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Wednesday, March 26,2014

A rigged game

Michigan’s open-records law is loophole ridden; new proposal would at least give the public a fighting chance

by Mickey Hirten
There is no better example of a rigged game than you or I trying to pry information from a reluctant government. If a public agency like the Department of Transportation in Delta Township wants to keep secrets — and at times it does — the state’s misnamed Freedom of Information Act is a powerful enabler.

Consider this example: You have school age children and worry about their sometimes erratic bus driver. Talk at the drop-off corner in the mornings is that the district has hired the sister of the superintendent and that she has had a drinking problem. Not wanting to deal in rumor, you think to yourself, “Well, I’ll just check with the school. I’m sure they’ll tell me.”

Maybe.

But say the rumor is true and the school district wants to avoid the embarrassing disclosure. FOIA, rather than making public bodies more open to scrutiny and accountable, actually provides ample cover to hide.

Your query about the bus driver will require a formal FOIA request, stating exactly what records you seek, but you’d better be familiar with the bureaucracy, its policies and procedures. Of course, most people aren’t. The FOIA request sets into motion a legal process that requires the school district to respond within five business days. If it doesn’t like the intrusion, it rejects it and provides the reasons.

Michigan’s FOIA gives you the right to appeal the decision. And who handles the appeal? The school district that rejected the initial request.

Now you’re worried and must hire a lawyer to sue for information in district court. Talk about a mismatch. The district has lawyers on staff or on retainer to defend its actions. You need to hire an expensive lawyer familiar with FOIA.

Even if the school district provided some information, it operates on the honor system, deciding what documents to provide. It has options, based on a state FOIA law riddled with scores of exceptions, to redact information. You have no way of knowing whether it is following the letter of the law or simply is serving its self-interest. How do you find out? Only by suing in court.

Then there is the catchall provision that provides public bodies with unchecked latitude to withhold information. It says: “A public body may exempt from disclosure as a public record under this act ... Information of a personal nature if public disclosure of the information would constitute a clearly unwarranted invasion of an individual’s privacy.”

What is an “unwarranted invasion of an individual’s privacy?” Good question. The public body makes this call, and without the ability to compare what’s been redacted from an original document, you don’t know.

This scenario is extreme, and it is important to acknowledge that thousands of FOIA petitions each year are handled fairly and efficiently by governments. But for those that don’t there is a proposal circulating from Republican Rep. Tom McMillin to create a FOIA board to level the playing field for those seeking public records. His plan is based on a public information board established in Iowa that provides a reasonable balance in addressing FOIA issues.

A Michigan board would include members appointed by both political parties, the Governor’s Office, the Michigan Press Association, the Michigan Broadcasters Association and possibly a representative of local government. The Center for Public Integrity, which gives Michigan an F grade for its performance on open records, describes Iowa’s Public Information Board as having “the authority to hear complaints and negotiate settlements, but levy fines and order corrective action if necessary.”

In Iowa the board lacks authority over the governor, legislature and judiciary, meaning most of its oversight deals with government agencies other public bodies. These exemptions exist in Michigan. Still, McMillin’s plan is a significant step toward openness.

The push by government for secrecy is unrelenting. An analysis by MIRS news service found that “there have been 43 bills introduced in this session that contain new language exempting something under FOIA.”

Special interests have inordinate power to shape Michigan’s laws. FOIA, if strengthened, is about all we’ve got.

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