Bill Text: MI HB5733 | 2017-2018 | 99th Legislature | Introduced

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Bill Title: Civil rights; public records; deadline for providing public records under the freedom of information act; modify. Amends sec. 4 of 1976 PA 442 (MCL 15.234).

Spectrum: Partisan Bill (Republican 1-0)

Status: (Introduced - Dead) 2018-03-20 - Bill Electronically Reproduced 03/15/2018 [HB5733 Detail]

Download: Michigan-2017-HB5733-Introduced.html

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HOUSE BILL No. 5733

 

 

March 15, 2018, Introduced by Reps. Glenn and LaFave and referred to the Committee on Oversight.

 

     A bill to amend 1976 PA 442, entitled

 

"Freedom of information act,"

 

by amending section 4 (MCL 15.234), as amended by 2014 PA 563.

 

THE PEOPLE OF THE STATE OF MICHIGAN ENACT:

 

     Sec. 4. (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

 

shall 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 14. Except as otherwise provided in this act, if the public

 

body estimates or charges a fee in accordance with this act, the

 

total fee shall not exceed the sum of the following components:

 

     (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 14. 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 14, regardless of whether that person is

 

available or who actually performs the labor. If a public body does

 

not employ a person capable of separating and deleting exempt

 

information from nonexempt information in the particular instance

 

as provided in section 14 as determined by the public body's FOIA

 

coordinator on a case-by-case basis, it may treat necessary

contracted labor costs used for the separating and deleting of

 

exempt information from nonexempt information in the same manner as

 

employee labor costs when calculating charges under this

 

subdivision if it clearly notes the name of the contracted person

 

or firm on the detailed itemization described under subsection (4).

 

Total labor costs calculated under this subdivision for contracted

 

labor costs shall not exceed an amount equal to 6 times the state

 

minimum hourly wage rate determined under section 4 of the

 

workforce opportunity wage act, 2014 PA 138, MCL 408.411 to

 

408.424. 408.414. 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

 

14 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 shall 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

 

act 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 same 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 individuals with

 

mental illness act, 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

 

the 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 14 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 act 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. If the public

 

body directly or indirectly administers or maintains an official

 

internet presence, it 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 that posts and maintains procedures and

 

guidelines and its written public summary on its website 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 shall include the use of a standard form

 

for detailed itemization of any fee amount in its responses to

 

written requests under this act. The detailed itemization shall

 

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. Other public bodies

 

may use a form created by the department of technology, management,

 

and budget or create a form of their own that complies with this

 

subsection. 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 act and shall not require deposits or charge

 

fees otherwise permitted under this act 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 act are not exempt public records under section 13.

 

     (5) If the public body directly or indirectly administers or

 

maintains an official internet presence, any public records

 

available to the general public on that internet site at the time

 

the request is made are exempt from any charges under subsection

 

(1)(b). If the FOIA 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, shall 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, the public employee shall, where 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 5(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 shall not exceed 1/2 of the total estimated fee, and a

 

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

 

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

 

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 must not exceed 60 days, and, no matter the estimate, the

 

public body shall provide the public records to the requestor in

 

not more than 60 days. Subject to the 60-day limit described in

 

this subsection, an 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 1 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

 

5(2), it is not relieved from its requirements to provide proper

 

fee calculations and time frame estimates in any tardy responses or

 

from its requirement to provide the public records to the requestor

 

within 60 days. Providing an estimated time frame does not relieve

 

a public body from any of the other requirements of this act.

 

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

 

a timely manner as required under section 5(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 5(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", "information", "FOIA", "copy", or a

 

recognizable misspelling of such, or appropriate legal code

 

reference for this act, on the front of an envelope, or in the

 

subject line of an electronic mail, letter, or 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 act, 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 (7).(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 no longer require an increased

 

estimated fee deposit from an individual as described under

 

subsection (11) if any of the following apply:

 

     (a) The individual is able to show proof of prior payment in

 

full to the public body.

 

     (b) The public body is subsequently paid 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 act is a

 

fee.