Bill Text: MI SB0246 | 2017-2018 | 99th Legislature | Introduced
Bill Title: Civil rights; public records; freedom of information act; designate as part 1 and add legislative open records act (LORA) as part 2. Amends secs. 1, 2 & 13 of 1976 PA 442 (MCL 15.231 et seq.) & adds pt. 2. TIE BAR WITH: SB 0247'17
Spectrum: Partisan Bill (Republican 1-0)
Status: (Introduced - Dead) 2017-03-15 - Referred To Committee On Government Operations [SB0246 Detail]
Download: Michigan-2017-SB0246-Introduced.html
SENATE BILL No. 246
March 15, 2017, Introduced by Senators SCHUITMAKER, JONES and O'BRIEN and referred to the Committee on Government Operations.
A bill to amend 1976 PA 442, entitled
"Freedom of information act,"
by amending sections 1, 2, and 13 (MCL 15.231, 15.232, and 15.243),
section 1 as amended by 1997 PA 6, section 2 as amended by 1996 PA
553, and section 13 as amended by 2006 PA 482, by designating part
1, and by adding part 2.
THE PEOPLE OF THE STATE OF MICHIGAN ENACT:
PART 1
Sec. 1. (1) This act may be cited as the "freedom of
information and legislative open records act", and this part shall
be known and may be cited as the "freedom of information act".
(2) It is the public policy of this state that all persons,
except those persons incarcerated in state or local correctional
facilities, are entitled to full and complete information regarding
the affairs of government and the official acts of those who
represent them as public officials and public employees, consistent
with this act. The people shall be informed so that they may fully
participate in the democratic process.
Sec.
2. As used in this act:part:
(a) "Field name" means the label or identification of an
element
of a computer data base database
that contains a specific
item of information, and includes but is not limited to a subject
heading such as a column header, data dictionary, or record layout.
(b) "FOIA coordinator" means either of the following:
(i) An individual who is a public body.
(ii) An individual designated by a public body in accordance
with section 6 to accept and process requests for public records
under this act.
(c) "Person" means an individual, corporation, limited
liability company, partnership, firm, organization, association,
governmental entity, or other legal entity. Person does not include
an individual serving a sentence of imprisonment in a state or
county correctional facility in this state or any other state, or
in a federal correctional facility.
(d) "Public body" means any of the following:
(i) A state officer, employee, agency, department, division,
bureau, board, commission, council, authority, or other body in the
executive
branch of the state government. , but does not include
the
governor or lieutenant governor, the executive office of the
governor
or lieutenant governor, or employees thereof.
(ii) An agency, board, commission, or council in the
legislative
branch of the state government.
(ii) (iii) A county,
city, township, village, intercounty,
intercity, or regional governing body, council, school district,
special district, or municipal corporation, or a board, department,
commission, council, or agency thereof.
(iii) (iv) Any
other body which that is created by state or
local
authority or which that is primarily funded by or through
state
or local authority, .
(v) The except
that it does not include the judiciary,
including the office of the county clerk and employees thereof when
acting
in the capacity of clerk to the circuit court, is not
included
in the definition of public body.or
an entity in the
legislative branch of state government.
(e) "Public record" means a writing prepared, owned, used, in
the possession of, or retained by a public body in the performance
of an official function, from the time it is created. Public record
does not include computer software. This act separates public
records into the following 2 classes:
(i) Those that are exempt from disclosure under section 13.
(ii) All public records that are not exempt from disclosure
under
section 13 and which that are subject to disclosure under
this act.
(f) "Software" means a set of statements or instructions that
when incorporated in a machine usable medium is capable of causing
a machine or device having information processing capabilities to
indicate, perform, or achieve a particular function, task, or
result. Software does not include computer-stored information or
data, or a field name if disclosure of that field name does not
violate a software license.
(g) "Unusual circumstances" means any 1 or a combination of
the following, but only to the extent necessary for the proper
processing of a request:
(i) The need to search for, collect, or appropriately examine
or review a voluminous amount of separate and distinct public
records pursuant to a single request.
(ii) The need to collect the requested public records from
numerous
field offices, facilities, or other establishments which
that are located apart from the particular office receiving or
processing the request.
(h) "Writing" means handwriting, typewriting, printing,
photostating, photographing, photocopying, and every other means of
recording, and includes letters, words, pictures, sounds, or
symbols, or combinations thereof, and papers, maps, magnetic or
paper tapes, photographic films or prints, microfilm, microfiche,
magnetic or punched cards, discs, drums, or other means of
recording or retaining meaningful content.
(i) "Written request" means a writing that asks for
information, and includes a writing transmitted by facsimile,
electronic mail, or other electronic means.
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. For purposes of this subdivision, "public body"
includes a public body as defined in part 2.
(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 history, arts, and
libraries
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, 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, and domestic preparedness
strategies, 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) Records or information in the possession of the executive
office of the governor or lieutenant governor or of an employee of
either of those offices that relates to any of the following:
(i) The appointment of an individual as a department or agency
director; as a member of a board, commission, or council; to fill a
vacancy on a court pursuant to section 23 of article VI of the
state constitution of 1963; or to any other position the governor
appoints as provided by law. After an individual has been appointed
to a position described in this subparagraph, the exemption does
not apply to records or information that relates to that individual
except as to a letter of recommendation or reference.
(ii) The decision to remove or suspend from office any public
official pursuant to section 10 of article V of the state
constitution of 1963, or to remove a judge from office pursuant to
section 25 of article VI of the state constitution of 1963. After
an individual has been removed or suspended from a position
described in this subparagraph, the exemption for records and
information under this subparagraph does not apply to a record that
relates to that individual.
(iii) The decision to grant or deny a reprieve, pardon, or
commutation pursuant to section 14 of article V of the state
constitution of 1963.
(iv) A budget recommendation prepared pursuant to section 18
of article V of the state constitution of 1963.
(v) A reduction in expenditures pursuant to section 20 of
article V of the state constitution of 1963.
(vi) A message or recommendation to the legislature pursuant
to section 17 of article V of the state constitution of 1963.
(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 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.
PART 2
Sec. 51. (1) This part shall be known and may be cited as the
"legislative open records act".
(2) It is the public policy of this state that all persons,
except those persons incarcerated in state or local correctional
facilities, are entitled to full and complete information regarding
the affairs of government and the official acts of those who
represent them as public officials and public employees, consistent
with this part. The people shall be informed so that they may fully
participate in the democratic process.
Sec. 52. As used in this part:
(a) "Council administrator" means the administrator of the
legislative council appointed under section 104a of the legislative
council act, 1986 PA 268, MCL 4.1104a.
(b) "Legislator" means a member of the senate or the house of
representatives of this state.
(c) "LORA" means the legislative open records act.
(d) "LORA coordinator" means either of the following:
(i) An individual who is a public body.
(ii) An individual designated by a public body to accept and
process requests for public records under this part.
(e) "Person" means an individual, corporation, limited
liability company, partnership, firm, organization, association,
governmental entity, or other legal entity. Person does not include
an individual serving a sentence of imprisonment in a state or
county correctional facility in this state or any other state or in
a federal correctional facility.
(f) "Public body" means a state officer, legislator, employee,
agency, department, division, bureau, board, commission, committee,
council, authority, or other body in the legislative branch of the
state government. Public body does not include the office of the
auditor general.
(g) "Public record" means a writing prepared, owned, used, in
the possession of, or retained by a public body in the performance
of an official function that has been in the possession of the
public body for 15 days or more. Public record does not include
computer software. This part separates public records into the
following 2 classes:
(i) Those that are exempt from disclosure under section 59d.
(ii) Those that are not exempt from disclosure under section
59d and are subject to disclosure under this part.
(h) "Session day" means a day in which either the house of
representatives or the senate convenes in session and a quorum of
the body is recorded.
(i) "Software" means a set of statements or instructions that,
when incorporated in a machine-usable medium, is capable of causing
a machine or device having information-processing capabilities to
indicate, perform, or achieve a particular function, task, or
result. Software does not include computer-stored information or
data or a field name if disclosure of that field name would not
violate a software license.
(j) "Unusual circumstances" means any 1 or a combination of
the following, but only to the extent necessary for the proper
processing of a request:
(i) The need to search for, collect, or appropriately examine
or review a voluminous amount of separate and distinct public
records pursuant to a single request.
(ii) The need to collect the requested public records from
numerous offices, facilities, or other establishments.
(k) "Writing" means handwriting, typewriting, printing,
photostating, photographing, photocopying, and every other means of
recording, and includes letters, words, pictures, sounds, or
symbols, or combinations thereof, and papers, maps, magnetic or
paper tapes, photographic films or prints, microfilm, microfiche,
magnetic or punched cards, discs, drums, or other means of
recording or retaining meaningful content.
(l) "Written request" means a writing that asks for
information and includes a writing transmitted by facsimile,
electronic mail, or other electronic means.
Sec. 53. (1) Except as expressly provided in section 59d, upon
providing a public body's LORA coordinator with a written request
that describes a public record sufficiently to enable the public
body to find the public record, a person has a right to inspect,
copy, or receive copies of the requested public record of the
public body. A person has a right to subscribe to future issuances
of public records that are created, issued, or disseminated on a
regular basis. A subscription shall be valid for up to 6 months, at
the request of the subscriber, and is renewable. An employee of a
public body who receives a request for a public record shall
forward that request to the LORA coordinator within 3 business
days.
(2) A LORA coordinator shall keep a copy of all written
requests for public records on file for not less than 1 year.
(3) A public body shall furnish a requesting person a
reasonable opportunity for inspection and examination of its public
records and shall furnish reasonable facilities for making
memoranda or abstracts from its public records during the usual
business hours. A public body may make reasonable rules necessary
to protect its public records and to prevent excessive and
unreasonable interference with the discharge of its functions. A
public body shall protect public records from loss, unauthorized
alteration, mutilation, or destruction.
(4) This part does not require a public body to make a
compilation, summary, or report of information.
(5) This part does not require a public body to create a new
public record, except to the extent required by this part for the
furnishing of copies, or edited copies of an existing public record
under this part.
(6) The custodian of a public record shall, upon written
request, furnish a requesting person a certified copy of a public
record.
(7) A public body shall not destroy or alter a record before
the record has been in its possession for 15 days if the record
would become a public record after it has been in the possession of
the public body for 15 days.
Sec. 54. (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 59e. Except as otherwise provided in this part, if the
public body estimates or charges a fee in accordance with this
part, the total fee shall 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 59e. 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 59e, 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 59e 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
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 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
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 59e 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 shall 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 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. 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 59d.
(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, 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, 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 55(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 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 51 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 55(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 55(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 55(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.
Sec. 55. (1) Except as provided in section 53, to inspect or
receive a copy of a public record under this part, a person shall
submit a written request for the public record to the LORA
coordinator of the public body. A written request made by
facsimile, electronic mail, or other electronic transmission under
this part is not considered to be received by a public body's LORA
coordinator until 1 business day after the electronic transmission
is made. However, if a written request is sent by electronic mail
and delivered to the public body's spam or junk mail folder, the
request is not received until 1 day after the public body first
becomes aware of the written request. The public body shall note in
its records both the time a written request is delivered to its
spam or junk-mail folder and the time the public body first becomes
aware of that request.
(2) Unless otherwise agreed to in writing by the person making
the request, a public body shall respond to a request for a public
record within 5 business days after the public body receives the
request by doing 1 of the following:
(a) Granting the request.
(b) Issuing a written notice to the requesting person denying
the request.
(c) Granting the request in part and issuing a written notice
to the requesting person denying the request in part.
(d) Issuing a notice extending for not more than 10 business
days the time by which the public body must respond to the request.
A public body shall not issue more than 1 notice of extension for
each request.
(3) Failure to respond to a request pursuant to subsection (2)
constitutes a public body's final determination to deny the request
if either of the following applies:
(a) The failure was willful and intentional.
(b) 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 to this part, on the front of an
envelope or in the subject line of an electronic mail, letter, or
facsimile cover page.
(4) A written notice denying a request for a public record in
whole or in part is a public body's final determination to deny the
request or portion of that request. The written notice shall
contain all of the following:
(a) An explanation of the basis under this part or other
statute for the determination that the public record, or portion of
that public record, is exempt from disclosure, if that is the
reason for denying all or a portion of the request.
(b) A certificate that the public record does not exist under
the name given by the requester or by another name reasonably known
to the public body, if that is the reason for denying the request
or a portion of the request.
(c) A description of a public record or information on a
public record that is separated or deleted pursuant to section 59e,
if a separation or deletion is made.
(d) A full explanation of the requesting person's right to do
either of the following:
(i) Submit a written request for reconsideration to the public
body's LORA coordinator that specifically states the word
"reconsideration", "appeal", "redetermination", or "reverse" and
identifies the reason or reasons for reversal of the disclosure
denial.
(ii) Seek final review of the denial under section 59a.
(5) The individual designated under sections 56 to 58 as a
LORA coordinator or under section 59 as a LORA coordinator designee
shall sign the written notice of denial.
(6) If a public body issues a notice extending the period for
a response to the request, the notice shall specify the reasons for
the extension and the date by which the public body will do 1 of
the following:
(a) Grant the request.
(b) Issue a written notice to the requesting person denying
the request.
(c) Grant the request in part and issue a written notice to
the requesting person denying the request in part.
(7) If a public body makes a final determination to deny in
whole or in part a request to inspect or receive a copy of a public
record or portion of a public record, the requesting person may
seek reconsideration or appeal of the denial as provided in section
59a.
Sec. 56. Subject to sections 57 and 58, the council
administrator shall designate an individual as the LORA coordinator
for all public bodies.
Sec. 57. The house of representatives may designate an
individual as the LORA coordinator for the house of
representatives.
Sec. 58. The senate may designate an individual as the LORA
coordinator for the senate.
Sec. 59. A LORA coordinator may designate another individual
to act on his or her behalf in accepting and processing requests
for the public body's public records and in approving a denial
under section 55.
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.
Sec. 59c. (1) This part shall not be construed to limit,
modify, waive, or otherwise affect the privileges and immunities
guaranteed under section 11 of article IV of the state constitution
of 1963.
(2) This part does not create or imply a private cause of
action for a violation of this part.
Sec. 59d. (1) A public body may exempt from disclosure as a
public record under this part any of the following:
(a) Records or information of a personal nature if public
disclosure of the information would constitute a clearly
unwarranted invasion of an individual's privacy. That information
includes, but is not limited to, the following:
(i) An individual's social security number, financial
institution record, electronic fund number, deferred compensation,
savings bonds, W-2 and W-4 forms, and any court-enforced judgments.
(ii) An employee's health care benefit selection.
(iii) Unemployment compensation and worker's disability
compensation records.
(iv) Internet-use records.
(b) 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.
(c) Communications, including any related records or
information, between a legislator or a legislator's office and a
constituent, other than a person required to be registered as a
lobbyist under 1978 PA 472, MCL 4.411 to 4.431. For purposes of
this subdivision, "constituent" means any of the following:
(i) An individual who is registered to vote in the district
the legislator is elected to represent.
(ii) An individual who is a resident of the district the
legislator is elected to represent and who is not registered to
vote outside of that district.
(d) 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
determination of policy or action. For purposes of this
subdivision, "public body" includes a public body as defined in
part 1.
(e) Records or information pertaining to an ongoing internal
or legislative investigation.
(f) Trade secrets or commercial or financial records or
information voluntarily provided in confidence for use in
developing governmental policy.
(g) Records or information subject to the attorney-client
privilege or any other privilege recognized by the constitution,
statute, court rule, or rules adopted by a house of the
legislature.
(h) Records or information relating to a civil action in which
the public body is a party until such litigation or claim has been
finally adjudicated or otherwise settled.
(i) Records or information specifically described and exempted
from disclosure by statute and including the records and
information subject to confidentiality requirements in sections
109, 501, and 601 of the legislative council act, 1986 PA 268, MCL
4.1109, 4.1501, and 4.1601, and in section 9 of 1975 PA 46, MCL
4.359.
(j) 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.
(k) Records of the office of sergeant at arms.
(l) Records of a public body's security measures, including
security plans, capabilities, procedures, measures, passwords,
passes, keys, and codes and combinations.
(m) 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.
(n) Records that would do any of the following if disclosed:
(i) Interfere with law enforcement proceedings.
(ii) Deprive a person of the right to a fair trial or
impartial administrative adjudication.
(iii) Disclose the identity of a confidential source or
information furnished by a confidential source in the course of a
legislative investigation.
(iv) Endanger the life or physical safety of any individual.
(v) Prejudice a public body's ability to maintain the security
or integrity of its properties or information technology systems.
(o) Records created, prepared, owned, used, in the possession
of, or retained by a public body prior to January 1, 2019.
(p) Records in the sole custody of, or exclusively maintained
by, the majority and minority caucuses of each house of the
legislature.
(2) This part does not authorize the exemption from disclosure
of any salary record of an employee or official of a public body.
(3) This part does not authorize the exemption from disclosure
of a record otherwise required by law to be made available to the
public.
Sec. 59e. (1) If a public record contains material that is not
exempt under section 59d, as well as material that is exempt from
disclosure under section 59d, the public body shall separate the
exempt and nonexempt material and make the nonexempt material
available for examination and copying.
(2) When designing a public record, a public body shall, to
the extent practicable, facilitate a separation of exempt from
nonexempt information. If the separation is readily apparent to a
person requesting to inspect or receive copies of the form, the
public body shall generally describe the material exempted unless
that description would reveal the contents of the exempt
information and thus defeat the purpose of the exemption.
Sec. 59f. The attorney general shall counsel and advise a
public body on the administration of this part upon request.
Enacting section 1. This amendatory act takes effect January
1, 2019.
Enacting section 2. This amendatory act does not take effect
unless Senate Bill No. 247
of the 99th Legislature is enacted into law.
