Bill Text: MI HB4001 | 2013-2014 | 97th Legislature | Engrossed
Bill Title: Civil rights; public records; statewide standards for freedom of information act costs; modify. Amends secs. 4, 5 & 10 of 1976 PA 442 (MCL 15.234 et seq.).
Spectrum: Partisan Bill (Republican 1-0)
Status: (Passed) 2014-12-31 - Assigned Pa 563'14 With Immediate Effect 2014 Addenda [HB4001 Detail]
Download: Michigan-2013-HB4001-Engrossed.html
HB-4001, As Passed House, March 20, 2014
SUBSTITUTE FOR
HOUSE BILL NO. 4001
A bill to amend 1976 PA 442, entitled
"Freedom of information act,"
by amending sections 4, 5, 10, and 11 (MCL 15.234, 15.235, 15.240,
and 15.241), sections 4, 5, and 10 as amended by 1996 PA 553, and
by adding sections 10a and 10b.
THE PEOPLE OF THE STATE OF MICHIGAN ENACT:
Sec. 4. (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 (3) and (4), subdivisions (a) to (f),
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 14. Except as otherwise provided in this act, if the public
body estimates or charges a fee in accordance with this act, the
total fee shall not exceed the sum of the following components:
(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, which does not include the cost of benefits, 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 shall be itemized and noted in a manner that expresses both
the hourly wage rate used and the number of hours charged. Overtime
wages shall not be included in the calculation of the labor costs
under this subdivision unless overtime is specifically stipulated
by the requestor and thereafter fully noted on the detailed
itemization described under subsection (4). 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 14. The public body shall not charge more than the hourly
wage, which does not include the cost of benefits, of its lowest-
paid employee capable of separating and deleting exempt information
from nonexempt information in the particular instance as provided
in section 14, regardless of whether the person is available or who
actually performs the labor. Labor costs shall be itemized and
noted in a manner that expresses both the hourly wage rate used and
the number of hours charged. Overtime wages shall not be included
in the calculation of the labor costs under this subdivision unless
overtime is specifically stipulated by the requestor and thereafter
fully noted on the detailed itemization described under subsection
(4). Labor costs under this subdivision shall be estimated and
charged in increments of 15 minutes or more, with all partial time
increments rounded down. If a public body does not employ a person
capable of separating and deleting exempt information from
nonexempt information in the particular instance as provided in
section 14, it may treat necessary contracted labor costs used for
the separating and deleting of exempt information from nonexempt
information in the same manner as employee labor costs when
calculating charges under this subdivision if it clearly notes the
name and address of the contracted person or firm on the detailed
itemization described under subsection (4). Total labor costs
calculated under this subdivision for contracted labor costs shall
not exceed an amount equal to 6 times the state minimum hourly wage
rate determined under section 4 of the minimum wage law of 1964,
1964 PA 154, MCL 408.384. A public body shall not charge for
employee or contract labor directly associated with redaction under
section 14 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.
House Bill No. 4001 (H-6) as amended March 19, 2014
(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 public body may choose to accept nonpaper physical media
provided by the requestor to be used in conjunction with fulfilling
a request in lieu of charging the requestor for that 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 any nonpaper physical media.]
(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. The
state treasurer shall adjust the maximum per-sheet charge for
inflation based on the most comprehensive index of consumer prices
available for the Detroit area from the United States department of
labor, bureau of labor statistics. The adjustment shall be made in
January of 2020 and in January of every tenth year thereafter. A
public body shall utilize the most economical means available for
making copies of public records, including using double-sided
copying, where 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, which does not include
the cost of benefits, 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 shall be itemized and noted in a
manner that expresses both the hourly wage rate used and the number
of hours charged. However, total labor costs calculated under this
subdivision shall not exceed an amount equal to 3 times the state
minimum hourly wage rate determined under section 4 of the minimum
wage law of 1964, 1964 PA 154, MCL 408.384. Overtime wages shall
not be included in the calculation of labor costs unless
specifically stipulated by the requestor and fully noted on the
detailed itemization described under subsection (4). 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 postage, if any, for sending the public
records in a reasonably economical and justifiable manner. The
public body shall not use or charge for expedited shipping unless
specifically stipulated by the requestor, but may otherwise charge
for the least expensive form of postal delivery confirmation when
mailing public records.
(2) 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. The public body shall also
give due consideration as to whether or not to fulfill the written
request without charge or at a lower amount than it would
ordinarily charge, particularly in a situation dealing with public
safety and physical welfare. A public record search shall be made
and a copy of a public record shall be furnished without charge for
the
first $20.00 $50.00 of the fee for each request to an by either
of the following:
(a) An individual who is entitled to information under this
act and who submits an affidavit stating that the individual is
then
receiving 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 request is ineligible for the discount, the public body
will 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 same 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 the
state, if requested by the public body.
(2)
A public body may require at the time a request is made a
good
faith deposit from the person requesting the public record or
series
of public records, if the fee authorized under this section
exceeds
$50.00. The deposit shall not exceed 1/2 of the total fee.
(3)
In calculating the cost of labor incurred in duplication
and
mailing and the cost of examination, review, separation, and
deletion
under subsection (1), a public body may not charge more
than
the hourly wage of the lowest paid public body employee
capable
of retrieving the information necessary to comply with a
request
under this act. Fees shall be uniform and not dependent
upon
the identity of the requesting person. A public body shall
utilize
the most economical means available for making copies of
public
records. 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 14 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.
A public body shall establish and publish procedures and
guidelines
to implement this subsection.
(4) A public body shall establish procedures and guidelines to
implement this act 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 public body responses, 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. If the public body directly or
indirectly administers or maintains an official internet presence,
it 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
that posts and maintains procedures and guidelines and its written
public summary on its website 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 act. 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 them publicly available without charge as required in this
subsection is not relieved of its duty to comply with any
requirement of this act and shall not require deposits or charge
fees otherwise permitted under this act 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 act are not exempt public records under section 13.
(5) If the public body directly or indirectly administers or
maintains an official internet presence, any public records
available to the general public on that internet site at the time
the request is made are exempt from any charges under subsection
(1)(b). If the FOIA 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 charge for full labor costs and benefits under
subsection (1)(e).
(6) A public body may provide requested information available
in public records without receipt of a written request. If a verbal
request is for information that a public employee believes is
available on the public body's public website, the public employee
shall, where practicable and to the best of the public employee's
general ability, inform the requestor about the public body's
pertinent website addresses.
(7) In either the public body's initial response or subsequent
response as described under section 5(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
$100.00, 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 1 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 5(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 act.
(8) If a public body does not respond to a written request in
a timely manner as required under section 5(2), the public body
shall do the following:
(a) Reduce the charges for labor costs otherwise permitted
under section 4 by 10% for each day the public body exceeds the
time permitted under section 5(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 500 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", "information", "FOIA", "copy", or a
recognizable misspelling of such, or appropriate legal code
reference for this act, on the front of an envelope, or in the
subject line of an electronic mail, letter, or 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).
(9) (4)
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.
(10) Subject to subsection (11), after a public body has
granted and fulfilled a written request from an individual under
this act, if the public body has not been paid in full the total
amount under subsection (1)(a) to (f) 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 individual had agreed in writing to pay the fee after
he or she was presented with a detailed itemization of the total
estimated fee in the public body's prior response as required under
subsection (4).
(b) The final fee for the prior written request was not more
than 105% of the estimated fee.
(c) The public records made available contained the
information being sought in the prior written request and are still
in the public body's possession.
(d) The public records were made available to the individual,
subject to payment, within the time frame estimate described under
subsection (7).
(e) Ninety days have passed since the public body notified the
individual in writing that the public records were available for
pickup or mailing.
(f) The individual is unable to show proof of prior payment to
the public body.
(g) 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.
(11) A public body shall no longer require an increased
estimated fee deposit from an individual as described under
subsection (10) if any of the following apply:
(a) The individual is able to show proof of prior payment in
full to the public body.
(b) The public body is subsequently paid 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.
(12) A deposit required by a public body under this act is a
fee.
Sec. 5. (1) Except as provided in section 3, a person desiring
to inspect or receive a copy of a public record shall make a
written request for the public record to the FOIA coordinator of a
public body. A written request made by facsimile, electronic mail,
or other electronic transmission is not received by a public body's
FOIA 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 period during which the public body shall respond to the
request. A public body shall not issue more than 1 notice of
extension for a particular 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 500 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", "information", "FOIA", "copy", or a
recognizable misspelling of such, or appropriate legal code
reference to this act, on the front of an envelope or in the
subject line of an electronic mail, letter, or facsimile cover
page.
(4)
In a circuit court civil action
to compel a public body's
disclosure
of a public record under section 10, the circuit court
shall assess damages against the public body pursuant to section
10(8)
10(7) if the circuit court has done both of the
following:
(a) Determined that the public body has not complied with
subsection (2).
(b) Ordered the public body to disclose or provide copies of
all or a portion of the public record.
(5) (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:
(a) An explanation of the basis under this act 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 14,
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 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 disclosure denial.
(ii) Seek judicial review of the denial under section 10.
(e) Notice of the right to receive attorneys' fees and damages
as
provided in section 10 if, after judicial review, the circuit
court determines that the public body has not complied with this
section and orders disclosure of all or a portion of a public
record.
(6) (5)
The individual designated in
section 6 as responsible
for the denial of the request shall sign the written notice of
denial.
(7) (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.
(8) (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 that public record, the requesting
person may do either of the following:
(a) Appeal the denial to the head of the public body pursuant
to section 10.
(b)
Commence an action in circuit court, a civil action,
pursuant to section 10.
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
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.
(b)
Commence an 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 public body's final determination to deny a
request.
(2) Within 10 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 an
action
in circuit court 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. The In
an action against a local
public body, the circuit court for the county in which the
complainant resides or has his or her principal place of business,
or 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.
Unless it can show good cause, the public body shall not assert an
exemption under section 13 that it did not assert in either a
written denial of the request under section 5 or an appeal under
subsection (1)(a). If the court finds that the legal basis for a
newly asserted exemption is clearly erroneous, the court shall
require the public body to reduce any fee otherwise permitted under
section 4 for providing the public record by 50%. 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' 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' fees,
costs, and disbursements. The award shall be assessed against the
public body liable for damages under subsection (7).
(7)
If the circuit 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 award, in
addition to any actual or compensatory damages, punitive damages in
the
amount of $500.00 $2,000.00
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. 10a. (1) If the requesting person has a good-faith belief
that the fee the public body requires for the public records is an
unreasonable fee, the requesting person may do any of the
following:
(a) If the public body provides for fee appeals to the head of
the public body in its publicly available procedures and
guidelines, submit to the head of the public body a written appeal
that specifically states the word "appeal" and identifies the
reason or reasons that the required fee is an unreasonable fee.
(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,
for a fee reduction not later than 180 days after receiving the
notice of the required fee or a determination of an appeal to the
head of the public body, but only if 1 of the following applies:
(i) The public body does not provide for appeals under
subdivision (a).
(ii) The head of the public body failed to respond to a written
appeal as required under subsection (2).
(iii) After pursuing an appeal under subdivision (a), the
requesting person has a good-faith belief that the required fee
remains an unreasonable fee.
(2) Within 10 days after receiving a written appeal under
subsection (1)(a), the head of a public body 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 4
that supports the reduced fee. The determination shall include a
certification from the head of the public body that the statements
contained therein are accurate and that the reduced fee amount is
not an unreasonable fee.
(c) Uphold the fee and issue a written determination to the
requesting person indicating the specific basis under section 4
that supports the required fee. The determination shall include a
certification from the head of the public body that the statements
contained therein are accurate and that the permitted fee is not an
unreasonable fee.
(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 for purposes of
the time limit in subsection (2) until the first regularly
scheduled meeting of that board or commission following submission
of the written appeal under subsection (1)(a).
(4) In an action against a local public body commenced under
subsection (1)(b), if a court determines that the public body
required an unreasonable fee, it shall reduce the fee to an amount
supported under section 4. The circuit court for the county in
which the complainant resides or has his or her principal place of
business, or 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 establish that the required fee is
not an unreasonable fee. 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 a reduction in fees
prevails in an action commenced under subsection (1)(b)(i), the
court may, in its discretion, award all or an appropriate portion
of reasonable attorney fees, costs, and disbursements. If the
person asserting the right to a reduction in fees prevails in an
action commenced under subsection (1)(b)(ii), the court shall award
reasonable attorney fees, costs, and disbursements. If the person
asserting the right to a reduction in fees prevails in an action
commenced under subsection (1)(b)(iii) and the court finds that the
head of the public body's basis for imposing the fee contained in
the written notice was unsupported or was clearly erroneous, the
court shall award reasonable attorney fees, costs, and
disbursements. An award under this subsection 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 charging an unreasonable fee, 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.
(8) As used in this section, "unreasonable fee" means a fee or
any component of a fee that unreasonably exceeds the amount
properly calculated under section 4.
Sec. 10b. If the court determines, in an action commenced
under this act, that a public body willfully and intentionally
failed to comply with this act or otherwise acted in bad faith, the
court shall impose upon the public body, in addition to any other
award or sanction, a civil fine of not less than $2,500.00 or more
than $7,500.00 for each occurrence. In determining the amount of
the civil fine, the court shall consider the budget of the public
body and whether the public body has previously been assessed
penalties for violations of this act. The civil fine shall be
deposited in the general fund of the state treasury.
Sec. 11. (1) A state agency shall publish and make available
to the public all of the following:
(a) Final orders or decisions in contested cases and the
records on which they were made.
(b) Promulgated rules.
(c)
Other written statements which that
implement or interpret
laws, rules, or policy, including but not limited to guidelines,
manuals, and forms with instructions, adopted or used by the agency
in the discharge of its functions.
(2) Publications may be in pamphlet, loose-leaf, or other
appropriate form in printed, mimeographed, or other written matter.
(3) Except to the extent that a person has actual and timely
notice
of the terms thereof, a person shall not in any manner be is
not
required to resort to, or and shall not be adversely affected
by, a matter required to be published and made available, if the
matter is not so published and made available.
(4)
This section does not apply to public records which that
are exempt from disclosure under section 13.
(5)
A person may commence an action in the circuit court of
claims to compel a state agency to comply with this section. If the
court determines that the state agency has failed to comply, the
court shall order the state agency to comply and shall award
reasonable attorneys' fees, costs, and disbursements to the person
commencing
the action. The circuit court for the county in which
the
state agency is located shall have court
of claims has
House Bill No. 4001 (H-6) as amended March 20, 2014
exclusive jurisdiction to issue the order.
(6) As used in this section, "state agency", "contested case",
and
"rules" shall have the same meanings as ascribed to
those terms
in
Act No. 306 of the Public Acts of 1969, as amended, being
sections
24.201 to 24.315 of the Michigan Compiled Laws.the
administrative procedures act of 1969, 1969 PA 306, MCL 24.201 to
24.328.
[Enacting section 1. This amendatory act takes effect January 1, 2015.]
