This column by Michigan Coalition for Open Government President Jane Briggs-Bunting appeared in the March 28 print edition of Crain’s Detroit Business.
Flint’s water crisis might not have hit the national news until late 2015, but using the state’s Freedom of Information Act, along with citizen and city sources in Flint, Flint Journal and MLive.com reporter Ron Fonger uncovered the problems months earlier. His use of the FOIA to gain access to records — when the first wave of complaints was anecdotal — demonstrates the importance of the FOIA to journalists and the public.
Sadly, many in the state Legislature seem to prefer limiting FOIA access rather than promoting and increasing access and smoothing the way for Michigan’s residents to keep a close eye on their government at all levels.
In late February, the House Natural Resources Committee adopted the H-9 substitute to House Bill 4540. This amendment to the state’s FOIA would change the current FOIA to add that records and information relating to the “confidentiality, integrity, or availability of information systems” are exempt. They would specifically state that cybersecurity plans, assessments and vulnerabilities are exempt. Although the provision also states these types of records and information are not exempt in certain circumstances, the bill would make it far harder for the public to gain access to important information.
Giving private entities the legal power to hide in government records what could be vital information for the public is an abdication of the state’s fiduciary duty to its citizens. Yet the effort goes on and on, with only a small handful of groups, such as the Michigan Coalition for Open Government (MiCOG), actively opposing those efforts.
The state Senate also is discussing Senate Bill 634, which would block public access to the video collected by police body cameras. The House has been discussing blocking access to police body camera videos in House Bill 4234 since early in 2015.
MiCOG maintains that such recordings are no different than other types of police records, including arrest reports. To exempt video recordings creates an undue and inappropriate level of government secrecy. And it directly contradicts the primary purpose and public policy of the state’s Freedom of Information Act: to provide the public with the ability to evaluate how government officials, in this case police officers, are performing their official, public duties. An appropriate level of transparency is essential in allowing public oversight of police activities. The public has a right to more — not less — accountability from their public safety personnel.
There are many more determined efforts to limit FOIA than expand it. But there are some rare exceptions. Senate Bill 716 and House Bill 4283 would expand coverage of FOIA to include the governor as well as the Legislature. Currently these offices are exempt from the Michigan FOIA law.
Celebrating FOI Day on March 16, 37 Republic and Democratic state House members introduced 10 bills to amend the state’s FOIA, expanding it to include the legislative branch. A 1988 state attorney general’s opinion had exempted the Legislature.
House Bills 5469-5478 would expand and amend the Michigan Freedom of Information Act, creating the Legislative Open Records Act. Much of the enabling legislation duplicates the wording of the current FOIA. In addition, an 11th bipartisan bill was introduced on March 16. With 18 bipartisan sponsors, House Bill 5488 proposes the creation of a nine-member Open Government Commission.
In another bipartisan effort, the Student Free Press and Civics Readiness Act was introduced on March 8. Senate Bill 848 would restore openness and transparency in Michigan public high schools by protecting student journalists from censorship by school administrators unless the material was obscene or libelous.
Censored stories by high school administrators have included major health issues potentially affecting their students (such as smoking, the HPV vaccine and underage drinking); criminal misdemeanors by student athletes and the occasional teacher or administrator; school millage elections; a fatal traffic accident involving students from the school; cafeteria health inspection reports; and even broadcasting on the Monday morning news show the Friday night football results if the team lost.
None of these stories carried even a remote threat of disrupting the educational environment of the school or of being libelous or obscene.
Senate Bill 848 balances the responsibility of public high school administrators to protect their student population from real harm while allowing them to serve their educational mission to educate young people about the importance of the Constitution and the benefits of being civically engaged through journalism.
The intent of the FOIA when it was passed in 1976 was to guarantee access to the public to observe how effectively governments at the local, county and state levels were doing their jobs. But the FOIA also has a second benefit: accountability. If public officials know their bosses, the citizens, can (and do) check up on how well they are performing their public jobs and that they will be held accountable, then fewer corners will be cut, and employees will be more conscientious about doing their jobs well.
Now more than ever, as evidenced by the Flint water crisis, FOIA is a vital tool for citizens to do exactly that.
Jane Briggs-Bunting is president of the Michigan Coalition for Open Government, former director of the Michigan State University School of Journalism and the journalism program at Oakland University, a media attorney and founding president of the Great Lakes Student Press Law Clinic.