Bill Text: MI SB0670 | 2023-2024 | 102nd Legislature | Introduced
Bill Title: Civil rights: public records; applicability of the freedom of information act to the legislature and governor's office; provide for. Amends secs. 6, 10 & 13 of 1976 PA 442 (MCL 15.236 et seq.) & adds sec. 14a. TIE BAR WITH: SB 0669'23
Spectrum: Bipartisan Bill
Status: (Introduced) 2024-03-14 - Referred To Committee Of The Whole With Substitute (s-1) [SB0670 Detail]
Download: Michigan-2023-SB0670-Introduced.html
SENATE BILL NO. 670
A bill to amend 1976 PA 442, entitled
"Freedom of information act,"
by amending sections 6, 10, and 13 (MCL 15.236, 15.240, and 15.243), section 6 as amended by 1996 PA 553, section 10 as amended by 2014 PA 563, and section 13 as amended by 2023 PA 64, and by adding section 14a.
the people of the state of michigan enact:
Sec. 6. (1) All of the following apply to the designation of a FOIA coordinator:
(a) A public body that is a city, village, township, county, or state department, or under the control of a city, village, township, county, or state department, shall designate an individual as the public body's FOIA coordinator.
(b) In a county not having an executive form of government, the chairperson of the county board of commissioners is designated the FOIA coordinator for that county.
(c) This state's speaker of the house of representatives shall designate an individual as the FOIA coordinator for the house of representatives.
(d) This state's senate majority leader shall designate an individual as the FOIA coordinator for the senate.
(e) For all other public bodies, the chief administrative officer of the respective public body is designated the public body's FOIA coordinator.
(2) The FOIA coordinator shall be responsible for accepting and processing accept and process requests for the public body's public records under this act and shall be responsible for approving a approve any denial under section 5(4) and (5). In a county not having an executive form of government, the chairperson of the county board of commissioners is designated the FOIA coordinator for that county.5(5) and (6).
(2) For all other public bodies, the chief administrative officer of the respective public body is designated the public body's FOIA coordinator.
(3) An A FOIA coordinator may designate another individual to act on his or her the FOIA coordinator's behalf in accepting and processing requests for the public body's public records, and in approving a denial under section 5(4) and (5).5(5) and (6).
Sec. 10. (1) If a public body makes a final determination to deny all or a portion of a request, the requesting person may do 1 either of the following: at his or her option:
(a) Submit to the head of the public body a written appeal that specifically states the word "appeal" and identifies the reason or reasons for reversal of the denial. For purposes of an appeal under this subdivision of a denial by a state legislative public body as described in section 2(i)(ii), the submission must be made to 1 of the following, as applicable:
(i) An individual designated by the speaker of the house of representatives to respond to appeals on behalf of the house of representatives.
(ii) An individual designated by the senate majority leader to respond to appeals on behalf of the senate.
(b) Commence a civil action in the circuit court, or if the decision of a state public body is at issue, the court of claims, to compel the public body's disclosure of the public records within 180 days after a the public body's final determination to deny a request.
(2) Within 10 business days after receiving a written appeal pursuant to subsection (1)(a), the head of a public body 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 head of the public body shall respond to the written appeal. The head of a public body shall not issue more than 1 notice of extension for a particular written appeal.
(3) A board or commission that is the head of a public body is not considered to have received a written appeal under subsection (2) until the first regularly scheduled meeting of that board or commission following submission of the written appeal under subsection (1)(a). If the head of the public body fails to respond to a written appeal pursuant to subsection (2), or if the head of the public body upholds all or a portion of the disclosure denial that is the subject of the written appeal, the requesting person may seek judicial review of the nondisclosure by commencing a civil action under subsection (1)(b).
(4) In an action commenced under subsection (1)(b), a court that determines a public record is not exempt from disclosure shall order the public body to cease withholding or to produce all or a portion of a public record wrongfully withheld, regardless of the location of the public record. Venue for an action against a local public body is proper in the circuit court for the county in which the public record or an office of the public body is located has venue over the action. The court shall determine the matter de novo and the burden is on the public body to sustain its denial. The court, on its own motion, may view the public record in controversy in private before reaching a decision. Failure to comply with an order of the court may be punished as contempt of court.
(5) An action commenced under this section and an appeal from an action commenced under this section shall be assigned for hearing and trial or for argument at the earliest practicable date and expedited in every way.
(6) If a person asserting the right to inspect, copy, or receive a copy of all or a portion of a public record prevails in an action commenced under this section, the court shall award reasonable attorneys' attorney fees, costs, and disbursements. If the person or public body prevails in part, the court may, in its discretion, award all or an appropriate portion of reasonable attorneys' attorney fees, costs, and disbursements. The award shall be assessed against the public body liable for damages under subsection (7).
(7) If the court determines in an action commenced under this section that the public body has arbitrarily and capriciously violated this act by refusal or delay in disclosing or providing copies of a public record, the court shall order the public body to pay a civil fine of $1,000.00, which shall be deposited into the general fund of the state treasury. The court shall award, in addition to any actual or compensatory damages, punitive damages in the amount of $1,000.00 to the person seeking the right to inspect or receive a copy of a public record. The damages shall not be assessed against an individual, but shall be assessed against the next succeeding public body that is not an individual and that kept or maintained the public record as part of its public function.
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.
(vii) Disclose the identity of a party who, as described in subdivision (cc), proceeds anonymously in a civil action in which the party alleges that the party was the victim of sexual misconduct. For the purpose of securing the party's anonymity, that party or the party's designee may provide written notification of the civil action and the party's wish to remain anonymous to any law enforcement agency that has investigating records subject to this subparagraph, and the law enforcement agency shall retain a copy of that notification in its files with those investigating records.
(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, or a state legislative public body as described in section 2(i)(ii), 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 As to the executive office of the governor or lieutenant governor, or a state legislative public body as described in section 2(i)(ii), this exemption does not apply if in the particular instance the public interest in disclosure clearly outweighs the public interest in encouraging frank communications. As to all other public bodies, 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) Records or information that would reveal the specific location or GPS coordinates of game, including, but not limited to, records or information of the specific location or GPS coordinates of game obtained by the department of natural resources during any restoration, management, or research project conducted under section 40501 of the natural resources and environmental protection act, 1994 PA 451, MCL 324.40501, or in connection with the expenditure of money under section 43553 of the natural resources and environmental protection act, 1994 PA 451, MCL 324.43553. As used in this subdivision, "game" means that term as defined in section 40103 of the natural resources and environmental protection act, 1994 PA 451, MCL 324.40103.
(cc) Information that would reveal the identity of a party who proceeds anonymously in a civil action in which the party alleges that the party 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) In addition to their grounds for exemption set forth in subsection (1), the executive office of the governor and lieutenant governor may exempt from disclosure as a public record under this act any of the following:
(a) 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.
(vii) The executive residence described in section 24 of article V of the state constitution of 1963.
(b) Information or records subject to executive privilege.
(c) Records created, prepared, owned, used, in the possession of, or retained by the executive office of the governor or lieutenant governor or an employee of either of those offices prior to the effective date of the amendatory act that added this subdivision.
(d) Communications, including any related records or information, between the executive office of the governor or lieutenant governor or any employee of either of those offices and a constituent, other than a person that receives an appointment or is employed by this state or 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 an individual who resides in this state and who contacts the executive office of the governor or lieutenant governor for assistance in personally obtaining government services, to express a personal opinion, or for redress of personal grievances.
(e) Records or information that could impact the security of the governor or lieutenant governor.
(f) The cellular telephone number of the governor or lieutenant governor or an employee of the executive office of the governor or lieutenant governor.
(g) Records or information pertaining to an internal investigation.
(h) Records or information relating to a civil action in which the executive office of the governor or lieutenant governor is a party until such litigation or claim has been finally adjudicated or otherwise settled.
(i) Records created, prepared, owned, used, in the possession of, or retained by the office of the governor or lieutenant governor or an employee of either of those offices for less than 30 days.
(3) In addition to its grounds for exemption set forth in subsection (1), a public body that is a state legislative public body as described in section 2(i)(ii) may exempt from disclosure as a public record under this act any of the following:
(a) 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.
(iii) An individual other than an individual described in subparagraph (i) or (ii) if it can be reasonably inferred that the individual intended that the communication be with the legislator elected to represent the district where the individual is registered to vote or, if not registered to vote, resides.
(b) Records or information pertaining to an internal or legislative investigation.
(d) 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, in section 9 of 2016 PA 198, MCL 4.779, and in section 9 of 1975 PA 46, MCL 4.359.
(e) Records of the office of sergeant at arms.
(g) Records created, prepared, owned, used, in the possession of, or retained by the state legislative public body prior to the effective date of the amendatory act that added this subdivision.
(h) Records created, prepared, owned, used, in the possession of, or retained by the majority or minority caucuses of each house of the legislature.
(i) The personal cellular telephone number of any legislator or employee of the state legislative public body.
(4) Subsection (3) does not authorize the exemption from disclosure of any salary record of an employee or official of a state legislative public body as described in section 2(i)(ii).
(5) (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 is not 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 requestor to execute an affidavit stating that directory information provided under this subsection will not be used, rented, or sold for the purpose of surveys, marketing, or solicitation.
(6) (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.
Sec. 14a. This act's application to a state legislative public body as described in section 2(i)(ii) must 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.
Enacting section 1. This amendatory act takes effect on January 1 of the first odd-numbered year that begins at least 6 months after the date it is enacted into law.
Enacting section 2. This amendatory act does not take effect unless Senate Bill No. 669 of the 102nd Legislature is enacted into law.
