Bill Text: MI HB4007 | 2019-2020 | 100th Legislature | Engrossed

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Bill Title: Civil rights: other; freedom of information act exemptions; modify. Amends sec. 13 of 1976 PA 442 (MCL 15.243). TIE BAR WITH: HB 4011'19

Spectrum: Bipartisan Bill

Status: (Engrossed - Dead) 2019-03-20 - Referred To Committee On Oversight [HB4007 Detail]

Download: Michigan-2019-HB4007-Engrossed.html

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HB-4007, As Passed House, March 19, 2019

 

 

 

 

 

 

 

 

 

 

 

 

SUBSTITUTE FOR

 

HOUSE BILL NO. 4007

 

 

 

 

 

 

 

 

 

 

 

 

     A bill to amend 1976 PA 442, entitled

 

"Freedom of information act,"

 

by amending section 13 (MCL 15.243), as amended by 2018 PA 68.

 

THE PEOPLE OF THE STATE OF MICHIGAN ENACT:

 

     Sec. 13. (1) A public body may exempt from disclosure as a

 

public record under this act any of the following:

 

     (a) Information of a personal nature if public disclosure of

 

the information would constitute a clearly unwarranted invasion of

 

an individual's privacy.

 

     (b) Investigating records compiled for law enforcement

 

purposes, but only to the extent that disclosure as a public record

 

would do any of the following:

 

     (i) Interfere with law enforcement proceedings.

 

     (ii) Deprive a person of the right to a fair trial or

impartial administrative adjudication.

 

     (iii) Constitute an unwarranted invasion of personal privacy.

 

     (iv) Disclose the identity of a confidential source, or if the

 

record is compiled by a law enforcement agency in the course of a

 

criminal investigation, disclose confidential information furnished

 

only by a confidential source.

 

     (v) Disclose law enforcement investigative techniques or

 

procedures.

 

     (vi) Endanger the life or physical safety of law enforcement

 

personnel.

 

     (c) A public record that if disclosed would prejudice a public

 

body's ability to maintain the physical security of custodial or

 

penal institutions occupied by persons arrested or convicted of a

 

crime or admitted because of a mental disability, unless the public

 

interest in disclosure under this act outweighs the public interest

 

in nondisclosure.

 

     (d) Records or information specifically described and exempted

 

from disclosure by statute.

 

     (e) A public record or information described in this section

 

that is furnished by the public body originally compiling,

 

preparing, or receiving the record or information to a public

 

officer or public body in connection with the performance of the

 

duties of that public officer or public body, if the considerations

 

originally giving rise to the exempt nature of the public record

 

remain applicable. For purposes of this subdivision, "public body"

 

includes a public body as defined in part 2.

 

     (f) Trade secrets or commercial or financial information

voluntarily provided to an agency for use in developing

 

governmental policy if:

 

     (i) The information is submitted upon a promise of

 

confidentiality by the public body.

 

     (ii) The promise of confidentiality is authorized by the chief

 

administrative officer of the public body or by an elected official

 

at the time the promise is made.

 

     (iii) A description of the information is recorded by the

 

public body within a reasonable time after it has been submitted,

 

maintained in a central place within the public body, and made

 

available to a person upon request. This subdivision does not apply

 

to information submitted as required by law or as a condition of

 

receiving a governmental contract, license, or other benefit.

 

     (g) Information or records subject to the attorney-client

 

privilege.

 

     (h) Information or records subject to the physician-patient

 

privilege, the psychologist-patient privilege, the minister,

 

priest, or Christian Science practitioner privilege, or other

 

privilege recognized by statute or court rule.

 

     (i) A bid or proposal by a person to enter into a contract or

 

agreement, until the time for the public opening of bids or

 

proposals, or if a public opening is not to be conducted, until the

 

deadline for submission of bids or proposals has expired.

 

     (j) Appraisals of real property to be acquired by the public

 

body until either of the following occurs:

 

     (i) An agreement is entered into.

 

     (ii) Three years have elapsed since the making of the

appraisal, unless litigation relative to the acquisition has not

 

yet terminated.

 

     (k) Test questions and answers, scoring keys, and other

 

examination instruments or data used to administer a license,

 

public employment, or academic examination, unless the public

 

interest in disclosure under this act outweighs the public interest

 

in nondisclosure.

 

     (l) Medical, counseling, or psychological facts or evaluations

 

concerning an individual if the individual's identity would be

 

revealed by a disclosure of those facts or evaluation, including

 

protected health information, as defined in 45 CFR 160.103.

 

     (m) Communications and notes within a public body or between

 

public bodies of an advisory nature to the extent that they cover

 

other than purely factual materials and are preliminary to a final

 

agency determination of policy or action. This As to the executive

 

office of the governor or lieutenant governor, this exemption does

 

not apply if in the particular instance the public interest in

 

disclosure clearly outweighs the public interest in encouraging

 

frank communications. As to all other public bodies, this exemption

 

does not apply unless the public body shows that in the particular

 

instance the public interest in encouraging frank communication

 

between officials and employees of public bodies clearly outweighs

 

the public interest in disclosure. This exemption does not

 

constitute an exemption under state law for purposes of section

 

8(h) of the open meetings act, 1976 PA 267, MCL 15.268. As used in

 

this subdivision, "determination of policy or action" includes a

 

determination relating to collective bargaining, unless the public

record is otherwise required to be made available under 1947 PA

 

336, MCL 423.201 to 423.217.

 

     (n) Records of law enforcement communication codes, or plans

 

for deployment of law enforcement personnel, that if disclosed

 

would prejudice a public body's ability to protect the public

 

safety unless the public interest in disclosure under this act

 

outweighs the public interest in nondisclosure in the particular

 

instance.

 

     (o) Information that would reveal the exact location of

 

archaeological sites. The department of natural resources may

 

promulgate rules in accordance with the administrative procedures

 

act of 1969, 1969 PA 306, MCL 24.201 to 24.328, to provide for the

 

disclosure of the location of archaeological sites for purposes

 

relating to the preservation or scientific examination of sites.

 

     (p) Testing data developed by a public body in determining

 

whether bidders' products meet the specifications for purchase of

 

those products by the public body, if disclosure of the data would

 

reveal that only 1 bidder has met the specifications. This

 

subdivision does not apply after 1 year has elapsed from the time

 

the public body completes the testing.

 

     (q) Academic transcripts of an institution of higher education

 

established under section 5, 6, or 7 of article VIII of the state

 

constitution of 1963, if the transcript pertains to a student who

 

is delinquent in the payment of financial obligations to the

 

institution.

 

     (r) Records of a campaign committee including a committee that

 

receives money from a state campaign fund.

     (s) Unless the public interest in disclosure outweighs the

 

public interest in nondisclosure in the particular instance, public

 

records of a law enforcement agency, the release of which would do

 

any of the following:

 

     (i) Identify or provide a means of identifying an informant.

 

     (ii) Identify or provide a means of identifying a law

 

enforcement undercover officer or agent or a plain clothes officer

 

as a law enforcement officer or agent.

 

     (iii) Disclose the personal address or telephone number of

 

active or retired law enforcement officers or agents or a special

 

skill that they may have.

 

     (iv) Disclose the name, address, or telephone numbers of

 

family members, relatives, children, or parents of active or

 

retired law enforcement officers or agents.

 

     (v) Disclose operational instructions for law enforcement

 

officers or agents.

 

     (vi) Reveal the contents of staff manuals provided for law

 

enforcement officers or agents.

 

     (vii) Endanger the life or safety of law enforcement officers

 

or agents or their families, relatives, children, parents, or those

 

who furnish information to law enforcement departments or agencies.

 

     (viii) Identify or provide a means of identifying a person as

 

a law enforcement officer, agent, or informant.

 

     (ix) Disclose personnel records of law enforcement agencies.

 

     (x) Identify or provide a means of identifying residences that

 

law enforcement agencies are requested to check in the absence of

 

their owners or tenants.

     (t) Except as otherwise provided in this subdivision, records

 

and information pertaining to an investigation or a compliance

 

conference conducted by the department under article 15 of the

 

public health code, 1978 PA 368, MCL 333.16101 to 333.18838, before

 

a complaint is issued. This subdivision does not apply to records

 

or information pertaining to 1 or more of the following:

 

     (i) The fact that an allegation has been received and an

 

investigation is being conducted, and the date the allegation was

 

received.

 

     (ii) The fact that an allegation was received by the

 

department; the fact that the department did not issue a complaint

 

for the allegation; and the fact that the allegation was dismissed.

 

     (u) Records of a public body's security measures, including

 

security plans, security codes and combinations, passwords, passes,

 

keys, and security procedures, to the extent that the records

 

relate to the ongoing security of the public body.

 

     (v) Records or information relating to a civil action in which

 

the requesting party and the public body are parties.

 

     (w) Information or records that would disclose the social

 

security Social Security number of an individual.

 

     (x) Except as otherwise provided in this subdivision, an

 

application for the position of president of an institution of

 

higher education established under section 4, 5, or 6 of article

 

VIII of the state constitution of 1963, materials submitted with

 

such an application, letters of recommendation or references

 

concerning an applicant, and records or information relating to the

 

process of searching for and selecting an individual for a position

described in this subdivision, if the records or information could

 

be used to identify a candidate for the position. However, after 1

 

or more individuals have been identified as finalists for a

 

position described in this subdivision, this subdivision does not

 

apply to a public record described in this subdivision, except a

 

letter of recommendation or reference, to the extent that the

 

public record relates to an individual identified as a finalist for

 

the position.

 

     (y) Records or information of measures designed to protect the

 

security or safety of persons or property, or the confidentiality,

 

integrity, or availability of information systems, whether public

 

or private, including, but not limited to, building, public works,

 

and public water supply designs to the extent that those designs

 

relate to the ongoing security measures of a public body,

 

capabilities and plans for responding to a violation of the

 

Michigan anti-terrorism act, chapter LXXXIII-A of the Michigan

 

penal code, 1931 PA 328, MCL 750.543a to 750.543z, emergency

 

response plans, risk planning documents, threat assessments,

 

domestic preparedness strategies, and cybersecurity plans,

 

assessments, or vulnerabilities, unless disclosure would not impair

 

a public body's ability to protect the security or safety of

 

persons or property or unless the public interest in disclosure

 

outweighs the public interest in nondisclosure in the particular

 

instance.

 

     (z) Information that would identify or provide a means of

 

identifying a person that may, as a result of disclosure of the

 

information, become a victim of a cybersecurity incident or that

would disclose a person's cybersecurity plans or cybersecurity-

 

related practices, procedures, methods, results, organizational

 

information system infrastructure, hardware, or software.

 

     (aa) Research data on road and attendant infrastructure

 

collected, measured, recorded, processed, or disseminated by a

 

public agency or private entity, or information about software or

 

hardware created or used by the private entity for such purposes.

 

     (bb) Records or information in the possession of the executive

 

office of the governor or lieutenant governor or of an employee of

 

either of those offices that relates to any of the following:

 

     (i) The appointment of an individual as a department or agency

 

director; as a member of a board, commission, or council; to fill a

 

vacancy on a court pursuant to section 23 of article VI of the

 

state constitution of 1963; or to any other position the governor

 

appoints as provided by law. After an individual has been appointed

 

to a position described in this subparagraph, the exemption does

 

not apply to records or information that relates to that individual

 

except as to a letter of recommendation or reference.

 

     (ii) The decision to remove or suspend from office any public

 

official pursuant to section 10 of article V of the state

 

constitution of 1963, or to remove a judge from office pursuant to

 

section 25 of article VI of the state constitution of 1963. After

 

an individual has been removed or suspended from a position

 

described in this subparagraph, the exemption for records and

 

information under this subparagraph does not apply to a record that

 

relates to that individual.

 

     (iii) The decision to grant or deny a reprieve, pardon, or

commutation pursuant to section 14 of article V of the state

 

constitution of 1963.

 

     (iv) A budget recommendation prepared pursuant to section 18

 

of article V of the state constitution of 1963.

 

     (v) A reduction in expenditures pursuant to section 20 of

 

article V of the state constitution of 1963.

 

     (vi) A message or recommendation to the legislature pursuant

 

to section 17 of article V of the state constitution of 1963.

 

     (vii) The executive residence described in section 24 of

 

article V of the state constitution of 1963.

 

     (cc) Information or records subject to executive privilege.

 

     (dd) Records created, prepared, owned, used, in the possession

 

of, or retained by the executive office of the governor or

 

lieutenant governor or an employee of either of those offices prior

 

to January 1, 2020.

 

     (ee) Communications, including any related records or

 

information, between the executive office of the governor or

 

lieutenant governor or any employee of either of those offices and

 

a constituent, other than a person who receives an appointment or

 

is employed by this state or a person required to be registered as

 

a lobbyist under 1978 PA 472, MCL 4.411 to 4.431. For purposes of

 

this subdivision, "constituent" means an individual who resides in

 

this state and who contacts the executive office of the governor or

 

lieutenant governor for assistance in personally obtaining

 

government services, to express a personal opinion, or for redress

 

of personal grievances.

 

     (ff) Records or information that if disclosed could materially

compromise or diminish the security of the governor or lieutenant

 

governor.

 

     (gg) The cell phone number of the governor or lieutenant

 

governor or an employee of the executive office of the governor or

 

lieutenant governor.

 

     (2) A public body shall exempt from disclosure information

 

that, if released, would prevent the public body from complying

 

with 20 USC 1232g, commonly referred to as the family educational

 

rights and privacy act of 1974. A public body that is a local or

 

intermediate school district or a public school academy shall

 

exempt from disclosure directory information, as defined by 20 USC

 

1232g, commonly referred to as the family educational rights and

 

privacy act of 1974, requested for the purpose of surveys,

 

marketing, or solicitation, unless that public body determines that

 

the use is consistent with the educational mission of the public

 

body and beneficial to the affected students. A public body that is

 

a local or intermediate school district or a public school academy

 

may take steps to ensure that directory information disclosed under

 

this subsection shall is not be used, rented, or sold for the

 

purpose of surveys, marketing, or solicitation. Before disclosing

 

the directory information, a public body that is a local or

 

intermediate school district or a public school academy may require

 

the requester to execute an affidavit stating that directory

 

information provided under this subsection shall will not be used,

 

rented, or sold for the purpose of surveys, marketing, or

 

solicitation.

 

     (3) This act does not authorize the withholding of information

otherwise required by law to be made available to the public or to

 

a party in a contested case under the administrative procedures act

 

of 1969, 1969 PA 306, MCL 24.201 to 24.328.

 

     (4) Except as otherwise exempt under subsection (1), this act

 

does not authorize the withholding of a public record in the

 

possession of the executive office of the governor or lieutenant

 

governor, or an employee of either executive office, if the public

 

record is transferred to the executive office of the governor or

 

lieutenant governor, or an employee of either executive office,

 

after a request for the public record has been received by a state

 

officer, employee, agency, department, division, bureau, board,

 

commission, council, authority, or other body in the executive

 

branch of government that is subject to this act.

 

     Enacting section 1. This amendatory act takes effect January

 

1, 2020.

 

     Enacting section 2. This amendatory act does not take effect

 

unless House Bill No. 4011 of the 100th Legislature is enacted into

 

law.