Michigan House tackles two important FOIA, OMA issues

Two actions in the state House of Representatives could result in greater transparency and accountability by Michigan’s 15 public universities (House Joint Resolution O) but bar public disclosure of the video and audio recordings of police wearing body cameras (HB4234 H-3). MiCOG supports HJR O and has testified for changes in HB 4234 to make the body camera recordings public under the state Freedom of Information Act.

HJR O

HJR O would make all meetings and records of Michigan’s 15 public universities’ governing boards public except for a limited number of exemptions permitted under the state’s Open Meetings and Freedom of Information Acts.

House Joint Resolution O sponsored by a bipartisan group of House members would amend the state Constitution to require that “the meetings and records” of the governing boards of public universities be open to the public.

Currently, the Constitution requires “formal sessions” of these boards to be public. All 15 university boards routinely hold dozens of pre-meetings, retreats, briefings, lunch and dinner meetings, etc. where they debate and discuss issues and proposals including tuition and fees and budgetary matters in secret.

This practice began after the June 1999 Michigan Supreme Court decision in Federated Publications. vs. MSU Board of Trustees. At issue in the case was secrecy surrounding MSU’s presidential search procedure. The majority ruled that presidential searches did not have to be open under the state Open Meetings Act.

The high court’s opinion should have been limited to university presidential searches. As then Chief Justice Maura Corrigan wrote for the majority in the Opinion summary in clear language: “…we hold that the Legislature does not have power to regulate open meetings for defendant in the context of presidential searches at all, i.e., the Legislature is institutionally unable to craft an open meetings act that would not, in the context of a presidential selection committee, unconstitutionally infringe the governing board’s power to supervise the institution…”

But sloppy language in the body of the majority opinion emboldened university boards to behave as if they could and should meet secretly except during those “formal sessions.” Their “formal” regular meetings went from several hours to usually less than 60 minutes, with limited or no discussion by board members, lengthy consent agendas and the few votes that occurred generally unanimous. This completely shields from public view the right of Michigan’s citizens, whose tax and tuition dollars finance these public institutions, to observe their decision making process on critical issues including budgets, investments, tuition and fees. Transparency and accountability have been lost. Three of these boards are elected. The other 12 have appointed boards. All are public officials under the law.

The University of Michigan Board of Regents is currently a defendant in the Court of Claims in a OMA lawsuit filed by the Detroit Free Press on this very issue. Using data analysis, the Free Press concluded that virtually all substantive discussions and decisions by the U-M board were occurring in secret sessions before being approved in their formal sessions. Michigan’s 14 other boards operate similarly.

During Oakland University’s 2013-14 presidential search university officials had no intention of any public forum or presentations by the finalists or even identifying them until public pressure was applied by the faculty, the student newspaper and other Detroit news media.

The state’s OMA already provides protection to the Universities in their presidential searches limiting access to the search process until five finalists are chosen. The State’s FOIA also limits disclosure until finalists are selected.

HJR O is needed and represents an important effort that would protect and restore accountability and transparency to Michigan’s public higher education institutions. Kudos to the eight legislators who introduced this measure. They are sponsor Rep. Martin Howrylak (R-41) and co- sponsors: Reps. Ed McBroom (R-108), Ken Goike (R-33), Rose Mary Robinson (D-4), Jim Runestad (R-44), Cindy Gamrat (R-80), Todd Courser (R-82) and Stephanie Chang (D-6). The Resolution is currently before the House Committee on Oversight and Ethics chaired by Rep. Ed McBroom (R-108).

HB 4234

HB 4234 would limit public access to the video and audio recordings of body cameras worn by law enforcement officers by completely exempting those recordings from the state Freedom of Information Act legislatively declaring that the recordings are not public records.

MiCOG as well as groups including the Michigan Association of Broadcasters, the Michigan Press Association and others oppose language in Section 5 in the Bill stating that a police body camera recording is “not a public record and is exempt from disclosure under the freedom of information act…” That statement is not mitigated by the additional language: “…but only to the extent that disclosure as a public record would do any of the following…” (listing six FOIA exemptions).

A record is either public or not. This language affirmatively blocks video and audio recordings from disclosure under FOIA. Michigan, by doing so, would become an outlier ignoring a national trend that makes these recordings public, subject to individual state FOIA laws.

MiCOG also opposes the inclusion of Sections 3 and 4 which further limits public access to police actions that occur in private places like homes. The 2010 police shooting of seven-year-old Aiyana Jones that resulted in charges against a Detroit police officer and two hung juries could have been avoided had the officer been wearing a body camera and that recording was shared with the public. The case boiled down to a he said/she said controversy. HB 4234’s Sections 3 and 4 create a broad, and again, unnecessary exclusion from public and judicial review under the state FOIA under the same rationale.

Michigan should not legislate hiding this important knowledge from its citizens. Exempting this law from the FOI requirements would remove any chance of impartial, neutral judicial review of exemptions as provided by the FOIA.

Michigan’s FOIA Section 13 has established, court-tested exemptions for ongoing criminal investigations and to protect an individual’s privacy. These exemptions have been generously interpreted by our appellate courts.

The central purpose of the FOIA is to allow citizens to gather information and facts so they can check and verify that public bodies, like police agencies, are performing their jobs properly.

The importance of making these recordings available to the public is undeniable. Recent widely publicized incidents in Ferguson, MO; New York City; North Charleston, SC; Cleveland, OH; California; and Inkster continue to raise questions about how a few law enforcement officers, in the heat of the moment, may use unnecessary force in arrests.

The Inkster police dash cam video of the arrest of a black man this past January illustrates the importance of this video evidence. One of the officers involved in that beating has now been fired and criminally charged, and the financially strapped City of Inkster has paid a “significant settlement” to the individual involved.

The majority of law enforcement officers and agencies in Michigan and elsewhere are upstanding, conscientious public servants. However, there are some bad cops out there, and HB 4234 (H-3) as currently written, would protect them and their departments from accountability by shielding essential public scrutiny of police actions. That in no way serves the public interest. And it in no way serves the taxpayers who ultimately pay the cost of police brutality jury verdicts and settlements.

Ironically, HB 4234 would not prevent police from releasing to the public video and audio recordings the individual departments deem appropriate, likely focusing on positive police actions while withholding videos that are embarrassing or reveal misconduct. That will further hurt police/citizen relations.

The FOIA entitles Michigan’s citizens “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.” This requires unimpeded transparency and accountability.

The implementation, disclosure and access to police body camera recordings is a subject of national discussion among law enforcement agencies. In 2014, the Police Executive Research Forum (PERF) released a report titled “Implementing a Body-Worn Camera Program: Recommendations and Lessons Learned.” The presumption in the 92-page report is that these recordings would be (and should be) available under the states’ FOI laws, subject to existing exemptions.

The PERF report noted that police executives overwhelming agreed the cameras “…made their operations more transparent to the public and have helped resolve questions following an encounter between officers and members of the public.” Transparency and accountability are key issues that the current version of HB 4234 negates.

Police body cameras are fast becoming a tool as basic as handcuffs. The video and audio from these cameras can protect officers from false claims of brutality and misconduct and insulate communities and taxpayers from expensive police brutality litigation and judgments. It can also restrain them from being overly aggressive in their dealings with citizens.

Police dash cameras already record stops and, at a distance, encounters between police and citizens for traffic violations, etc. Further, the wide use by the general public of smart phones means that often someone will be filming an incident. That those videos can be edited before being made public is a further reason that the raw police body camera video and audio recordings should be available to the public and the news media.

MiCOG will continue to push for changes in this bill to guarantee public and news media access to these recordings. Rep. Jim Runestad (R-44) is the sponsor of this bill currently before the House Judiciary Committee chaired by Rep. Klint Kesto (R-39).

Comments are closed.

Password Reset
Please enter your e-mail address. You will receive a new password via e-mail.