HOUSE BILL NO. 5425

A bill to amend 1976 PA 442, entitled

"Freedom of information act,"

by amending sections 10b and 11 (MCL 15.240b and 15.241), section 10b as added by 2014 PA 563 and section 11 as amended by 2020 PA 37.

the people of the state of michigan enact:

Sec. 10b. (1) If Subject to subsection (2), in an action commenced under this act, if the court or commission determines , in an action commenced under this act, that a public body willfully and intentionally failed to comply with this act, or otherwise acted in bad faith or with gross negligence, the court or commission shall order the public body to pay, in addition to any other award or sanction, a civil fine of not less than $2,500.00 or more than $7,500.00 $25,000.00 for each occurrence. In determining the amount of the civil fine, the court or commission shall consider the budget of the public body, any endowment benefitting the public body, other economic factors affecting the public body's overall financial condition, and whether the public body has previously been assessed penalties for violations of this act. The civil fine shall must be deposited in the general fund of the state treasury.

(2) If a public body has been previously found to have violated this act within the past 2 years, minimum fines under subsection (1) must be as follows:

(a) For a second violation: $7,500.00.

(b) For a third violation: $10,000.00.

(c) For a fourth or subsequent violation: $15,000.00.

(3) In an action commenced under this act, if the court or commission determines that the public body has arbitrarily or capriciously violated this act, the court or commission shall order the public body to pay a civil fine of not less than $5,000.00 or more than $50,000.00, which must be deposited in the general fund of the state treasury. The court or commission may also award, in addition to any actual or compensatory damages, punitive damages in the amount of $5,000.00. The civil fine and any damages must not be assessed against an individual, but must be assessed against the next succeeding public body that is not an individual and that kept or maintained the requested public record as part of its public function. Fines described in this subsection are in addition to any other fines and costs permitted in this section. In determining the amount of the civil fine, the court or commission shall consider the budget of the public body, any endowment benefitting the public body, other economic factors affecting the public body's overall financial condition, and whether the public body has previously been assessed penalties for violations of this act. The civil fine must be deposited in the general fund of the state treasury.

(4) If a public body files a petition for an extension of time under section 5(11) and fails to obtain an extension, the public body must be fined $100.00 per day for each day beyond the date records were required to be produced under section 5(2). If the court or commission determines that the petition for an extension of time was arbitrary, capricious, or made in bad faith, the court or commission shall award fines as provided in subsections (1) and (2). In determining the amount of the civil fine, the court or commission shall consider the budget of the public body, any endowment benefitting the public body, other economic factors affecting the public body's overall financial condition, and whether the public body has previously been assessed penalties for violations of this act. The civil fine must be deposited in the general fund of the state treasury.

Sec. 11. (1) A state agency shall publish and make available to the public all of the following:

(a) Final orders or decisions in contested cases and the records on which they were made.

(b) Promulgated rules.

(c) Other written statements that implement or interpret laws, rules, or policy, including but not limited to guidelines, manuals, and forms with instructions, adopted or used by the agency in the discharge of its functions.

(2) Publications may be in electronic format or in pamphlet, loose-leaf, or other appropriate form in printed, mimeographed, or other written matter.

(3) Except to the extent that a person has actual and timely notice of the terms thereof, a person is not required to resort to, and shall must not be adversely affected by, a matter required to be published and made available, if the matter is not so published and made available.

(4) This section does not apply to public records that are exempt from disclosure under section 13.

(5) A person may commence an action in the court of claims or before the commission to compel a state agency to comply with this section. If the court or commission determines that the state agency has failed to comply, the court or commission shall order the state agency to comply and shall award reasonable attorneys' attorney fees, costs, and disbursements to the person commencing the action. The court of claims has exclusive jurisdiction to issue the order.

(6) If an attorney appeals a request filed by that attorney to a court or the commission and prevails as provided in subsection (5), that attorney is entitled to whatever fees and costs would be awarded if the attorney had represented a client in that appeal, including the attorney fees that would have been awarded for that representation.

(7) (6) As used in this section, "state agency", "contested case", and "rule" mean "agency", "contested case", and "rule" as those terms are defined in the administrative procedures act of 1969, 1969 PA 306, MCL 24.201 to 24.328.

Enacting section 1. This amendatory act does not take effect unless all of the following bills of the 102nd Legislature are enacted into law:

(a) Senate Bill No.____ or House Bill No. 5427 (request no. 04892'23).

(b) Senate Bill No.____ or House Bill No. 5426 (request no. 05111'23).

(c) Senate Bill No.____ or House Bill No. 5422 (request no. 05112'23).

(d) Senate Bill No.____ or House Bill No. 5424 (request no. 05114'23).

(e) Senate Bill No.____ or House Bill No. 5423 (request no. 05115'23).