Bill Text: MI HB5470 | 2015-2016 | 98th Legislature | Engrossed
Bill Title: Civil rights; other; fee for public record search under legislative open records act (LORA); provide for. Amends 1976 PA 442 (MCL 15.231 - 15.246) by adding sec. 54. TIE BAR WITH: HB 5469'16
Spectrum: Bipartisan Bill
Status: (Introduced - Dead) 2016-10-18 - Referred To Committee On Government Operations [HB5470 Detail]
Download: Michigan-2015-HB5470-Engrossed.html
HB5470, As Passed House, Sep, 21, 2016
HOUSE BILL No. 5470
March 16, 2016, Introduced by Reps. Howrylak, McBroom, Moss, Chatfield, Webber, Kivela, Runestad, Plawecki, Dianda, Lane, Hoadley, Pagan, Chang, Rutledge, Irwin, Barrett, Somerville, LaVoy, Darany, Brinks, Hughes, LaGrand, Bizon, Glenn, Cox, Sarah Roberts, Hovey-Wright, Wittenberg, Townsend, Price, Tedder, Lyons, Hooker, Howell, Phelps and Lucido and referred to the Committee on Oversight and Ethics.
A bill to amend 1976 PA 442, entitled
"Freedom of information act,"
(MCL 15.231 to 15.246) by adding section 54.
THE PEOPLE OF THE STATE OF MICHIGAN ENACT:
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 (7).
(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.
Enacting section 1. This amendatory act takes effect January
1, 2017.
Enacting section 2. This amendatory act does not take effect
unless Senate Bill No.____ or House Bill No. 5469 (request no.
05429'16) of the 98th Legislature is enacted into law.
