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.

