Governor Whitmer has signed Executive Order 2020-38 which relaxes requirements for responding to FOIA requests made by mail or fax during the COVID-19 emergency. This action will protect workers who handle FOIA requests by allowing public bodies to defer portions of requests that would require workers to report to work in-person. The Executive Order takes effect immediately and ends at 11:59 p.m. on June 4, 2020.

Under the Executive Order, A public body must respond in writing to a request or an appeal received at its physical office via mail, hand delivery, or facsimile within 10 business days after actual receipt of the request or appeal. For purposes of this order, actual receipt of a request or appeal occurs when an employee of the public body physically opens the envelope containing the request or physically takes the faxed request from the fax machine. Nothing in this order requires an employee to report to the office to open mail or check the fax machine if the employee would not otherwise be permitted to report to the office in person and required to perform those tasks.

If a public records request requires in-person efforts, such as an in-person search, inspection, examination, preparation, or production of public records, by the requestor or the public body, a public body may defer that portion of the request until the expiration of this order or any order that follows from it.

The Executive Order also requires public bodies to communicate in writing with the person filing the request if they are unable to fulfill the request without a search of physical public records. The person filing the request then has the option to amend their request to include electronic records only. If a public body is unable to fulfill a request in the time-frame they specified because of remote work and social distancing, then a written notice will be sent to the person filing the request to explain why there is a delay.

The Governor’s order  also states that it is the public policy of this state that, during the COVID-19 state of emergency and disaster, public bodies continue to respond to requests for public records as expeditiously as possible and, to the extent practicable, by using electronic means.

This order provides needed flexibility in responding to FIOA requests, prevents municipal employees from having to go into the office when not necessary, and allows communities to defer their response in the event they have taken steps such as putting their mail on hold or don’t have remote access to do a record search from somewhere other than the office. For the full text of the order please click here.

John LaMacchia is the Assistant Director of State and Federal Affairs for the League handling transportation, infrastructure, energy and environment issues. He can be reached at jlamacchia@mml.org or 517-908-0303.