HOUSE BILL NO. 5423

February 07, 2024, Introduced by Reps. Jaime Greene, Steele, St. Germaine, Tisdel, Martin, Borton, Kuhn, Wozniak, Kunse, Bierlein, Paquette, Bruck, Bollin, BeGole and Lightner and referred to the Committee on Government Operations.

A bill to amend 1976 PA 442, entitled

"Freedom of information act,"

by amending sections 13 and 14 (MCL 15.243 and 15.244), section 13 as amended by 2023 PA 64.

the people of the state of michigan enact:

Sec. 13. (1) A public body may exempt from disclosure as a public record under this act any of the following:records or information listed in this subsection or, as applicable to certain public bodies, subsection (2) or (3), but the public body is not required to do so. If a public body chooses to invoke any exemption under this subsection or, as applicable to certain public bodies, subsection (2) or (3), it shall provide a complete statement of facts that explains why the claimed exemption applies and why the public interest in nondisclosure outweighs the public interest in disclosure in the particular instance. The exemptions that a public body may assert under this subsection are as follows:

(a) Information of a personal nature if public disclosure of the information would constitute a clearly unwarranted invasion of an individual's privacy. This exemption does not apply to email addresses or other contact information for working groups, or similar information for members, employees, contractors, or vendors of a public body.

(b) Investigating records compiled for law enforcement purposes, but only to the extent that disclosure as a public record would do any of the following:

(i) Interfere with law enforcement proceedings.

(ii) Deprive a person of the right to a fair trial or impartial administrative adjudication.

(iii) Constitute an unwarranted invasion of personal privacy.

(iv) Disclose the identity of a confidential source, or if the record is compiled by a law enforcement agency in the course of a criminal investigation, disclose confidential information furnished only by a confidential source.

(v) Disclose law enforcement investigative techniques or procedures.

(vi) Endanger the life or physical safety of law enforcement personnel.

(vii) Disclose the identity of a party who, as described in subdivision (cc), (aa), proceeds anonymously in a civil action in which the party alleges that the party was the victim of sexual misconduct. For the purpose of securing the party's anonymity, that party or the party's designee may provide written notification of the civil action and the party's wish to remain anonymous to any law enforcement agency that has investigating records subject to this subparagraph, and the law enforcement agency shall retain a copy of that notification in its files with those investigating records.

(c) A public record that if disclosed would prejudice a public body's ability to maintain the physical security of custodial or penal institutions occupied by persons arrested or convicted of a crime or admitted because of a mental disability, unless the public interest in disclosure under this act outweighs the public interest in nondisclosure.

(d) Records or information specifically described and exempted from disclosure by statute.

(e) 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.

(f) Trade secrets or commercial or financial information voluntarily provided to an agency for use in developing governmental policy if:

(i) The information is submitted upon a promise of confidentiality by the public body.

(ii) The promise of confidentiality is authorized by the chief administrative officer of the public body or by an elected official at the time the promise is made.

(iii) A description of the information is recorded by the public body within a reasonable time after it has been submitted, maintained in a central place within the public body, and made available to a person upon request. This subdivision does not apply to information any of the following:

(A) Information submitted as required by law or as a condition of receiving a governmental contract, license, or other benefit.

(B) A final governmental policy developed as a result of commercial or financial information, or to any public record evidencing the fiscal impacts of that policy.

(C) A contract evidencing an economic development deal.

(g) Information or records subject to the attorney-client a legal privilege or protection recognized by statute, the common law, or court rule.

(h) Information or records subject to the physician-patient privilege, the psychologist-patient privilege, the minister, priest, or Christian Science practitioner privilege, or other privilege recognized by statute or court rule.

(h) (i) A bid or proposal by a person to enter into a contract or agreement, until the time for the public opening of bids or proposals, or if a public opening is not to be conducted, until the deadline for submission of bids or proposals has expired.

(i) (j) Appraisals of real property to be acquired by the public body until either of the following occurs:

(i) An agreement is entered into.

(ii) Three years have elapsed since the making of the appraisal, unless litigation relative to the acquisition has not yet terminated.

(j) (k) Test questions and answers, scoring keys, and other examination instruments or data used to administer a license, public employment, or academic examination, unless the public interest in disclosure under this act outweighs the public interest in nondisclosure.

(k) (l) Medical, counseling, or psychological facts or evaluations concerning an individual if the individual's identity would be revealed by a disclosure of those facts or evaluation, including protected health information, as defined in 45 CFR 160.103.

(l) (m) 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 agency determination of policy or action. This exemption does not apply unless the public body shows that in the particular instance the public interest in encouraging frank communication between officials and employees of public bodies clearly substantially outweighs the public interest in disclosure. This exemption does not constitute an exemption under state law for purposes of section 8(h) 8(1)(h) of the open meetings act, 1976 PA 267, MCL 15.268. As used in this subdivision, "determination of policy or action" includes a determination relating to collective bargaining, unless the public record is otherwise required to be made available under 1947 PA 336, MCL 423.201 to 423.217.

(m) (n) Records of law enforcement communication codes, or plans for deployment of law enforcement personnel, that if disclosed would prejudice a public body's ability to protect the public safety unless the public interest in disclosure under this act outweighs the public interest in nondisclosure in the particular instance.

(n) (o) Information that would reveal the exact location of archaeological sites. The department of natural resources may promulgate rules in accordance with the administrative procedures act of 1969, 1969 PA 306, MCL 24.201 to 24.328, to provide for the disclosure of the location of archaeological sites for purposes relating to the preservation or scientific examination of sites.

(o) (p) Testing data developed by a public body in determining whether bidders' products meet the specifications for purchase of those products by the public body, if disclosure of the data would reveal that only 1 bidder has met the specifications. This subdivision does not apply after 1 year has elapsed from the time the public body completes the testing.

(p) (q) Academic transcripts of an institution of higher education established under section 5, 6, or 7 of article VIII of the state constitution of 1963, if the transcript pertains to a student who is delinquent in the payment of financial obligations to the institution.

(q) (r) Records of a campaign committee including a committee that receives money from a state campaign fund.

(r) (s) Unless the public interest in disclosure outweighs the public interest in nondisclosure in the particular instance, public records of a law enforcement agency, the release of which would do any of the following:

(i) Identify or provide a means of identifying an informant.

(ii) Identify or provide a means of identifying a law enforcement undercover officer or agent or a plain clothes officer as a law enforcement officer or agent.

(iii) Disclose the personal residence address, personal email address, or personal telephone number of active or retired law enforcement officers or agents or a special skill that they may have.

(iv) Disclose the name, residence address, personal email address, or personal telephone numbers of family members, relatives, children, or parents of active or retired law enforcement officers or agents.

(v) Disclose operational instructions for law enforcement officers or agents.

(vi) Reveal the contents of staff manuals provided for law enforcement officers or agents.

(vii) Endanger the life or safety of law enforcement officers or agents or their families, relatives, children, parents, or those who furnish information to law enforcement departments or agencies.

(viii) Identify or provide a means of identifying a person as a law enforcement officer, agent, or informant.

(ix) Disclose personnel records of law enforcement agencies.

(x) Identify or provide a means of identifying residences that law enforcement agencies are requested to check in the absence of their owners or tenants.

(s) (t) Except as otherwise provided in this subdivision, records and information pertaining to an investigation or a compliance conference conducted by the department under article 15 of the public health code, 1978 PA 368, MCL 333.16101 to 333.18838, before a complaint is issued. This subdivision does not apply to records or information pertaining to 1 or more of the following:

(i) The fact that an allegation has been received and an investigation is being conducted, and the date the allegation was received.

(ii) The fact that an allegation was received by the department; the fact that the department did not issue a complaint for the allegation; and the fact that the allegation was dismissed.

(t) (u) Records of a public body's security measures, including security plans, security codes and combinations, passwords, passes, keys, and security procedures, to the extent that the records relate to the ongoing security of the public body. This exemption does not apply to email addresses or other contact information for working groups, or similar information for members, employees, contractors, or vendors, of a public body.

(u) (v) Records or information relating to a civil action in which the requesting party and the public body are parties.

(v) (w) Information or records that would disclose the Social Security number of an individual. This exemption is mandatory for purposes of section 4(3)(a).

(w) (x) Except as otherwise provided in this subdivision, an application for the position of president of an institution of higher education established under section 4, 5, or 6 of article VIII of the state constitution of 1963, materials submitted with such an application, letters of recommendation or references concerning an applicant, and records or information relating to the process of searching for and selecting an individual for a position described in this subdivision, if the records or information could be used to identify a candidate for the position. However, after 1 or more individuals have been identified as finalists for a position described in this subdivision, this subdivision does not apply to a public record described in this subdivision, except a letter of recommendation or reference, to the extent that the public record relates to an individual identified as a finalist for the position.

(x) (y) Records or information of measures designed to protect the security or safety of persons or property, or the confidentiality, integrity, or availability of information systems, whether public or private, including, but not limited to, building, public works, and public water supply designs to the extent that those designs relate to the ongoing security measures of a public body, capabilities and plans for responding to a violation of the Michigan anti-terrorism act, chapter LXXXIII-A of the Michigan penal code, 1931 PA 328, MCL 750.543a to 750.543z, emergency response plans, risk planning documents, threat assessments, domestic preparedness strategies, and cybersecurity plans, assessments, or vulnerabilities, unless disclosure would not impair a public body's ability to protect the security or safety of persons or property or unless the public interest in disclosure outweighs the public interest in nondisclosure in the particular instance. This exemption does not apply to email addresses or other contact information for working groups, or similar information for members, employees, contractors, or vendors, of a public body.

(y) (z) Information that would identify or provide a means of identifying a person that may, as a result of disclosure of the information, become a victim of a cybersecurity incident or that would disclose a person's cybersecurity plans or cybersecurity-related practices, procedures, methods, results, organizational information system infrastructure, hardware, or software.

(aa) Research data on road and attendant infrastructure collected, measured, recorded, processed, or disseminated by a public agency or private entity, or information about software or hardware created or used by the private entity for such purposes.

(z) (bb) Records or information that would reveal the specific location or GPS coordinates of game, including, but not limited to, records or information of the specific location or GPS coordinates of game obtained by the department of natural resources during any restoration, management, or research project conducted under section 40501 of the natural resources and environmental protection act, 1994 PA 451, MCL 324.40501, or in connection with the expenditure of money under section 43553 of the natural resources and environmental protection act, 1994 PA 451, MCL 324.43553. As used in this subdivision, "game" means that term as defined in section 40103 of the natural resources and environmental protection act, 1994 PA 451, MCL 324.40103.

(aa) (cc) Information that would reveal the identity of a party who proceeds anonymously in a civil action in which the party alleges that the party was the victim of sexual misconduct. As used in this subdivision, "sexual misconduct" means the conduct described in section 90, 136, 145a, 145b, 145c, 520b, 520c, 520d, 520e, or 520g of the Michigan penal code, 1931 PA 328, MCL 750.90, 750.136, 750.145a, 750.145b, 750.145c, 750.520b, 750.520c, 750.520d, 750.520e, and 750.520g, regardless of whether the conduct resulted in a criminal conviction.

(2) In addition to the grounds for exemption set forth in subsection (1), the executive office of the governor and lieutenant governor may exempt from disclosure as a public record under this act any of the following:

(a) Records created, prepared, owned, used, in the possession of, or retained by the executive office of the governor or lieutenant governor or an employee of either of those offices prior to January 1, 2025.

(b) Communications, including any related records or information, between the executive office of the governor or lieutenant governor or any employee of either of those offices and a constituent, other than a person that receives an appointment or is employed by this state or a person required to be registered as a lobbyist under 1978 PA 472, MCL 4.411 to 4.431. For purposes of this subdivision, "constituent" means an individual who resides in this state and who contacts the executive office of the governor or lieutenant governor for assistance in personally obtaining government services, to express a personal opinion, or for redress of personal grievances.

(3) In addition to the grounds for exemption set forth in subsection (1), a public body that is a state legislative public body as described in section 2(j)(ii) may exempt from disclosure as a public record under this act any of the following:

(a) Records created, prepared, owned, used, in the possession of, or retained by a senator, representative, or employee in the legislative branch of the state government prior to January 1, 2025.

(b) Communications, including any related records or information, between a legislator or a legislator's office and a constituent, other than a person required to be registered as a lobbyist under 1978 PA 472, MCL 4.411 to 4.431. For purposes of this subdivision, "constituent" means any of the following:

(i) An individual who is registered to vote in the district the legislator is elected to represent.

(ii) An individual who is a resident of the district the legislator is elected to represent and who is not registered to vote outside of that district.

(iii) An individual other than an individual described in subparagraph (i) or (ii) if it can be reasonably inferred that the individual intended that the communication be with the legislator elected to represent the district where the individual is registered to vote or, if not registered to vote, resides.

(c) Records created, prepared, owned, used, in the possession of, or retained by the majority or minority caucuses of each house of the legislature.

(d) The personal cellular telephone number of any legislator or employee of the state legislative public body.

(4) (2) A public body shall exempt from disclosure information that, if released, would prevent the public body from complying with 20 USC 1232g, commonly referred to as the family educational rights and privacy act of 1974. A public body that is a local or intermediate school district or a public school academy shall exempt from disclosure directory information, as defined by 20 USC 1232g, commonly referred to as the family educational rights and privacy act of 1974, requested for the purpose of surveys, marketing, or solicitation, unless that public body determines that the use is consistent with the educational mission of the public body and beneficial to the affected students. A public body that is a local or intermediate school district or a public school academy may take steps to ensure that directory information disclosed under this subsection is not used, rented, or sold for the purpose of surveys, marketing, or solicitation. Before disclosing the directory information, a public body that is a local or intermediate school district or a public school academy may require the requestor to execute an affidavit stating that directory information provided under this subsection will not be used, rented, or sold for the purpose of surveys, marketing, or solicitation. This exemption may be considered mandatory for purposes of section 4(3)(a).

(5) (3) This act does not authorize the withholding of information otherwise required by law to be made available to the public or to a party in a contested case under the administrative procedures act of 1969, 1969 PA 306, MCL 24.201 to 24.328.

(6) (4) Except as otherwise exempt under subsection (1), this act does not authorize the withholding of a public record in the possession of the executive office of the governor or lieutenant governor, or an employee of either executive office, if the public record is transferred to the executive office of the governor or lieutenant governor, or an employee of either executive office, after a request for the public record has been received by a state officer, employee, agency, department, division, bureau, board, commission, council, authority, or other body in the executive branch of government that is subject to this act.A public body that applies an exemption described in this section to redact a portion of a public record must specifically identify which exemption applies to that redaction. A general assertion of an exemption in support of 2 or more redactions from a public record does not satisfy this requirement; instead, each redaction must be accompanied with a specific citation to at least 1 statutory exemption asserted in support of the redaction.

(7) A public body is not permitted to withhold the existence of a public record under this section, even if the entire contents of the public record is thought to be exempt under 1 or more provisions of this section. A public record thought to be entirely exempt must be produced, with appropriate redactions as described in subsection (6), including a specific indication of each asserted exemption as described in subsection (6).

(8) If a public body asserts an exemption described in this section, the public body bears the burden of proving, by clear and convincing evidence, that the exemption applies in the particular instance, and all public records are presumed to be subject to disclosure absent such a showing. A public body that, on appeal, has been determined to have misapplied an exemption is subject to the monetary penalties described in this act.

Sec. 14. (1) If a public record contains material which that is not exempt under section 13 , as well as and material which that is exempt from disclosure under section 13, the public body shall separate the exempt and nonexempt material and make the nonexempt material available for examination and copying. The public body shall also describe, with as much specificity as possible, the nature of the exempt information, including details relating to the contents of the exempt material, the senders and receivers of any exempt correspondence, and other factual information that would help a requestor determine whether an exemption is being applied properly. A public body need not provide information that would defeat the purpose of an exemption, but must provide as much information as is otherwise possible. This section is to be construed strictly against the public body.

(2) When designing a public record, a public body shall, to the extent practicable, facilitate a separation of exempt from nonexempt information. If the separation is readily apparent to a person requesting to inspect or receive copies of the form, the public body shall generally describe the material exempted unless that description would reveal the contents of the exempt information and thus defeat the purpose of the exemption.

Enacting section 1. This amendatory act does not take effect unless all of the following bills of the 102nd Legislature are enacted into law:

(a) Senate Bill No.____ or House Bill No. 5427 (request no. 04892'23).

(b) Senate Bill No.____ or House Bill No. 5426 (request no. 05111'23).

(c) Senate Bill No.____ or House Bill No. 5422 (request no. 05112'23).

(d) Senate Bill No.____ or House Bill No. 5425 (request no. 05113'23).

(e) Senate Bill No.____ or House Bill No. 5424 (request no. 05114'23).