FOIA EYES ONLY Michigan FOIA Update & Review


>>So, let’s go ahead and get started. I’m sorry, I’m just trying
to have everything all set. OK. I’m assuming everybody can see my screen. OK. So, my name is Clare Membiela. I’m the library law consultant here for the
Library of Michigan, Library Development Office. And I always have to put up my disclaimer because the issues I discuss have
our legal nature and I just want to make sure everybody understands
that I’m not providing legal advice. I’m not– I cannot. I’m just providing general information
and overview and it is not meant as a legal opinion or legal advice. OK. So we’re going to be talking about FOIA. So when you look at, you
know, like what is FOIA for? Well, obviously FOIA means the
Freedom of Information Act. And I’m going to take a moment
here and talk about the two FOIAs. Actually, there’s about 51 FOIAs. There is– Pretty much every state has a
FOIA Act, and then in addition to that, there is the federal Freedom of Information Act. Most of these acts are extremely
close in language. They are pretty much all designed
to do exactly the same thing. But because of the way our government
works with the federal government and then each individual
virtually sovereign state, you can’t have just one law that’s
really going to cover everything. It would be a problem to have, you know, a
FOIA law that every state would have to follow. That would make things a little bit complicated. So the federal FOIA, the Freedom of
Information Act on the federal level is an act that is binding on all states,
but it’s an act that applies to federal agencies and federal information. So, if you’re invoking the federal FOIA, it’s
because you want documents that were created or that exist in the federal sphere. So in a federal agency or there are certain
exemptions, there are some documents, for example, the executive office with
the president that aren’t available. But if you want– If you’re trying to
get a document that exists or was created by a federal entity, then you
want to invoke the federal FOIA. And that’s not really what we’re talking
about today, although it is similar. We’re talking about the state’s
FOIA, Michigan’s FOIA. So what is FOIA for? Well, it’s kind of all in the name
there, Freedom of Information Act. And just like if you think about the Open
Meetings Act that we’ve discussed before, the Freedom of Information Act is
what’s known as a pro-disclosure act. And what that means is it’s a– it’s an act
that’s designed to open doors to information. Again, if you look at our country, when you
look at our constitution while not perfect, a very large backbone of our culture
and our political set up is this concept of government by the people, for the people. And therefore, it was very engrained upon the
founding fathers that information generated by the public– by the government and actions of the government should be
as transparent as possible. Not only to act as a check on government,
but also to encourage participation in the government by the people and to be– so that the people would fully know
what’s going on in their government. And if you think about the founding of our
country and where the founding fathers came from and what some of their motivation
was, it makes perfect sense. Because if you’re coming from a country that’s
large– that’s a monarchy, in England, you know, when this country was founded and
when we were a colony of England, everything was decided by the crown. So there was no– you know,
there was no discussion. It was pretty much whatever the king thought
went and whatever documents the king wanted to release the king would release. Whatever decisions the king made, the king made
and no one would know why the king made them and no one could question what the king made. And so there was a lot of secrecy and a lot of,
you know, just absence of knowledge and absence of explanation as to why something
was done and no participation. So it was very important to the founders
of this country that there be participation and there be knowledge as to why certain things
are happening and also where money is going. You know, if the– You know, the whole
taxation without representation idea. If the people are going to fund
something and if the monarch– if the government and England was the
monarchy, it’s going to be using money generated by the people, then the people have a
right to know how that money is being spent and what the reasoning is
behind what’s happening. So, it’s really kind of these two
acts, they’re kind of twin acts. The Open Meetings Act and the Freedom
of Information Act are really designed to open those doors in government
and open those windows and air out, you know, what’s happening in government. And sure, to pass is not always easy. It’s not always easy for either
party, either the government or the people trying to get information. It certainly isn’t perfect. It could be convoluted. It could be circumvented, but it’s not–
you know, it is a story to something. It’s not bad. So, the whole idea behind both of these acts
is transparency, transparency in government. So where the OMA is focused on meetings
and functions of the government, so the Open Meetings Act, its function is
focused on transparency within the actions of government, so within meetings, within
proceeding, within, you know, functions. The FOIA is focused on transparency
within the documents of government, so what materials the government is producing. And I say documents, but I also mean
recordings, videos, computer files. Nowadays, it’s pretty– anything anyway in which information is conveyed is
covered under the umbrella of FOIA. So together, these two acts are design to
make it so that government– a person– an interested party, a citizen– member of the
citizenry should be able to pretty much find out and understand how the government is
functioning with regards to a particular topic or a particular issue or a particular area. Just like with the OMA, in
this particular type of act, FOIA is designed to be interpreted broadly and
what that means is when push comes to shove or when a– something goes to a court
relating to FOIA whether, you know, two parties are arguing about whether documents
should be release or shouldn’t be release or the government should have given
me a document, the courts are– the president has been– that the
courts will interpret it broadly. Meaning, the courts are going
to air on the side of assuming that the documents should have been
revealed and they’re going to air on the side of encouraging transparency. So this is not the kind of
act where there’s going to– you know, the courts are going
to be incline to hide things. It’s more– The burden of proof is more on the
person who wants to keep the documents hidden. So when your– in your act, in your role as
a FOIA administrator or in the library’s role of providing information, you really– your
policy should be written and the training that your employees receives– received should
be such that if you’re not sure you want to air on the side of providing information rather
than withholding with a couple of exceptions that we’re going to get to in a few minutes. So FOIA information, and yes I apologize, I
kind of went a little crazy with [inaudible]. Sometimes when I get started I can’t stop. It drives my husband crazy. But, you know– You know what, library law
has so little opportunities for whimsy. So, I went ahead and put that in. So, I hope that you don’t mind
and maybe it make you giggle. So, the Michigan FOIA requires
essentially– at its very core. The requirement is that public bodies make
available all non-exempt public records to any person upon request. So we don’t asked for a Michigan
driver’s license or that you’re a citizen of the United States, anybody
who request information. And that any person may request
inspection copy or copies of those records. And I want to take a step and
look at that sentence for a minute and that comes right from the statute. Any person may request inspection,
copy or copies of this record. Now, so there’s three things there. There’s inspection of records, there’s copy
of the record or copies of those records. And what this means, this
is a little kind of obtuse. What this means is, is that a person can
request to physically look at documents, can request to themselves copy the
documents either handwritten, you know, copying via handwriting or copying via
a photocopy or a scanner or photography. Or they can request that the
government office or entity send them or provide them copies of those records. And there is actually case law that states
that a person can get all three of those. So just because the agency sends a copy
of a record to a person doesn’t mean that person then can’t show up and request
physical inspection of those documents, and the agency would still have to provide that. So that’s kind of a little I think is important
because it’s easy to read that as saying, OK, a person is entitled to any of these. They’re actually entitled
all of them if they want. But– And, you know, there’s always in the law,
there’s always some narrowing or restrictions. The law actually provides a framework of
procedures and requirements that a person, that is someone requesting must comply with. So, you know, with great power
comes great responsibility. A person is able to request all kinds
of things and all kinds of manner but there is a certain– there’s a rule. You know, there are requirements
a person must follow. It’s not like anybody can just, you know,
tweet out and say send me these things or via Facebook, send me these things. There is a certain format and a certain
protocol that has to be followed in order to obtain these documents, and that
in part is to protect both parties. Especially back in the day when documents were
maybe more complicated and difficult to produce, and also today when there’s such a
plethora of information and documents. So having a set of procedures protects,
you know, sometimes they seem onerous, sometimes they seem like a pain in butt, but
they actually are there to protect both parties. The person requesting the
information in terms of making sure that person gets what they request and being
able to track that that person made the request. And also for the agency to make sure
that that agency is provided enough time to pull together the request, that they’re
given enough information to be able to fairly locate the information and so on. So, in other words there’s two frameworks. There’s a framework that a person has to invoke
to comply and a framework that the people who are providing the documents
have to comply with it in order to officially satisfy a request. So let’s look at some of this information. So when you’re– Whenever you’re looking at
a statute, so if you’re looking at Freedom of Information Act or the Open Meetings Act
or the Library Privacy Act or the acts that, you know, provide access to Narcan or
the District Library Establishment Act or any of the library establishments or
pretty much any statute at all at the federal or the state level, and even when
you look at municipal ordinances. One of the first things that you
should do when you’re looking into this is look at the definitions. Because, you know, law is all that words. It’s all about words, whether those words are
in a book or whether those words are spoken or whether those words are in a case
or whether they’re in a statutory book. And those words are very important. And sometimes the words there in
the statute may not have the meaning that is commonly attributed to them. And assuming when you’re dealing with the law
can be very, very tricky and very fraught with, I don’t want to say danger
but it can be not a good idea. So whenever you’re dealing with statutes,
it’s always a good idea to take a look at the definitions because they’re
going to tell you what the legislature– how the legislature looked at those words. And when the legislature was
putting together those statutes, what the legislature intended
for those words to mean. And that can invoke who the legislature
intended that statue to apply to, how the legislature intended
for that statue to work. So looking at definitions can give you an
insight into how the statute is supposed to function and that can help you when you have
questions about whether or not you’re complying. So, one of the first steps should
always be to look at the definitions. So in FOIA, the legislature defined public
body as a state officer, employee, agency, department, division, bureau, board,
commission, council, authority, or other body in the executive branch of state
government, but does not include the governor or lieutenant governor, the
executive office of the governor or lieutenant governor or employees thereof. So one of the definitions of
public body is a state officer and, you know, pretty much a state agency. Anybody who works for the
state but not the governor or the lieutenant governor,
although that may change. So for example that first definition, the state
officer definition would apply to the Library of Michigan because we are an
agency of the State of Michigan. So we are covered as a public body under FOIA. You can see it also covers an agency
board commission in the legislature. Then it comes down to county, city,
township, village, intercounty, intercity or regional governing body,
council, school districts, special district, or municipal corporation,
or a board, department, commission, council, or agency thereof. Depending on your library establishment,
you may fit into this definition. So if you are a home rule city library and
you are considered a department of your city, you would come under this definition. If you are a district– if
you’re a school library, you would come under this definition
because it’s a school district. A district library may also come
under this definition arguably. If you look at the next definition, any other
body that is created by state or local authority or is primarily funded by or through state or
local authority, except that the judiciary, including the office of the county clerk and its
employees when acting in the capacity of clerk to the circuit court, is not included
in the definition of public body. So it’s exempting the circuit
court and the judiciary. It’s not exempting the county clerk. It’s only exempting the county
clerk and its employees with respect to their functions with the judiciary. But most public libraries that are not either
considered departments of their municipality, or not school districts, are considered a
body created by state or local authority. So, and primarily funded through– maybe primarily funded through
state or local authority. So public libraries are clearly included
in one of these three definitions. So almost pretty much any library you
can think of that’s a public library, is included in those three definitions. So that means that public libraries
are clearly included under FOIA and therefore are bound to comply with FOIA. Now, FOIA person, which means
usually in this context, it’s used to mean people requesting
would be an individual, corporation, limited liability company, partnership,
firm, organization, association, government entity, or other legal entity. So this means that someone who is
covered by FOIA, who is a requester, OK, so that can be an individual person but it
can also mean all of these other entities. So a corporation can request, can be–
can FOIA and request documents, an LLC, which is another kind of
corporation, any kind of partnership which could be a law firm even not in their
official capacity, any other kind of firm, an organization, so that would be like a
non-governmental organization like MLA, or any say political activist group. You could look at ACLU, Southern
Poverty Law Center. There could be– There’s a myriad of
organizations could be requesting information. And associations, government entity, so one government entity can FOIA another
government entity, it happens all the time. I have seen municipalities
sent FOIAs to libraries. So, and they have to follow the
same rules as everybody else. So if you’re a township library and your
township send you a FOIA, you have to adhere to it like you would– and
they have to do adhere to the same parameters as a general person. So what is a public record, because
FOIA is all about public records? What is, you know, what is– what kind
of documents are we talking about here? So, again, this statute is
meant to be very broad. And a public record is– it now says a writing,
OK, prepared, owned, used in the possession of, or retained by a public body in
performance of an official function. So there’s a couple of things I
want to kind of pick a part here. First, it says writing. Now, legal authority has and there
are statutory sections too that lay out that writings mean more than
just a handwritten document. So you’re talking about, you know, anything
printed, computer files, you could be microform. So writings have been interpreted to be broad. So what you’re really talking
about are materials. One of the things that does not cover, now it
says it does not include the computer software. And I want to clarify that and
that what it means by software. And again, this is also in the
definitions, a software is a program. So what it is saying is that if you receive a– well, because someone can’t use a FOIA to
get a copy of, you know, word of, you know, a word program from my state entity. So it’s not– you’re not
giving proprietary software. You’re not– If you’re going to give
someone, let’s say maybe database, maybe someone is FOIA-ing the contents
or information contained in a database, that doesn’t mean that you have to give them
the actual software that runs the database, because that could invoke all kinds of
licensing problems and other things. The other thing I want to mention is
where it talks about official function. So what we’re really looking at here are
documents and publications and materials that are created by a government
entity or a public body that has to do with their official function. So that’s created as either as a
result of, or in preparation for, or that’s done as a matter
of their– of their work. So if you are a– well, like
for example, what I do, OK. So, I answer questions, I create
memos to answer people’s questions, I write emails to answer
people’s questions, I do research. All of those things are foiable. But if I’m making personal notes, if I’m
in a meeting and I’m making personal notes to help me remember something and it’s not
something that say is a draft of a document, or is specifically connected to decision-making. Like here, like if I write here all
the reasons why I would do this, and I’m a primary decision maker in
that area, then that might be foiable. But my own personal notes from a
meeting that I write for my own use to help me remember something and are not
part of the bigger context of decision-making or policy-making, or part of the process of
creating a document, those may not be foiable. So, it’s really documents that are
connected to the functions of your work. And it’s kind of you think of it logically,
when someone is requesting documents, usually is because they’re trying to find out
more information about why or why not, you know, or to connect someone to something. So that’s, you know, that’s something
that is– that you want to think about. Now, you have to be careful there are– later on, we’re going to talk
about exceptions to FOIA. And I want– At this point, I want to kind of
mention that if you do you have any questions about whether a document that is requested
is foiable or is something you should submit, your FOIA policy should have a provision
in there that tells your FOIA administrator who to contact to consult
whether or not this is a document that is germane to, you know, official function. And it could be the person who wrote the
document, it could also be your attorney. If you are part of the municipality,
it would be your municipal attorney. But, you know, there are people
for you to reach out to, to ask. You can always send a question
to me and, you know, you may– the safest thing especially if
this is a contentious request, would be to contact your
attorney to make absolutely sure. OK. OK. So let’s talk about when you’re
considering FOIA, when you are, you know, as part of your FOIA activities, here
are some just general kind of tips. These are things that everybody who
is susceptible to FOIA should do. If you want to, you know,
kind of stay out of hot water. You want a post and you don’t have to do this,
but it really can just save a lot of work. Post commonly requested materials that
are public record on your website. I spend a lot of time looking
at library’s websites and a lot of libraries have their board minutes
posted but there are also a lot that do not. And really this is kind of a basic thing. You should really post your
board minutes on the webpage. You’re not– I know some boards
are less than excited by this but you’re not really revealing anything,
your board minutes are public anyway. And the statute even says, the
Open Meetings Act even states that the board minutes have
to be made available. And that is the unapproved minutes and
then followed by the approved minutes. So I realize it can be a pain to submit the
approved minutes on the webpage and then have to put the– I mean submit the
unapproved and then the approved, and if you want to just wait
and put the approved ones on. But, you know, part of transparency is
that the more open and transparent you are, and the more open and transparent
your patrons perceive you to be, and your community perceive you to
be, the overall better reputation and better relationship you’re going to
have with your patrons and your community. And that includes when you start trying to get
mileages or you start looking for assistance from your community, particularly
if you want to raise your mileage, or you’ve never had a mileage
and you want to get a mileage. You know, you want it– you kind
of want to gather all the goodwill that you can from your community. And one way to do that is to show them that
the library is very transparent in government and that they have nothing to hide, and
that, of course, they use the resources that the community gives them in a
very open and very appropriate way. So one way to do that is the post
your board minutes on the webpage. You want to make sure you have a
FOIA policy posted to your website. And this is important for several reasons. One reason is, as I always say,
that if you have a good policy, particularly a written posted policy, then when
there’s an issue or when someone is trying to, you know, argue with you about what– and what
they can and cannot do or what you’re supposed to or not supposed to give them, your
policy is something that you can point to, to say this is how we do things and
this is the order in which they’re done and this is what is expected
of us under the law. Again, it becomes this idea– it
removes the issue of personal. You know, a lot of times especially if
you’re a small library in a small town, sometimes the issue is that, say a
rejection of a FOIA is looked at as well. You know, they just don’t want me to get this
information, or this is a contentious issue in the community right now and that
faction just doesn’t want us to have it. And when in fact it may be that it’s a
part– completely legitimate rejection. If you have a FOIA policy posted all the
time that you can point to and say, no, we’re not making this personal and we’re
not rejecting because we have a problem with your stance or your side of this particular
issue, but it’s because of this posted policy and this procedure that has
always been in effect. And it makes it– again, it gives the library–
put you on the high road of the transaction. And that’s always the best place to be. The second option is that it’s the law. You have to have a FOIA policy and you
have to have it posted on your website if, if you intend to charge people for FOIA request. So if you intend to charge people
for copies or for the labor involved in discovering the FOIA request, which
is permissible, then you have to have that policy posted because that policy is
going to include that notice of charges. And the notice that this is how much it
costs, this is how we calculate that, this is what is required of the
requester, and this is what you can expect. If you don’t post that, then
you cannot charge people. And depending on situations, you know, there
are plenty of libraries where, you know, it seems like, oh, you know, we don’t get
many FOIAs, it’s not really a big deal, and then all of a sudden, there’s a
contentious issue in town and they get, you know, slams with the request. So, again, you want to have a FOIA policy and
you want to have it posted on your website. If you are a library that does not
use your website and you mainly, mainly use your Facebook page,
and there are some out there. Because there are some libraries
that have a very basic webpage or their webpage is really just kind of a page
on their municipality’s webpage that just kind of list hours and nothing else and
their catalog and their activities and all of the pertinent
information is on their Facebook page, then I would post it to both things. Post your FOIA policy to your
webpage and to your Facebook page. One of the options within a FOIA
policy, one of the things that you need to consider is the law states that, you
know, when we were talking about inspection, remember someone has a right
to inspect documents as well as receive copies or copy them themselves. That inspection right is also kind of
tempered by the entity or the office, the public body has to provide
reasonable access. So part of reasonable access is
something that doesn’t interfere with your normal operation of your business. So, for example, if you have a small library and
documents, most of the documents are kept say in a file cabinet, kept behind
the circulation desk. And to give someone access to that file cabinet
would mean they’d have to be behind the desk that would be a small physical space and
it would interfere with staff’s ability to get work done and it might expose
the member of the public to information that they are not entitled to,
like, you know, patron information, then it could be that reasonable
access is the library pulling the files out of the file cabinet and
putting them in a meeting room and say giving the person
a certain amount of time in the meeting room to review the documents. So, as far as libraries go,
those reasonable conditions or reasonable access could differ
slightly from library to library. So, one of the things as with all policies,
you would want to confer with your attorney when you’re creating your policy in order to clarify what would constitute reasonable
access for your particular library. You know, there could be
things like after hours. Are you required to provide after hours access? Well, you know, probably not unless there’s
some kind of extenuating circumstance. Make sure you appoint a FOIA coordinator. And this is something again that is something
that the law indicates should be done. And I think sometimes this may get–
not ignored but maybe overlooked because with some very small libraries,
maybe they only have one fulltime employee. So it’s kind of they do everything. But this statute kind of indicates that
the FOIA coordinator is supposed to be like the chief executive officer. And so it’s really up to the board and the
director to decide who the FOIA coordinator is. Most of the time it’s probably going
to be the director who is in the best– who is best situated to be the FOIA coordinator. But again depending on the
library, there may be instances where a member of the board maybe appropriate. But it’s important that if it is a member of
the board, the member of the board also needs to be trained and understand all of the
different documents involved in the library that the library produces, not just
the documents that the board produces. And it’s also a matter of
with the FOIA coordinator is– and this is something most librarians who
have worked in public libraries or libraries at all are pretty good at, is you have to be
able to step back from your personal feelings of what is private and what is embarrassing
and look at what the more legal concepts are and the statutory intent is behind. Say for example the except– there’s an exemption for the provision
of documents that could be embarrassing. So, and, you know, again, you can’t assume
because there’s some of those documents that you may think are embarrassing but in
reality courts have ruled that they’re not. And we’re going to get to more of that later,
but a FOIA coordinator should be trained. And you want to make sure their contact is
on the website, so that anybody who does want to submit a FOIA request, it is
very clear on how that is done. And again, that goes back to your policy. Know your records, know what your records are. So what are we talking about
in terms of the materials that could be requested and that are foiable? So, some of the things that could impact this
in the library is your records retention policy, the Library Privacy Act and the FOIA
exemptions we’re going to get to. There could also be FERPA issues
if you’re a school library. Now, the records retention policy is a
document that’s produced by the state and either is one specifically
for public libraries and that is the schedule of record retention. And that– It pretty much tells you exactly what
documents you have to keep and how long you have to keep them because these are the documents
that are considered “public documents,” and are considered materials that
the library should have on hand for someone who may request them. And those would include things like the board
bylaws, meeting minutes, personnel files, financial information, insurance information,
all of the information that the library uses for its operations as well
as all of the information that the library produces to,
you know, help its patrons. Now, the library has some special considerations
because of the Library Privacy Act, and that more speaks to documents
that you cannot produce. And when we talk about exemptions
in another slide or two, we’re going to go into that
a little bit further. But it’s definitely– if you haven’t taken a
look at the records retention policy lately, you really want to take a look at it. Because it not only tells you
what you should be keeping, but it tells you how far you should keep them. Because, again, if you’re keeping
documents longer than you should, you’re taking up extra space in your facility
that you might need for other things. You’re also, if the documents are there and
someone requests them whether they’re documents that you had to keep or not, you have
to produce them if you have them. So, if you– If you follow the retention
policies and you get rid of the documents as you’re permitted to, then you’re
not there to have to then produce. Now, that sounds kind of bad from a
transparency standpoint but, you know, as an advocate for libraries, you know,
it’s in keeping with FOIA in terms of providing information and transparency. But, you know, there’s also
another side in terms of, you know, you want to have an eye towards protecting
yourself and saving yourself some work and stay within those guidelines of
the records retention policy. Would there be documents that
are not on that retention policy that you may have to produce if you have them? Yes. But those documents on the retention policy
are going to be the bulk, the large majority of the documents that a library
produces and would be expected to have as public documents under FOIA. You want to make sure you track the timeline
of requests and keep copies of the requests. Both of– Keeping copies
are required under the Act. But tracking the timeline of request
is really a procedural thing. The law says that you have a
certain number of days to respond and sometimes there’s extensions
that can be invoked. There are sometimes repeat requests
that someone can put in for. So there could be variations
on timelines depending on the exact request and
the nature of the request. And so it’s good to have– to be in the
habit of tracking, having some kind of system for when a request comes in, marking the
date and tracking for how long you have to complete the request and to say
reply and then complete the request. You want to be– Make sure you’re
consistent and neutral in implementation. Now, you know, this may seem kind
of obvious because this is the case for every library policy, but it can be hard
to remember and harder to keep to when you’re in the middle of a contentious situation,
which is usually when FOIA becomes an issue. When you’re in the middle of an issue
that’s impacting the community or some kind of controversial or some kind of fight that’s
going on in the community, it’s very easy to, you know, you get personally invested especially
when you have an issue where there is an issue, people are pushing against the library. And the only thing I can
say is that it’s never going to make the library look bad
to be consistent and neutral. The more– You know, whether it’s
refusing or rejecting a FOIA, or whether it’s providing the information, or
whether it’s providing the same information for the fourth time to somebody, or
whether it’s dealing with somebody who is not a very nice person, or is
not behaving in a very professional or cordial manner, treat your FOIA request
like you do every other request in the library. Keep that consistency going and, again, nobody
then can blame the library or accuse the library of impartiality– or non-impartiality
or a favoritism or of, you know, not providing information,
or of destroying information, or of any kind of underhanded thing, you
are less likely to get that accusation or less likely for your community to
believe any type of accusation like that if you’ve always been consistent in
how you provide your FOIA information. And then you have kind of a long history of, you
know, this is our policy, this is how, you know, we’ve always done– you know, we’ve never
handed out this kind of information, and that you treat all sides of
a contentious issue the same. So, if you have, you know, any library board
members or you’re, you know, getting information or say members of the public who are supportive
of a particular position or side of an issue and they get information, the information should
be– as long as it’s foiable, should be provided to the other side if requested as well. So, it’s, you know, it’s– When this comes
into question, it’s a hard situation because, you know, a lot of libraries have dealt
with contentious issues and people who have been really kind of nasty. And so, you know, you want to make sure that,
you know, again always stay on the high road to the best that you can and
then again the libraries never– is going to be less likely to be assumed
to be on the bad side of an equation. Don’t– OK, don’t assume that
any information that in from– that information that may
seem– OK, let me start again. Don’t assume, OK, because information that you
may think is private within your normal context of your normal life and experience
may be considered public under FOIA. So, all of the salaries of your
personnel including their names and their salaries are public record. So the fact that, you know, Sally makes
this much and Susan makes that much and the director makes this
much is all public record. The contract the director signed
for employment is all public record. Other employment contracts, all public record. There may be certain aspects of those contracts
that are considered private information that may have to be redacted or may have to be
separated from the information that is public, but all of that information
is considered public record. Financial records are public records. Financial records of the library. So the information that the treasurer
takes on the board is all public record. And as I mentioned on the other hand
personal notes taken as part of the meeting, whether it’s by a board member or
staff member, may not be public record. So if you’re not sure, again, make sure you
contact your attorney because you don’t want to be on the side of rejecting a
request that should have been completed, because that can only get you into trouble. Don’t neglect to reply. Even if the– it’s a very large request and
it’s a contentious request or to request that you may think is totally
baseless and stupid, reply. Reply, you can reply right away and
say we received your FOIA request, we are working on it, expect
an answer at this time within, you know, the appropriate time period. You have the option to immediately extend
the issuance of the material by 10 days. So if you’re in a period where things are
just crazy or you’re going to be on vacation or whatever, you can do that
automatically with the 10 days. You just want to make sure you keep
in contact with the person requesting. And if you have a problem with some snag occurs
in the process of the FOIA, make sure that you, you know, communicate to the person
requesting the FOIA materials. Again, the more transparency, the less that
any rejection you may have to give is going to be looked at in a negative way. You can’t deny a request just because you’ve
already supply that information to a requester. And that’s– If someone has requested
information and then they come back the next day and request it again, you have
to supply the information. Now, if they request it, you know, the 50th
time in 50 days, you know, then, you know, technically, there are instances where there
are some options if there’s harassment involved, but on its face, you would just have
to keep providing the information. However, you could charge the
person for the information. You know, you can say, well, you
know, if it’s under 10 pages, we’re going to give it to you free. But if you have someone who comes
back, you know, after day 50 and you’re still giving him the same 10 pages,
you know, you can– your policy can say, look, you know, the same– first two instances of
the same information, we’ll give you for free, after that, we’re going to start charging you. So there are ways you can deal with the
potential abuse of some aspects of this. But again all of that, you would want to– any kind of policy, you would
want to confer with your attorney. So here’s another tip for FOIA. The statute, which is all enclosed in Section
15 dot kind of 200s of the Michigan laws, which is also the same area– actually, Chapter
15 is also where the Open Meetings Act is and some other kind of ethics issues for
public employers, says that you do not have to make a compilation, summary
or report of information. And you do not have to create
a new public record. Now, Section 11 has to do with something that public libraries really
don’t normally have to deal with. And Section 14 has to deal with separation
of– exempt from not exempt information. So the purposes of public libraries, you making
a compilation or summary, report of information, would be like if someone wanted you
to kind of interpret the information. They say, OK, I want to know your
circulation statistics and I want you to know how many people from this
other– of those circulation statistics, I would like to know the number of people
in this town that have used this library and what they’ve used it for,
and how many times they’ve gone to meeting rooms and check stuff out. And your job would be to supply the numbers. OK. So obviously under the Library Privacy Act, you can’t supply names, but
you would supply statistics. But you don’t have to compile those
statistics into a nice, easy to read report. Your job is to give them the numbers. Here’s the numbers of our circulation. Here’s the numbers of users from this community. Here’s the number of check-outs from those
users of this community for this time period. You don’t have to go through it and, you
know, line by line and pull everything out. You just need to supply them with the statistics
that enables them to pull out those numbers and get that information that they need. So you don’t have to create a separate document. So, if someone wants information that would
constitute like a separate report or any kind of interpretation or conclusions from
a report, you do not have to do that. You don’t– If you have a report that
already includes information they want, you don’t have to recreate that report to
make it fit better within their parameters. If you have information on Excel sheet
and they’re requesting information in a Word document, you don’t
even have to do that. You can supply them– Your job is
to supply them with the information. And you want to supply them with the
information in a way that they can read it and they can obtain the information. So for example if someone says, can you
please email me the Excel sheet, then, yeah, you would have to do that if they request that. But you don’t have to, you
know, recompile the information. You do of course have to
separate exempt and not exempt. OK. Can you charge for records? Yes. And I’m not going to go into huge specific
information on this because it is very lengthy. This information at the bottom here where I say, “May a public body charge for
a fee for public records?” This information is actually taken from the Attorney General’s FOIA
handbook, which is available on the web. You can just do a Google search, Michigan
FOIA handbook and it will pop right up. It is a law like the OMA Handbook. It is very easy to use, very clear, gives
you a lot of really good information, includes Attorney General opinions and other
legal authority to back up what it says. I heavily recommend that anybody– any of the libraries pull a copy
of this, print it out, read it. You can even, you know, refer people
requesting FOIAs to it, if they have questions or they’re not sure about something,
or they are contesting something. It is a really good resource. And it does a good job about
explaining the fees. And this is pretty much taken from that. So it kind of breaks it down. If it’s more than $50, you
can collect a deposit. It does outline specific restrictions. One of the things of FOIA is that if you have a
large request, it’s going to take a lot of time. You can charge for the time of the person
who is doing that either research or copying. So for example, you can charge the hourly wage. So for each hour that you have
a staff member working on this, you can bill the requester the lowest– the
hourly wage of the lowest paid employee. So that if your reference librarian is doing
the work or the director is doing the work, you can still– you can only
charge the requester at the rate of the lowest paid person in the library. So pretty much minimum wage if that’s what you–
if that’s what you pay the lowest paid person. And, you know, there are some
additional guidelines for that. As far as just straight copy costs, they
cannot be more than 10 cents a page. You are encouraged to do any copying in the
least, in the most economical way possible, which would be using, you know, the most
economical paper, double-sided copying if you have that capability
and charging by the sheet. So you’re not charging by the side of the copy. So, a double-sided sheet would not
be two copies, it would be one copy. And again if you have any questions about
that, you want to talk to your lawyer. So now let’s talk about exemptions. We have a few minutes left here. So what is exempt from FOIA? And I kind of extrapolated things that are
mostly going to apply to public libraries, the actual statute is a little
bit longer, it’s 15.243. Information of a personal
nature if public disclosure of that information would constitute a clearly
unwarranted invasion of an individual privacy. Social Security numbers, information regarding
medical issues, that’s in a personal file, information that would constitute, like a lot
of it has to do with very personal information. Salary information is not
counted as being personal. Now, a lot of us grew up with the information
that what you made was very personal, but that’s not how the legislature sees
it and that’s not how courts have seen it. Any records or information
specifically described and exempted, like the Library Privacy Act. So documents, you know, anything relating
to patron records, what patrons check out, all of that, what patrons have a library
card or don’t have a library card, all of that is specifically exempted from FOIA. So that’s not part of FOIA. If you have a document that is being used
that the public body has passed around, say an employee file that includes medical
information that was given to say the board for purposes of the personnel review. If that review is ongoing, then that document
is not foiable, especially, you know, if it’s exempt documents, so that’s not foiable. Medical counseling or psychological
or evaluation, so anything– if your entity requires drug
testing or requires– if an employee has been required to have
psychological counseling either as part of the employment process or
part of a disciplinary action, or an employee intervention action, that information is not foibale
especially if it identifies the employee. Or you can– The basic information
is available but not the identity, you can’t connect an identity
to this particular evaluation. And then communications and
notes within a public body. So for example like I said, any kind of
interpersonal emails or notes that are passed between employees or between
board members that have nothing to do with the actual decision-making. So it doesn’t involve the
actual discussion of what– why the decisions being made or
what went into the decision-making or what the considerations were if they’re
just straight up notes between people that have nothing to do with the public
business of the library, those are not foiable. And anything that could be considered
a FERPA violation, which is the school. Any information of your school
library, information concerning peoples and their performance in
school are not included. Now, these two things are new
and I have just enough time. One is when a person submits a request, the
request has to include complete name, address, and contact information of
the person requesting. If the request is coming in from
a corporation or an association, then they have to give a name
of an agent or a contact person. They have to give a full name and a
valid telephone number, email address. This came from a situation at the state where a activist organization
submitted a huge cumbersome FOIA request and only gave someone its first name and
it was a very apparently a huge issue. So they now you have– the person requesting
information has to specifically be identified with all kinds of kind of
backup identifying information. And if a organization is involved, not only is
the organization have to be named but the person who is the contact point for that
request also has to be named. And also if you request a deposit for a request
and that someone does not submit that deposit within 45 days, then from the time
that you’ve notified the request or that deposits required,
then the request is no. The request you don’t have to answer it. So in other words, someone requesting
information has 45 days from the time that the public body tells
them this is a big request, you’re going to have to submit a deposit. If they don’t give that deposit within the 45
days they’re told they need to, then it’s no, then the request is no, and that also
emanated from this issue that occurred. The other things that are happening right now
in the legislature all have to do with a new act that is proposed that would make the
governor’s office subject to FOIA. And so that’s actually a very big movement now, the current governor is very
invested in transparency. And it is very possible. It’s already halfway through the process. So it seems like maybe it will pass. And that would make all the documents
that’s part of the governor’s office foiable with the exception of a couple of things. For example, you know, the
governor can remove board members from district libraries and other libraries. If that happens, the documents surrounding
that particular situation might not be foiable, especially while the situation is ongoing,
while that determination is being made. OK. I think I’m on the very end of my time here. I wanted to say thank you
very much for attending. I will be submitting a– I’ll be sending
out the slides as well as a survey, and this will be posted to the website. I hope there are– things are moving pretty
quickly now with the accommodations that we have to do on the slides, so hopefully this
may even be up next week on the webpage. So, again, thank you very much for attending. I hope you all have a very great day. Unless do you have any questions. No? OK. Well, I’m going to go ahead and sign
off because I’m afraid we might get kicked off because the time is ticking and
I hope to see you next week– next month on the library laws probably. Thanks again.

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