By Ben Solis
Gongwer News Service
Public bodies are free to ask for a good faith deposit for Freedom of Information Act requests prior to making a final determination to grant or deny potentially exempt records without violating the statute, nor has it formally denied disclosure of the potentially exempt items, a Court of Claims judge recently ruled.
In an opinion issued this month by Judge Christopher Yates, the court sided with the Department of Corrections in American Friends Service Committee v. Corrections (COC Docket No. 23-000138)
The lawsuit arose when the plaintiffs made five written requests for public documents under FOIA. Some of those requests were granted by Corrections in part, but others were denied. The denied records were related to the Parole Board records of five inmates who each had a public hearing for commutation. Those records were slated to be potentially provided after review, but Corrections required a 50-percent good faith deposit on the overall cost of the records request.
American Friends Service Committee did not pay the deposits, and instead challenged the denied portions of its request in the Court of Claims. The group claimed Correction's response failed to explain the exemptions noted in the department's response. An appeal notice was filed by Corrections, clarifying that the department granted some of the request as it related to existing and nonexempt materials. The department also clarified that it had not made a final decision to deny the request but rather issued notice that it required a good-faith deposit to fulfill the request, or at least to begin processing it.
The plaintiff also sued over what it determined was an unreasonably high cost of the request, and that an estimate did not include a percentage multiplier required to account for benefits. The organization further attested that there was a question of fact as to whether MDOC had implemented statutorily required FOIA policies and procedures.
In an opinion released this month, Yates said that public bodies may require a good-faith deposit from a requestor if the entire fee is estimated to exceed $50, and that estimates may be based on a good-faith calculation of the total fee. That said, the deposit cannot exceed 50 percent of that estimated cost.
As to the debate over MDOC's policies, Yates wrote that the department instituted FOIA policies in line with the statute through a policy directive issued in 2016. The policies outlined to the plaintiffs, including the fee estimates and required good-faith deposit, complied with the statute, Yates added.
Further, the statute says when a public body makes no final determination of whether to deny or grant a records request because the requestor has not made payment on a required deposit, the person or group making the request cannot sue to enforce the request in question.
"The plaintiff did not pay the deposit, its feel appeal to the head of the agency was unsuccessful, and the plaintiff did not commence an action in this court to challenge the decision of the head of the agency to uphold the fee determination," Yates wrote. "Under these circumstances, MDOC was not required to make a final determination regarding the plaintiff's requests. This suit was initiated prior to a final determination of the plaintiff's request for public records. Accordingly, summary disposition must be granted to the MDOC.
Yates's order was final and closed the last pending claim in the case.
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