By ERIC FREEDMAN
Capital News Service
LANSING – Michigan once pioneered in enacting freedom of information and open meetings – transparency – laws. The rationale was that information held by our government at the local and state levels belongs to the people, and that public agencies have a duty to provide that information as quickly and inexpensively as possible.
The Michigan Municipal League has described the “basic intent” of the Open Meetings Act as strengthening “the right of all Michigan citizens to know what goes on in government by requiring public bodies to conduct nearly all business in public meetings.”
Since those bold steps in 1976, our state has moved gradually – and sadly – from a freedom of information philosophy to a “feardom of information” philosophy. The Legislature has widened exemptions and the courts have largely upheld the many ways that public bodies rely on exemptions to avoid disclosure.
I recently sent an FOI request to a state agency seeking documents about a preliminary project proposal. The response said it would cost me an outrageously high $1,045.86 for nine employees to spend 22 hours to comply with the request. I got the necessary information elsewhere through interviews.
The Legislature’s original goal of transparency has morphed toward opaqueness.
Now four-plus decades later, some agencies still resist compliance with those laws, and citizens have gone to court in efforts – some successful, others not – to vindicate their right to transparency.
The mixed results are evident in some decisions within the past year by the Court of Appeals. For example, the court ruled that Grosse Ile Township must give a defense lawyer police records about his client’s drunken driving arrest and told the Delta College Board of Trustees that it must publicly identify specific pending cases before it can go behind closed doors to discuss that litigation. But it also sided with Clarkston in a suit challenging its non-disclosure of requested documents about a development project.
Meanwhile, the Legislature has failed to extend freedom of information to include itself and the offices of the governor and lieutenant governor. Last year’s effort passed the House but died in the Senate.
However, another effort to do so is underway through a set of bills introduced in the House on the first day of the 2019 session. Michigan is one of only two states that exempt the Legislature, governor and lieutenant governor from sunshine laws, according to Reps. Daire Rendon, R-Lake City, and Vanessa Guerra, D-Saginaw. They’re among the sponsors of the pro-transparency push.
The proposals aren’t as broadly open as some transparency advocates would like to see though.
For example, the governor could withhold records about prospective appointees to head departments, become judges or join boards and commissions. The governor also could keep private documents about judges and other public officials who are being considered for removal or suspension, as well as records pertaining to possible pardons and commutations.
As for senators and representatives, the proposal dubbed the “Legislative Open Records Act” says nobly, “It is the public policy of this state that all persons, except those persons incarcerated in state or local correctional facilities, are entitled to full and complete information regarding the affairs of government and the official acts of those who represent them as public officials and public employees. The people shall be informed so that they may fully participate in the democratic process.”
That said, in addition to exemptions that already apply to other public bodies, the Legislature-related part of the package would exempt correspondence with constituents, internet use records, records of the House and Senate Democratic and Republican caucuses, and documents about ongoing legislative litigation and investigations.
When the transparency legislation was working its way around the Capitol last year – before smashing into the Senate’s brick wall – Detroit News editorial page editor Nolan Finley wrote, “Michigan is the darkest state in the nation, and not just because of its seemingly endless, gray winter.”
He called for passage of the legislation “to bring those political leaders out of the shadows and under FOIA, allowing the records of all public servants to be made available to the people who pay their salaries. Passage would be a major step toward improving Michigan’s failing grade in the openness of its government.”
Finley’s message still rings true, and positive action on the proposals in both chambers this year would help refurbish Michigan’s reputation as a believer in freedom of information, not “feardom of information.”
This commentary originally appeared on Domemagazine.com.