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Resources for Response to August 2020 FOIA Request for Election Records

The Michigan Townships Association does not provide specific legal guidance in its resources or responses. The following two examples have been developed by MTA Legal Counsel for their client townships, and may serve as a starting place for individual townships and counties to review and adapt for your specific circumstances, working with your local attorney for specific guidance, as needed. Note, for example, that the correct response to a request for a list of election equipment will vary depending on whether the individual township or county already has a list of election equipment, such as an equipment inventory or an election commission document describing the equipment, if one exists. A public body is not required to create a requested record or list that does not already exist, but must provide a record if it does exist and is not exempt by law from disclosure. The Bureau of Elections has advised clerks to “Review the clerk accreditation manual that is available on the Bureau of Elections’ website and the signature verification standards in ELearning. It appears that chapters 6, 8 and 13 of the accreditation manual may have some helpful information to provide in response.”

Some townships have reported finding the requests in their email junk or spam filters, so be sure to check those folders.

Here are additional resources that may assist the township clerk in responding to a FOIA request for election records. The following materials are provided by the Michigan Townships Association regarding FOIA compliance: Excerpt discussing Election Law exceptions from public disclosure, from MTA book, Introduction to the Freedom of Information Act

Downloadable Forms

Note that no person or township/county is required to use these forms to make or process a FOIA Request. A township/county is required to provide the information in the forms and samples in writing, and may use these samples to do so. A person cannot be required to fill out a specific FOIA form to make a FOIA request. Any written (paper or digital/electronic) or recorded request for information in a public record is a FOIA request.

1) Cost Estimate Worksheet:

2) FOIA Forms: MTA Sample FOIA Request Forms Set (Word) rev.  2019 (Does not include Detailed Cost Itemization Form, use link above)

Set includes:

  • Request Form
  • Extension Form
  • Denial Form
  • Appeal Form

3) Public and Township Written Policies and Guidelines

County Versions of Samples
(Note that these are the township versions with "county" substituted for "township," and represent the FOIA requirements, but are not edited for any possible variations in county statutes.)

1) Cost Estimate Worksheet:

2) FOIA Forms: MTA County Sample FOIA Request Forms Set (Word) rev.  2019 (Does not include Detailed Cost Itemization Form, use link above)

Set includes:

  • Request Form
  • Extension Form
  • Denial Form
  • Appeal Form

Michigan's Freedom of Information Act 

The Michigan Freedom of Information Act gives the public the right to request to inspect and receive copies of public records, and to subscribe to regular issuances of public records. Recent amendments to the FOIA took effect July 1, 2015.

Michigan Freedom of Information Act  Public Act 442 of 1976, MCL 15.231,et seq.

Extension of Time for Initial Township Response (Extension Form):

A township has five (5) business days after receiving a FOIA request to do one of the following [excerpted from MCL 15.235]. Note that “business days” refers to Monday through Friday, but not weekends or holidays—it does NOT refer to your individual township’s days you are open for business.

“(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.”

A township may take the ten (10) business day extension by notifying the requester in writing within the first five (5) business days. The MTA Sample Extension form may be used.

Fees:

There is no provision in the Michigan FOIA that requires a public body to waive fees because a requester asks for it or references a different state or federal law that provides for a waiver.

When a township is going to charge for a FOIA request response, it can charge only the fees and amounts allowed by the FOIA. You may use the MTA Sample Cost Estimate Worksheet, which you can use to estimate the costs of a FOIA request and to bill for it.  You are not required to use this form, but it may be helpful, even as a checklist of what fees to calculate.

A township must provide a FOIA requester with a “good faith” estimate of any costs that will be charged, so you can also use the form as that estimate and send it to the requester. Note that if the “good faith” estimate of costs is over $50, the township may require that the requester pay a 50% good faith deposit up front—before the township makes any copies or continues with the request. Once you send a request for the deposit, the clock stops “ticking” on the deadline for the FOIA request, unless and until the requester pays the deposit or amends their request. Note that requesters often ask for a waiver of the township’s fees. As long as the township is charging what the FOIA allows or less, a township board is not required to provide documents for free or to waive for specific requesters. Do not charge more than the FOIA allows. Under the FOIA, a requester may appeal an improper fee to the Circuit Court.

Also note that, once you receive the good faith deposit and make the copies, you are not required to actually hand over or mail those copies of records until you are paid in full. You may use the Cost Estimate Worksheet as an invoice.