HOUSE BILL No. 5357 February 15, 2000, Introduced by Reps. DeWeese, Martinez, Brewer, Baird, Richardville, Birkholz, Hager, DeHart, Koetje, Scott, Voorhees, Toy, Scranton, Vear, Bradstreet and Gosselin and referred to the Committee on Constitutional Law and Ethics. A bill to amend 1976 PA 442, entitled "Freedom of information act," by amending section 13 (MCL 15.243), as amended by 1996 PA 553. THE PEOPLE OF THE STATE OF MICHIGAN ENACT: 1 Sec. 13. (1) A public body may exempt from disclosure as a 2 public record under this act: 3 (a) Information of a personal naturewhereIF the public 4 disclosure of the information would constitute a clearly unwar- 5 ranted invasion of an individual's privacy. 6 (b) Investigating records compiled for law enforcement pur- 7 poses, but only to the extent that disclosure as a public record 8 would do any of the following: 9 (i) Interfere with law enforcement proceedings. 10 (ii) Deprive a person of the right to a fair trial or 11 impartial administrative adjudication. 05296'99 CAS 2 1 (iii) Constitute an unwarranted invasion of personal 2 privacy. 3 (iv) Disclose the identity of a confidential source, or if 4 the record is compiled by a law enforcement agency in the course 5 of a criminal investigation, disclose confidential information 6 furnished only by a confidential source. 7 (v) Disclose law enforcement investigative techniques or 8 procedures. 9 (vi) Endanger the life or physical safety of law enforcement 10 personnel. 11 (c) A public record that if disclosed would prejudice a 12 public body's ability to maintain the physical security of custo- 13 dial or penal institutions occupied by persons arrested or con- 14 victed of a crime or admitted because of a mental disability, 15 unless the public interest in disclosure under this act outweighs 16 the public interest in nondisclosure. 17 (d) Records or information specifically described and 18 exempted from disclosure by statute. 19 (e) Information the release of which would prevent the 20 public body from complying with section 444 of subpart 4 of part 21 C of the general education provisions act, title IV of Public Law 22 90-247, 20 U.S.C. 1232g, commonly referred to as the family edu- 23 cational rights and privacy act of 1974. 24 (f) A public record or information described in this section 25 that is furnished by the public body originally compiling, pre- 26 paring, or receiving the record or information to a public 27 officer or public body in connection with the performance of the 05296'99 3 1 duties of that public officer or public body, if the 2 considerations originally giving rise to the exempt nature of the 3 public record remain applicable. 4 (g) Trade secrets or commercial or financial information 5 voluntarily provided to an agency for use in developing govern- 6 mental policy if: 7 (i) The information is submitted upon a promise of confiden- 8 tiality by the public body. 9 (ii) The promise of confidentiality is authorized by the 10 chief administrative officer of the public body or by an elected 11 official at the time the promise is made. 12 (iii) A description of the information is recorded by the 13 public body within a reasonable time after it has been submitted, 14 maintained in a central place within the public body, and made 15 available to a person upon request. This subdivision does not 16 apply to information submitted as required by law or as a condi- 17 tion of receiving a governmental contract, license, or other 18 benefit. 19 (h) Information or records subject to the attorney-client 20 privilege. 21 (i) Information or records subject to the physician-patient 22 privilege, the psychologist-patient privilege, the minister, 23 priest, or Christian Science practitioner privilege, or other 24 privilege recognized by statute or court rule. 25 (j) A bid or proposal by a person to enter into a contract 26 or agreement, until the time for the public opening of bids or 05296'99 4 1 proposals, or if a public opening is not to be conducted, until 2 the deadline for submission of bids or proposals has expired. 3 (k) Appraisals of real property to be acquired by the public 4 body until EITHER OF THE FOLLOWING OCCURS: 5 (i)anAN agreement is entered into.; or6 (ii)3THREE years has elapsed since the making of the 7 appraisal, unless litigation relative to the acquisition has not 8 yet terminated. 9 (l) Test questions and answers, scoring keys, and other 10 examination instruments or data used to administer a license, 11 public employment, or academic examination, unless the public 12 interest in disclosure under this act outweighs the public inter- 13 est in nondisclosure. 14 (m) Medical, counseling, or psychological facts or evalu- 15 ations concerning an individual if the individual's identity 16 would be revealed by a disclosure of those facts or evaluation. 17 (n) Communications and notes within a public body or between 18 public bodies of an advisory nature to the extent that they cover 19 other than purely factual materials and are preliminary to a 20 final agency determination of policy or action. This exemption 21 does not apply unless the public body shows that in the particu- 22 lar instance the public interest in encouraging frank communica- 23 tions between officials and employees of public bodies clearly 24 outweighs the public interest in disclosure. This exemption does 25 not constitute an exemption under state law for purposes of sec- 26 tion 8(h) of the open meetings act,Act No. 267 of the Public27Acts of 1976, being section 15.268 of the Michigan Compiled Laws05296'99 5 1 1976 PA 267, MCL 15.268. As used in this subdivision, 2 "determination of policy or action" includes a determination 3 relating to collective bargaining, unless the public record is 4 otherwise required to be made available underAct No. 336 of the5Public Acts of 1947, being sections 423.201 to 423.217 of the6Michigan Compiled Laws1947 PA 336, MCL 423.201 TO 423.217. 7 (o) Records of law enforcement communication codes, or plans 8 for deployment of law enforcement personnel, that if disclosed 9 would prejudice a public body's ability to protect the public 10 safety unless the public interest in disclosure under this act 11 outweighs the public interest in nondisclosure in the particular 12 instance. 13 (p) Information that would reveal the exact location of 14 archaeological sites. The secretary of state may promulgate 15 rules pursuant to the administrative procedures act of 1969,Act16No. 306 of the Public Acts of 1969, being sections 24.201 to1724.328 of the Michigan Compiled Laws1969 PA 306, MCL 24.201 TO 18 24.328, to provide for the disclosure of the location of archaeo- 19 logical sites for purposes relating to the preservation or scien- 20 tific examination of sites. 21 (q) Testing data developed by a public body in determining 22 whether bidders' products meet the specifications for purchase of 23 those products by the public body, if disclosure of the data 24 would reveal that only 1 bidder has met the specifications. This 25 subdivision does not apply after 1 year has elapsed from the time 26 the public body completes the testing. 05296'99 6 1 (r) Academic transcripts of an institution of higher 2 education established under section 5, 6, or 7 of article VIII of 3 the state constitution of 1963, if the transcript pertains to a 4 student who is delinquent in the payment of financial obligations 5 to the institution. 6 (s) Records ofanyA campaign committee includinganyA 7 committee that receives money from a state campaign fund. 8 (t) Unless the public interest in disclosure outweighs the 9 public interest in nondisclosure in the particular instance, 10 public records of a law enforcement agency, the release of which 11 would do any of the following: 12 (i) Identify or provide a means of identifying an informer. 13 (ii) Identify or provide a means of identifying a law 14 enforcement undercover officer or agent or a plain clothes offi- 15 cer as a law enforcement officer or agent. 16 (iii) Disclose the personal address or telephone number of 17 law enforcement officers or agents or any special skills that 18 they may have. 19 (iv) Disclose the name, address, or telephone numbers of 20 family members, relatives, children, or parents of law enforce- 21 ment officers or agents. 22 (v) Disclose operational instructions for law enforcement 23 officers or agents. 24 (vi) Reveal the contents of staff manuals provided for law 25 enforcement officers or agents. 26 (vii) Endanger the life or safety of law enforcement 27 officers or agents or their families, relatives, children, 05296'99 7 1 parents, or those who furnish information to law enforcement 2 departments or agencies. 3 (viii) Identify or provide a means of identifying a person 4 as a law enforcement officer, agent, or informer. 5 (ix) Disclose personnel records of law enforcement 6 agencies. 7 (x) Identify or provide a means of identifying residences 8 that law enforcement agencies are requested to check in the 9 absence of their owners or tenants. 10 (u) Except as otherwise provided in this subdivision, 11 records and information pertaining to an investigation or a com- 12 pliance conference conducted by the department of consumer and 13 industry services under article 15 of the public health code, 14Act No. 368 of the Public Acts of 1978, being sections 333.1610115to 333.18838 of the Michigan Compiled Laws1978 PA 368, 16 MCL 333.16101 TO 333.18838, before a complaint is issued. This 17 subdivision does not apply to records and information pertaining 18 to 1 or more of the following: 19 (i) The fact that an allegation has been received and an 20 investigation is being conducted, and the date the allegation was 21 received. 22 (ii) The fact that an allegation was received by the depart- 23 ment of consumer and industry services; the fact that the depart- 24 ment of consumer and industry services did not issue a complaint 25 for the allegation; and the fact that the allegation was 26 dismissed. 05296'99 8 1 (v) Records of a public body's security measures, including 2 security plans, security codes and combinations, passwords, 3 passes, keys, and security procedures, to the extent that the 4 records relate to the ongoing security of the public body. 5 (w) Records or information relating to a civil action in 6 which the requesting party and the public body are parties. 7 (x) Information or records that would disclose the social 8 security number ofanyAN individual. 9 (y) Except as otherwise provided in this subdivision, an 10 application for the position of president of an institution of 11 higher education established under section 4, 5, or 6 of article 12 VIII of the state constitution of 1963, materials submitted with 13 such an application, letters of recommendation or references con- 14 cerning an applicant, and records or information relating to the 15 process of searching for and selecting an individual for a posi- 16 tion described in this subdivision, if the records or information 17 could be used to identify a candidate for the position. However, 18 after 1 or more individuals have been identified as finalists for 19 a position described in this subdivision, this subdivision does 20 not apply to a public record described in this subdivision, 21 except a letter of recommendation or reference, to the extent 22 that the public record relates to an individual identified as a 23 finalist for the position. 24 (Z) UNLESS THE PUBLIC INTEREST IN DISCLOSURE OUTWEIGHS THE 25 PUBLIC INTEREST IN NONDISCLOSURE IN THE PARTICULAR INSTANCE, 26 PUBLIC RECORDS OF A COUNTY PUBLIC HEALTH DEPARTMENT, THE RELEASE 27 OF WHICH WOULD DO ANY OF THE FOLLOWING: 05296'99 9 1 (i) DISCLOSE THE PERSONAL ADDRESS OR TELEPHONE NUMBER OF A 2 COUNTY PUBLIC HEALTH DEPARTMENT EMPLOYEE. 3 (ii) DISCLOSE THE NAME, ADDRESS, OR TELEPHONE NUMBERS OF 4 FAMILY MEMBERS, RELATIVES, CHILDREN, OR PARENTS OF A COUNTY 5 PUBLIC HEALTH DEPARTMENT EMPLOYEE. 6 (iii) DISCLOSE PERSONAL INFORMATION ABOUT FAMILY MEMBERS OR 7 INFORMATION REGARDING THE MARITAL STATUS OF A COUNTY PUBLIC 8 HEALTH DEPARTMENT EMPLOYEE. 9 (2) This act does not authorize the withholding of informa- 10 tion otherwise required by law to be made available to the public 11 or to a party in a contested case underAct No. 306 of the12Public Acts of 1969THE ADMINISTRATIVE PROCEDURES ACT OF 1969, 13 1969 PA 306, MCL 24.201 TO 24.328. 14 (3) Except as otherwise exempt under subsection (1), this 15 act does not authorize the withholding of a public record in the 16 possession of the executive office of the governor or lieutenant 17 governor, or an employee of either executive office, if the 18 public record is transferred to the executive office of the gov- 19 ernor or lieutenant governor, or an employee of either executive 20 office, after a request for the public record has been received 21 by a state officer, employee, agency, department, division, 22 bureau, board, commission, council, authority, or other body in 23 the executive branch of government that is subject to this act. 05296'99 Final page. 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