Section 2: MCL § 15.232 – Definitions.

Section 2: MCL § 15.232 – Definitions.

Sec. 2.

As used in this act:

(a) “Commission” means the Open Government Commission established by this act.

(a)(b) "Cybersecurity assessment" means an investigation undertaken by a person, governmental body, or other entity to identify vulnerabilities in cybersecurity plans.

(b)(c) "Cybersecurity incident" includes, but is not limited to, a computer network intrusion or attempted intrusion; a breach of primary computer network controls; unauthorized access to programs, data, or information contained in a computer system; or actions by a third party that materially affect component performance or, because of impact to component systems, prevent normal computer system activities.

(c)(d) "Cybersecurity plan" includes, but is not limited to, information about a person's information systems, network security, encryption, network mapping, access control, passwords, authentication practices, computer hardware or software, or response to cybersecurity incidents.

(d)(e) "Cybersecurity vulnerability" means a deficiency within computer hardware or software, or within a computer network or information system, that could be exploited by unauthorized parties for use against an individual computer user or a computer network or information system.

(f) “Disciplinary proceeding” means the commencement of any investigation and any subsequent hearing or other proceeding conducted by the Michigan commission on law enforcement standards or any state or local law enforcement agency, department, independent review board, or other entity tasked with evaluating any complaint, allegation, or charge against a law enforcement officer or agent.

(e)(g) "Field name" means the label or identification of an element of a computer database that contains a specific item of information, and includes but is not limited to a subject heading such as a column header, data dictionary, or record layout.

(f)(h) "FOIA coordinator" means either of the following:

(i) An individual who is a public body.

(ii) An individual designated by a public body in accordance with section 6 to accept and process requests for public records under this act.

(i)“Law enforcement agency” means a public body that employs 1 or more law enforcement officers or agents.

(j) “Law enforcement disciplinary records” means all records created in furtherance of a disciplinary proceeding conducted by the Michigan commission on law enforcement standards or any state or local law enforcement agency, department, independent review board, or other entity tasked with evaluating any complaint, allegation, or charge against a law enforcement officer or agent, other than a complaint, allegation, or charge of a technical infraction, including, but not limited to, all of the following records and information:

(i) Records of any complaint, allegation, or charge against a law enforcement officer or agent.

(ii) The name of any law enforcement officer or agent against whom a complaint, allegation, or charge has been made.

(iii) All records, documents, and files, in whatever form, related to the investigation, adjudication, or disposition of any complaint, allegation, or charge against a law enforcement officer or agent.

(iv) The transcript of any disciplinary proceeding, including any exhibits introduced at the proceeding, regarding any complaint, allegation, or charge against a law enforcement officer or agent.

(v) Any finding by the Michigan commission on law enforcement standards or any state or local law enforcement agency, department, independent review board, or other entity tasked with evaluating any complaint, allegation, or charge against a law enforcement officer or agent during a disciplinary proceeding.

(vi) Any final written opinion or memorandum supporting the disposition and disciplinary action imposed, or the decision not to impose disciplinary action, on a law enforcement officer or agent against whom a complaint, allegation, or charge has been made, including all of the following:

(A) All factual findings.

(B) Any analysis of alleged misconduct.

(C) A description of the disciplinary action imposed on the law enforcement officer or agent, if any, and the data supporting the disciplinary action taken or the decision not to take disciplinary action.

(k) “Law enforcement officer or agent” includes a police officer employed by a municipality, county, or this state, an employee of a sheriff’s office who performs law enforcement duties, a correctional officer, or any employee who provides public safety or investigative services for the department of corrections, a state correctional facility, a county jail, or a juvenile detention facility.

(g)(l) "Person" means an individual, corporation, limited liability company, partnership, firm, organization, association, governmental entity, or other legal entity. 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.

(h)(m) "Public body" means any of the following:

(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 including the governor and lieutenant governor, the executive office of the governor or lieutenant governor, and the employees thereof.

(ii) A senator, representative, employee, agency, board, commission, or council in the legislative branch of the state government. 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 any elected or appointed official, employee, board, department, commission, council, or agency thereof.

(iv) Any other body that is created by state or local authority or is primarily funded by or through state or local authority, including any elected or appointed official and employee thereof, or any entity which directly or indirectly receives monies raised as the result of a millage either directly or indirectly, except that the judiciary, including the office of the county clerk and its employees when acting in the capacity of clerk to the circuit court, is not included in the definition of public body.

(i)(n) "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, and which remains in the possession, custody or control of the public body or any of its elected or appointed officials, employees, or other agents without regard to its location.. in the performance of an official function from the time it is created. Public record does not include computer software, but includes any records sent or retained by a public body’s electronic information technology system or device which is owned by a public body or funded in whole or in part by the public body. This act separates public records into the following 2 classes:

(i) Those that are exempt from disclosure under section 13.

(ii) All public records that are not exempt from disclosure under section 13 and that are subject to disclosure under this act.

(o) “Request” means a request by a requestor to inspect a public record or to obtain a copy of a public record.

(p) “Produce” means to provide requested records.

(j)(q) "Software" means a set of statements or instructions that when incorporated in a machine usable medium is capable of causing a machine or device having information processing capabilities to indicate, perform, or achieve a particular function, task, or result. Software does not include computer-stored information or data, or a field name if disclosure of that field name does not violate a software license.

(r) “Technical infraction” means a minor rule violation by a law enforcement officer or agent, related solely to the enforcement of administrative departmental rules, that meets all of the following:

(i) Did not involve interaction with members of the public.

(ii) Was unrelated to the investigative, enforcement, training, supervision, or reporting responsibilities of the law enforcement officer or agent.

(iii) Did not involve deception, misrepresentation, dishonesty, or intemperate behavior by the law enforcement officer or agent.

(k)(s) "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.

(l)(t) "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, hard drives, solid state storage components, or other means of recording or retaining meaningful content.

(m)(u) "Written request" means a writing that asks for information, and includes a writing transmitted by facsimile, electronic mail, or other electronic means.

Comment

A number of the defined terms in FOIA have been interpreted in court decisions in such a way as to hamper the transparency goals of FOIA. The changes presented to this section are designed to eliminate those loopholes and provide greater clarity on how FOIA is to be applied. Additional definitions relating to law enforcement are added to enhance accountability efforts relating to disciplinary issues. Specific justifications for these changes include:

• MCL § 15.232(a): This additional language is necessary to define the newly created Open Government Commission specified in MCL § 15.240c. The Commission would simplify the FOIA appeal process. Further discussion of the Commission can be found in the comment to that section.


• MCL § 15.232(f): This language is necessary in light of changes relating to the release or redaction of police records. The intent is to shield some police records, while still allowing the public to be informed about officers who have been disciplined for misconduct. These changes were drawn from House Bill 4291 of 2021, a bill primarily sponsored by Democratic lawmakers.[*]


• MCL § 15.232(i),(j): These definitions are also necessary due to later changes regarding the release and redaction of police disciplinary records.


• MCL § 15.232(m)(i): Michigan is one of only two states that exempts the governor, and one of only eight states that exempts the Legislature, from open records laws.[†] The amendments to this section remove the executive branch exemption.


• MCL § 15.232(m)(ii): This amendment likewise removes the legislative exemption to FOIA.


• MCL § 15.232(m)(iii): This additional language is necessary in light of an Oakland County Circuit Court opinion which found that records created and used by public schoolteachers for teaching students were not subject to FOIA.[‡] Specifically, that opinion reasoned that FOIA is silent as to whether records created by employees outside the state’s executive branch are subject to FOIA.[§] The amended language makes clear that records created, used, prepared, possessed, or retained by employees are accessible under FOIA. Similar reasoning was at issue but not resolved by the Michigan Supreme Court in Bisio v. City of the Village of Clarkson.[**]


• MCL § 15.232(m)(iv): This change is necessary for the same reason as the amendment to the previous subsection but expands its application to include local government.


• MCL § 15.232(m)(iv): This change is a specific response to two entities (the Detroit Zoo and Detroit Institute of the Arts) receiving millage funding, but due to a unique legal structure, have been able to avoid being subject to FOIA. This amendment ensures that any entity that is either directly or indirectly supported by a millage is subject to FOIA.


• MCL § 15.232(n): This change is necessary due to an increasing number of public officials who conduct public business with their own private devices and email accounts. Those records are typically not disclosed in response to a FOIA request, creating an easy way for officials to hide information from the public. This issue was the core of Progress Michigan v. Attorney General, but this case did not resolve the issue.[††] This amendment would eliminate any ambiguity about whether these records are subject to disclosure.


• MCL § 15.232(o),(p): These additions create terms that will be used to ensure greater clarity about a public body’s responsibilities under FOIA as herein amended.


• MCL § 15.232(r): This addition is necessary in light of the increased availability of police records created through later amendments.

[*] “House Bill No. 4291” (State of Michigan, Feb. 23, 2021), https://perma.cc/T9T6-78CM.

[†] Stephen Delie, “Transparency Laws Are Designed To Keep the Government Accountable. But Do They?” (Mackinac Center for Public Policy, March 18, 2021), https://perma.cc/XJG2-RJ4U.

[‡] Litkouhi v. Rochester Community School District, Oakland County Circuit Court, Dec. 15, 2022, https://perma.cc/R4VW-UCRU.

[§] For more information, see: Jaime Hope, “Court rules against transparency in Rochester schools FOIA case” (Michigan Capitol Confidential, Mackinac Center for Public Policy, Dec. 22, 2022), https://perma.cc/6SBJ-XLNR.

[**] Bisio v. City of the Village of Clarkson, 506 Mich 37 (2020).

[††] Progress Michigan v. Attorney General, 506 Mich 74 (2020).