Michigan Sunshine Week Update

Sunshine and warmer temperatures (at last) may be sweeping across the state, but there’s still plenty of work to do to ensure Michigan’s citizens get more transparency and accountability from their state and local governments, school districts, public universities and law enforcement agencies. Getting citizens involved and public officials more aware is the goal of national Sunshine Week, which runs March 15-21.

The Michigan Coalition for Open Government (MiCOG) is actively pursuing efforts to make public officials at all levels from the village clerk to state departments more transparent and accountable to their employers–the citizens of the state of Michigan. MiCOG is a 501(c)(3) tax exempt, nonprofit corporation. If you’d like to join MiCOG and its efforts to make Michigan the most open and transparent state, county and local government in the nation, visit the Home Page on this website, www.miopengov.org.

Michigan will take a solid step forward on July 1 when Public Act 563 takes effect. The Michigan House, last fall, in a strong, bipartisan show of support, passed House Bill 4001, nearly unanimously with 102 in support, and just eight against.  It took a concerted effort by some legislators and a shove by several media outlets around the state to persuade then Senate Majority Leader Randy Richardville  to move the bill out of committee and onto the floor for a vote where it passed somewhat weakened.

The House version made significant improvements on cost containment for citizens seeking public records from government agencies. It capped copying costs at 10 cents per page. It also required that  public bodies create specific fees and  guidelines for charges and procedures and post that information on their websites (if they have one) or provide the information for free to a requester if they do not.

In addition, the House version said if a public body doesn’t respond within the time allotted under FOIA (five business days with an additional ten business days if needed) the costs must be reduced by 10 percent per day up to a maximum of  50 percent.  These costs, however, would only be reduced if the delay is willful or intentional or if the request includes “FOIA,” “Freedom of Information” or similar words within the first 250 words of the request communicating that this is a FOIA matter.

The House version also limited labor costs by excluding the fringe benefits of the employee gathering the records when deciding how much a person submitting a FOIA request can be charged for the public records.

The Senate version took some of that out including the fringe benefits exclusion. Public bodies can still charge 50 percent of these benefits. The Senate did maintain the House’s ban charging overtime rates to fulfill FOIA requests unless the citizen requesting the record agrees to pay for it.

The Senate version also changed the reduction in the amount a citizen would pay for a willful delay in response from the House’s 10 percent to five percent a day. It will now take a full ten-day delay in responding beyond the FOIA time limits for citizens to receive a 50 percent cut in charges made. The Senate did maintain the requirement that FOIA requests must clearly state within the first 250 words of the request that this is a FOIA matter to get this reduction.

Despite this overall weakening of what is now Public Act 563, the amended FOI law is an improvement and fixes some of the problems citizens and the media have had in obtaining public records. The fees charged will continue to be a problem. However, if the records are on the public body’s website, it must be provided free to the individual requesting them, or the FOIA coordinator must provide the link on the website to the requestor.

Michigan’s FOIA law has continually mandated that: A fee shall not be charged for the cost of search, examination, review, and the deletion and separation of exempt from nonexempt information as provided in section 14 unless failure to charge a fee would result in unreasonably high costs to the public body because of the nature of the request in the particular instance, and the public body specifically identifies the nature of these unreasonably high costs.”  That, however, has not stopped public bodies from routinely charging for even the simplest public records request.

Another issue is when public bodies give an initial response within the time limits required under the law (five business days or an additional 10 business days, if needed), but then fail or refuse to actually provide the records for weeks or even months arguing that the law does not require them to provide the records within such a limited time frame. The amended law does require public bodies to at least tell the citizens or media when the records might actually be provided. Fortunately, most public bodies are honorable and provide the records within the specified time frame.

Then Representative Mike Shirkey, now a state senator, moved Michigan forward with his efforts on HB 4001. We hope he continues his strong advocacy of public access to public records by proposing new legislation to restore the provisions the Senate changed last year that weakened the House version.

MiCOG urges Sen. Shirkey to address two critical ongoing issues: 1) the tendency of public bodies to charge fees for every public record requested by insisting that any request results in an “unreasonably high cost to the public body;” and  2) requiring public bodies to not only respond to a FOIA request within the time limits but to also provide the records requested within those time limits.

Access to public records is not the only issue MiCOG wants to see addressed. The state’s Open Meetings Law could also use strengthening. The Detroit Free Press is currently suing the University of Michigan’s Board of Regents for its practice (also utilized by other state public universities) of holding hours of secret retreats, pre-meetings and other private sessions where important issues such as tuition, fees, budgets, policy matters and personnel are fully discussed outside of the public eye. During public board meetings, elected and appointed officials then vote with generally no discussion, leaving the public out of the process of how these decision are made. The case should be decided later this year in the Michigan Court of Claims.

We need citizens’ help to make Michigan the most open and transparent state in the nation. At the very least, tell your neighbor, a friend or colleague or a local public official about the importance of National Sunshine Week and invite them to join the effort. And, above all, exercise the rights you as a citizens have to examine the work of your government and your  government employees.

 

 

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