Section 13: MCL § 15.243 – Exemptions from disclosure, etc.

Section 13: MCL § 15.243 – Exemptions from disclosure; public body as school district, intermediate school district, or public school academy; withholding of information required by law or in possession of executive office.

Sec. 13.

(1) A public body may exempt from disclosure any of the information listed in this subsection, but it is not required to do so. If a public body chooses to exempt from disclosure any of the following information, it must provide a complete statement of facts that explains why each claimed exemption applies and why the public interest in nondisclosure outweighs the public interest in disclosure in the particular instance. A public body may exempt from disclosure as a public record under this act any of the following:

(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 e-mail addresses, 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:. The application of any of the exemptions contained in this subsection is contingent on the public body describing, in detail, how the exemption applies in the specific instance to the fullest extent possible without revealing information that would negate the purpose of the underlying exemption. This subsection is to be strictly construed against the public body.

(i) Interfere with an ongoing law enforcement proceedings investigation.

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

(iii) Constitute an clearly unwarranted invasion of personal privacy. For the purpose of the exemption under this subsection, the release of law enforcement disciplinary records is not 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, which, if revealed, would meaningfully jeopardize future investigations.

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

(A) This exemption does not apply to the final governmental policy developed as a result of commercial or financial information, nor to the fiscal impacts of that policy or documents evidencing the same. A contract evidencing an economic development deal is not subject to this exemption.

(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.

(i)(h) 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.

(j)(i) 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.

(k)(j) 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.

(l)(k) 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.

(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 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, 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.

(n)(l) 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.

(o)(m) 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.

(p)(n) 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.

(q)(o) 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.

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

(s)(q) Unless Only if the public interest in nondisclosure 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 address or telephone number of active or retired law enforcement officers or agents or a special skill that they may have.

(iv) Disclose the name, address, or 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)(vi) 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) (vii) Identify or provide a means of identifying a person as a law enforcement officer, agent, or informant.

(viiiix) Disclose personnel records of law enforcement agencies either of the following:

(1) The medical history of a law enforcement officer or agent.

(2) The use of an employee assistance program, mental health service, or substance abuse assistance service by a law enforcement officer or agent, unless the use of the program or service is mandated by a disciplinary proceeding the records of which are not exempt under this section.

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

(t)(r) 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.

(u)(s) 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 extend to electronic e-mail addresses, working groups, or similar information for members, employees, contractors, or vendors, of a public body.

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

(w) Information or records that would disclose the social security number of an individual. This exemption is mandatory for purposes of MCL 15.234.

(x)(u) 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.

(y)(v) 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 extend to electronic e-mail addresses, working groups, or similar information for members, employees, contractors, or vendors, of a public body.

(z)(w) 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.

(2) A public body must 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 shall not be 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 requester to execute an affidavit stating that directory information provided under this subsection shall not be used, rented, or sold for the purpose of surveys, marketing, or solicitation. This exemption may be considered mandatory for purposes of MCL 15.234.

(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.

(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 applying an exemption described by this section to redact portions of a record must specifically identify which exemption is being applied to each individual redaction. A general description of redactions applied is not sufficient to satisfy this requirement, and it is the legislature’s intent that each redaction be accompanied with a specific citation to the statutory exemption being applied.

(5) A public body is not permitted to withhold the existence of a public record under this section, even if the entire contents of such a record would be exempt under 1 or more provisions of this section. An entirely exempt record must be produced, with appropriate redactions as described by this section, including a specific indication of the exemption(s) being applied.

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

Comment

The changes to this section are intended to clarify when various exemptions are applicable, to expand the categories of records available under FOIA and to prevent the use of generalized language to redact or exempt records without sufficient explanation.

• MCL § 15.243(1): This amendment codifies existing case law that the vast majority of exemptions are not mandatory and need not be applied as a matter of law. It also requires public bodies that choose to apply permissive exemptions to provide a list of specific reasons why the exemption applies in the particular case, thereby preventing the use of blanket language for exemptions. Finally, this amendment adds a public interest balancing test which would make it more difficult for public bodies to claim exemptions without preventing them from doing so entirely.


• MCL § 15.243(1)(a): This amendment is necessary because the privacy exemption has been applied to largely prevent disclosure of the material covered by the amendment. This information can often be key to holding officials accountable and can lead to more narrowly tailored subsequent requests.


• MCL § 15.243(1)(b): This amendment makes clear that when a public body relies on the privacy exemption for police records, it needs to explain in detail why releasing the information would interfere with an individual’s privacy rights. This enables requestors to better evaluate whether the claimed exemption is reasonable.


• MCL § 15.243(1)(b)(i): This amendment is necessary in light of some public agencies’ responses to FOIA requests. The phrase “law enforcement proceedings” is sufficiently vague, and in some cases, public bodies have interpreted this phrase as lasting until a trial is complete. The purpose of the exemption is to prevent FOIA from interfering with police investigations. Once an investigation is complete, records should be made accessible.


• MCL § 15.243(1)(b)(iii): This amendment is designed to encourage greater transparency within the law enforcement community. Currently, obtaining a law enforcement officer’s disciplinary records is extremely difficult. This makes it more difficult for the public to monitor whether those who are tasked with keeping the public safe are fulfilling their duties appropriately. This amendment specifies that these disciplinary records are not exempt from FOIA.


• MCL § 15.243(1)(b)(v): This amendment is designed to eliminate a loophole in which law enforcement agencies refuse to release records relating to an investigation until the matter is fully resolved at trial. This significantly hinders the public’s understanding of not just a particular investigation, but police procedures in general.


• MCL § 15.243(1)(f): This amendment is designed to prevent economic development agencies, such at the Michigan Economic Development Corporation, from using this exemption to avoid disclosing the terms of taxpayer-funded economic development deals.


• MCL § 15.243(1)(g): This amendment consolidates a number of exemptions relating to common law and statutory privileges into a single exemption.


• MCL § 15.243(1)(m): This amendment eliminates what is commonly referred to as the frank communications exemption. In theory, this exemption attempts to strike a balance between allowing free communications between public officials and letting the public obtain particularly important communication. In practice, this exemption is one of the most abused to conceal information that a public body considers embarrassing or damaging. Further compounding this problem is the tendency of trial courts to overlook or misapply the balancing test in this section, which should strongly favor disclosure. The public deserves to not only have access to the final decisions made by public officials, but also to the process that led to the formation of that decision. To remedy these issues, this exemption is removed.


• MCL § 15.243(1)(q): The amendment is designed to reverse the public interest balancing test when evaluating whether police records should be released. Certain information in police records should undoubtedly be withheld. But placing the burden of demonstrating the public interest in records on the requestor is inappropriate. Public records should, by default, be presumed to be disclosable. Police departments should have the burden of demonstrating that the interest in withholding a record is sufficient to overcome the presumption records should be produced.


• MCL § 15.243(1)(q)(vi): This amendment makes the contents of police staff manuals available to the general public. These manuals can provide valuable insights as to how police officers are supposed to perform their duties and helps the public hold the law enforcement community accountable.


• MCL § 15.243(1)(ix): This amendment makes personnel records accessible to the public, while still exempting certain records which are highly personnel, or which would not advance the public’s ability to hold government accountable.


• MCL § 15.243(1)(s): This amendment closes a loophole that has become increasingly common. Public bodies, when faced with FOIA requests, have attempted to exempt working group e-mail addresses by claiming disclosure of those addresses would have security implications. This is an inappropriately broad reading of the security exemption, and the changes here make that clear.


• MCL § 15.243(1)(aa): This exemption has not been abused but appears to be rarely applied. As it is of questionable usefulness, it should be eliminated.


• MCL § 15.243(4): Frequently, public bodies merely identify which exemptions they have applied without associating a particular redaction with a particular exemption. This requires requestors to sue in order to understand what redactions might be appropriate and which ones might not be. By requiring public bodies to associate each redaction with a specific exemption, requestors will be better able to assess the appropriateness of redactions without having to resort to litigation. As a bonus, the additional work required by this amendment helps to disincentivize excessive redactions.


• MCL § 15.243(5): This amendment clarifies that even an entirely redacted record must be produced. Currently, if a public body determines a record is entirely exempt, it can be withheld, without acknowledging the record exists. This makes it impossible for the public to challenge the appropriateness of the redactions. By requiring the record be produced in fully redacted form, requestors would have the opportunity to argue those exemptions are inappropriate.


• MCL § 15.243(6): This amendment makes clear the burden of proof for applying exemptions rests with the public body attempting to apply them. It also raises the burden of proof for a public body to succeed in arguing a redaction was appropriate. Finally, it makes clear that improper redactions are sufficient to give rise to the monetary penalties applicable to violations of this act.