LEGISLATIVE OPEN RECORDS ACT (LORA)
House Bill 4007 (H-3) as reported from committee
Sponsor: Rep. Daire Rendon
House Bill 4008 (H-1) as reported
Sponsor: Rep. Vanessa Guerra
House Bill 4009 (H-1) as reported
Sponsor: Rep. Donna Lasinski
House Bill 4010 (H-1) as reported
Sponsor: Rep. Annette Glenn
House Bill 4011 (H-2) as reported
Sponsor: Rep. Ryan Berman
House Bill 4012 (H-1) as reported
Sponsor: Rep. Roger Hauck
House Bill 4013 (H-1) as reported
Sponsor: Rep. Sue Allor
House Bill 4014 (H-1) as reported
Sponsor: Rep. Andrea K. Schroeder
House Bill 4015 (H-3) as reported
Sponsor: Rep. Graham Filler
House Bill 4016 (H-1) as reported
Sponsor: Rep. Darrin Camilleri
Committee: Government Operations
Complete to 3-14-19
Taken together, House Bills 4007 through 4016 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 state 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 take effect January 1, 2020.
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 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.
The bills, generally speaking, 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 4010 and the exemptions from disclosure and limitations on statutory construction in House Bill 4015. LORA would not apply to records created, prepared, owned, used, possessed, or retained by a public body before January 1, 2020.
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 (i.e., to accept and process requests for public records).
House Bill 4011 is tie-barred to the other nine bills, and those bills are in turn tie-barred to HB 4011. This means that none of the bills in the package could take effect unless all of them were enacted.
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 4008 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.”
House Bill 4007 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, the exemption would not apply to records or information relating to that individual after he or she has been appointed, except for letters of recommendation.
· Decisions to remove or suspend from office a public official under Article V, Section 10 of the State Constitution or to remove a judge from office under Article VI, Section 25. 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 Article V, Section 14 of the State Constitution.
· Budget recommendations prepared under Article V, Section 18 of the State Constitution.
· Reductions in expenditures under Article V, Section 20 of the State Constitution.
· Messages or recommendations to the legislature under Article V, Section 17 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, 2020.
· 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, the exemption would not apply with regard to the executive office of the governor and lieutenant governor if in the particular interest the public interest in disclosure clearly outweighed the public interest in encouraging frank communications.
House Bill 4011 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 records. A public record would be defined as a record that had been in possession of a public body for 15 days or more. A public body could not destroy or alter a record for two years after coming into possession of it if the record would qualify as a public record after having been in the public body’s possession for 15 days.
House Bill 4013 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 4014 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 4012 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 4010 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 not to exceed $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 4015 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 Article IV, Section 11 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 interest 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 in 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.
The bill specifies 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).
Also, as noted earlier, LORA would not apply to records created, prepared, owned, used, possessed, or retained by a public body before January 1, 2020.
House Bill 4009 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 4016 would make complementary changes to the Legislative Council Act.
As introduced, this bill package is virtually identical to House Bills 5469 through 5478 of the 2015-16 legislative session and House Bills 4148 through 4157 of the 2017-18 session—the only differences among the bill packages being technical changes and revised effective dates. House Bills 5469 through 5478 of 2015-16 were reported from the House Committee on Oversight and Ethics and passed by the House, but were not taken up by the Senate. House Bills 4148 through 4157 of 2017-18 were reported from the House Committee on Michigan Competitiveness and unanimously passed by the House, but were not taken up by the Senate.
House Bills 4007 to 4016 would increase costs for the Executive Office and the Legislature, primarily due to the presumed need to hire Freedom of Information Act (FOIA) and Legislative Open Records Act (LORA) Coordinator staff under the provisions of the bills. In addition, the bills would marginally increase administrative and office supply costs with respect to fulfilling FOIA and LORA requests. However, most, if not all, of these costs would be offset by charging fees that correspond to the actual cost of labor, materials, and postage, as provided by HB 4013.
The Executive Office (Governor and Lieutenant Governor) and Legislature are currently exempt from the provisions of the Freedom of Information Act (“the Act”), 1976 PA 442, MCL 15.231 to 15.246. The bill package would effectively extend the Act’s provisions and requirements to the Executive Office and the Legislature.
Personnel costs would depend on the need to hire additional staff to satisfy the bills’ requirements. As with FOIA Coordinators, the duties of LORA Coordinators could be fulfilled with existing staff or by hiring dedicated staff. HB 4012 requires the designation of a LORA Coordinator for all public bodies in the Legislature. The bill further permits, but does not require, the designation of separate LORA Coordinators for the House of Representatives and Senate. These provisions generally mirror those in section 6 of the Act, which require the designation of FOIA Coordinators for all public bodies. Additionally, HB 4008 would eliminate the Executive Office’s exemption from the Act’s requirements, thereby requiring the designation of a FOIA Coordinator for the Executive Office.
Based on a survey of executive branch departments, labor costs are dependent upon the size, complexity, and sensitivity of the information sought. Of the departments surveyed, the department with the largest number of requests (approximately 1,200) had no FTE position solely dedicated to responding to FOIA requests. The department with the smallest number of requests (241) did have a dedicated FTE position due to the nature of the material and the amount of legal review and redaction required to satisfy FOIA exemptions listed under section 13 of the Act. Additionally, for each department, the average total number of personnel hours distributed annually across all employees who help respond to FOIA requests approximately equaled the hours of 1.0 FTE.
Due to the public interest in and nature of Executive Office and Legislative records, it is likely that dedicated personnel would be hired to fulfill the duties of FOIA and LORA Coordinators in the Executive Office and Legislature. The average salary and benefits costs of a FOIA Coordinator among those departments surveyed was $127,000. While actual personnel needs are not yet known, this analysis assumes for estimating purposes that three positions would be added to the Legislature (Legislative Council, House of Representatives, and Senate) for LORA Coordinators and one FTE would be added to the Executive Office for a FOIA Coordinator, for an estimated total of $508,000 in ongoing annual costs. Since the bill package’s effective date is January 1, 2020, only three quarters of the annual salary costs would occur in FY 2019-20. Table 1 provides an overview of the personnel cost estimates.
Table 1: LORA and FOIA Coordinator Personnel Cost Estimates
HB 4013 authorizes a public body to charge fees for the actual cost of mailing and duplication or publication of records. These costs may include labor wages, including potential legal counseling, and administrative costs of responding to requests, such as office supplies and postage. These LORA provisions mirror section 4 of the Act. The departments reported that the vast majority of requests do not exceed $20. Among the departments, the average revenue received annually from fees was approximately $14,300, and the average number of requests was 555. The departments reported that fees cover all, or nearly all, of the associated administrative and office supply costs. Any remaining costs are marginal and absorbed through existing General Fund or restricted fund appropriations to the office or program area that received the request. Fees are generally deposited into the fund from which costs were paid.
A representative of the Michigan Press Association testified in support of the bills.
The following entities indicated support for the bills:
· Michigan Council on Open Government (3-5-19)
· Michigan Freedom Fund (3-5-19)
· American Civil Liberties Union (ACLU) of Michigan (3-12-19)
· Mackinac Center for Public Policy (3-5-19)
· Michigan Sierra Club (3-5-19)
· Michigan Association of Counties (3-12-19)
· Progress Michigan (3-12-19)
Fiscal Analyst: Michael Cnossen
■ This analysis was prepared by nonpartisan House Fiscal Agency staff for use by House members in their deliberations, and does not constitute an official statement of legislative intent.