Bill Text: MI HB5312 | 2019-2020 | 100th Legislature | Introduced
Bill Title: Civil rights; public records; freedom of information act requests; eliminate fees for production of records, and modify number of days public body has to respond to request. Amends title & secs. 4 & 5 of 1976 PA 442 (MCL 15.234 & 15.235) & adds sec. 4a.
Spectrum: Partisan Bill (Democrat 1-0)
Status: (Introduced - Dead) 2020-01-09 - Bill Electronically Reproduced 01/09/2020 [HB5312 Detail]
Download: Michigan-2019-HB5312-Introduced.html
HOUSE BILL NO. 5312
January 08, 2020, Introduced by Rep. Garrett
and referred to the Committee on Oversight.
A bill to amend 1976 PA 442, entitled
"Freedom of information act,"
by amending the title and sections 4 and 5 (MCL 15.234 and 15.235), section 4 as amended by 2018 PA 523 and section 5 as amended by 2018 PA 105, and by adding section 4a.
the people of the state of michigan enact:
An act to provide for public access to certain public records of public bodies; to permit certain fees; to prescribe the powers and duties of certain public officers and public bodies; to provide remedies and penalties; and to repeal certain acts and parts of acts.
Sec. 4. (1) A Subject to
section 4a, a public body may charge a fee for a public record
search, for the necessary copying of a public record for inspection, or for
providing a copy of a public record if it has established, makes publicly
available, and follows procedures and guidelines to implement this section as
described in subsection (4). Subject to subsections (2), (3), (4), (5), and
(9), the fee must 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 must 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 of its lowest-paid employee capable of searching for, locating, and
examining the public records in the particular instance regardless of whether
that person is available or who actually performs the labor. Labor costs under
this subdivision shall be estimated and charged in increments of 15 minutes or
more, with all partial time increments rounded down.
(b) That portion of labor
costs, including necessary review, if any, directly associated with the
separating and deleting of exempt information from nonexempt information as
provided in section 14. For services performed by an employee of the public
body, the public body shall not charge more than the hourly wage of its
lowest-paid employee capable of separating and deleting exempt information from
nonexempt information in the particular instance as provided in section 14,
regardless of whether that person is available or who actually performs the
labor. 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 as determined by the public body's FOIA
coordinator on a case-by-case basis, 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 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 must not
exceed an amount equal to 6 times the state minimum hourly wage rate determined
under section 4 of the improved workforce opportunity wage act, 2018 PA 337,
MCL 408.934. Labor costs under this subdivision shall be estimated and charged
in increments of 15 minutes or more, with all partial time increments rounded
down. A public body shall not charge for labor directly associated with
redaction under section 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.
(c) For public records
provided to the requestor on nonpaper physical media, the actual and most
reasonably economical cost of the computer discs, computer tapes, or other
digital or similar media. The requestor may stipulate that the public records
be provided on nonpaper physical media, electronically mailed, or otherwise
electronically provided to him or her in lieu of paper copies. This subdivision
does not apply if a public body lacks the technological capability necessary to
provide records on the particular nonpaper physical media stipulated in the
particular instance.
(d) For paper copies of
public records provided to the requestor, the actual total incremental cost of
necessary duplication or publication, not including labor. The cost of paper
copies shall be calculated as a total cost per sheet of paper and shall be
itemized and noted in a manner that expresses both the cost per sheet and the
number of sheets provided. The fee must not exceed 10 cents per sheet of paper
for copies of public records made on 8-1/2- by 11-inch paper or 8-1/2- by
14-inch paper. A public body shall utilize the most economical means available
for making copies of public records, including using double-sided printing, if
cost saving and available.
(e) The cost of labor
directly associated with duplication or publication, including making paper
copies, making digital copies, or transferring digital public records to be
given to the requestor on nonpaper physical media or through the internet or
other electronic means as stipulated by the requestor. The public body shall
not charge more than the hourly wage of its lowest-paid employee capable of
necessary duplication or publication in the particular instance, regardless of
whether that person is available or who actually performs the labor. Labor
costs under this subdivision may be estimated and charged in time increments of
the public body's choosing; however, all partial time increments shall be
rounded down.
(f) The actual cost of
mailing, if any, for sending the public records in a reasonably economical and
justifiable manner. The public body shall not charge more for expedited
shipping or insurance unless specifically stipulated by the requestor, but may
otherwise charge for the least expensive form of postal delivery confirmation
when mailing public records.
(2) When calculating labor
costs under subsection (1)(a), (b), or (e), fee components shall be itemized in
a manner that expresses both the hourly wage and the number of hours charged.
The public body may also add up to 50% to the applicable labor charge amount to
cover or partially cover the cost of fringe benefits if it clearly notes the
percentage multiplier used to account for benefits in the detailed itemization
described in subsection (4). Subject to the 50% limitation, the public body
shall not charge more than the actual cost of fringe benefits, and overtime
wages shall not be used in calculating the cost of fringe benefits. Overtime
wages shall not be included in the calculation of labor costs unless overtime
is specifically stipulated by the requestor and clearly noted on the detailed
itemization described in subsection (4). A search for a public record may be
conducted or copies of public records may be furnished without charge or at a
reduced charge if the public body determines that a waiver or reduction of the
fee is in the public interest because searching for or furnishing copies of the
public record can be considered as primarily benefiting the general public. A
public record search shall be made and a copy of a public record shall be
furnished without charge for the first $20.00 of the fee for each request by
either of the following:
(a) An individual who is
entitled to information under this act and who submits an affidavit stating
that the individual is indigent and receiving specific public assistance or, if
not receiving public assistance, stating facts showing inability to pay the
cost because of indigency. If the requestor is eligible for a requested
discount, the public body shall fully note the discount on the detailed
itemization described under subsection (4). If a requestor is ineligible for
the discount, the public body shall inform the requestor specifically of the
reason for ineligibility in the public body's written response. An individual
is ineligible for this fee reduction if any of the following apply:
(i) The individual has previously received discounted copies of
public records under this subsection from the 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.
(3) A fee as described in subsection (1) shall not be charged
for the cost of search, examination, review, and the deletion and separation of
exempt from nonexempt information as provided in section 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.
(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 a
public body's written responses, deposit requirements, fee calculations, and
avenues for challenge and appeal. The written public summary shall be written
in a manner so as to be easily understood by the general public. 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 must 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 must 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. Other public bodies may use a form created by the department of
technology, management, and budget or create a form of their own that complies
with this subsection. A public body that has not established procedures and
guidelines, has not created a written public summary, or has not made those items
publicly available without charge as required in this subsection is not
relieved of its duty to comply with any requirement of this 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, must include a specific webpage address where the requested
information is available. On the detailed itemization described in subsection
(4), the public body shall separate the requested public records that are
available on its website from those that are not available on the website and
shall inform the requestor of the additional charge to receive copies of the
public records that are available on its website. If the public body has
included the website address for a record in its written response to the
requestor and the requestor thereafter stipulates that the public record be
provided to him or her in a paper format or other form as described under
subsection (1)(c), the public body shall provide the public records in the
specified format but may use a fringe benefit multiplier greater than the 50%
limitation in subsection (2), not to exceed the actual costs of providing the
information in the specified format.
(6) A public body may provide requested information available
in public records without receipt of a written request.
(7) If a verbal request for information is for information
that a public body believes is available on the public body's website, the
public employee shall, where practicable and to the best of the public
employee's knowledge, inform the requestor about the public body's pertinent
website address.
(8) In either
the public body's initial response or subsequent response as described under
section 5(2)(d), 5(2), the public body
may require a good-faith deposit from the person requesting information before
providing the public records to the requestor if the entire fee estimate or
charge authorized under this section exceeds $50.00, based on a good-faith
calculation of the total fee described in subsection (4). Subject to subsection
(10), the deposit must not exceed 1/2 of the total estimated fee, and a public
body's request for a deposit must include a detailed itemization as required
under subsection (4). The response must 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.
(9) 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 this section by 5% 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 250 words of the body of a letter, facsimile, electronic mail, or
electronic mail attachment, or specifically included the words, characters, or
abbreviations for "freedom of information", "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).
(10) This section does not apply to public records prepared
under an act or statute specifically authorizing the sale of those public
records to the public, or if the amount of the fee for providing a copy of the
public record is otherwise specifically provided by an act or statute.
(11) Subject to subsection (12), after a public body has
granted and fulfilled a written request from an individual under this act, if
the public body has not been paid in full the total amount under subsection (1)
for the copies of public records that the public body made available to the
individual as a result of that written request, the public body may require a
deposit of up to 100% of the estimated fee before it begins a full public
record search for any subsequent written request from that individual if all of
the following apply:
(a) The final fee for the prior written request was not more
than 105% of the estimated fee.
(b) The public records made available contained the
information being sought in the prior written request and are still in the
public body's possession.
(c) The public records were made available to the individual,
subject to payment, within the time frame estimate described under subsection
(8).
(d) Ninety days have passed since the public body notified
the individual in writing that the public records were available for pickup or
mailing.
(e) The individual is unable to show proof of prior payment
to the public body.
(f) The public body calculates a detailed itemization, as
required under subsection (4), that is the basis for the current written
request's increased estimated fee deposit.
(12) A public body shall no longer require an increased
estimated fee deposit from an individual as described under subsection (11) 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.
(13) A deposit required by a public body under this act is a
fee.
(14) If a deposit that is required under subsection (8) or
(11) is not received by the public body within 45 days from receipt by the
requesting person of the notice that a deposit is required, and if the
requesting person has not filed an appeal of the deposit amount pursuant to
section 10a, the request shall be considered abandoned by the requesting person
and the public body is no longer required to fulfill the request. Notice of a
deposit requirement under subsection (8) or (11) is considered received 3 days
after it is sent, regardless of the means of transmission. Notice of a deposit
requirement under subsection (8) or (11) must include notice of the date by
which the deposit must be received, which date is 48 days after the date the
notice is sent.
Sec. 4a. Beginning 30 days after the
effective date of the amendatory act that added this section, notwithstanding
any provision of this act to the contrary, a public body shall not charge any
fee in connection with receiving or fulfilling a granted written request,
including, but not limited to, any fee for the costs described in section 4.
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 10 calendar days after the public body receives the
request by doing 1 of the following:
(a) Granting the request and producing the requested public record.
(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, and, to the extent that the request is granted,
producing the requested public record.
(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 under subsection (2) constitutes a public
body's final determination to deny the request if either of the following
applies:
(a) The failure was
willful and intentional.
(b) The written request
included language that conveyed a request for information within the first 250 words
of the body of a letter, facsimile, electronic mail, or electronic mail
attachment, or specifically included the words, characters, or abbreviations
for "freedom of information", "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 civil action to
compel a public body's disclosure of a public record under section 10, the court
shall assess damages against the public body pursuant to under section 10(7) if the 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) 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 must 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 under 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 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) The individual designated in section 6 as responsible for
the denial of the request shall sign the written notice of denial.
(7) If a public body issues a notice extending the period for
a response to the request, the notice must specify the reasons for the
extension and the date by which the public body will do 1 of the following:
(a) Grant the request.
(b) Issue a written notice to the requesting person denying
the request.
(c) Grant the request in part and issue a written notice to
the requesting person denying the request in part.
(7) (8) 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 under section 10.
(b) Commence a civil action, pursuant to under section 10.
(8) (9) Notwithstanding any other provision of this act
to the contrary, a public body that maintains a law enforcement records
management system and stores public records for another public body that
subscribes to the law enforcement records management system is not in
possession of, retaining, or the custodian of, a public record stored on behalf
of the subscribing public body. If the public body that maintains a law
enforcement records management system receives a written request for a public
record that is stored on behalf of a subscribing public body, the public body
that maintains the law enforcement records management system shall, within 10
business days after receipt of the request, give written notice to the
requesting person identifying the subscribing public body and stating that the
requesting person shall submit the request to the subscribing public body. As
used in this subsection, "law enforcement records management system"
means a data storage system that may be used voluntarily by subscribers,
including any subscribing public bodies, to share information and facilitate
intergovernmental collaboration in the provision of law enforcement services.
