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The following opinion is presented on-line for informational use only and does not replace the official version. (Mich Dept of Attorney General Web Site - www.ag.state.mi.us)


STATE OF MICHIGAN

FRANK J. KELLEY, ATTORNEY GENERAL

Opinion No. 6390

September 26, 1986

FREEDOM OF INFORMATION ACT: Records of state legislators

The Legislature has exempted state legislators from the provisions of the Freedom of Information Act.

Honorable Mitch Irwin

State Senator

The Capitol

Lansing, Michigan

You have requested my opinion on two questions involving the Michigan Freedom of Information Act (FOIA), MCL 15.231 et seq; MSA 4.1801(1) et seq. Your first question is:

Is a state legislator a "public body" under FOIA?

MCL 15.232(b); MSA 4.1801(2)(b) defines the term "public body," as used in FOIA, to mean:

"(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 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."

If a state legislator is to be subject to FOIA, such officer must be included with the term "public body" as defined in MCL 15.232(b)(ii); MSA 4.1801(2)(b)(ii). A plain reading of this provision discloses that neither the office of state senator nor state representative is enumerated therein. MacQueen City Commission of Port Huron, 194 Mich 328, 342; 160 NW 627 (1916). A review of legislative intent. Department of Civil Rights v City of Warren, 136 Mich App 103, 111; 355 NW2d 687 (1984), lv den, 421 Mich 860 (1985).

An examination of the legislative history of MCL 15.232(b); MSA 4.1801(2)(b) reveals a clear intent to exclude state legislators from the definition of a "public body."

As originally introduced on March 8, 1976, HB 6085, Sec. 2(d)(ii), which eventually was enacted into FOIA defined the term "public body" to mean "[a] legislator, state officer, board, commission, council, or committee in the legislative branch of state government," and Sec. 2(iv) stated "Any other body which is created by state or local authority or which is primarily funded by or through state or local authority", 1 HJ 763 (1976). On September 14, 1976, a substitute to HB 6085 was adopted and as amended by the House renumbered Sec. 2(d)(ii) as Sec. 2(b)(ii), struck "A legislator, state officer" and modified it to read "[a]n agency, board, commission, council, clerk, secretary or committee in the legislative branch of the state government." 3 HJ 2663; 4 HJ 4144-4145 (1976). The Senate amended the HB 6085 to delete "Clerk, secretary or committee" from Sec. 2(b)(ii). 3 SJ 2587-2588 (1976). HB 6085 was enacted without further change. Thus, the Legislature deliberately excluded the word "legislator" from the definition of "public body."

The Bill Analysis of HB 6085 (as enrolled), dated December 30, 1976, prepared by the House Legislature Analysis Section states:

"(Under the bill, a 'public body' would be any employee or authorized body within the executive branch of state government, excluding the Governor and Lieutenant Governor and their employees. Also included in [the definition of] public bodies would be agencies, boards, commissions, and councils, in the legislative branch, but not individual legislators. ...)" (Emphasis added.)

This statement and the intentional deletion of the words "[a] legislator" demonstrate beyond peradventure the legislative intent in enacting FOIA was to exclude a state legislator from the definition of "public body."

In answer to your first question, it is my opinion that the Legislature intended to exclude state legislators from the term "public body" and legislators are not subject to the Freedom of Information Act.

Your second question is:

Is the state legislator the chief administrative officer responsible for approving a denial of a request under FOIA?

In light of the answer to the first question that the Freedom of Information Act does not apply to a state legislator, no answer to your second question is required.

Frank J. Kelley

Attorney General

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