HB-4013, As Passed House, March 19, 2019

 

 

 

 

 

 

 

 

 

 

 

 

SUBSTITUTE FOR

 

HOUSE BILL NO. 4013

 

 

 

 

 

 

 

 

 

 

 

     A bill to amend 1976 PA 442, entitled

 

"Freedom of information act,"

 

(MCL 15.231 to 15.246) by adding section 24.

 

THE PEOPLE OF THE STATE OF MICHIGAN ENACT:

 

     Sec. 24. (1) A public body may charge a fee for a public

 

record search, for the necessary copying of a public record for

 

inspection, or for providing a copy of a public record if it has

 

established, makes publicly available, and follows procedures and

 

guidelines to implement this section as described in subsection

 

(4). Subject to subsections (2), (3), (4), (5), and (9), the fee

 

must be limited to actual mailing costs and to the actual

 

incremental cost of duplication or publication, including labor,

 

the cost of search, examination, review, and the deletion and

 

separation of exempt from nonexempt information as provided in

 

section 29e. Except as otherwise provided in this part, if the

 

public body estimates or charges a fee in accordance with this

 

part, the total fee must not exceed the sum of the following:

 

     (a) That portion of labor costs directly associated with the

 

necessary searching for, locating, and examining of public records

 

in conjunction with receiving and fulfilling a granted written

 

request. The public body shall not charge more than the hourly wage

 

of its lowest-paid employee capable of searching for, locating, and

 

examining the public records in the particular instance regardless

 

of whether that person is available or who actually performs the

 

labor. Labor costs under this subdivision shall be estimated and

 

charged in increments of 15 minutes or more, with all partial time

 

increments rounded down.

 

     (b) That portion of labor costs, including necessary review,

 

if any, directly associated with the separating and deleting of

 

exempt information from nonexempt information as provided in

 

section 29e. For services performed by an employee of the public

 

body, the public body shall not charge more than the hourly wage of

 

its lowest-paid employee capable of separating and deleting exempt

 

information from nonexempt information in the particular instance

 

as provided in section 29e, regardless of whether that person is

 

available or who actually performs the labor. Labor costs under

 

this subdivision shall be estimated and charged in increments of 15

 

minutes or more, with all partial time increments rounded down. A

 

public body shall not charge for labor directly associated with

 

redaction under section 29e if it knows or has reason to know that

 

it previously redacted the public record in question and the

redacted version is still in the public body's possession.

 

     (c) For public records provided to the requestor on nonpaper

 

physical media, the actual and most reasonably economical cost of

 

the computer discs, computer tapes, or other digital or similar

 

media. The requestor may stipulate that the public records be

 

provided on nonpaper physical media, electronically mailed, or

 

otherwise electronically provided to him or her in lieu of paper

 

copies. This subdivision does not apply if a public body lacks the

 

technological capability necessary to provide records on the

 

particular nonpaper physical media stipulated in the particular

 

instance.

 

     (d) For paper copies of public records provided to the

 

requestor, the actual total incremental cost of necessary

 

duplication or publication, not including labor. The cost of paper

 

copies shall be calculated as a total cost per sheet of paper and

 

shall be itemized and noted in a manner that expresses both the

 

cost per sheet and the number of sheets provided. The fee must not

 

exceed 10 cents per sheet of paper for copies of public records

 

made on 8-1/2- by 11-inch paper or 8-1/2- by 14-inch paper. A

 

public body shall utilize the most economical means available for

 

making copies of public records, including using double-sided

 

printing, if cost saving and available.

 

     (e) The cost of labor directly associated with duplication or

 

publication, including making paper copies, making digital copies,

 

or transferring digital public records to be given to the requestor

 

on nonpaper physical media or through the internet or other

 

electronic means as stipulated by the requestor. The public body

shall not charge more than the hourly wage of its lowest-paid

 

employee capable of necessary duplication or publication in the

 

particular instance, regardless of whether that person is available

 

or who actually performs the labor. Labor costs under this

 

subdivision may be estimated and charged in time increments of the

 

public body's choosing. However, all partial time increments shall

 

be rounded down.

 

     (f) The actual cost of mailing, if any, for sending the public

 

records in a reasonably economical and justifiable manner. The

 

public body shall not charge more for expedited shipping or

 

insurance unless specifically stipulated by the requestor, but may

 

otherwise charge for the least expensive form of postal delivery

 

confirmation when mailing public records.

 

     (2) When calculating labor costs under subsection (1)(a), (b),

 

or (e), fee components shall be itemized in a manner that expresses

 

both the hourly wage and the number of hours charged. The public

 

body may also add up to 50% to the applicable labor charge amount

 

to cover or partially cover the cost of fringe benefits if it

 

clearly notes the percentage multiplier used to account for

 

benefits in the detailed itemization described in subsection (4).

 

Subject to the 50% limitation, the public body shall not charge

 

more than the actual cost of fringe benefits, and overtime wages

 

shall not be used in calculating the cost of fringe benefits.

 

Overtime wages shall not be included in the calculation of labor

 

costs unless overtime is specifically stipulated by the requestor

 

and clearly noted on the detailed itemization described in

 

subsection (4). A search for a public record may be conducted or

copies of public records may be furnished without charge or at a

 

reduced charge if the public body determines that a waiver or

 

reduction of the fee is in the public interest because searching

 

for or furnishing copies of the public record can be considered as

 

primarily benefiting the general public. A public record search

 

shall be made and a copy of a public record shall be furnished

 

without charge for the first $20.00 of the fee for each request by

 

either of the following:

 

     (a) An individual who is entitled to information under this

 

part and who submits an affidavit stating that the individual is

 

indigent and receiving specific public assistance or, if not

 

receiving public assistance, stating facts showing inability to pay

 

the cost because of indigency. If the requestor is eligible for a

 

requested discount, the public body shall fully note the discount

 

on the detailed itemization described under subsection (4). If a

 

requestor is ineligible for the discount, the public body shall

 

inform the requestor specifically of the reason for ineligibility

 

in the public body's written response. An individual is ineligible

 

for this fee reduction if any of the following apply:

 

     (i) The individual has previously received discounted copies

 

of public records under this subsection from the public body twice

 

during that calendar year.

 

     (ii) The individual requests the information in conjunction

 

with outside parties who are offering or providing payment or other

 

remuneration to the individual to make the request. A public body

 

may require a statement by the requestor in the affidavit that the

 

request is not being made in conjunction with outside parties in

exchange for payment or other remuneration.

 

     (b) A nonprofit organization formally designated by the state

 

to carry out activities under subtitle C of the developmental

 

disabilities assistance and bill of rights act of 2000, Public Law

 

106-402, and the protection and advocacy for mentally ill

 

individuals act of 1986, Public Law 99-319, or their successors, if

 

the request meets all of the following requirements:

 

     (i) Is made directly on behalf of the organization or its

 

clients.

 

     (ii) Is made for a reason wholly consistent with the mission

 

and provisions of those laws under section 931 of the mental health

 

code, 1974 PA 258, MCL 330.1931.

 

     (iii) Is accompanied by documentation of its designation by

 

this state, if requested by the public body.

 

     (3) A fee as described in subsection (1) shall not be charged

 

for the cost of search, examination, review, and the deletion and

 

separation of exempt from nonexempt information as provided in

 

section 29e unless failure to charge a fee would result in

 

unreasonably high costs to the public body because of the nature of

 

the request in the particular instance and the public body

 

specifically identifies the nature of these unreasonably high

 

costs.

 

     (4) A public body shall establish procedures and guidelines to

 

implement this part and shall create a written public summary of

 

the specific procedures and guidelines relevant to the general

 

public regarding how to submit written requests to the public body

 

and explaining how to understand a public body's written responses,

deposit requirements, fee calculations, and avenues for challenge

 

and appeal. The written public summary shall be written in a manner

 

so as to be easily understood by the general public. A public body

 

shall post and maintain the procedures and guidelines and its

 

written public summary on its website. A public body shall make the

 

procedures and guidelines publicly available by providing free

 

copies of the procedures and guidelines and its written public

 

summary both in the public body's response to a written request and

 

upon request by visitors at the public body's office. A public body

 

may include the website link to the documents in lieu of providing

 

paper copies in its response to a written request. A public body's

 

procedures and guidelines must include the use of a standard form

 

for detailed itemization of any fee amount in its responses to

 

written requests under this part. The detailed itemization must

 

clearly list and explain the allowable charges for each of the 6

 

fee components listed under subsection (1) that compose the total

 

fee used for estimating or charging purposes. A public body that

 

has not established procedures and guidelines, has not created a

 

written public summary, or has not made those items publicly

 

available without charge as required in this subsection is not

 

relieved of its duty to comply with any requirement of this part

 

and shall not require deposits or charge fees otherwise permitted

 

under this part until it is in compliance with this subsection.

 

Notwithstanding this subsection and despite any law to the

 

contrary, a public body's procedures and guidelines under this part

 

are not exempt public records under section 29d.

 

     (5) Any public records available to the general public on a

public body's internet site at the time the request is made are

 

exempt from charge under subsection (1)(b). If the LORA coordinator

 

knows or has reason to know that all or a portion of the requested

 

information is available on its website, the public body shall

 

notify the requestor in its written response that all or a portion

 

of the requested information is available on its website. The

 

written response, to the degree practicable in the specific

 

instance, must include a specific webpage address where the

 

requested information is available. On the detailed itemization

 

described in subsection (4), the public body shall separate the

 

requested public records that are available on its website from

 

those that are not available on the website and shall inform the

 

requestor of the additional charge to receive copies of the public

 

records that are available on its website. If the public body has

 

included the website address for a record in its written response

 

to the requestor and the requestor thereafter stipulates that the

 

public record be provided to him or her in a paper format or other

 

form as described under subsection (1)(c), the public body shall

 

provide the public records in the specified format but may use a

 

fringe benefit multiplier greater than the 50% limitation in

 

subsection (2), not to exceed the actual costs of providing the

 

information in the specified format.

 

     (6) A public body may provide requested information available

 

in public records without receipt of a written request.

 

     (7) If a verbal request for information is for information

 

that a public body believes is available on the public body's

 

website, a public employee shall, if practicable and to the best of

the public employee's knowledge, inform the requestor about the

 

public body's pertinent website address.

 

     (8) In either the public body's initial response or subsequent

 

response as described under section 25(2)(d), the public body may

 

require a good-faith deposit from the person requesting information

 

before providing the public records to the requestor if the entire

 

fee estimate or charge authorized under this section exceeds

 

$50.00, based on a good-faith calculation of the total fee

 

described in subsection (4). Subject to subsection (10), the

 

deposit must not exceed 1/2 of the total estimated fee, and a

 

public body's request for a deposit must include a detailed

 

itemization as required under subsection (4). The response must

 

also contain a best efforts estimate by the public body regarding

 

the time frame it will take the public body to comply with the law

 

in providing the public records to the requestor. The time frame

 

estimate is nonbinding upon the public body, but the public body

 

shall provide the estimate in good faith and strive to be

 

reasonably accurate and to provide the public records in a manner

 

based on this state's public policy under section 21 and the nature

 

of the request in the particular instance. If a public body does

 

not respond in a timely manner as described under section 25(2), it

 

is not relieved from its requirements to provide proper fee

 

calculations and time frame estimates in any tardy responses.

 

Providing an estimated time frame does not relieve a public body

 

from any of the other requirements of this part.

 

     (9) If a public body does not respond to a written request in

 

a timely manner as required under section 25(2), the public body

shall do the following:

 

     (a) Reduce the charges for labor costs otherwise permitted

 

under this section by 5% for each day the public body exceeds the

 

time permitted under section 25(2) for a response to the request,

 

with a maximum 50% reduction, if either of the following applies:

 

     (i) The late response was willful and intentional.

 

     (ii) The written request included language that conveyed a

 

request for information within the first 250 words of the body of a

 

letter, facsimile, electronic mail, or electronic mail attachment,

 

or specifically included the words, characters, or abbreviations

 

for "freedom of information", "open records", "information",

 

"LORA", "copy", or a recognizable misspelling of such, or

 

appropriate legal code reference for this part, on the front of an

 

envelope or in the subject line of an electronic mail, a letter, or

 

a facsimile cover page.

 

     (b) If a charge reduction is required under subdivision (a),

 

fully note the charge reduction on the detailed itemization

 

described under subsection (4).

 

     (10) This section does not apply to public records prepared

 

under an act or statute specifically authorizing the sale of those

 

public records to the public, or if the amount of the fee for

 

providing a copy of the public record is otherwise specifically

 

provided by an act or statute.

 

     (11) Subject to subsection (12), after a public body has

 

granted and fulfilled a written request from an individual under

 

this part, if the public body has not been paid in full the total

 

amount under subsection (1) for the copies of public records that

the public body made available to the individual as a result of

 

that written request, the public body may require a deposit of up

 

to 100% of the estimated fee before it begins a full public record

 

search for any subsequent written request from that individual if

 

all of the following apply:

 

     (a) The final fee for the prior written request was not more

 

than 105% of the estimated fee.

 

     (b) The public records made available contained the

 

information being sought in the prior written request and are still

 

in the public body's possession.

 

     (c) The public records were made available to the individual,

 

subject to payment, within the time frame estimate described under

 

subsection (8).

 

     (d) Ninety days have passed since the public body notified the

 

individual in writing that the public records were available for

 

pickup or mailing.

 

     (e) The individual is unable to show proof of prior payment to

 

the public body.

 

     (f) The public body calculates a detailed itemization, as

 

required under subsection (4), that is the basis for the current

 

written request's increased estimated fee deposit.

 

     (12) A public body shall not continue to require an increased

 

estimated fee deposit from an individual as described under

 

subsection (11) if any of the following apply:

 

     (a) The individual shows to the public body proof of prior

 

payment in full for the applicable prior request.

 

     (b) The public body receives payment in full for the

applicable prior written request.

 

     (c) Three hundred sixty-five days have passed since the

 

individual made the written request for which full payment was not

 

remitted to the public body.

 

     (13) A deposit required by a public body under this part is a

 

fee.

 

     (14) If a deposit that is required under subsection (8) or

 

(11) is not received by the public body within 45 days from receipt

 

by the requesting person of the notice that a deposit is required,

 

and if the requesting person has not filed an appeal of the deposit

 

amount pursuant to section 29b, the request shall be considered

 

abandoned by the requesting person and the public body is no longer

 

required to fulfill the request. Notice of a deposit requirement

 

under subsection (8) or (11) is considered received 3 days after it

 

is sent, regardless of the means of transmission. Notice of a

 

deposit requirement under subsection (8) or (11) must include

 

notice of the date by which the deposit must be received, which

 

date is 48 days after the date the notice is sent.

 

     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.