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  1. #1
    Join Date
    Oct 2007
    Posts
    16

    Default What Damages Can You Get for a FOIA Violation

    I faxed a department of Michigan a FOIA inquiry (called Open Records Law in Michigan) on 8/17/2011. Open Records Law Sec. 15.235(1) states fax is a valid submission, but that the document is considered received on the following business day, so 8/18/2011. My inquiry stated that I expected a response within 5 business days under Sec. 15.235(5)(2).

    I received a letter from the department dated 8/19/2011, invoking a 10 business day extension as allowed by Sec. 15.235(5)(2)(d). Their letter stated their response was now due by 9/8/2011. I agree with everything they've done so far.

    I received the department's response in my mailbox on 9/19/2011. The letter was dated 9/8/2011, which would have been timely, however the envelope which I STILL HAVE was postmarked 9/16/2011.

    I sent the department a follow-up letter explaining that Sec. 15.240(7) states if a circuit court determines a public body has "arbitrarily and capriciously violated this act by refusal or delay. . .", then that public body owes the person who made the request punitive damages of $500.

    I received a letter from the department's FOIA coordinator states that they deny backdating the letter dated 9/8/2011 to make it appear timely, and they don't control the actual mailing date because they put an envelope in a bin for the Michigan Department of Technology, Management and Budget (DTMB) to collect twice daily, and it's the DTMB that applies postage and gives it to the post office, so it could be DTMB's fault it was mailed late. The letter also stated that the law states "If the circuit court determines. . .", and since there had been no lawsuit, there hasn't been a determination from a circuit court. (In my previous letter, I stated I knew a circuit court hadn't made a determination, however I wanted to give his department an opportunity to settle the matter for $500, and avoid the legal fees and hassle.)


    Question 1 - Does it sound like I have enough of a case here? I don't think their excuse that their department doesn't give anything to the post office holds water. The intent of the law is to ensure timely responses to citizens. Two departments within Michigan are still part of the same governmental body (Michigan.) The law provides no exception due to another department's delay in mailing, so to allow this as an excuse, there's no brightline that can be followed. To allow an excuse for the DTMB delaying mailing by 8 days, where would courts draw the line for what was acceptable -- what if they delayed 3 months? This seems like an absurd reading of the intent of the law to me. This would be like someone telling Michigan they shouldn't pay a penalty for filing a late tax return, because they gave it to their spouse to mail, and it sat in their cars until 8 days past the deadline...

    Question 2 - The state Open Records Law doesn't say which circuit court to file in. Do I file in mine, since I live in Michigan, and the request was sent from here? Or, do I need to file in the circuit that the department operates out of, which is 75 miles away.

  2. #2
    Join Date
    Feb 2010
    Location
    CT & IL
    Posts
    5,273

    Default Re: What Damages Can You Get for a FOIA Violation

    http://seeingyellow.com/

    See the link above...the print date of the documents may actually be coded on the paper itself. Chk it out ..

    With ALL FOIA requests I file, I file this little tidbit of a request (written for a city .. but you get the gist):

    Item #8:
    a) Any and all documents relating to the city's completion of this FOIA request. Documents regarding communications between parties (city & non-city person(s)) produced from the date of receivership of this request to the completion of the FOIA request by the city. If you have an objection to the release of any information please note the specific request and the specific reason for the denial. If documents do not exist for a particular item please note this as well.


    And I define "documents" .. boilerplate stuff like this:

    DEFINITIONS
    As used herein, the term "document" is used in the broadest sense and includes, but is not limited to, the following items, whether hand-written or typed or printed or recorded or reproduced by any process or whether stored electronically or in any other format, namely: .agreements; communications (including intra-company communications); memos; emails; statements; notes (whether formal or informal); correspondence; telegrams; cables; telexes, faxes; telephonically transmitted tangible communications; memoranda; records; books; summaries or records of telephone conversations; telephone message slips (including those which indicate only that a call was received or made); summaries or records of conversations or interviews; diaries; appointment books; desk calendars; wall calendars; forecasts; statistical statements; accountants work papers; graphs; charts; accounts; minutes or records of meetings or conferences; reports and/or summaries or interviews; reports and/or summaries of investigations; items published in a newspaper or other publication; pencil or scratch pad notes; records; reports or summaries of negotiations; studies; brochures; pamphlets; circulars; press releases; contracts; notes; projections; all drafts of any documents; working papers; copies; marginal notations; photographs; drawings; checks (front and back); tape recordings and transcripts thereof; video recordings; e-mails, computer printouts; check stubs or receipts; letters and correspondence (including file copies thereof); any other documents or writings or papers or printed text of whatever description. The term "document" is further defined to include any attachments or other matters affixed thereto. The term "document" also means the original and any non-identical copy. Any notations, comments or alterations on any copy renders it non-identical and require production.




    So you may wish to file a similar FOIA request if you are really that interested .... or look on the paper -- if they printed anything on a color printed that have cow-towed to the federal gov't then you may have an actual date & serial # of the machine printed right on the paper they gave you. really, if you have no proof , good proof ... I would forget it or file a 2nd FOIA request about docs memorializing their activities. OMG, they go nuts over this .. 90% of people just ignore it & I do too if I am happy with the response.

  3. #3
    Join Date
    Sep 2005
    Location
    Behind a Desk
    Posts
    98,846

    Default Re: What Damages Can You Get for a FOIA Violation

    You cannot count on a court finding that a late mailing represents the agency's "arbitrarily and capriciously" violating the Act. Unless there's a lot more to this than an eight day delay, I would expect the court to find a lack of evidence of arbitrary or capricious conduct. The only way to find out what the judge will do, though, is to go to court and argue the issue.

    If you filed your FOIA request in a county that is 75 miles away, that's where the alleged violation occurred.

  4. #4
    Join Date
    Sep 2011
    Location
    OH10
    Posts
    17,019

    Default Re: What Damages Can You Get for a FOIA Violation

    Why do you need cash so badly you are trying to build a case out of thin air?

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