Legislative Analysis
Phone: (517) 373-8080
LEGISLATIVE OPEN RECORDS ACT (LORA)
http://www.house.mi.gov/hfa
House Bill 4383 as reported Analysis available at
Sponsor: Rep. Ryan Berman http://www.legislature.mi.gov
House Bill 4384 as reported
Sponsor: Rep. Mark A. Tisdel
House Bill 4385 as reported House Bill 4389 as reported
Sponsor: Rep. Annette Glenn Sponsor: Rep. Jim Haadsma
House Bill 4386 as reported House Bill 4390 as reported
Sponsor: Rep. Tyrone A. Carter Sponsor: Rep. Darrin Camilleri
House Bill 4387 as reported House Bill 4391 (H-1) as reported
Sponsor: Rep. Bryan Posthumus Sponsor: Rep. Beau Matthew LaFave
House Bill 4388 as reported House Bill 4392 as reported
Sponsor: Rep. Pat Outman Sponsor: Rep. Ann Bollin
Committee: Oversight
Complete to 3-16-21
BRIEF SUMMARY:
Taken together, House Bills 4483 through 4392 would add Part 2 to the Freedom of
Information Act (FOIA) to implement a new Legislative Open Records Act (LORA) that would
serve to bring the legislature under FOIA. The bills would also remove the current exemption
from FOIA for the governor, lieutenant governor, and executive office employees. The bills
would change the name of FOIA to the Freedom of Information and Legislative Open Records
Act. The bills would take effect January 1, 2022.
Generally speaking, FOIA establishes procedures and requirements for the disclosure of public
records by all public bodies in the state.
Public record means a writing prepared, owned, used, possessed, or retained by a
public body in the performance of an official function, from the time it is created, but
does not include computer software. There are two classes of public records: those
subject to disclosure and those exempt from disclosure. Generally, all records are
subject to disclosure unless specifically exempted.
Public body means a state officer, employee, agency, department, division, bureau,
board, commission, council, authority, or other body in the executive branch of the
state government (except the executive office of governor or lieutenant governor); an
agency, board, commission, or council in the legislative branch of the state government
(but not the legislature itself); a county, city, township, village, intercounty, intercity,
or regional governing body, council, school district, special district, or municipal
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 corporation, or their boards, departments, commissions, councils, and agencies; and
any other body created by state or local authority or primarily funded by or through
state or local authority.
Public body does not include the judiciary or, when acting in the capacity of clerk to
the circuit court, the office of the county clerk and its employees.
Generally speaking, the bills propose new language concerning the legislature that mirrors
provisions already in FOIA concerning public bodies. However, there are provisions in the
bills unique to the legislative branch, notably the process for appealing decisions denying a
request for disclosure of a public record under House Bill 4385 and the exemptions from
disclosure and limitations on statutory construction in House Bill 4391. LORA would not apply
to records created, prepared, owned, used, possessed, or retained by a public body before
January 1, 2022.
Under LORA (the proposed new Part 2 of FOIA):
Public record would mean a writing prepared, owned, used, possessed, or retained by
a public body in the performance of an official function that has been in the possession
of the public body for 15 days or more.
Public body would mean a state officer, legislator, employee, agency, department,
division, bureau, board, commission, committee, council, authority, or other body in
the legislative branch of state government.
LORA coordinators would be designated to serve the role that FOIA coordinators
serve under the existing act (to accept and process requests for public records).
House Bill 4383 is tie-barred to the other nine bills, and those bills are in turn tie-barred to HB
4383. A bill cannot take effect unless each bill to which it is tie-barred is also enacted.
DETAILED SUMMARY:
The bills are more specifically described below, organized according to their content and
relation to the underlying act, rather than by bill number.
House Bill 4386 would amend section 2 of FOIA to remove the specific exclusion of the
governor and lieutenant governor from the definition of public body. (That is, the bill would
make them subject to FOIA.) The bill would also remove references to legislative agencies,
boards, commissions, and councils (since they will be covered by LORA). The bill would
exclude records of the office of the governor or lieutenant governor from a provision that
allows a person to subscribe to future issuances of public records that are issued on a regular
basis. (LORA also would not contain a subscription provision.) Finally, the bill would change
the name of FOIA to the “Freedom of Information and Legislative Open Records Act,” in
recognition of its expanded scope. The currently existing act would be redesignated as Part 1
of the expanded act, and Part 1 would be called the “Freedom of Information Act.”
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 House Bill 4392 would amend section 13 of FOIA to remove a provision that says a public
record in the possession of the governor or lieutenant governor cannot be withheld if it had
been transferred there from a public body subject to FOIA after a request for its disclosure.
The bill also lists exemptions from disclosure that are unique to the executive office of the
governor or lieutenant governor. These would include records or information related to:
• Gubernatorial appointments. However, except for letters of recommendation, the
exemption would not apply to records or information relating to that individual after
he or she has been appointed.
• Decisions to remove or suspend a public official from office under section 10 of Article
V of the state constitution or to remove a judge from office under section 25 of Article
VI. The exemption would not apply to a record concerning that individual after he or
she has been removed or suspended.
• Decisions to grant or deny a reprieve, pardon, or commutation under section 14 of
Article V of the state constitution.
• Budget recommendations prepared under section 18 of Article V of the state
constitution.
• Reductions in expenditures under section 20 of Article V of the state constitution.
• Messages or recommendations to the legislature under section 17 of Article V of the
state constitution.
• The governor’s executive residence.
The bill would also exempt the following:
• Information or records subject to executive privilege.
• Records of the executive office of the governor or lieutenant governor, or an employee
of either office, created, used, or possessed before January 1, 2022.
• Communications between the executive office of the governor or lieutenant governor,
or an employee of either office, and constituents, except for lobbyists or state
appointees or employees.
• Records or information that if disclosed could materially compromise or diminish the
security of the governor or lieutenant governor.
• The cell phone number of the governor or lieutenant governor or an employee of the
executive office of the governor or lieutenant governor.
Finally, current law generally exempts from disclosure communications and notes of a public
body that are of an advisory nature, to the extent that they cover materials other than purely
factual materials and are preliminary to a final agency determination of policy or action. In
order for this exemption to apply, though, the public body must show that the public interest
in encouraging frank communication between public body officials and employees clearly
outweighs the public interest in disclosure in the particular instance at hand. Under the bill, this
exemption would not apply with regard to the executive office of the governor and lieutenant
governor if in the particular instance the public interest in disclosure clearly outweighed the
public interest in encouraging frank communications.
House Bill 4383 would add the part heading and title for Part 2 of FOIA—the “Legislative
Open Records Act” (LORA). It would also add to LORA new sections 21 to 23, which mirror
sections 1 to 3 of FOIA but would apply specifically to the legislative branch. Those sections
contain definitions and provide general procedures for requesting and inspecting public
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 records. A public record would be defined as a record that had been in possession of a public
body for 15 days or more. With some exceptions, a public body could not destroy or alter a
public record, or a record that will qualify as a public record, before the record has been in its
possession for two years (730 days).
House Bill 4387 would add section 24, which mirrors section 4 of FOIA and applies to, among
other things, the fees a public body may charge for searching and copying public records.
House Bill 4388 would add section 25, which corresponds to section 5 of FOIA, regarding the
process of submitting a request for a public record and the process for a public agency to grant
or deny it. There are several key differences. LORA would not allow a civil action to compel
disclosure of a public record. A final determination to deny a request would be appealed to the
administrator of the Legislative Council, and there would not be a judicial review.
House Bill 4384 would add sections 26 through 29, which specify that the administrator of the
Legislative Council would designate an individual as the LORA coordinator for all public
bodies; the House of Representatives could designate an individual as the LORA coordinator
for the House; the Senate could designate an individual as the LORA coordinator for the
Senate; and a LORA coordinator could designate another individual to act on his or her behalf
in accepting and processing requests and in approving a denial.
House Bill 4385 would add sections 29a and 29b, which spell out the appeals procedures for
denials of disclosure of public records and the imposition of excessive fees. These correspond
to sections 10 and 10a of FOIA. However, appeals under LORA would be made to the
coordinator who issued the denial for a reconsideration or to the administrator of the Legislative
Council. (There would be no cause for a civil action.)
A public body’s LORA coordinator would not be considered to have received a written request
for reconsideration until the first scheduled session day following the submission of the
request.
If a request for appeal were reviewed by the Legislative Council administrator, the
administrator could charge a reasonable fee of up to $75 unless the person making the request
was eligible for a fee waiver because of indigence. If the administrator determined that a public
body had arbitrarily and capriciously violated LORA in refusing a request or delaying the
provision of copies, the administrator would recommend appropriate disciplinary action to the
Speaker of the House of Representatives or the Majority Leader of the Senate, as applicable.
The Legislative Council administrator would have to make any recommendation for
disciplinary action publicly available on the internet within five business days after issuing it.
A similar procedure would apply if a person requested that an excessive fee be reduced. The
person would have to identify how the fee exceeds the allowable amount, and the Legislative
Council administrator could charge a reasonable fee of up to $50 unless the person making the
request qualified for a fee waiver for indigence.
House Bill 4391 would add sections 29c and 29d to LORA.
Section 29c stipulates that LORA should not be construed to limit, modify, waive, or otherwise
affect the privileges and immunities guaranteed to the legislature under section 11 of Article
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 IV of the state constitution and also stipulates that it would not create or imply a private cause
of action for a violation.
Section 29d mirrors section 13 of FOIA and describes public records a public body may exempt
from disclosure. These would include all of the following:
• Certain private and medical information.
• Communications, including any related records or information, between a legislator or
a legislator’s office and a constituent of that legislator or a person who intended to
communicate with the elected representative and inadvertently contacted the wrong
representative, other than a registered lobbyist.
• 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 determination of policy or action. This exemption would not
apply if in the particular instance the public interest in disclosure clearly outweighed
the public interest in encouraging frank communications.
• Records or information pertaining to an ongoing internal or legislative investigation.
• Trade secrets or commercial or financial records or confidential information provided
for use in developing governmental policy.
• Records or information subject to the attorney-client privilege or any other privilege
recognized by the constitution, statute, or court rule.
• Records or information relating to a civil action to which the public body is a party,
before that litigation or claim is adjudicated or settled.
• Records or information specifically described and exempted from disclosure by statute,
including the records and information subject to confidentiality requirements in statutes
dealing with the Legislative Service Bureau’s bill drafting division, the Senate and
House Fiscal Agencies, the Veterans Facility Ombudsman, and the Corrections
Ombudsman.
• 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.
• Records of the Office of Sergeant at Arms.
• Records of a public body’s security measures.
• A bid, quote, or proposal submitted by a person to enter into a contract or agreement,
and records created for those purposes, before final notification of the contract or
agreement (or records containing a trade secret or financial or proprietary information
submitted in connection with a bid, quote, or proposal).
• Records whose disclosure would run counter to the public interest.
• Records created, prepared, owned, used, possessed, or retained by the majority and
minority caucuses of each house of the legislature.
• The cell phone number of a public body.
• Records containing location information for future meetings of a public body.
The bill states that LORA would not authorize the exemption from disclosure of any salary
record of an employee or an official of a public body (i.e., the legislative branch).
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 Also, as noted earlier, LORA would not apply to records created, prepared, owned, used,
possessed, or retained by a public body before January 1, 2022.
House Bill 4389 would add section 29e, which mirrors section 14 of FOIA, on separating
exempt from nonexempt material in a public record, and section 29f, which specifies that the
attorney general must counsel and advise a public body on the administration of LORA upon
request.
House Bill 4390 would make complementary changes to the Legislative Council Act.
BACKGROUND INFORMATION:
As introduced,