HOUSE BILL NO. 5921

March 16, 2022, Introduced by Reps. Steven Johnson and Borton and referred to the Committee on Oversight.

A bill to amend 1976 PA 442, entitled

"Freedom of information act,"

by amending section 10 (MCL 15.240), as amended by 2014 PA 563.

the people of the state of michigan enact:

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.

(b) Commence a civil action in the circuit court, or if the decision of a state public body is at issue, the court of claims, to compel the public body's disclosure of the public records within 180 days after a the public body's final determination to deny a request.

(2) Within 10 business days after receiving a written appeal pursuant to subsection (1)(a), the head of a public body shall do 1 of the following:

(a) Reverse the disclosure denial.

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

(c) Reverse the disclosure denial in part and issue a written notice to the requesting person upholding the disclosure denial in part.

(d) Under unusual circumstances, issue a notice extending for not more than 10 business days the period during which the head of the public body shall respond to the written appeal. The head of a public body shall not issue more than 1 notice of extension for a particular written appeal.

(3) A board or commission that is the head of a public body is not considered to have received a written appeal under subsection (2) until the first regularly scheduled meeting of that board or commission following submission of the written appeal under subsection (1)(a). If the head of the public body fails to respond to a written appeal pursuant to subsection (2), or if the head of the public body upholds all or a portion of the disclosure denial that is the subject of the written appeal, the requesting person may seek judicial review of the nondisclosure by commencing a civil action under subsection (1)(b).

(4) In All of the following apply in an action commenced under subsection (1)(b): , a

(a) 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.

(b) Venue for an action against a local public body is proper in the circuit court for the county in which the public record or an office of the public body is located. has venue over the action.

(c) The court shall determine the matter de novo and the burden is on the public body to sustain its denial. In attempting to meet its burden, the public body is limited to the basis it previously gave for its denial by written notice properly and timely provided in response to the request under section 5(5). Any other basis for a denial is waived, including any basis for exemption under section 13 that was not properly and timely asserted by written notice under section 5(5).

(d) The court, on its own motion, may view the public record in controversy in private before reaching a decision.

(e) 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 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 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 public function.