Transitioning Back – FOIA and OMA After COVID-19

Due to the issuance of Executive Order 2020-110 on June 1, 2020, this article has since been updated with new information.

Many aspects of life have permanently changed due to COVID-19 while others have changed only temporarily until the virus is under control. Municipalities have adapted to the changes imposed by the virus in various ways and to different degrees, but nearly all local governments have been impacted by the inability to meet in person and the difficulties inherent to social distancing. As a result, a number of the 112 (and rising) Executive Orders issued by Governor Gretchen Whitmer address these challenges on a temporary basis. Although no permanent changes have been made to municipal procedures at the time of this writing, this article considers whether any of the temporary changes could survive COVID-19.

Open Meetings Act, MCL 15.261 et seq. (“OMA”)

Generally, the OMA requires that any meeting of a public body must occur in person and must be open to the general public. However, in response to COVID-19 public gathering concerns, on March 19, 2020, Executive Order 2020-15 first authorized the remote participation in public meetings and temporary relief monthly meeting requirements for school boards. That order was subsequently rescinded by Executive Order 2020-48 and was most recently replaced by Executive Order 2020-75 (“Order 75”). Like its predecessors, Order 75 temporarily suspends the physical-place or physical-presence under the OMA.

Order 75 still requires public participation, but instead, allows meetings to be held electronically through teleconferencing or videoconferencing software. Meetings must allow two-way communications to the extent that a member of the public “. . . can hear and be heard by other members of the public body and other participants during the public comment period.” Additionally, members of the public are permitted to record, tape, broadcast, or telecast the proceedings of the public meeting by virtually any means.

It is likely that public bodies and their members will still be required to meet in person to avoid the risks of collusion and appearance of conspiracy. However, Order 75 provides significant detail regarding how to administer a public meeting electronically while providing similar access, transparency, and discretion as would be available in a typical public meeting where the general public is physically present. To this extent, it is possible that virtual attendance of a public meeting will remain a possibility for members of the general public even after public gatherings are again permitted. It is unlikely to completely replace the physical-place or physical-presence requirements under the OMA, but may serve as another option for members of the public who wish to participate but are otherwise unable. This trial-run in virtual public meetings occasioned by COVID-19 has likely increased confidence in the possibility that electronic participation is a good thing.

The various notice requirements imposed by the OMA remain in effect for an electronic meeting but are temporarily amended to include: i) an explanation for the electronic meeting; ii) detailed instructions on how to participate in an electronic meeting; iii) contact information for members of the public body to provide input or ask questions; and iv) procedures that allow persons with disabilities to participate. Accordingly, offering a virtual option for members of the public who wish to attend a public meeting would only further access to government and public participation.

Although we do not anticipate that an executive order will permanently extend a digital option, it is possible that municipalities which have successfully implemented a digital system could advocate for it to remain an option.

Freedom of Information Act, MCL 15.231 et seq. (“FOIA”)

Similarly, on April 6, 2020, Executive Order 2020-38 (“Order 38”) temporarily extended certain FOIA deadlines to allow municipalities to focus on COVID-19 response efforts. Specifically, Order 38 relaxes strict compliance with FOIA response periods and suspends the express requirements under FOIA Sections 5(2), 10(2) and 10a(2). Order 38 was recently extended by Executive Order 2020-112 (“Order 112”) and will remain in effect until June 10, 2020.

Generally, FOIA requires that a request for information be responded to within five (5) days, subject to a 10-day extension by written notice. Additionally, there is a 10-day response window for appeals of both denials and fees.

By contrast, Order 38 requires only a response within ten (10) days of “actual receipt,” meaning the time in which the envelope containing the request is physically opened or the fax is physically removed from the fax machine. If the request involves physical records that must be retrieved in person, responses may be delayed until after June 10, 2020, when the order expires, while requests for electronic records must still be provided to the extent they can be accessed remotely.

Notably, Order 38 does not address requests received by email or text message meaning that the typical deadlines for requests of those types are likely still enforceable. However, Order 38 further allows the discretionary extension of FOIA deadlines if COVID-19 or any accompanying response efforts interfere with the municipality’s ability to timely respond to a request. The discretionary extension is not limited in duration, other than that it may not be extended past June 10, 2020, when Order 38 expires.

Once the safer at home orders currently in place have been lifted and municipal governments begin to reopen, we are likely to see a full return to the 5-day response window for all FOIA requests, while allowing a 10-day extension, under Section 5(2). Similarly, the 10-day response window for appeals under Sections 10(2) and 10a(2) are likely to be enforced after the June 10^th expiration of Order 38. It is unlikely that any remnant of Order 38 will remain even after the order expires, except for extensions directly delayed due to COVID-19. 

For both the FOIA and the OMA, the most visible remnant will be felt in a worldwide transition toward more remote working and better digital communication. Efforts to digitize most, if not all, public documents, and to offer remote, yet secure, options for public participation are very real possibilities. The future for FOIA-filers may be through emailed requests and PDF responses and many future Meeting-goers could be behind a webcam. Only one thing is certain, if a virus ever keeps us at home again, more municipalities will be prepared to meet the challenge.

If you have further questions concerning this article and how FOIA/OMA matters are being affected by the current crisis, contact a member of Foster Swift’s Administrative and Municipal Practice Team.

While the information in this article is accurate at time of publication, the laws and regulations surrounding COVID-19 are constantly evolving. Please consult your attorney or advisor to make sure you have the most up to date information before taking any action.