infrmatin are unreasnably high when they are excessive and beynd the nrmal r usual amunt fr thse services (Attrney General Opinin 7083 f 2001) cmpared t the csts f MCC s usual FOIA requests, nt cmpared t MCC s perating budget. (Blch v. Davisn Cmmunity Schls, Michigan Curt f Appeals, Unpublished, April 26, 2011). The fllwing factrs shall be used t determine an unreasnably high cst t MCC: Vlume f the public recrd requested; Amunt f time spent t search fr, examine, review and separate exempt frm nn-exempt infrmatin in the recrd requested: Whether the public recrds are frm mre than ne Cllege department r whether varius Cllege ffices are necessary t respnd t the request; The available staffing t respnd t the request. 5

6 Any ther similar factrs identified by the FOIA Crdinatr in respnding t the particular request. The Michigan FOIA statue permits MCC t charge fr the fllwing csts assciated with prcessing a request: Labr csts assciated with cpying r duplicatin, which includes making paper cpies, making digital cpies, r transferring digital public recrds t nn-paper physical media r thrugh the Internet. Labr csts assciated with searching fr, lcating and examining a requested public recrd, when failure t charge a fee will result in unreasnably high csts t MCC. Labr csts assciated with a review f a recrd t separate and delete infrmatin exempt frm disclsure, when failure t charge a fee will result in unreasnably high csts t MCC. The cst f cpying r duplicatin, nt including labr, f paper cpies f public recrds. This may include the cst fr cpies f recrds already n MCC s website if yu ask fr MCC t make cpies. The cst f cmputer disc, cmputer tapes r ther digital r similar media when the requestr asks fr recrds in nn-paper physical media. This may include the cst fr cpies f recrds already n MCC s website if yu ask fr MCC t make cpies. The cst t mail r send a public recrd t a requestr. Labr csts will be calculated based n the fllwing requirements: All labr csts will be estimated and charged in 15-minute increments, with all partial time increments runded dwn. If the time invlved is less than 15 minutes, there will be n charge. Labr csts will be charged at the hurly wage f the lwest-paid Cllege emplyee capable f ding the wrk in the specific fee categry, regardless f wh actually perfrms wrk. Labr csts will als include a charge t cver r partially cver the cst f fringe benefits. MCC may add up t 50% t the applicable labr charge amunt t cver r partially cver the cst f fringe benefits, but in n case may it exceed the actual cst f fringe benefits. Overtime wages will nt be included in labr csts unless agreed t by the requestr; vertime csts will nt be used t calculate the fringe benefit cst. Cntracted labr csts will be charged at the hurly rate f $48.90 (6 times the state minimum hurly wage). The cst t prvide recrds n nn-paper physical media when s requested will be based n the fllwing requirements: Cmputer disks, cmputer tapes r ther digital r similar media will be at the actual and mst reasnably ecnmical cst fr the nn-paper media. 6

7 This cst will nly be assessed if MCC has the technlgical capability necessary t prvide the public recrd in the requested nn-paper physical media frmat. MCC will prcure any nn-paper media and will nt accept media frm the requestr in rder t ensure integrity f MCC s technlgy infrastructure. The cst t prvide paper cpies f recrds will be based n the fllwing requirements: Paper cpies f public recrds made n standard letter (8 ½ x 11) r legal (8 ½ x 14) sized paper will nt exceed $.10 per sheet f paper. Cpies fr nn-standard sized sheets f paper will reflect the actual cst f reprductin. MCC will prvide recrds using duble-sided printing, if it is cst-saving and available. The cst t mail recrds t a requestr will be based n the fllwing requirements: The actual cst t mail public recrds using a reasnably ecnmical and justified means. MCC may charge fr the least expensive frm f pstal delivery cnfirmatin. N cst will be made fr expedited shipping r insurance unless specified by the requestr. If the FOIA Crdinatr des nt respnd t a written request in a timely manner, MCC must: Reduce the labr csts by 5% fr each day MCC exceeds the time permitted under FOIA up t a 50% maximum reductin, if any f the fllwing applies: MCC s late respnse was willful and intentinal, The written request cnveyed a request fr infrmatin within the first 250 wrds f the bdy f a letter facsimile, r attachment, r The written request included the wrds, characters, r abbreviatins fr freedm f infrmatin, infrmatin, FOIA, cpy r a recgnizable misspelling f such, r legal cde reference t MCL , et seq. r 1976 Public Act 442 n the frnt f an envelpe r in the subject line f an , letter r facsimile cver page. E. Waiver f Fees The cst f the search fr and cpying f a public recrd may be waived r reduced if in the sle judgment f the FOIA Crdinatr a waiver r reduced fee is in the public interest because it can be cnsidered as primarily benefitting the general public. F. Discunted Fees Indigence The FOIA Crdinatr will discunt the first $20.00 f the prcessing fee fr a request if the persn requesting a public recrd submits an affidavit stating that they are: 7

8 Indigent and receiving a specific public assistance, r If nt receiving public assistance, stating facts demnstrating an inability t pay because f indigence. An individual is nt eligible t receive this waiver if: The requestr has previusly received discunted cpies f public recrds frm MCC twice during the calendar year; r The requestr requests infrmatin in cnnectin with ther persns wh are ffering r prviding payment t make the request. An affidavit is a swrn statement. The FOIA Crdinatr may make a Fee Waiver Affidavit Frm available fr use by the public. Nnprfit rganizatin advcating fr develpmentally disabled r mentally ill individuals The FOIA Crdinatr will discunt the first $20.00 f a prcessing fee fr a request frm: A nnprfit rganizatin frmally designated by the state t carry ut activities under subtitle C f the federal develpmental disabilities assistance and bill f rights act f 2000, Public Law , and the prtectin and advcacy fr individuals with mental illness act, Public Law , r their successrs, if the request meets all f the fllwing requirements: Is made directly n behalf f the rganizatin r its clients. Is made fr a reasn whlly cnsistent with the missin and prvisins f thse laws under sectin 931 f the mental health cde, 1974 PA 258, MCL Is accmpanied by dcumentatin f its designatin by the state, if requested by the public bdy. G. Appeal f a Denial f a Public Recrd When a requestr believes that all r a prtin f a public recrd has nt been disclsed r has been imprperly exempted frm disclsure, he r she may appeal t MCC s President by filing an appeal f the denial with the ffice f MCC President. The appeal must be in writing, specifically state the wrd appeal and identify the reasn r reasns the requestr is seeking a reversal f the denial. MCC FOIA Appeals Frm (T Appeal a Denial f Recrds), may be used. Within 10 business days f receiving the appeal MCC President will respnd in writing by: Reversing the disclsure denial; Uphlding the disclsure denial; r Reverse the disclsure denial in part and uphld the disclsure denial in part; r 8

9 Under unusual circumstances, issue a ntice extending fr nt mre than 10 business days the perid during which MCC s President shall respnd t the written appeal. MCC s President shall nt issue mre than 1 ntice f extensin fr a particular written appeal. If MCC s President fails t respnd t a written appeal, r if MCC s President uphlds all r a prtin f the disclsure denial that is the subject f the written appeal, the requesting persn may seek judicial review f the nndisclsure by cmmencing a civil actin in Circuit Curt. Whether r nt a requestr submitted an appeal f a denial t MCC President, he r she may file a civil actin in Muskegn Cunty Circuit Curt within 180 days after MCC final determinatin t deny the request. If a curt that determines a public recrd is nt exempt frm the disclsure, it shall rder MCC t cease withhlding r t prduce all r a prtin f a public recrd wrngfully withheld, regardless f the lcatin f the public recrd. Failure t cmply with an rder f the curt may be punished as cntempt f curt. If a persn asserting the right t inspect, cpy, r receive a cpy f all r a prtin f a public recrd prevails in such an actin, the curt shall award reasnable attrneys fees, csts, and disbursements. If the persn r MCC prevails in part, the curt may, in its discretin, award all r an apprpriate prtin f reasnable attrneys fees, csts, and disbursements. If the curt determines that MCC has arbitrarily and capriciusly vilated this act by refusal r delay in disclsing r prviding cpies f a public recrd, the curt shall rder MCC t pay a civil fine f $1,000.00, which shall be depsited int a general fund f the state treasury. The curt shall award, in additin t any actual r cmpensatry damages, punitive damages in the amunt f $1, t the persn seeking the right t inspect r receive a cpy f a public recrd. The damages shall nt be assessed against an individual, but shall be assessed against the next succeeding public bdy that is nt an individual and that kept r maintained the public recrd as part f its public functin. H. Appeal f an Excessive FOIA Prcessing Fee Fee means the ttal fee r any cmpnent f the ttal fee calculated under sectin 4 f the FOIA, including any depsit. If a requestr believes that the fee charged by MCC t prcess a FOIA request exceeds the amunt permitted by state law r under this plicy, he r she must first appeal t MCC s President by submitting a written appeal fr a fee reductin t the ffice f MCC President. The appeal must be in writing, specifically state the wrd appeal and identify hw the required fee exceeds the amunt permitted. MCC FOIA Appeal Frm (T Appeal an Excess Fee) may be used. Within 10 business days after receiving the appeal, MCC s President will respnd in writing by: Waiving the fee; Reducing the fee and issuing a written determinatin indicating the specific basis that supprts the remaining fee; 9

10 Uphlding the fee and issuing a written determinatin indicating the specific basis that supprt the required fee; r Issuing a ntice detailing the reasn r reasns fr extending fr nt mre than 10 business days the perid during which MCC President will respnd t the written appeal. MCC President shall nt issue mre than 1 ntice f extensin fr a particular written appeal. Where MCC s President reduces r uphlds the fee, the determinatin must include a certificatin that the statements in the determinatin are accurate and that the reduced fee amunt cmplies with its publicly available prcedures and guidelines and Sectin 4 f the FOIA. Within 45 days after receiving ntice f MCC s President s determinatin f an appeal, the requesting persn may cmmence a civil actin in Muskegn Cunty Circuit Curt fr a fee reductin. If a civil actin is cmmenced against MCC fr an excess fee, MCC is nt bligated t cmplete the prcessing f the written request fr the public recrd at issue until the curt reslves the fee dispute. An actin shall nt be filed in circuit curt unless ne f the fllwing applies: MCC des nt prvide fr appeals f fees, MCC s President failed t respnd t a written appeal as required, r MCC s President issued a determinatin t a written appeal. If a curt determines that MCC required a fee that exceeds the amunt permitted under its publicly available prcedures and guidelines r Sectin 4 f the FOIA, the curt shall reduce the fee t a permissible amunt. Failure t cmply with an rder f the curt may be punished as cntempt f curt. If the requesting persn prevails in curt by receiving a reductin f 50% r mre f the ttal fee, the curt may, in its discretin, award all r an apprpriate prtin f reasnable attrneys fees, csts, and disbursements. The award shall be assessed against the public bdy liable fr damages. If the curt determines that MCC has arbitrarily and capriciusly vilated the FOIA by charging an excessive fee, the curt shall rder MCC t pay a civil fine f $500.00, which shall be depsited in the general fund f the state treasury. The curt may als award, in additin t any actual r cmpensatry damages, punitive damages in the amunt f $ t the persn seeking the fee reductin. The fine and any damages shall nt be assessed against an individual, but shall be assessed against the next succeeding public bdy that is nt an individual and that kept r maintained the public recrd as part f its public functin. I. Cnflict with Prir FOIA Plicies and Prcedures; Effective Date T the extent that these Prcedures and Guidelines cnflict with previus FOIA plices prmulgated by MCC administratin, these Prcedures and Guidelines are cntrlling. T the extent that any administrative rule prmulgated by the FOIA Crdinatr subsequent t the adptin f these plicies and prcedures are fund t be in cnflict with any previus plicy prmulgated by MCC s administratin, the administrative rule prmulgated by the FOIA Crdinatr is cntrlling. 10

11 T the extent that any prvisin f these Prcedures and Guidelines r any administrative rule prmulgated by the FOIA Crdinatr pertaining t the release f public recrds is fund t be in cnflict with any State statute, the applicable statute shall cntrl. The FOIA Crdinatr is authrized t mdify this plicy and all previus plicies adpted by MCC, and t adpt such administrative rules as he r she may deem necessary, t facilitate the legal review and prcessing f requests fr public recrds made pursuant t Michigan s FOIA statue, prvided that such mdificatins and rules are cnsistent with State law. The FOIA Crdinatr shall infrm MCC s President f any change in these Plicies and Guidelines. These FOIA Plicies and Guidelines becmes effective July 1, 2015 J. Appendix f MCC FOIA Frms Request fr Public Recrd Frm Appeal f Denial f Recrds Frm Appeal f Excess Fee Frm 11