HB5473, As Passed House, Sep, 21, 2016

 

 

 

 

 

 

 

 

 

 

SUBSTITUTE FOR

 

HOUSE BILL NO. 5473

 

 

 

 

 

 

 

 

 

 

 

     A bill to amend 1976 PA 442, entitled

 

"Freedom of information act,"

 

(MCL 15.231 to 15.246) by adding sections 59a and 59b.

 

THE PEOPLE OF THE STATE OF MICHIGAN ENACT:

 

     Sec. 59a. (1) If a public body makes a final determination to

 

deny all or a portion of a request, the requesting person may do

 

any of the following:

 

     (a) Submit to the public body's LORA coordinator a written

 

request for reconsideration that specifically states the word

 

"reconsideration", "appeal", "redetermination", or "reverse", and

 

identifies the reason or reasons for reversal of the denial.

 

     (b) Submit to the council administrator a written request to

 

compel the public body's disclosure of the public records within

 

180 days after a public body's final determination to deny a

 

request. A request shall not be submitted under this subdivision

unless 1 of the following applies:

 

     (i) The public body's LORA coordinator failed to respond to a

 

written request for reconsideration as required under subsection

 

(2).

 

     (ii) The public body's LORA coordinator issued a determination

 

to a written request for reconsideration as required under

 

subsection (2).

 

     (2) Within 10 business days after receiving a written request

 

for reconsideration pursuant to subsection (1)(a), the public

 

body's LORA coordinator shall do 1 of the following:

 

     (a) Reverse the disclosure denial.

 

     (b) Issue a written notice to the requesting person upholding

 

the disclosure denial.

 

     (c) Reverse the disclosure denial in part and issue a written

 

notice to the requesting person upholding the disclosure denial in

 

part.

 

     (d) Under unusual circumstances, issue a notice extending for

 

not more than 10 business days the period during which the public

 

body's LORA coordinator shall respond to the written request for

 

reconsideration. The public body's LORA coordinator shall not issue

 

more than 1 notice of extension for a particular written request

 

for reconsideration.

 

     (3) The public body's LORA coordinator is not considered to

 

have received a written request for reconsideration under

 

subsection (2) until the first scheduled session day following

 

submission of the written request under subsection (1)(a). If the

 

public body's LORA coordinator fails to respond to a written

request for reconsideration pursuant to subsection (2), or if

 

public body's LORA coordinator upholds all or a portion of the

 

disclosure denial that is the subject of the written request, the

 

requesting person may seek final review of the nondisclosure by

 

submitting an appeal to the council administrator under subsection

 

(1)(b).

 

     (4) In an appeal commenced under subsection (1)(b), if the

 

council administrator determines that a public record is not exempt

 

from disclosure, the public body must cease withholding or produce

 

all or a portion of a public record wrongfully withheld, regardless

 

of the location of the public record.

 

     (5) An appeal commenced under subsection (1)(b) shall be

 

reviewed and decided by the council administrator at the earliest

 

practicable date and expedited in every way.

 

     (6) The council administrator may require a reasonable fee,

 

not to exceed $75.00, for an appeal commenced under subsection

 

(1)(b) unless the requesting person is eligible for a fee waiver or

 

reduction under section 54 because of indigence.

 

     (7) If the council administrator determines in an appeal

 

commenced under this section that the public body has arbitrarily

 

and capriciously violated this part by refusal of a public record

 

or delay in disclosing or providing copies, the council

 

administrator shall recommend appropriate disciplinary action to

 

the speaker of the house of representatives or the senate majority

 

leader, as applicable. The council administrator shall make any

 

recommendation for disciplinary action under this subsection

 

publicly available on the Internet not later than 5 days after the

recommendation is issued.

 

     Sec. 59b. (1) If a public body requires a fee that exceeds the

 

amount permitted under its publicly available procedures and

 

guidelines or section 54, the requesting person may do any of the

 

following:

 

     (a) Submit to the public body's LORA coordinator a written

 

request for a fee reduction that specifically states the word

 

"reconsideration", "appeal", "redetermination", or "reverse", and

 

identifies how the required fee exceeds the amount permitted under

 

the public body's available procedures and guidelines or section

 

54.

 

     (b) Submit to the council administrator a written request for

 

a fee reduction within 45 days after receiving either a notice of

 

the required fee or a determination of a request for

 

reconsideration. A request shall not be submitted under this

 

subdivision unless 1 of the following applies:

 

     (i) The public body's LORA coordinator failed to respond to a

 

written request for a fee reduction as required under subsection

 

(2).

 

     (ii) The public body's LORA coordinator issued a determination

 

upon a written request for a fee reduction as required under

 

subsection (2).

 

     (2) Within 10 business days after receiving a written request

 

for a fee reduction pursuant to subsection (1)(a), the public

 

body's LORA coordinator shall do 1 of the following:

 

     (a) Waive the fee.

 

     (b) Reduce the fee and issue a written determination to the

requesting person indicating the specific basis under section 54

 

that supports the remaining fee. The determination shall include a

 

certification from the public body's LORA coordinator that the

 

statements in the determination are accurate and that the reduced

 

fee amount complies with its publicly available procedures and

 

guidelines and section 54.

 

     (c) Uphold the fee and issue a written determination to the

 

requesting person indicating the specific basis under section 54

 

that supports the required fee. The determination shall include a

 

certification from the public body's LORA coordinator that the

 

statements in the determination are accurate and that the fee

 

amount complies with the public body's publicly available

 

procedures and guidelines and section 54.

 

     (d) Issue a notice extending for not more than 10 business

 

days the period during which the public body's LORA coordinator

 

must respond to the written request for a fee reduction. The public

 

body's LORA coordinator shall not issue more than 1 notice of

 

extension for a particular written request for a fee reduction.

 

     (3) The public body's LORA coordinator is not considered to

 

have received a written request for reconsideration under

 

subsection (2) until the first scheduled session day following

 

submission of the written request under subsection (1)(a).

 

     (4) If, in an appeal commenced under subsection (1)(b), the

 

council administrator determines that the public body required a

 

fee that exceeds the amount permitted under its publicly available

 

procedures and guidelines or section 54, the public body shall

 

reduce the fee to a permissible amount.

     (5) An appeal commenced under subsection (1)(b) shall be

 

reviewed and decided by the council administrator at the earliest

 

practicable date and expedited in every way.

 

     (6) The council administrator may require a reasonable fee,

 

not to exceed $50.00, for an appeal commenced under subsection

 

(1)(b) unless the requesting person is eligible for a fee waiver or

 

reduction under section 54 because of indigence. If the requesting

 

person prevails in an appeal commenced under subsection (1)(b) by

 

receiving a reduction of 50% or more of the total fee, the council

 

administrator shall waive the fee required under this subsection.

 

     (7) If the council administrator determines in an appeal

 

commenced under this section that the public body has arbitrarily

 

and capriciously violated this part by charging an excessive fee,

 

the council administrator shall recommend appropriate disciplinary

 

action to the speaker of the house of representatives or the

 

majority leader of the senate, as applicable. The council

 

administrator shall make any recommendation for disciplinary action

 

under this subsection publicly available on the Internet not later

 

than 5 days after the recommendation is issued.

 

     (8) As used in this section, "fee" means the total fee or any

 

component of the total fee calculated under section 54, including

 

any deposit.

 

     Enacting section 1. This amendatory act takes effect January

 

1, 2017.

 

     Enacting section 2. This amendatory act does not take effect

 

unless Senate Bill No.____ or House Bill No.____ (request no.

 

05429'16) of the 98th Legislature is enacted into law.