At the August 12 city council meeting, during the council’s discussion about what a terrible burden it is on the city to have to respond to “dozens” (actually, not dozens) of Freedom of Information Act (FOIA) requests that are supposedly overwhelming city staff and interfering with their more important work, several council members told the city manager to start charging for responding to FOIA requests. This follows on to the former clerk’s intemperate resignation letter that said: “It is well past time to charge for FOIAs, as these fishing expeditions cost each and every Clarkston taxpayer.” (No mention of the $96,000+ payment from Independence Township to the city for overcharges for police and fire services that was uncovered by using FOIA requests, but I digress.)
Council members jumped on the idea and, during their jeremiad against FOIA requests and those who make them, told the city manager he should start charging for FOIA responses. Apparently, they think charging fees to respond to FOIA requests might be a good way to reduce the number of those pesky requests. I suspect the admissions in the meeting video will help in a future FOIA fee lawsuit – because having a goal of reducing the number of FOIA requests (or let’s be real, reducing the number of my FOIA requests) or making it harder for people to obtain copies of public records that the city would prefer to hide is not a valid reason to charge FOIA fees.
The city should be careful what it wishes for because charging fees may be more of a headache than a help and provide even more lawsuit opportunities, especially if the city now wants to foster an adversarial relationship with some of its constituents by acting like flaming a-holes. (My town would never do such a thing, so I must be talking about your town.😂)
Personally, I’ve never objected to paying FOIA fees if the public body complies with the FOIA statute. I charged them when I was handling FOIAs, though I tended to waive them when I guesstimated that the total costs were under $50. Why? Because the people who were asking for the records were paying my salary.
I’m writing today because: a) I know our city employees read every post and secretly pass it around to others (hello, Evelyn Bihl and Jonathan Smith!); b) people who read these posts may find themselves someday dealing with a FOIA fee request from Clarkston or somewhere else and I want them to know their rights; and c) I might be able to provide a little bit of education for both groups.
OK, here are the disclaimers: 1. I’m going to be talking about the Michigan FOIA statute. Other states and the federal government are completely different. 2. FOIA fees are different than fees that public bodies can charge for records the Legislature has authorized them to sell under a separate statute (like birth certificates, for example). 3. I’m not your lawyer, this is not legal advice, and if you want legal advice, hire someone who wants to be your lawyer (which is not me).
The current FOIA fee sections of the statute (MCL 15.234 [charging fees] and MCL 15.240a [appeals and lawsuits]) were added in 2015. This was part of a broader set of reforms intended to address government FOIA abuses. The fee section additions were designed to limit the types of things the government can charge for, limit the amount of the charges, and provide appeal and lawsuit rights to FOIA requesters who are asked to pay FOIA fees. There have been some smaller changes over the years, but nothing like we saw in 2015.
Many transparency advocates argue the 2015 modifications didn’t go far enough, and there are always rumblings that more changes should be made. It takes a lot to get a change to the statute, not just because there are opposing political parties, but also because the individual legislators always find themselves being pummeled by lobbyists for government groups wanting better language for public bodies (or at least no changes) and by lobbyists for media and citizen advocacy groups who want changes to the statute that provide even more protection for FOIA requesters whenever new legislation is introduced.
Personally, I would love to see an alternate appeal to the State Attorney General’s office as an option. As it is now, you can appeal FOIA denials and excess fees to the head of your public body. Most of the time, all you get is a rubber stamp for your trouble and are left to file a lawsuit if you want your records (or in Clarkston’s case, they’ll just ignore your appeal request). An alternate appeal to the Attorney General’s office rather than suing would allow everyone to get an objective review, not just for those who can afford to fight things out in court. Other states have something like this. Michigan’s past FOIA review board suggestions were, quite frankly, dumb. If I’m remembering correctly, the senate, the house, and the governor’s office could appoint two people, and the media organizations were also given a seat at the table. Frankly, I’d rather have attorneys at the Attorney General’s office reviewing appeals than a bunch of appointees. And as much as I like the media, they have a conflict of interest because they would get inside information by seeing unredacted records, and that might benefit their organizations.
The fee section is one of the longer statute sections. It’s kind of dry, but if you believe your government is abusing you with FOIA fees, you can demand punctilious compliance with the fee section – and sue them if you’re not happy with their performance. This often makes it more of a headache than it’s worth to the public body unless the FOIA fee is significant. And I expect this is exactly the result your Legislature intended as a nod to those who argued public bodies shouldn’t be charging any fees to provide public records to the public.
As much as public bodies whine about FOIA requests, they used (and abused) the ability to charge for FOIA responses as a roadblock between public records and the public. Sometimes, the roadblock was not intentional. For example, I worked on a request from a reporter that literally would have required me to review millions of pages of electronic records. No matter what rate we charged, the cost of review would have been more than the newspaper would have been willing (or able) to pay and I would have retired by the time the review was completed. As it turned out, the reporter only wanted two weeks’ worth of records but was trying to bury the specific request among lots of documents to avoid tipping us off about the story he planned to write. We worked it out, but if you’ve ever read a newspaper story complaining about a public body asking for hundreds of thousands of dollars in FOIA fees, either the backstory is like the one I just shared, or the requester honestly doesn’t understand the breadth of the request. In that respect, the ability to charge FOIA fees can act as encouragement to the requester to narrow super broad requests.
There are only six areas that a public body can charge for – searching and examining records; labor costs to delete exempt from nonexempt information; the cost of “nonpaper media”; the cost of a physical copy; the cost to make a copy; and the cost of mailing. My wiser readers will immediately realize that means there are many things the public body can’t charge for – meetings to discuss how to respond to the request, chats with their lawyers about responding to requests, preparing the invoice, employee time for handling appeals, and the legal fees involved when the fee challenge moves to court. Public bodies also can’t charge for the wages of the employees who are subpoenaed to an evidentiary hearing to testify how they arrived at the fee charges (something I would insist on if I had to go through the trouble of suing over FOIA fees). There are undoubtedly many other things a public body is prohibited from charging for, but the only thing you need to remember is that public bodies are limited to only six permissible fee areas and there are constraints against the public body in each area.
If a public body is going to charge you a fee for records, they must provide you with a very long, detailed invoice. Invoices are a PITA to fill out, and I think that was another way for the Legislature to whack public bodies for previous abuses. Among other things, you can expect to see a calculation of the six permissible charge areas, any discounts due to you, a mandatory justification for charging a fee, any request for deposit in the invoice, and the public body is also supposed to explain your appeal and lawsuit rights in all its responses to you.
Let’s begin, shall we?
Six permissible charges:
Labor costs to search for, locate, and examine public records.
This just means searching the files (electronic or paper) and deciding whether the record you’ve just pulled responds to the request. If a public body wants to charge for this work, they must use the hourly wage of the lowest-paid employee who is capable of looking for records – no matter who actually does the work.
You’ll see the “lowest-paid employee who is capable” theme repeated throughout the fee section. In the past, public bodies charged the rate of the person who actually searched for records, no matter how much they were paid. I suspect this was sometimes done intentionally to discourage FOIA requesters. Alternatively, it could be because there was limited staff available, or a department head might want to personally review his/her own emails rather than have a low-ranking staffer do it. But since it doesn’t take a rocket scientist to find responsive records, the days of charging the $50/hour department head rate when a $10/hour clerk is available are over.
Not only must the public body use the lowest-paid employee, but it must also charge for labor in 15-minute increments, with the lowest increment rounded down. This is another theme you’ll see throughout this section. It means that the employee doing the record search needs to have a tally sheet next to them to mark down starting and stopping times. Get a phone call? Add a stop time. Did the boss call you over to talk? Add a stop time. Go to lunch or the bathroom? Add a stop time. And they’d better keep tally sheets because they will be required to justify the time charges if there’s a lawsuit – under oath.
Once the employee has finished the retrieval, the employee adds up all the minutes between all the starting and stopping times and divides by 15. It never comes out even, and the odd minutes must be discarded from the tally (which is what is meant by rounding down). For example, if an employee spends 27 minutes searching for records, that is only one 15-minute increment (27 divided by 15 = 1.8 increments). The 12 remaining minutes (or .8 increments) must be discarded from the count, and the public body is only allowed to charge for 15 minutes of labor. Each labor charge is section dependent, meaning that the public body can’t apply those 12 minutes to some other allowable labor charge.
The section also allows charges only for “fulfilling a granted written request.” If a public body searches and finds no records, they are denying the request. In other words, they can’t make you pay if they look for records and don’t find them.
Labor costs to delete exempt information.
There are some things a public body doesn’t have to provide to you, and this information is “exempt” from production under the statute. That’s outside this discussion, but an example of some of the more obvious exempt material might be an employee social security number or home address. Public bodies are free to redact (black out) that information, and they can charge for the time to do that. There have been many lawsuits filed over public bodies claiming an unlawful exemption because information that’s not provided is a denial of a request, allowing an aggrieved requester to immediately sue, but that’s outside of the scope of this post. This section allows a public body to charge for the labor of the person holding the black Sharpie pen.
Once again, the work must be done by the lowest-paid employee capable of doing the work, the labor must be charged in 15-minute increments with a round down for increments smaller than 15 minutes, and the person doing the work should be keeping a tally sheet.
This section allows a public body to use a contractor to do the work but only if the public body doesn’t employ a person capable of doing the work. I imagine people could litigate over whether there are capable employees. Does a public body really want to argue that it doesn’t train its employees? Good luck with that one.
In the unlikely event there are no capable employees, the public body is allowed to contract out the work, but even this has restrictions. The public body is prohibited from hiring a contractor in every case; the designated FOIA Coordinator must make the determination on a case-by-case basis to do it (and that determination is obviously subject to scrutiny in a lawsuit). The name of the contractor or firm must be provided on the invoice, the 15-minute increment limit still applies, and the labor costs are limited to six times the state minimum hourly wage. This is the only section that allows a charge for contracted labor.
Finally, a public body can’t double dip. If someone else has requested records and paid for redactions, a subsequent requester can’t be charged for that same redaction work (as long as the public body hasn’t disposed of the redacted records). This doesn’t usually happen unless there is a lot of media and other public interest in a record set, such as the personnel file of an employee who has done something to garner a lot of public attention.
Providing records on nonpaper physical media.
In lieu of receiving paper copies, you can ask a public body to provide records on a CD, a thumb drive, etc. or by email if the public body has the technological capability to do what you’re asking. You can also ask them to export data into a format you prefer. For instance, my employer stored a lot of information in databases that we could run queries on. If someone asked for a report to be “printed out” electronically in an Excel format, we were easily able to do that.
I usually ask for records to be provided by email, and that’s been my experience with most requesters. It’s easier for everyone. But there are occasions when the files are too large for email. Some public bodies use a cloud service to provide access to the requested records and will send you an access link, but what if the public body doesn’t have that capability? The next best thing is a CD or thumb drive (and these days it’s mostly a thumb drive).
The public body can charge you for the “actual and most reasonably economical cost” of nonpaper physical media. There was one occasion when I wanted copies of video files, and I had thumb drives sent directly to the public body from Amazon. Why? Because I think it’s reasonable for a public body to refuse to take a thumb drive from my hand, since the risk of introducing nasty programs into the government computer system is too great. Providing brand new thumb drives mailed directly from a vendor removes that objection and you don’t have to fight over what is the “actual and most reasonably economical cost” of a thumb drive (because you paid for it and are getting it back). But if you don’t want to do that, you can pay the cost requested by the public body for each CD or thumb drive. If you think the price is too high, you can ask them for proof of what they paid for it.
Personally, I never charged for thumb drives or CDs. We bought them in bulk, and it was one of those smaller costs that have a way of p*ssing people off when you charge for them. And since there are so many opportunities to create FOIA litigation, it’s always better not to aggravate your requesters.
Providing paper copies of records.
Public bodies can charge you a per-page charge for paper copies if you ask for paper copies, though I can’t imagine why you would. Asking for your records in electronic form by return email means they can’t charge you for paper records, and you’ll probably get them sent to you in a PDF format allowing you to print them to your heart’s content at home.
Should you want paper copies for some reason, the public body can charge for each sheet of 8-1/2” x 11” or 8-1/2” x 14” paper. They are required to use double-sided printing if it’s “cost saving and reliable.” They must tell you how much they’re charging per page and how many pages they’re charging for. They can’t charge more than $.10 per page, but that doesn’t mean they can always charge you $.10 per page (though I’ve noticed that a lot of public bodies automatically charge the maximum per page rate).
The statute says the public body can only charge “the actual total incremental cost of necessary duplication or publication.” This section is concerned only with the cost of making a paper copy, but not the labor cost to make them. Feel free to question a $.10 per printed page charge if you’d like. You can ask for a fee study that establishes the actual per-page copy charge (they probably haven’t done one.) Or you can ask them for a copy of the copier’s manufacturer’s information that came with the copier for any estimated per-page charge because it’s probably part of the sales information. For example, the contract for the new copier the city manager wants to lease shows a per-page charge of $.0085, meaning that Clarkston would be prohibited from charging $.10 per page for copies. Or you can just skip this BS altogether and ask for electronic copies via email. FYI, a public body can’t assess a per-page charge for electronic records because there is no “actual total incremental cost” for an electronic record. (Clarkston stupidly tried that with me – but only once. 😉)
Labor cost to make copies.
Public bodies can charge for the labor to make paper copies, scan pages (usually into pdf form), or for copying records to that nonpaper physical media we discussed earlier. We’ve all made lots of copies in our lives, so you know this charge will not be significant because it takes very little time to put a stack of paper on the copier input tray and press start or drag and drop things from our desktops to a thumb drive. Most FOIA responses aren’t that large, so we’re usually talking about minutes of employee time with regard to this fee.
As in other cases, the copying work must be done by the “lowest-paid employee who is capable” of doing the work. This section allows a public body to choose the time increment (which they need to tell you about in their published procedures and guidelines, discussed later), but no matter what size increment the public body chooses, it must be rounded down to the nearest increment and a time log should be kept.
This was another fee opportunity that I regularly ignored when I was answering requests. Even at a legal clerk’s rate, the amount I could charge wasn’t worth the time to calculate it. And it’s another one of those things that might tend to aggravate a requester, which is all great fun – until they sue you or publish a story about your excessive fees. Then it’s not so much fun. 😂
Mailing costs.
Public bodies can charge you for the actual cost of mailing public records “in a reasonably economical and justifiable manner.” They can charge you for a postal delivery confirmation, but they can’t charge you for expedited shipping or insurance (unless you ask for it).
This is another fee you can easily avoid by asking for electronic records.
That’s the extent of what a public body can charge you for generally, but there are some additional things you need to know.
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- A public body can add the actual cost of fringe benefits to an hourly labor wage, provided it’s no more than 50% of the hourly wage and they explain it to you.
- Public bodies can’t charge you at an overtime wage rate – unless you agree to that.
- Public bodies can waive or reduce charges if they want to if the public body determines that the fee waiver primarily benefits the general public, something media requesters almost always ask for. (Since there’s no requirement in the statute that compels a public body charge to charge a fee, they can waive fees whenever they want.)
Discounts:
Indigents can receive a $20 discount.
If you are indigent and can provide an affidavit stating that you are either receiving public assistance or facts that demonstrate an inability to pay because of indigency, you can get the first $20 of your FOIA fees waived.
You can only get a $20 fee waiver twice per year. You can’t ask for an indigency fee waiver if someone else is paying you to make a request, and a public body can ask you to expressly deny you are doing this in your affidavit. (Don’t lie on an affidavit – it’s not worth dealing with a prosecution for making false statements just to get a $20 discount. Just sayin’.)
The public body should have a section on the invoice that deals with indigency and will let you know if you are getting the $20 discount. I never had this come up in connection with any request I handled or consulted on, but I did have colleagues who received an occasional request for the discount.
A limited number of nonprofit organizations can also receive a $20 discount.
I’ll just quote the statute here: “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 . . . ” can also receive a $20 discount provided that the request is made directly on behalf of the organization or its clients; 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”; and is accompanied by documentation of its designation by the state (if the public body requests it).
What on earth does this mean? It means that these groups have some kick-butt lobbyists in Lansing and most public bodies aren’t likely to see a request like this. If they do, then I have no doubt the organization will be sure to provide documentation of its state designation and explain why it’s entitled to the discount at the same time it makes the request. The public body should have a section on the invoice that deals with these specific nonprofits, and you should see no discount in that box for your own requests.
Late responses.
The statute is designed to punish public bodies for late responses. Not only can you sue over late responses (because they are technically a denial under the statute), but the public body is required to reduce its fee for labor costs (searching, copying, reviewing) by 5% per day up to a maximum of 50%.
This fee discount is required if the late response is willful and intentional (honestly, it’s not usually the case) OR the written request conveyed a request for information within the first 250 words of the request, on the subject line, or on the front of the envelope. You don’t even have to use the four letters – FOIA – in your request. There’s pretty much no way for a public body to get out of the fee penalty for late responses because even the most unskilled requesters can usually manage to convey a request for information within the first 250 words even if they don’t know the FOIA statute exists to be able to mention it.
Fee limitations:
Here’s one that most public bodies ignore at their peril. More specifically, Clarkston apparently plans to ignore it at the city’s peril, because the general consensus at the August 12 city council meeting was that the city needs to charge everyone for all FOIA requests.
Public bodies cannot charge anyone for searching, examination, review, and using their little Sharpie to remove information 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 must tell you why it thinks the fees are unreasonably high in connection with your specific individual request. I added a spot on the invoice I created to explain this, and we did provide an explanation with every FOIA invoice.
If you find yourself dealing with a public body who’s decided to charge for all FOIA requests, make them explain why your specific FOIA request presents an unreasonably high cost. The “in this particular instance” language protects you from public bodies who’ve decided to single you out because they think you send too many FOIA requests or if they’ve simply decided that everyone should pay for every request. They can explain their reasons to you or to a judge if you decide to sue them over fees. And if you’ve been singled out specifically, not only will discovery be fun, but an imaginative lawyer can come up with additional complaint claims for treating you differently than other requesters.
Requests for deposit:
If a public body reasonably believes the fee for providing records will exceed $50, then the public body can ask for a good faith deposit of no more than 50% of the estimated costs before it performs the work (provided it gets past the first hurdle and explains why a $50 fee is an unreasonably high cost in this particular instance). If a public body decides to go this route, it requires two invoices – one when the deposit is requested, and one when the final response is made. (So much invoice fun!)
The public body must tell you when your deposit is due on the request for deposit invoice (48 days after the request for deposit is sent). If you don’t pay the deposit within that time, your request is considered abandoned, and the public body won’t have to fulfill it anymore. Not a big loss, because you can just send another one.
Public bodies can’t sit on your deposit forever. The invoice must provide you with a “best efforts” time estimate telling you when they expect to provide you with the records, and the public body must “provide the estimate in good faith and strive to be reasonably accurate” in the time estimate. The time estimate is non-binding, meaning you can’t sue over it, but if the public body behaves unreasonably, you can bring that to a judge’s attention if you end up in court.
If a public body has asked for a deposit, does the work, and you don’t pay the balance of the fee, the statute allows the public body to charge a 100% estimated fee deposit on a future FOIA that would justify a deposit IF all of the following apply: the final fee wasn’t more than 105% of the estimated fee (that’s tough to do); the records are still in the public body’s possession (and haven’t been tossed because the request was considered “abandoned”); the records were made available for final payment within the “nonbinding” time estimate (so it actually is binding in this respect); it’s been more than 90 days since you were told the records were available and the balance due was calculated; you can’t show proof that you paid the balance; and the public body prepares an invoice asking for the 100% fee deposit.
Ah, but what the Legislature giveth, the Legislature takes away:
Public bodies can’t ask for a 100% fee deposit if you can show proof of payment; if you pay the previous balance; or if it’s been more than 365 days since the records were made available to you and you didn’t pay the balance.
I told my clients to call me if they ever thought they were justified in asking for a 100% fee deposit. I think a public body would be more likely to see a unicorn on the front lawn than meet these criteria.
More stuff:
Procedures and Guidelines requirement.
Your Legislature wanted public bodies to clearly explain how they handle and charge for FOIA requests, so it requires public bodies to create procedures and guidelines and a summary of those procedures and guidelines. Public bodies must tell you how to understand their written responses, deposit requirements, fee calculations, and how you can challenge and appeal their decisions. The procedures and guidelines are usually quite long and must include a copy of the public body’s standard invoice; the summary is shorter and is supposed to be written in a way that is easily understandable by the general public. Both documents must be posted on the public body’s website (if they have one) and provided to anyone who asks on request for free.
Public bodies are also supposed to provide both documents to you with every written response. If they have a website, they can include the webpage address for the documents in the written response instead.
Most public bodies are savvy enough to have created both documents by now. Why? Because they can’t charge fees or ask for deposits if they haven’t done it. Just something to keep in mind when dealing with a smaller public body that may not have received word this has been a requirement since 2015 but still asks you for a fee.
“Free” records.
If the public body has records available to the public on its website, it can’t charge you to provide the records and must provide the webpage address in the FOIA response if it can do that. (And yes, this is also required on the invoice.) If you don’t like getting things for free (or don’t have access to a computer that would allow you to view or download the free information), the public body can charge you to provide the online records in whatever format you request. It can add the actual fringe rate to its labor hour costs, even if it’s more than 50%, but it can’t charge you more than its actual cost to provide you with this material. I’ve had this come up, and I never charged for it because it takes seconds to download something and email it.
You may not need to make a formal FOIA request.
Some public employees are a-holes who will demand you send them a written FOIA request before they will give you records. I’ve always cautioned against this behavior for no other reason than formal FOIA requests trigger a lot of responsibilities and potential legal pitfalls for a public body. It’s always better to play nicely with members of the public, no matter how much (or little) you like them.
This section of the FOIA statute makes it clear a public body can provide records without a formal request (walk-ins, for example), and if it receives an oral request for information that is available on the public body’s website, then the public employee must provide the website address. This assumes the employee knows that the information is on the website. (No one expects you to know what you don’t know.)
Appeals and right to sue:
FOIA fee appeals and lawsuits found in MCL 15.240a and are treated slightly differently than lawsuits for denial of a request.
If you think you’ve been overcharged and the public body that has overcharged you has an appeal process, you are required to file an appeal to the “head of the public body.” The procedures and guidelines are supposed to tell you who this is. Your appeal must include the word “appeal,” and you need to explain why the fee (or parts of the fee) is excessive.
If the public body doesn’t provide for an appeal process, you’re not satisfied with the answer you received, or the public body has ignored your appeal (as Clarkston does), you have 45 days to file a lawsuit. Obviously, the public body can stop working on your request if you file an appeal – if its employees were even doing anything after sending you a regular invoice or a request for deposit.
Let’s talk about how that would work in Clarkston. The city’s procedures and guidelines require that all appeals be sent to the city council. The appeal is considered “received” as of the next city council meeting, and the city council has ten business days to respond in writing. “Business days” include Fridays, even though Clarkston city offices are closed on Friday. Clarkston can’t artificially extend the ten business days just because it decided to close on Fridays and use the extra money to give raises to employees (that the city manager now claims was to save costs and not for raises).
Within ten business days (which would require a special meeting, since the council meets the second and fourth Monday of the month), the council can do one of four things – 1. Waive the fee (and avoid a potential lawsuit); 2. Reduce the fee and issue a determination providing the specific basis to support any remaining fee (which includes a certification from the city council that its statements are accurate and the reduced fee amount complies with the published procedures and guidelines); 3. Uphold the fee and issue a determination providing the specific basis to support the fee (which also includes a certification from the city council that its statements are accurate and the reduced fee amount complies with the published procedures and guidelines); or 4. Send a notice extending the time to respond by ten business days (which would avoid the special meeting requirement, but the city council only gets one extension).
No doubt the Clarkston city council will love taking up meeting time to discuss FOIA fee appeals, and every FOIA response that charges a fee can prompt a fee appeal. (Remember what I said at the beginning about being careful what you wish for when it comes to charging fees? 😂) And, since every fee appeal requires a written response and a certification, and the Clarkston city council punts everything to the city attorney to handle, fee appeals will add to the legal services budget (even without a lawsuit). If the Clarkston city council ignores the fee appeal or upholds a contested fee, a requester can sue, and if a court reduces the fee by 50% or more, the court can award all or a portion of reasonable attorneys’ fees, costs, and disbursements to the plaintiff (and the city also has to get a lawyer to defend the lawsuit).
But wait, there’s more. If a court finds the public body has arbitrarily and capriciously violated the FOIA statute by charging an excessive fee, the court can order additional fines ($500 to the state treasury and $500 to the requester). What evidence could one use to prove Clarkston acted in an arbitrary and capricious way? I suspect some of the comments from the council and city manager in public meetings might be useful in that regard. 😉
So, that’s it. I think you can get a feel for what your rights are under the statute and how much a public body is both limited and exposed when it decides to charge fees for FOIA requests. If you’d like to know more about the FOIA, the statute is pretty easy to read and I’ve linked to it here. You can also review the Michigan Attorney General’s Freedom of Information Act Handbook, which can be found here.
So, Clarkston. Think it’s a good idea to charge fees to everybody for every FOIA request? Think that will reduce the burden on staff in your efforts to hide public records (like the former clerk’s resume or the records of discussions on the police and fire overcharges and what amount you agreed on to settle the matter)? Maybe making decisions in the open and not hiding public records would be a better way to go. 
Just a thought.