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VILLAGE OF NASHVILLE

                              FREEDOM OF INFORMATION ACT (FOIA) POLICY

 

Preamble:  Statement of Principles

 

It is the policy of the Village of Nashville that all persons, except those who are serving a sentence of imprisonment, consistent with the Michigan Freedom of Information Act (FOIA), are entitled to full and complete information regarding the affairs of government and the officials acts of those who represent them as public officials and employees. The people shall be informed so that they fully participate in the democratic process.

 

The Village of Nashville’s policy with respect to FOIA requests is to comply with State law in all respects and to respond to FOIA requests in a consistent, fair, and even-handed manner regardless of who makes such a request.

 

The Village of Nashville acknowledges that it has a legal obligation to disclose all nonexempt public records in its possession pursuant to a FOIA request. The Village of Nashville acknowledges that sometimes it is necessary to invoke the exemptions identified under FOIA in order to ensure the effective operation of government and to protect the privacy of individuals.

 

The Village of Nashville will protect the public’s interest in disclosure, while balancing the requirement to withhold or redact portions of certain records. The Village of Nashville’s policy is to disclose public records consistent with and in compliance with State law.

 

Section 1: General Policies

 

The Village Council acting pursuant to the authority at MCL 15.236 designates the Village Clerk as the FOIA Coordinator. He or she is authorized to accept and process written requests for the Village’s public records and approve denials.

 

If a request for a public record is received by facsimile or e-mail, the request is deemed to have been received on the following business day. If a request is sent by e-mail and delivered to the Village spam or junk-mail folder, the request is not deemed received until one day after the FOIA Coordinator first becomes aware of the request. The FOIA Coordinator shall note in the FOIA log both the date the request was delivered to the spam or junk-mail folder and the date the FOIA Coordinator became aware of the request.

 

The FOIA Coordinator may, in his or her discretion, implement administrative rules, consistent with State law and the FOIA Policy to administer the acceptance and processing of FOIA requests.

 

The Village is not obligated to create a new public record or make a compilation or summary of information which does not already exist. Neither the FOIA Coordinator nor other village staff is obligated to provide answers to questions contained in requests for public records or regarding the content of the records themselves.

 

The FOIA Coordinator shall keep a copy of all written requests for public records received by the Village on file for a period of at least one year.

 

Section 2: Requesting a Public Record


A person requesting to inspect or obtain copies of public records prepared, owned, used, possessed or retained by the Village of Nashville must do so in writing. The request must sufficiently describe a public record so as to enable Village personnel to identify and find the requested public record.

 

No specific form to submit a request for a public record is required. However the FOIA Coordinator may make available a FOIA Request Form for use by the public.

 

Written requests for public records may be submitted in person or by mail to the Village Office. Requests may also be submitted electronically by facsimile and e-mail. Upon their receipt, requests for public records shall be promptly forwarded to the FOIA Coordinator for processing.

 

A person may request that public records be provided on non-paper physical media electronically mailed or other otherwise provided to him or her in lieu of paper copies. The Village will comply with the request only if it possesses the necessary technological capability to provide records in the requested non-paper physical media format.

 

A person who makes a verbal, non-written request for information believed to be available on the Village’s website, where practicable and to the best ability of the employee receiving the request, shall be informed of the pertinent website address.

 

A person serving a sentence of imprisonment in a local, state or federal correctional facility is not entitled to submit a request for a public record. The FOIA Coordinator will deny all such requests.

 

Section 3: Processing a Request

 

Unless otherwise agreed to in writing by the person making the request, within 5 business days of receipt of a FOIA request the Village will issue a response. If a request is received by facsimile, e-mail or other electronic transmission, the request is deemed to have been received on the following business day. The Village will respond to the request in one of the following ways:

 

·         Grant the request.

·         Issue a written notice denying the request.

·         Grant the request in part and issue a written notice denying in part the request.

·         Issue a notice indicating that due to the nature of the request the Village needs an additional 10 business days to respond. Only one such extension is permitted.

·         Issue a written notice indicating that the public record requested is available at no charge on the Village’s website.

 

If the request is granted, or granted in part, the FOIA Coordinator will require that payment be made in full for the allowable fees associated with responding to the request before the public record is made available. The FOIA Coordinator shall provide a detailed itemization of the allowable costs incurred to process the request to the person making the request. A copy of the FOIA Policy shall be provided to the requestor with the response to a written request for public records, provided however, that if the FOIA Policy, and its Written Public Summary are maintained on the Village’s website, then a website link to those documents may be provided in lieu of providing paper copies.

 

If the cost of processing a FOIA request is $50 or less, the requestor will be notified of the amount due and where the documents can be obtained.

 

If based on a good faith calculation by the Village, the cost of processing a FOIA request is expected to exceed $50, or if the requestor has not fully paid for a previously granted request, the Village will require a good-faith deposit before processing the request. In making the request for a good-faith deposit the FOIA Coordinator shall provide the requestor with a detailed itemization of the allowable costs estimated to be incurred by the Village to process the request and also provide a best efforts estimate of a time frame it will take the Village to provide the records to the requestor. The best efforts estimate shall be nonbinding on the Village, but will be made in good faith and will strive to be reasonably accurate, given the nature of the request in the particular instance, so as to provide the requested records in a manner based on the public policy expressed by Section 1 of the FOIA Policy.

 

If the request is denied or denied in part, the FOIA Coordinator will issue a Notice of Denial which shall provide in the applicable circumstance:

 

·         An explanation as to why a requested  public record is exempt from disclosure; or

·         A certificated that the requested record does not exist under the name or description provided by the requestor, or another name reasonably known by the Village; or

·         An explanation or description of the public record or information within a public record that is separated or deleted from the public record; and

·         And explanation of the person’s right to submit an appeal of the denial to either the Village President or seek judicial review in the Barry County Circuit Court; and

·         An explanation of the right to receive attorney’s fees, costs, and disbursements as well actual or compensatory damages, and punitive damages of $1000, should they prevail in Circuit Court.

·         The Notice of Denial shall be signed by the FOIA Coordinator.

 

If a request does not sufficiently describe a public record, the FOIA Coordinator may, in lieu of issuing a Notice of Denial indicating that the request is deficient, seek clarification of amendment of the request by the person making the request. Any clarification or amendment will be considered a new request subject to the timelines described in this Section.

 

The Village shall provide reasonable facilities and opportunities for persons to examine and inspect public records during normal business hours. The FOIA Coordinator is authorized to promulgate rules regulating the manner in which records may be viewed so as to protect Village records from loss, alteration, mutilation or destruction and to prevent excessive interference with normal Village operations.

 

The FOIA Coordinator shall, upon written request, furnish a certified copy of a public record at no additional cost to the person requesting the public record.

 

Section 4: Fee Deposits

 

If the fee estimate is expected to exceed $50 based on a good-faith calculation by the Village, the requestor will be asked to provide a deposit not exceeding one-half of the total estimated fee.

 

If a request for public records is from a person who has not fully paid the Village for copies of public records made in fulfillment of a previously granted written request, the FOIA Coordinator will require a deposit of 100% of the estimated processing fee before beginning to search for a public record for any subsequent written request by the person when all of the following conditions exist:

 

·         The public records made available contained the information sought in the prior written request and remain in the Village’s possession;

·         The public records were made available to the individual, subject to payment, within the time frame estimated by the Village to provide the records;

·         The individual is unable to show proof of prior payment to the Village; and

·         The FOIA Coordinator has calculated a detailed itemization that is the basis for the current written request’s increase estimated fee deposit.

 

The FOIA Coordinator will not require an increased estimated fee deposit if any of the following apply:

 

·         The person making the request is able to show proof of prior payment in full to the Villages;

·         The Village is subsequently paid in full for the applicable prior written request; or

·         365 days have passed since the person made the request for which full payment was not remitted to the Village.

 

 

 

Section 5: Calculation of Fees

 

A fee will not be charged for the cost of search, examination, review and the deletion and separation of exempt from nonexempt information unless failure to charge a fee would result in unreasonably high costs to the Village because of the nature of the request in the particular instance, and the Village specifically identifies the nature of the unreasonably high costs.

 

The following factors shall be used to determine an unreasonably high cost to the Village:

 

·         The particular request incurs costs greater than incurred from the typical or usual request received by the Village.

·         Volume of the public record requested.

·         The amount of time spent to search for, examine, review and separate exempt from non-exempt information in the record requested exceeds 30 minutes.

·         Whether public records from more than one Village department is necessary to respond to the request.

·         The available staffing to respond to the request.

·         Any other similar factors identified by the FOIA Coordinator in responding to the particular request.

 

The Village may charge for the following costs associated with processing a FOIA request:

 

·         Labor costs directly associated with searching for, locating and examining a requested public record.

·         Labor costs associated with a review of a record to separate and delete information exempt from disclosure of information which is disclosed.

·         The actual cost of computer discs, computer tapes or other digital or similar media.

·         The cost of duplication of publication, not including labor, of paper copies of public records.

·         The cost of labor associated with duplication or publication, including making paper copies, making digital copies or transferring digital public records to non-paper physical media or through the Internet or other electronic means.

·         The actual cost of mailing or sending a public record.

 

Labor costs will be calculated based on the following requirements:

 

·         All labor costs will be estimated and charged in 15 minute increments with all partial time increments rounded down.

·         Labor costs will be charged at the hourly wage of the lowest-paid full-time Village employee capable of doing the work in the specific fee category, regardless of who actually performs the work.

 

The cost to provide records on non-paper physical media when so requested will be based on the following requirements:

 

·         Computer disks, computer tapes or other digital or similar media will be at the actual and most reasonably economical cost for the non-paper media.

·         This cost will only be assessed if the Village has the technological capability necessary to provide the public record in the requested non-paper physical media format.

·         In order to ensure the integrity and security of the Village’s technological infrastructure, the Village will procure any requested non-paper media and will not accept non-paper media from the requestor.

 

The cost to provide paper copies of records will be based on the following requirements:

 

·         Paper copies of public records made on standard letter (8 ½ x 11) or legal (8 ½ x 14) sized paper will not exceed $.10 per sheet of paper. Copies for non-standard sized sheets of paper will reflect the actual cost of reproduction.

·         The Village may provide records using double-sided printing, if cost-saving and available.

 

The cost to mail records to a requestor will be based on the following requirements:

 

·         The actual cost to mail public records using a reasonably economical and justified means.

·         The Village may charge for the least expensive form of postal delivery confirmation.

·         No cost will be made for expedited shipping or insurance unless requested.

 

If the FOIA Coordinator does not respond to a written request in a timely manner, the following shall be required:

 

·         Reduce the labor costs by 5% for each day the Village exceeds the time permitted under FOIA up to a 50% maximum reduction, if any of the  following applies:

o   The late response was willful and intentional.

o   The written request, within the first 250 words of the body of the letter, facsimile, e-mail or e-mail attachment conveyed a request for information.

o   The written request included the words, characters, or abbreviations for “freedom of information”, “information”, “FOIA”, “copy” or a recognizable misspelling of such, or legal code reference to MCL 15.231 et seq or 1976 Public Act 442 on the front of an envelope or in the subject line of an e-mail, letter or facsimile cover page.

·         Fully note the charge reduction in the Detailed Itemization of Costs Form

 

 

 

 

Section 6: Waiver of Fees

 

The cost of the search for and copying of a public record may be waived or reduced if in the sole judgment of the FOIA Coordinator a waiver or reduced fee is in the public interest because such can be considered as primarily benefitting the general public.

 

The FOIA Coordinator will waive the first $20.00 of the processing fee for a request if the person requesting a public record submits an affidavit stating that they are:

 

·         Indigent and receiving specific public assistance; or

·         If not receiving public assistance stating facts demonstrating an inability to pay because of indigency.

 

An individual is not eligible to receive the waiver if:

 

·         The requestor has previously received discounted copies of public records from the Village twice during the calendar year; or

·         The requestor requests information in connection with other persons who are offering or providing payment to make the request.

 

An affidavit is a sworn statement. The FOIA Coordinator may make a Fee Waiver Affidavit Form available for use by the Public.

 

Section 7: Appeal of a Denial of a Public Record

 

When a requestor believes that all or a portion of a public record has not been disclosed or has been improperly exempted from disclosure, he or she may file an appeal of the denial with the Village Council. The appeal must be in writing, specifically state the word “appeal”: and identify the reason or reasons the requestor is seeking a reversal of the denial.  

 

Within 10 business days of receiving the appeal the Council will respond in writing by:

 (The council is not considered to have received a written appeal of either a denial or a fee amount until its first regularly scheduled meeting following the submission of the appeal. It then has 10 business days to respond to the appeal.)

 

 

·         Reversing the disclosure denial;

·         Upholding the disclosure denial; or

·         Reverse the disclosure denial in part and uphold the disclosure denial in part.

·         Under unusual circumstances, such as the need to examine or review a voluminous amount of separate and distinct public records or the need to collect the requested records from numerous facilities located apart from the office receiving or processing the request, the council may issue not more than 1 notice of extension for not more than 10 business days to respond to the appeal.

 

Whether or not a requestor submitted an appeal of a denial to the Village Council, he or she may file a civil action in Barry County Circuit Court within 180 days after the Village’s final determination to deny the request.

 

If the court determines that the public record is not exempt from disclosure, the court will award the appellant reasonable attorney’s fees, cost and disbursements. If the court determines that the appellant prevails only in part, the court in its discretion may award all or an appropriate portion of reasonable attorney’s fees, costs and disbursements.

 

If the court determines that the Village arbitrarily and capriciously violated the FOIA by refusing or delaying the disclosure of copies of a public record, it shall award the appellant punitive damages in the amount of $1,000.

 

Section 8: Appeal of an Excessive FOIA Processing Fee

 

If a requestor believes that the fee charged by the Village to process a FOIA request exceeds the amount permitted by the state law, he or she must first submit a written appeal for a fee reduction to the Village Council. The appeal must be in writing, specifically state the word “appeal” and identify how the required fee exceeds the amount permitted.

 

With 10 business days after receiving the appeal, the Village Council will respond in writing by: (The council is not considered to have received a written appeal of either a denial or a fee amount until its first regularly scheduled meeting following the submission of the appeal. It then has 10 business days to respond to the appeal.)

 

  • Waiver the fee;
  • Reduce the fee and issue a written determination indicating the specific basis that supports the remaining fee, accompanied by a certification by the Council that the statements in the determination are accurate and the reduced fee amounts complies with the FOIA Policy and Section 4 of the FOIA;
  • Uphold the fee and issue a written determination indicating the specific basis under Section 4 of the FOIA that supports the required fee, accompanied by a certification by the Council that the statements in the determination are accurate and the fee amount complies with the FOIA Policy and Section 4 of the FOIA; or
  • Issue a notice detailing the reason or reasons for extending for not more than 10 business days the period during which the Council will respond to the written appeal.

 

Within 45 days of receiving noticed of the Council’s determination of a fee appeal, a requestor may commence a civil action in Barry County Circuit Court for a fee reduction. If a civil action is filed appealing the fee, the Village is not obligated to process the request for the public record until the Court resolves the fee dispute.

 

If the court determines that the Village required a fee that exceeds the amount permitted, it shall reduce the fee to a permissible amount. If the appellant in the civil action prevails by receiving a reduction of 50% or more of the total fee, the court may award all or appropriate amount of reasonable attorney’s fees, costs and disbursements.

 

IF the court determines that Nashville has acted arbitrarily and capriciously by charging an excessive fee, the court shall also award the appellant punitive damages in the amount of $500.

 

Section 9: Conflict with Prior FOIA Policies and Procedures; Effective Date

 

To the extent that the FOIA Policy conflicts with pervious FOIA Policies promulgated by the Village Council this FOIA Policy are controlling. To the extent that any administrative rule promulgated by the FOIA Coordinator subsequent to the adoption of this resolution is found to be in conflict with any previous policy promulgated by the Village Council, the administrative rule promulgated by the FOIA Coordinator is controlling.

 

To the extent that any provision of this FOIA Policy or any administrative rule promulgated by the FOIA Coordinator pertaining to the release of public records is found to be in conflict with any State statute, the applicable statute shall control. The FOIA Coordinator is authorized to modify this policy and all previous policies adopted  by the Village Council and to adopt such administrative rules as he or she may deem necessary, to facilitate the legal review and processing of requests for public records made pursuant to Michigan’s FOIA statute, provided that such modifications and rules are consistent with State law. The FOIA Coordinator shall inform the Village Council on any change to the FOIA Policy.

 

This FOIA Policy becomes effective June 1, 2015.