Bill Summary – FastDemocracy

SENATE BILL NO. 224
 March 21, 2023, Introduced by Senator RUNESTAD and referred to the Committee on Elections
   and Ethics.
      A bill to amend 1976 PA 442, entitled
"Freedom of information act,"
by amending sections 1, 2, 3, 4, 5, 6, 10, 10a, 10b, and 13 (MCL
231, 15.232, 15.233, 15.234, 15.235, 15.236, 15.240, 15.240a,
240b, and 15.243), section 1 as amended by 1997 PA 6, section 2
as amended by 2018 PA 68, section 3 as amended by 2018 PA 523,
section 4 as amended by 2020 PA 38, section 5 as amended by 2020 PA
36, section 6 as amended by 1996 PA 553, section 10 as amended and
sections 10a and 10b as added by 2014 PA 563, and section 13 as
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     amended by 2021 PA 33, by designating sections 1 to 16 as part 1,
     and by adding part 2.
                  THE PEOPLE OF THE STATE OF MICHIGAN ENACT:
                                PART 1
       Sec. 1. (1) This act shall be known and may be cited as the
 "freedom of information and legislative open records act", and this
 part may be cited as the "freedom of information act".
       (2) It is the public policy of this state that all persons,
 except those persons incarcerated in state or local correctional
 facilities, are entitled to full and complete information regarding
 the affairs of government and the official acts of those who
 represent them as public officials and public employees, consistent
 with this act. The people shall be informed so that they may fully
 participate in the democratic process.
       Sec. 2. As used in this act:part:
       (a) "Cybersecurity assessment" means an investigation
 undertaken by a person, governmental body, or other entity to
 identify vulnerabilities in cybersecurity plans.
       (b) "Cybersecurity incident" includes, but is not limited to,
 a computer network intrusion or attempted intrusion; a breach of
 primary computer network controls; unauthorized access to programs,
 data, or information contained in a computer system; or actions by
 a third party that materially affect component performance or,
 because of impact to component systems, prevent normal computer
 system activities.
       (c) "Cybersecurity plan" includes, but is not limited to,
 information about a person's information systems, network security,
 encryption, network mapping, access control, passwords,
 authentication practices, computer hardware or software, or
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 response to cybersecurity incidents.
       (d) "Cybersecurity vulnerability" means a deficiency within
 computer hardware or software, or within a computer network or
 information system, that could be exploited by unauthorized parties
 for use against an individual computer user or a computer network
 or information system.
       (e) "Field name" means the label or identification of an
 element of a computer database that contains a specific item of
 information, and includes but is not limited to a subject heading
 such as a column header, data dictionary, or record layout.
       (f) "FOIA coordinator" means either of the following:
       (i) An individual who is a public body.
       (ii) An individual designated by a public body in accordance
 with section 6 to accept and process requests for public records
 under this act.part.
       (g) "Person" means an individual, corporation, limited
 liability company, partnership, firm, organization, association,
 governmental entity, or other legal entity. Person does not include
 an individual serving a sentence of imprisonment in a state or
 county correctional facility in this state or any other state, or
 in a federal correctional facility.
       (h) "Public body" means any of the following:
       (i) A state officer, employee, agency, department, division,
 bureau, board, commission, council, authority, or other body in the
 executive branch of the state government. , but does not include
 the governor or lieutenant governor, the executive office of the
 governor or lieutenant governor, or employees thereof.
       (ii) An agency, board, commission, or council in the
 legislative branch of the state government.
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       (ii) (iii) A county, city, township, village, intercounty,
 intercity, or regional governing body, council, school district,
 special district, or municipal corporation, or a board, department,
 commission, council, or agency thereof.
       (iii) (iv) Any other body that is created by state or local
 authority or is primarily funded by or through state or local
 authority, except that it does not include the judiciary, including
 the office of the county clerk and its employees when acting in the
 capacity of clerk to the circuit court, is not included in the
 definition of public body.or an entity in the legislative branch of
 state government.
       (i) "Public record" means a writing prepared, owned, used, in
 the possession of, or retained by a public body in the performance
 of an official function, from the time it is created. Public record
 does not include computer software. This act part separates public
 records into the following 2 classes:
       (i) Those that are exempt from disclosure under section 13.
       (ii) All public records that are not exempt from disclosure
 under section 13 and that are subject to disclosure under this
 act.part.
       (j) "Software" means a set of statements or instructions that
 when incorporated in a machine usable medium is capable of causing
 a machine or device having information processing capabilities to
 indicate, perform, or achieve a particular function, task, or
 result. Software does not include computer-stored information or
 data, or a field name if disclosure of that field name does not
 violate a software license.
       (k) "Unusual circumstances" means any 1 or a combination of
 the following, but only to the extent necessary for the proper
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 processing of a request:
       (i) The need to search for, collect, or appropriately examine
 or review a voluminous amount of separate and distinct public
 records pursuant to a single request.
       (ii) The need to collect the requested public records from
 numerous field offices, facilities, or other establishments which
 that are located apart from the particular office receiving or
 processing the request.
       (l) "Writing" means handwriting, typewriting, printing,
 photostating, photographing, photocopying, and every other means of
 recording, and includes letters, words, pictures, sounds, or
 symbols, or combinations thereof, and papers, maps, magnetic or
 paper tapes, photographic films or prints, microfilm, microfiche,
 magnetic or punched cards, discs, drums, hard drives, solid state
 storage components, or other means of recording or retaining
 meaningful content.
       (m) "Written request" means a writing that asks for
 information, and includes a writing transmitted by facsimile,
 electronic mail, email, or other electronic means.
       Sec. 3. (1) Except as expressly provided in section 13, upon
 providing a public body's FOIA coordinator with a written request
 that describes a public record sufficiently to enable the public
 body to find the public record, a person has a right to inspect,
 copy, or receive copies of the requested public record of the
 public body. A request from a person, other than an individual who
 qualifies as indigent under section 4(2)(a), must include the
 requesting person's complete name, address, and contact
 information, and, if the request is made by a person other than an
 individual, the complete name, address, and contact information of
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 the person's agent who is an individual. An address must be written
 in compliance with United States Postal Service addressing
 standards. Contact information must include a valid telephone
 number or electronic mail email address. A Except as to the
 executive office of the governor or lieutenant governor, a person
 has a right to subscribe to future issuances of public records that
 are created, issued, or disseminated on a regular basis. A
 subscription is valid for up to 6 months, at the request of the
 subscriber, and is renewable. An employee of a public body who
 receives a request for a public record shall promptly forward that
 request to the freedom of information act coordinator.
       (2) A freedom of information act coordinator shall keep a copy
 of all written requests for public records on file for no less than
 1 year.
       (3) A public body shall furnish a requesting person a
 reasonable opportunity for inspection and examination of its public
 records, and shall furnish reasonable facilities for making
 memoranda or abstracts from its public records during the usual
 business hours. A public body may make reasonable rules necessary
 to protect its public records and to prevent excessive and
 unreasonable interference with the discharge of its functions. A
 public body shall protect public records from loss, unauthorized
 alteration, mutilation, or destruction.
       (4) This act part does not require a public body to make a
 compilation, summary, or report of information, except as required
 in section 11.
       (5) This act part does not require a public body to create a
 new public record, except as required in section 11, and to the
 extent required by this act part for the furnishing of copies, or
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 edited copies pursuant to section 14(1), of an already existing
 public record.
       (6) The custodian of a public record shall, upon written
 request, furnish a requesting person a certified copy of a public
 record.
       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 (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, part, if the
 public body estimates or charges a fee in accordance with this act,
 part, 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.
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       (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.
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       (c) For public records provided to the requestor on any form
 of nonpaper physical media, the actual and most reasonably
 economical cost of the nonpaper physical media. The requestor may
 stipulate that the public records be provided on nonpaper physical
 media, electronically mailed, emailed, or otherwise electronically
 provided to him or her the requestor 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
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 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 pub