Bill Text: MI HB5797 | 2017-2018 | 99th Legislature | Engrossed
Bill Title: Civil rights; public records; identity of parties proceeding anonymously in civil actions alleging sexual misconduct; exempt from disclosure under freedom of information act. Amends sec. 13 of 1976 PA 442 (MCL 15.243).
Spectrum: Partisan Bill (Democrat 1-0)
Status: (Engrossed - Dead) 2018-06-07 - Referred To Committee Of The Whole [HB5797 Detail]
Download: Michigan-2017-HB5797-Engrossed.html
HB-5797, As Passed House, May 24, 2018
SUBSTITUTE FOR
HOUSE BILL NO. 5797
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.
(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 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 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) Information that would reveal the identity of a party who
proceeds anonymously in a civil action in which the party alleges
that he or she was the victim of sexual misconduct. As used in this
subdivision, "sexual misconduct" means the conduct described in
section 90, 136, 145a, 145b, 145c, 520b, 520c, 520d, 520e, or 520g
of the Michigan penal code, 1931 PA 328, MCL 750.90, 750.136,
750.145a, 750.145b, 750.145c, 750.520b, 750.520c, 750.520d,
750.520e, and 750.520g, regardless of whether the conduct resulted
in a criminal conviction.
(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 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.
