Hello:

Yesterday, Governor Whitmer signed Executive Order 2020-38, which temporarily amends  portions of the Freedom of Information Act, , 1976 PA 442, MCL 15.231 et.seq . The summary below provides basic information about this EO along with a link to a more substantive explanation provided by Anne Seurynck of Foster, Swift, Collins & Smith. (see link at the end of this e-mail)

Please review this information carefully and consult with your library’s attorney if you have questions about its application to FOIA requests received by your library.

EO 2020-38 provides certain temporary amendments to the Freedom of Information Act , 1976 PA 442, MCL 15.231 et.seq  in order to account for public bodies which have closed and/or staff that are working remotely and may not have access to either physical requests (such as physical mail or fax), and/or may not have access to the requested information or documents.

The EO emphasizes the importance of citizens’ access to information and necessity of public bodies to respond to FOIA requests as soon as it is practicable under the current circumstances, and, if the request is submitted electronically (e-mail or text) , and if the requested information is available electronically and remotely, FOIA requests should be fulfilled electronically, and in accordance with current law.

The summary below is only for purposes of information and notification and should not be considered legal advice. Questions about how this EO may apply to particular libraries and particular circumstances should be directed to the library’s attorney

EO 2020-38

• Provides libraries with additional time to respond to requests received physically via mail and fax, from 5 days to 10 days.
• Permits requests to not be considered “received” until the physical envelope is opened, or the fax removed from the machine. However, any employee opening the envelope or picking up the fax triggers the response timing.
• Requests received via e-mail or text are not addressed by EO 2020-38 and presumably must be responded to according to the current law- MCL 15.235 (1) http://legislature.mi.gov/doc.aspx?mcl-15-235
• If a library receives FOIA requests, but because of COVID-19 related circumstances, is not able to fulfill  the request within the 10 days, the library may respond to the requestor within 10 days and extend the date to fulfill the request until no later than the expiration date of  this order (EO 2020-38), June 4, 2020. EO 2020-38 doesn’t specify the wording of the request, so existing wording under the current statute, MCL 15.235, (particularly subsection 7) http://legislature.mi.gov/doc.aspx?mcl-15-235  plus an explanation for the adoption of the longer extension would likely suffice.
• Requests requiring in-person  access by the requestor to fulfill may be deferred for a time up to the expiration date of  EO 2020-38 (June 4, 2020). The response to the requestor must be made as with any other response to a request ( see above and MCL 15.235), and the reason for the deferral must be included. The deferral must also include a notice informing requestor that they may submit an amended request for any portion of their original request that does not require in-person access.
• A requestor who receives a deferral for a request  requiring in -person access may submit an amended request  in order to receive materials in the original request that do not require in-person access.

Thorough information and explanation about this Executive Order and its application to requests can be found in this explanation provided by Anne Seurynck:  https://www.fosterswift.com/communications-whitmer-temporarily-suspends-foia-deadlines.html

Please note that information and interpretation surrounding Executive Orders are constantly evolving, and this explanation and information may change.

Please don’t hesitate to contact me if I can provide any additional information.

Sincerely,

Clare

Clare D. Membiela, MLS, J.D.

Library Law Consultant

Library of Michigan

MembielaC@michigan.gov

517-335-8132

The research and resources above are for informational purposes only and not for the purpose of providing legal advice. You should contact your attorney to obtain advice with respect to any particular issue or problem.