2 Appendix 1 - Freedom of Information Act

Appendix to the Electronic Mail and Public Disclosure Laws

APPENDIX 1

FREEDOM OF INFORMATION ACT
Act 442 of 1976
                   AN ACT to provide for public access to certain public
records of publicbodies; to permit certain fees; to prescribe the powers
and duties of certain public officers and public bodies; to provide
remedies and penalties; and to repeal certain acts and parts of acts.
The People of the State of Michigan enact:
                            15.231 Short title; public policy.
     Sec. 1. (1) This act shall be known and 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.

15.232 Definitions.
     Sec. 2. As used in this act:
     (a) "Person" means an individual, corporation, partnership, firm,
organization, or association, except that 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.
     (b) "Public body" means:
     (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.
     (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.
     (iv) Any other body which is created by state or local authority or
which is primarily funded by or through state or local authority.
     (v) The judiciary, including the office of the county clerk and
employees thereof when acting in the capacity of clerk to the circuit
court, is not included in the definition of public body.
     (c) "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. This act separates public
records into 2 classes: (i) those which are exempt from disclosure
under section 13, and (ii) all others, which are subject to disclosure
under this act.
     (d) "Unusual circumstances" means any 1 or a combination of the
following, but only to the extent necessary for the proper 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 are located apart
from the particular office receiving or processing the request.
     (e) "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, or other means of recording or retaining
meaningful content.

15.233 Public records; right to inspect, copy, or receive; subscriptions;
inspection and examination; memoranda or abstracts; rules;
compilation, summary, or report of information; creation of new public
record; certified copies.
     Sec. 3. (1) Upon an oral or written request which describes the
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 a
public record of a public body, except as otherwise expressly provided
by section 13. A person has a right to subscribe to future issuances of
public records which are created, issued, or disseminated on a regular
basis. A subscription shall be valid for up to 6 months, at the request
of the subscriber, and shall be renewable.
     (2) 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.
     (3) This act does not require a public body to make a compilation,
summary, or report of information, except as required in section 11.
This act does not require a public body to create a new public record,
except as required in sections 5 and 11, and to the extent required by
this act for the furnishing of copies, or edited copies pursuant to
section 14(1), of an already existing public record.
     (5) The custodian of a public record shall, upon request, furnish a
requesting person a certified copy of a public record.

15.234 Fees; waiver or reduction; affidavit; deposit; calculation of
costs; provisions inapplicable to certain public records; review by
bipartisan joint committee; appointment of members.
     Sec. 4. (1) A public body may charge a fee for providing a copy of
a public record. Subject to subsection (3), the fee shall 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. Copies of public records may be furnished
without charge or at a reduced charge if the public body determines
that a waiver or reduction of the fee is in the public interest because
furnishing copies of the public record can be considered as primarily
benefiting the general public. Except as provided in section 30(3) of
Act No. 232 of the Public Acts of 1953, being section 791.230 of the
Michigan Compiled Laws, a copy of a public record shall be furnished
without charge for the first $20.00 of the fee for each request, to an
individual who submits an affidavit stating that the individual is then
receiving public assistance or, if not receiving public assistance, stating
facts showing inability to pay the cost because of indigency.
     (2) At the time the request is made, a public body may request a
good faith deposit from the person requesting the public record or
series of public records, if the fee provided in subsection (1) exceeds
$50.00. The deposit shall not exceed 1/2 of the total fee.
     (3) In calculating the costs under subsection (1), a public body may
not attribute more than the hourly wage of the lowest paid, full-time,
permanent clerical employee of the employing public body to the cost
of labor incurred in duplication and mailing and to the cost of
examination, review, separation, and deletion. A public body shall
utilize the most economical means available for providing copies of
public records. A fee shall not be charged for the cost of search,
examination, review, and the deletion and separation of exempt from
nonexempt information as provided in section 14 unless failure to
charge a fee would result in unreasonably high costs to the public body
because of the nature of the request in the particular instance, and the
public body specifically identifies the nature of these unreasonably high
costs. A public body shall establish and publish procedures and
guidelines to implement this subsection.
     (4) This section does not apply to public records prepared under an
act or statute specifically authorizing the sale of those public records to
the public, or where the amount of the fee for providing a copy of the
public record is otherwise specifically provided by an act or statute.
     (5) Three years after the effective date of this act a bipartisan joint
committee of 3 members of each house shall review the operation of
this section and recommend appropriate changes. The members of the
house of representatives shall be appointed by the speaker of the
house of representatives. The members of the senate shall be
appointed by the majority leader of the senate.



15.235 Request to inspect or receive copy of public record; response
to request; failure to respond; court order to disclose or provide copies;
damages; contents of notice denying request; signing notice of denial;
notice extending period of response; grounds for commencement of
action.
     Sec. 5. (1) A person desiring to inspect or receive a copy of a
public record may make an oral or written request for the public record
to the public body.
     (2) When a public body receives a request for a public record it shall
immediately, but not more than 5 business days after the day the
request is received unless otherwise agreed to in writing by the person
making the request, respond to the request by 1 of the following:
     (a) Grant the request.
     (b) Issue a written notice to the requesting person denying the
request.
     (c) Grant the request in part and issue a written notice to the
requesting person denying the request in part.
     (d) Under unusual circumstances, issue a notice extending for not
more than 10 business days the period during which the public body
shall respond to the request. A public body shall not issue more than 1
notice of extension for a particular request.
     (3) Failure to respond to a request as provided in subsection (2)
constitutes a final decision by the public body to deny the request. If a
circuit court, upon an action commenced pursuant to section 10, finds
that a public body has failed to respond as provided in subsection (2),
and if the court orders the public body to disclose or provide copies of
the public record or a portion thereof, then the circuit court shall assess
damages against the public body as provided in section 10(5).
     (4) A written notice denying a request for a public record in whole
or in part shall constitute a final determination by the public body to
deny the request or portion thereof and shall contain:
     (a) An explanation of the basis under this act or other statute for
the determination that the public record, or the portion thereof, is
exempt from disclosure, if that is the reason for denying the request or
a portion thereof.
     (b) A certificate that the public record does not exist under the
name given by the requester or by another name reasonably known to
the public body, if that is the reason for denying the request or a
portion thereof.
     (c) A description of a public record or information on a public record
which is separated or deleted as provided in section 14, if a separation
or deletion is made.
     (d) A full explanation of the requesting person's right to seek
judicial review under section 10. Notification of the right to judicial
review shall include notification of the right to receive attorneys' fees
and damages as provided in section 10.
     (5) The individual designated in section 6 as responsible for the
denial of the request shall sign the written notice of denial.
     (6) If a public body issues a notice extending the period for a
response to the request, the notice shall set forth the reasons for the
extension and the date by which the public body shall do 1 of the
following:
     (a) Grant the request.
     (b) Issue a written notice to the requesting person denying the
request.
     (c) Grant the request in part and issue a written notice to the
requesting person denying the request in part.
     (7) If a public body makes a final determination to deny in whole or
in part a request to inspect or receive a copy of a public record or
portion thereof, the requesting person may commence an action in
circuit court, as provided in section 10.

15.236 Persons responsible for approving denial of request for public
record.
     Sec. 6. (1) For a public body which is a city, village, township,
county, or state department, or under the control thereof, the chief
administrative officer of that city, village, township, county, or state
department, or an individual designated in writing by that chief
administrative officer, shall be responsible for approving a denial under
section 5(4) and (5). In a county not having an executive form of
government, the chairperson of the county board of commissioners
shall be considered the chief administrative officer for purposes of this
subsection.
     (2) For all other public bodies, the chief administrative officer of the
respective public body, or an individual designated in writing by that
chief administrative officer, shall be responsible for approving a denial
under section 5(4) and (5).

15.240 Action to compel disclosure of public records; commencement;
orders; jurisdiction; de novo proceeding; burden of proof; private view
of public record; contempt; assignment of action or appeal for hearing,
trial, or argument; attorneys' fees, costs, and disbursements;
assessment of award; damages.
     Sec. 10. (1) If a public body makes a final determination to deny a
request or a portion thereof, the requesting person may commence an
action in the circuit court to compel disclosure of the public records. If
the court determines that the public records are not exempt from
disclosure, the court shall order the public body to cease withholding or
to produce a public record or a portion thereof wrongfully withheld,
regardless of the location of the public record. The circuit court for the
county in which the complainant resides or has his principal place of
business, or the circuit court for the county in which the public record
or an office of the public body is located shall have jurisdiction to issue
the order. The court shall determine the matter de novo and the burden
is on the public body to sustain its denial. The court, on its own
motion, may view the public record in controversy in private before
reaching a decision. Failure to comply with an order of the court may
be punished as contempt of court.
     (2) An action under this section arising from the denial of an oral
request may not be commenced unless the requesting person confirms
the oral request in writing not less than 5 days before commencement
of the action.
     (3) An action commenced pursuant to this section and appeals
therefrom shall be assigned for hearing and trial or for argument at the
earliest practicable date and expedited in every way.
     (4) If a person asserting the right to inspect or to receive a copy of
a public record or a portion thereof prevails in an action commenced
pursuant to this section, the court shall award reasonable attorneys'
fees, costs, and disbursements. If the person prevails in part, the court
may in its discretion award reasonable attorneys' fees, costs, and
disbursements or an appropriate portion thereof. The award shall be
assessed against the public body liable for damages under subsection
(5).
     (5) In an action commenced pursuant to this section, if the circuit
court finds that the public body has arbitrarily and capriciously violated
this act by refusal or delay in disclosing or providing copies of a public
record, the court shall, in addition to any actual or compensatory
damages, award punitive damages in the amount of $500.00 to the
person seeking the right to inspect or receive a copy of a public record.
The damages shall not be assessed against an individual, but shall be
assessed against the next succeeding public body, not an individual,
pursuant to whose public function the public record was kept or
maintained.

15.241 Matters required to be published and made available by state
agencies; form of publications; effect on person of matter not
published and made available; exception; action to compel compliance
by state agency; order; attorneys' fees, costs, and disbursements;
jurisdiction; definitions.
     Sec. 11. (1) A state agency shall publish and make available to the
public all of the following:
     (a) Final orders or decisions in contested cases and the records on
which they were made.
     (b) Promulgated rules.
     (c) Other written statements which implement or interpret laws,
rules, or policy, including but not limited to guidelines, manuals, and
forms with instructions, adopted or used by the agency in the
discharge of its functions.
     (2) Publications may be in pamphlet, loose-leaf, or other appropriate
form in printed, mimeographed, or other written matter.
     (3) Except to the extent that a person has actual and timely notice
of the terms thereof, a person shall not in any manner be required to
resort to, or be adversely affected by, a matter required to be published
and made available, if the matter is not so published and made
available.
     (4) This section does not apply to public records which are exempt
from disclosure under section 13.
     (5) A person may commence an action in the circuit court to
compel a state agency to comply with this section. If the court
determines that the state agency has failed to comply, the court shall
order the state agency to comply and shall award reasonable attorneys'
fees, costs, and disbursements to the person commencing the action.
The circuit court for the county in which the state agency is located
shall have jurisdiction to issue the order.
     (6) As used in this section, "state agency", "contested case", and
"rules" shall have the same meanings as ascribed to those terms in Act
No. 306 of the Public Acts of 1969, as amended, being sections
24.201 to 24.315 of the Michigan Compiled Laws.

15.243 Exemptions from disclosure; withholding of information
required by law.
     Sec. 13. (1) A public body may exempt from disclosure as a public
record under this act:
     (a) Information of a personal nature where the public disclosure of
the information would constitute a clearly unwarranted invasion of an
individual's privacy.
     (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 criminal 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.
     (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) Information the release of which would prevent the public body
from complying with section 438 of subpart 2 of part C of the general
education provisions act, title IV of Public Law 90-247, 20 U.S.C.
1232g, commonly referred to as the family educational rights and
privacy act of 1974.
     (f) 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.
     (g) 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 submitted
as required by law or as a condition of receiving a governmental
contract, license, or other benefit.
     (h) Information or records subject to the attorney-client privilege.
     (i) 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.
     (j) 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 time for the receipt
of bids or proposals has expired.
     (k) Appraisals of real property to be acquired by the public body
until (i) an agreement is entered into; or (ii) 3 years has elapsed since
the making of the appraisal, unless litigation relative to the acquisition
has not yet terminated.
     (l) 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.
     (m) 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.
     (n) 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 exemptiom does not apply
unless the public body shows that in the particular instance the public
interest in encouraging frank communications between officials and
employees of public bodies clearly outweighs the public interest in
disclosure. This exemption does not constitute an exemption under
state law for purposes of section 8(h) of the open meetings act, Act
No. 267 of the Public Acts of 1976, being section 15.268 of the
Michigan Compiled Laws. 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 Act No. 336 of the Public Acts of 1947, as amended,
being sections 423.201 to 423.216 of the Michigan Compiled Laws.
     (o) Records of law enforcement communication codes, or plans for
deployment of law enforcement personnel, which 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.
     (p) Information which would reveal the exact location of
archaeological sites. The secretary of state may promulgate rules
pursuant to the administrative procedures act of 1969, Act No. 306 of
the Public Acts of 1969, as amended, being sections 24.201 to
24.328 of the Michigan Compiled Laws, to provide for the disclosure
of the location of archaeological sites for purposes relating to the
preservation or scientific examination of sites.
     (q) 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.
     (r) Academic transcripts of an institution of higher education
established under sections 5, 6, or 7 of article VIII of the state
constitution of 1963, where the record pertains to a student who is
delinquent in the payment of financial obligations to the institution.
     (s) Records of any campaign committee including any committee
that receives money from a state campaign fund.
     (t) Unless the public interest in disclosure outweighs the public
interest in nondisclosure in the particular instance, public records of a
police or sheriff's agency or department, the release of which would do
any of the following:
     (i) Identify or provide a means of identifying an informer.
     (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 address or telephone number of law
enforcement officers or agents or any special skills that they may have.
     (iv) Disclose the name, address, or telephone numbers of family
members, relatives, children, or parents of 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 informer.
     (ix) Disclose personnel records of law enforcement agencies.
     (x) Identify or provide a means of identifying residences which law
enforcement agencies are requested to check in the absence of their
owners or tenants.
     (u) Except as otherwise provided in this subdivision, records and
information pertaining to an investigation or a compliance conference
conducted by the department of commerce under article 15 of the
public health code, Act No. 368 of the Public Acts of 1978, being
sections 333.16101 to 333.18838 of the Michigan Compiled Laws,
before a complaint is issued. This subdivision does not apply to records
and information pertaining to any 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 of
commerce; the fact that the department of commerce did not issue a
complaint for the allegation; and the fact that the allegation was
dismissed.
     (2) 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 Act No. 306 of the Public Acts of
1969, as amended.

15.243a Salary records of employee or other official of institution of
higher education, school district, intermediate school district, or
community college available to public on request.
     Sec. 13a. Notwithstanding section 13, an institution of higher
education established under section 5, 6, or 7 of article 8 of the state
constitution of 1963; a school district as defined in section 6 of Act
No. 451 of the Public Acts of 1976, being section 380.6 of the
Michigan Compiled Laws; an intermediate school district as defined in
section 4 of Act No. 451 of the Public Acts of 1976, being section
380.4 of the Michigan Compiled Laws; or a community college
established under Act No. 331 of the Public Acts of 1966, as
amended, being sections 389.1 to 389.195 of the Michigan Compiled
Laws shall upon request make available to the public the salary records
of an employee or other official of the institution of higher education,
school district, intermediate school district, or community college.

15.244 Separation of exempt and nonexempt material; design of public
record; description of material exempted.
     Sec. 14. (1) If a public record contains material which is not
exempt under section 13, as well as material which 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.
     (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.

15.245 Repeal of SS 24.221, 24.222, and 24.223.
     Sec. 15. Sections 21, 22 and 23 of Act No. 306 of the Public Acts
of 1969, as amended, being sections 24.221, 24.222 and 24.223 of
the Michigan Compiled Laws, are repealed.

15.246 Effective date.
     Sec. 16. This act shall take effect 90 days after being signed by the
governor.

.