HB 6300

HOUSE BILL NO. 6300
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 as the FOIA
coordinator for that county.
(c) The speaker of the house of representatives shall designate an
individual as the FOIA coordinator for the house of representatives.
(d) The 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 as 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 approve a 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 to accept and process requests
for the public body's public records, and in
approving approve 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 not later than 180 days after a the public
body's final determination to deny a request.
(2) Within Not later than 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 the 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 that 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 the public body's denial.
The court, on its the
court's 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 must 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 the court's discretion,
award all or an appropriate portion of reasonable attorneys'
attorney fees, costs, and disbursements.
The award shall must
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 that must 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 must not be assessed against an individual, but shall must 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 the public body's 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 the law enforcement agency's 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 individuals 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 or regulation.
(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, the
attorney work product privilege, or both.
(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) 8(1)(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 an individual 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 the 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, this subparagraph does not apply to
records or information that relate to that individual, except for records or
information that relate to the process undertaken to select that individual for
appointment, including, but not limited to, an application, letter of
recommendation, or letter of 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, section 33 of article VII of the state
constitution of 1963, or the Michigan election law, 1954 PA 116, MCL 168.1 to 168.992,
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 from a
position described in this subparagraph, 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 governor,
the lieutenant governor, the executive office of the governor or lieutenant
governor, or an employee of either of those offices before 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, unless
otherwise exempt from disclosure under this section, 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 or their family members.
(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 governor,
the lieutenant governor, the executive office of the governor or lieutenant
governor, or an employee of those offices for less than 30 days.
(j) Records
created or prepared by the governor, the lieutenant governor, an employee of
the executive office of the governor or lieutenant governor, a legislator, or
an employee of a state legislative public body as described in section 2(i)(ii), that relate to advice,
opinions, or recommendations about public policy or district work.
(3) In addition to the 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.
(c) Records or information relating to a civil action in which
the state legislative public body is a party until such litigation or claim has
been finally adjudicated or otherwise settled.
(d) Records
or information specifically described and exempted from disclosure by statute or
regulation 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.
(f) Records created, prepared, owned, used, in the possession of,
or retained by the state legislative public body for less than 30 days.
(g) Records
created, prepared, owned, used, in the possession of, or retained by the state
legislative public body before the effective date of the amendatory act that
added this subdivision.
(h) Records
created or prepared by the governor, the lieutenant governor, an employee of
the executive office of the governor or lieutenant governor, a legislator, or
an employee of the state legislative public body, that relate to advice,
opinions, or recommendations about public policy or district work.
(i) The personal
telephone numbers of any legislator or employee of the state legislative public
body.
(j) Records
or information related to the appointment of an individual to any position for
which the speaker of the house of representatives or senate majority leader
makes the appointment as provided by law. After an individual has been
appointed to a position described in this subdivision, the exemption does not
apply to records or information that relate to that individual except for
records or information that relate to the process undertaken to select that
individual for appointment, including, but not limited to, an application,
letter of recommendation, or letter of reference.
(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 House Bill No. 6299
(request no. H07693'26) of the 103rd Legislature is enacted into law.