A.
This section applies generally to those records in possession of
the Government Records Department and other government departments
and agencies not specifically or otherwise excluded under this code.
B.
NHBP tribal members. Enrolled members of the Nottawaseppi Huron Band
of the Potawatomi shall have a general right of access to inspect,
review and copy official records, except where such records have been
determined to be precluded from disclosure because of confidentiality,
privacy requirements, law enforcement duties or other circumstances
where a tribal, or applicable federal or Michigan state law, regulation
or policy restricts or prohibits access or disclosure.
C.
Others. Access to official records by persons and organizations who
are not members of the Tribe shall be at the sole discretion of the
Tribal Council. On the advice of the Secretary of Tribal Council,
the Tribal Council may adopt rules granting limited access to official
records by persons and organizations who are not members of the Tribe.
D.
It is the policy of the Tribe to grant access to official records
where the provisions of its grants, contracts or other agreements
require such access, but only to the extent required by such grants,
contracts or other agreements.
A.
Official records exempt from access and disclosure are as follows:
(1)
Information specifically protected from disclosure by tribal law,
applicable federal law including common law privileges of confidentiality.
This includes but is not limited to records protected by the federal
Health Insurance Portability and Accountability Act ("HIPAA"), the
HIPAA Security Rule, juvenile criminal records, enrollment records,
and others.
(2)
Records pertaining to individual employees, tribal members or clients,
including personnel, medical, general welfare program applications/files,
NHBP healthcare applications/files, housing assistance applications/files
and other similar information that, if disclosed, would constitute
a clear and unwarranted invasion of personal privacy, unless the disclosure
is consented to in writing by the individual subject(s) of the information.
The disclosure of information that bears on the duties of employment
with the Tribe shall not be considered an invasion of personal privacy
such as a job description for a specific position, not a specific
employee.
(3)
Records compiled for law enforcement or regulatory purposes, including
Gaming Commission internal audits and investigations, but only to
the extent that disclosure would:
(a)
Interfere with law enforcement or other investigations.
(b)
Deprive a person of the right to due process or a fair trial.
(c)
Constitute an unwarranted invasion of personal privacy.
(d)
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.
(e)
Disclose investigative techniques or procedures of law enforcement
agencies, the Gaming Commission or other regulatory bodies.
(f)
Endanger the life or physical safety of law enforcement personnel.
(4)
Trade secrets and commercial or financial information which, if released,
would significantly compromise the economic viability or competitive
position of the tribal business.
(5)
Ongoing negotiations and pending public bids to enter into contracts.
(6)
The identity of any individual who in good faith makes a complaint
or otherwise discloses information that alleges a violation or potential
violation of law or regulation by the Tribe or tribal officials; provided,
that if the complaint or information is used in a civil or criminal
proceeding, this provision shall not diminish the defendant's
due process rights to confront and examine the complainant and witnesses.
(7)
Information that is part of negotiations in a proposed land purchase
by the Tribe until that purchase is completed.
(8)
Information that would reveal the location of archeological or culturally
significant sites.
(9)
Information belonging to a third party that is submitted to the Tribe
upon a promise of confidentiality by the Tribe pursuant to any contractual
obligation of the Tribe.
(10)
Information that is protected by attorney-client privilege,
the attorney work product doctrine or compiled in reasonable anticipation
of a civil action or court proceeding.
(12)
Court records from the NHBP Tribal Court. The Tribal Court maintains
its own records, records policies and procedures. Requests for Tribal
Court records must be submitted directly to the Tribal Court on the
Court's information request form.
B.
The responsible officials within the Tribe may, after consultation
with the Government Records Manager, further implement this section
through the issuance of rules, regulations or policy documents.
A.
The NHBP Police Department maintains its own records. Records requests
for NHBP Police Department records must be submitted directly to the
NHBP Police Department.
B.
The following information maintained by the NHBP Police Department
regarding matters involving investigations, law enforcement crime
victims, and witnesses is exempt from inspection and copying by tribal
members and nonmembers under this chapter:
(1)
Specific intelligence information and specific investigative records,
including video recordings, compiled by the NHBP Police Department,
the nondisclosure of which is essential to effective law enforcement
or for the protection of any person's right to privacy;
(2)
Information revealing the identity of persons who are witnesses to
or victims of crime or who file complaints with the NHBP Police Department,
if disclosure would endanger any person's life, physical safety,
or property. If the complainant, victim, or witness indicates a desire
for disclosure or nondisclosure, such desire shall govern;
(3)
Any records of investigative reports prepared by any tribal, state,
county, municipal, or other law enforcement agency that are in possession
of the Tribe pertaining to sex offenses as defined in tribal law,
or sexually violent offenses as defined in the NHBP Criminal Code;[1]
(4)
Information revealing the identity of child victims of sexual assault
who are under the age of 18. "Identifying information" means the child
victim's name, address, location, photograph, and in cases in
which the child victim is a relative or stepchild of the alleged perpetrator,
identification of the relationship between the child and the alleged
perpetrator; and
(5)
Documents or other records that disclose the name or other information
concerning a child under the age of 18 who is or is alleged to be
a victim of a crime of physical abuse, sexual abuse, or exploitation;
or a witness to a crime committed against another person.
A.
It is the policy of the NHBP to protect the confidentiality of patient
medical and behavioral health service records to the greatest extent
consistent with the requirements of all applicable federal, state
and tribal laws and our obligations as an Indian Health Services facility.
B.
The NHBP Health and Human Services Director has created a Medical
and Human Services Records Protection Policy approved by the Tribal
Council. This policy and its procedures controls access to records
managed by the Health and Human Services Department.
A.
Official records shall not constitute "federal records" as that term
is defined under the Freedom of Information Act ("FOIA"), 5 U.S.C.
§ 552, even those official records that are produced and/or
obtained pursuant to a contract or agreement with the federal government.
Official records may constitute federal records for purposes of FOIA
only if the NHBP Tribal Council expressly agrees to the treatment
of official records as such.
B.
Official records shall not constitute "public records" or "state
records" as that term is defined under Michigan's or any other
state's Freedom of Information Act ("FOIA"), MCL 15.231 et seq.,
even those official records that are produced and/or obtained pursuant
to a contract or agreement with a state government. Official records
may constitute public records or state records for purposes of FOIA
only if the NHBP Tribal Council expressly agrees to the treatment
of official records as such.
A.
Any tribal member or member of the general public who wishes to inspect
or receive a copy of an official record shall make a written request
to the Government Records Manager. The request must be on the approved
government records request form. The form must be complete and:
(1)
State the date of the request;
(2)
Name the records requester and that person's NHBP tribal identification
number if applicable;
(3)
Identify the specific reason the information is being requested;
(4)
Reasonably describe the records sought in order to determine the
location and availability of the official record(s) being requested;
(5)
Contain the signature of the records requester; and
(6)
If the records pertain to a specific individual, the notarized signature
of the named individual to whom the records pertain is required.
(7)
Nonmembers must disclose in their requests whether the purpose of
the request is intended to be used for the records requester's
personal or commercial benefit, or that of a third person on whose
behalf the records requester is acting, or for research or academic
purposes.
B.
Request forms should be submitted to the Government Records Department
Manager who will coordinate with the appropriate responsible official
to facilitate the records request.
C.
Upon receipt of a Records Request Form, the Government Records Manager
will log the request identifying the date it was received and whether
or not the form is complete.
(1)
Incomplete forms will be returned to the records requester within
15 days of receipt along with a letter of explanation regarding what
information is incomplete and what information is required to process
the request.
(2)
Completed forms will be acknowledged as received. The Government
Records Manager will identify the appropriate Tribal government entity
with jurisdiction over the record requested, if not stored with the
Government Records Department, and forward the records request to
that department's department head noting the date the department's
response is due. Records requests will be responded to within 30 days
of receipt of a completed request form unless the department notifies
the records requester of an extension of time to respond to the request
as provided for herein.
D.
Response to records requests.
(1)
Upon the receipt of a request for access to records, the responsible
official shall respond to the request within 30 calendar days by doing
one of the following:
(a)
Granting the request in accordance with that department's
policies and procedures or in the absence of such policies and procedures
in accordance with the Government Records Department's policies
and procedures for delivering copies of the requested documents and
providing notice of the department's response to the Government
Records Manager.
(b)
Issuing a written notice addressed to the records requester
denying the request and listing the specific reason(s) for the denial.
(c)
Granting the request in part and issuing a written notice to
the records requester denying the request in part and listing the
specific reason(s) for the partial denial, including any decision
to redact portions of the record sought.
(d)
Issuing a notice extending, for not more than 30 calendar days,
the period during which the Tribe shall respond to the request. The
Department shall not issue more than one extension per request without
prior authorization from Tribal Council.
(e)
Failure to timely respond with one of the responses under this
subsection shall be deemed to be a denial of the request.
(2)
The responsible official shall consult with the Government Records
Manager in preparing his or her response to the request and provide
the Government Records Manager with written notice of the department's
response.
E.
The response, including copies of documents requested, shall be forwarded
to the Government Records Manager. The Government Records Manager
shall forward the response to the records requester. If applicable,
the transmittal to the records requester shall notify the records
requester of the procedure for appealing the responsible official's
decision to deny all or part of the records request.
A.
If a responsible official denies all or a portion of the documents
requested, the records requester has 30 days to file a written challenge
with the reviewing officer.
B.
Reviewing officer. The following positions shall serve as the reviewing
officer for the tribal government departments listed below:
(1)
The Tribal Government Chief Executive Officer shall serve as reviewing
officer for all tribal government departments, programs, and offices
he or she oversees, including, but not limited to, Membership Services,
Education, Environment, Housing, Human Resources, Health and Human
Services, and Information Technology.
(2)
The Tribal Council shall serve as reviewing officer for the Legal
Department, the Finance Department, the Enrollment Department, Election
Board, and all other boards and committees. Tribal Council's
decision requires a majority of all sitting members.
(3)
The Gaming Commission shall serve as reviewing officer for the Gaming
Commission. The Commission's decision requires a majority of
all sitting members of the Commission.
(4)
The Tribal Prosecutor shall serve as the reviewing officer for the
Police Department.
(5)
The Chief Judge shall serve as the reviewing officer for the Tribal
Court.
C.
Decision of reviewing officer.
(1)
Within 30 calendar days of receiving a challenge to a department's
response to a records request, the reviewing officer shall issue a
written decision that:
(2)
Any decision by the reviewing officer issued under this subsection
shall include an explanation of the decision as supported by findings
of fact and conclusions of law.
D.
The responsible official shall have 15 calendar days from the date of the reviewing officer's written decision to provide any responsive documents to the Government Records Manager who will respond to the records requester as provided in § 1.2-20E.
(1)
The records requester shall be served with a copy of the reviewing
officer's decision by personal service or certified mail, return
receipt requested, within 15 calendar days of the date the decision
is issued.
A.
An appeal of a reviewing officer's decision is limited to requests
from enrolled members of the Nottawaseppi Huron Band of the Potawatomi.
For all other persons requesting records, the reviewing officer's
decision is final and not subject to further appeal.
B.
Any tribal member whose records request is denied, in whole or in
part, by the reviewing officer may file an action in the Tribal Court
seeking review of the reviewing officer's decision.
C.
Any appeal authorized by this section must be filed within 60 calendar
days from the date of the reviewing officer's decision. The appeal
must identify the specific documents requested and why the records
requester believes the reviewing officer's decision was in error.
D.
Standard of review.
(1)
The Tribal Court shall give deference to the reviewing officer's
reasonable interpretation of this chapter and decision to deny a request
in whole or in part. The Court may, as part of its review, conduct
an in-camera review of documents to determine the reasonableness of
the decision appealed.
(2)
If the Tribal Court concludes that the reviewing officer's decision
is supported by reasonable findings of fact and conclusions of law,
the Tribal Court shall uphold the reviewing officer's decision.
If the Tribal Court finds that the reviewing officer's decision
is not reasonably supported by the facts or was based upon erroneous
conclusions or erroneous application of law, the Tribal Court shall
order the responsible party having control of the records in question
to make them available for access by the petitioner under such circumstances
as the Court determines are fair and reasonable.
(3)
If the Tribal Court finds that the records requester's appeal,
or that the position asserted by the reviewing officer, was frivolous
and without substantial merit, the Court may award the prevailing
party its reasonable costs and attorney fees associated with the appeal
to the Tribal Court.
