HOUSE BILL No. 4001

 

January 9, 2013, Introduced by Rep. Shirkey and referred to the Committee on Oversight.

 

     A bill to amend 1976 PA 442, entitled

 

"Freedom of information act,"

 

by amending sections 4, 5, and 10 (MCL 15.234, 15.235, and 15.240),

 

as amended by 1996 PA 553.

 

THE PEOPLE OF THE STATE OF MICHIGAN ENACT:

 

     Sec. 4. (1) A public body may charge a fee for a public record

 

search, the necessary copying of a public record for inspection, or

 

for providing a copy of a public record. Subject to subsections (3)

 

and (4) and section 5(8), the fee shall be limited to actual

 

mailing costs; , and to the actual incremental cost of duplication

 

or publication including labor, not to exceed 10 cents per page;

 

the cost of search, examination, and review; , and the deletion and

 

separation of cost of deleting and separating exempt from nonexempt

 

information as provided in section 14. A public body shall permit


 

and shall not charge a fee for copying during an on-site inspection

 

of public records unless the requestor requests the public body to

 

provide the copies or the requestor requests and uses the public

 

body's equipment to make the copies. 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 to an individual who is entitled to information under this

 

act and who submits an affidavit stating that the individual is

 

then receiving public assistance or, if not receiving public

 

assistance, stating facts showing inability to pay the cost because

 

of indigency.

 

     (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 shall not be charged for the cost of search,

 

examination, or review , and the deletion and separation of or for

 

deleting and separating 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) 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.

 

     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.

 

     (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. In a circuit court 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.

 

     (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.

 

     (5) The individual designated in section 6 as responsible for

 

the denial of the request shall sign the written notice of denial.

 

     (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.

 

     (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, pursuant to section

 

10.

 

     (8) If a public body does not deny a request for records, but

 

fails to make the requested records available for inspection or to

 

provide a copy of the requested records until after the time

 

specified in subsection (2), the fee permitted under section 4 is

 

reduced by 20% of the original fee for each day after the deadline

 

that the record or copy is not made available. A public body shall

 

not charge a fee for a record produced more than 5 days after the

 

deadline. The deadlines in subsection (2) are extended and no

 

charge reduction is required under this subsection during the time

 

that a deposit required under section 4(2) remains unpaid, except

 

that while an appeal requesting a fee reduction is pending, the

 

required deposit shall not exceed $500.00.

 

     Sec. 10. (1) If a public body makes a final determination to

 

deny all or a portion of a request or to impose a fee in excess of

 

the fee permitted under section 4, 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 or for a reduction in

 

the fee.

 

     (b) Commence an action in the circuit court 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.

 

     (c) If the amount of the fee exceeds 10 cents per page or if

 

the fees for search, examination, review, and deleting and

 

separating exempt from nonexempt information exceeds $100.00

 

cumulatively for all requests submitted by the requesting person to

 

the public body in a 6-month period, commence an action in the

 

circuit court for a fee reduction within 180 days of the public

 

body's notification to the person of the fee amount.

 

     (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 or grant the requested fee

 

reduction, as applicable.

 

     (b) Issue a written notice to the requesting person upholding

 

the disclosure denial or the amount of the fee, as applicable.

 

     (c) Reverse the disclosure denial in part and issue a written

 

notice to the requesting person upholding the disclosure denial in

 

part.

 

     (d) Grant a partial fee reduction and issue a written notice

 

to the requesting person indicating the basis for supporting the

 

fee permitted.

 

     (e) (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 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 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 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). 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 or the right

 

to a reduction in the fee prevails in all or part 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 $5,000.00 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.