LEGISLATIVE OPEN RECORDS ACT (LORA)

House Bill 4007 as introduced

Sponsor:  Rep. Daire Rendon

House Bill 4008 as introduced

Sponsor:  Rep. Vanessa Guerra

House Bill 4009 as introduced

Sponsor:  Rep. Donna Lasinski

House Bill 4010 as introduced

Sponsor:  Rep. Annette Glenn

House Bill 4011 as introduced

Sponsor:  Rep. Ryan Berman

House Bill 4012 as introduced

Sponsor:  Rep. Roger Hauck

House Bill 4013 as introduced

Sponsor:  Rep. Sue Allor

House Bill 4014 as introduced

Sponsor:  Rep. Andrea K. Schroeder

House Bill 4015 as introduced

Sponsor:  Rep. Graham Filler

House Bill 4016 as introduced

Sponsor:  Rep. Darrin Camilleri

Committee:  Government Operations

Complete to 3-4-19

BRIEF SUMMARY:

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.

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 4008 would amend section 1 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). 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 some 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.

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 51 to 53, 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. However, the bill specifies that a public body could not destroy or alter a record before it had been in its possession for 15 days if the record would later become a public record.

House Bill 4013 would add section 54, 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 55, 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 56 through 59, 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 59a and 59b, 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 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 59c and 59d to LORA.

Section 59c 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 59d mirrors section 13 of FOIA and describes public records 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.

·         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 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 59e, which mirrors section 14 of FOIA, on separating exempt from nonexempt material in a public record, and section 59f, 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.

BACKGROUND INFORMATION:

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.

FISCAL IMPACT:

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

	Employees	FY 2019-20	FY 2020-21
Legislature	3	$285,750	$381,000
Executive Office	1	$95,250	$127,000
Total	4	$381,000	$508,000

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.

                                                                                       Legislative Analysts:   Rick Yuille

                                                                                                                           Jenny McInerney

                                                                                                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.