LEGAL NEWS PHOTOS BY CYNTHIA PRICE
by Cynthia Price
Legal News
The 1966 enactment of the federal Freedom of Information Act introduced a new word into common parlance. FOIA is not only used as a noun to describe the legislation and, often, the fruits of its use, but also, now, a verb: “Are you going to FOIA those documents from the government?”
Increasingly, the answer to that question is, “Yes.” The proliferation of Internet news sources, free-lance investigative journalists and non-profit advocacy investigations has meant a recent increase in federal FOIA requests, which had declined during the George W. Bush administration. Center for Effective Government (formerly OMB Watch) reports that in 2012, there were 512,000 FOIA requests processed by the U.S. government.
Michigan’s Freedom of Information Act, PA 442, dates from 1976.
Last Wednesday, the Michigan Press Association teamed up with the Mackinac Center for Public Policy to discuss “Open Government and the Freedom of Information Act (FOIA): How we can use Michigan’s laws to hold government accountable.”
The panelists represented a wide range of political persuasions, but everyone agreed that FOIA, along with the Open Meetings Act (OMA), are critical tools for holding government accountable and honoring the citizens’ right to know.
Michael Reitz is Executive Vice-President of sponsoring organization the Mackinac Center, which is associated with a conservative, limited-government point of view. Though the Center’s mission is neutral — self-describing as “an independent, nonprofit research and educational institute dedicated to improving the quality of life for all Michigan citizens by promoting sound solutions to state and local policy questions” — a review of its website, www.mackinac.org, indicates that most of its positions fall into the conservative camp.
Reitz’s previous employer, Freedom Foundation in Washington DC, is more openly in favor of limited government and conservative ideals. He received his law degree from Oak Brook College of Law and Government Policy.
At the other end of the political spectrum was Shelli Weisberg, the Legislative Director of the American Civil Liberties Union (ACLU) of Michigan. ACLU is perceived as being very liberal, although its mission too is neutral: the national organization states, “The ACLU is our nation’s guardian of liberty, working daily in courts, legislatures and communities to defend and preserve the individual rights and liberties that the Constitution and laws of the United States guarantee everyone in this country.”
However, the need for Freedom of Information and open meetings cut across differences in political philosophy.
“Many people would be surprised by the ACLU partnering with the Mackinac Center,” Weisberg said, “but we definitely share some policy concerns, and open government is one of them.”
The other two panelists were from organizations that believe equally in the right of the people to know what their governments are doing. The other sponsoring organization, the Michigan Press Association (MPA), has long been involved in promoting the right to obtain government records on behalf of its members, the newspapers around the state. Robin Luce Herrmann, MPA’s general counsel and an attorney at Butzel Long in Bloomfield Hills, has served for several years as a source for information and assistance in journalists’ obtaining FOIA requests.
Luce Herrmann is a Practice Group Leader of Butzel Long’s Litigation practice and the head of Butzel Long’s Media group. She graduated from Detroit College of Law, receiving her J.D. cum laude.
The final panelist, Kathy Barks Hoffman, represented the Michigan Coalition for Open Government (MICOG); she is on the board of this new organization, which she said was founded by Jane Briggs-Bunting, an attorney and former journalist/journalism professor. MICOG is a group “that educates citizens about their right to access public records, attend public meetings and watchdog their local and state government, school board and other public bodies” which also offers FOIA and OMA assistance through an affiliation with the First Amendment Clinic of the Michigan State University College of Law.
Moderating the panel was Shelley Irwin, the well-known host of “The WGVU Morning Show with Shelley Irwin” on Grand Valley State University’s public radio station.
Weisberg’s self-introduction included the words of Judge Damon Keith, “Democracies die behind closed doors.” And Reitz quoted James Madison, “A people who mean to be their own governors must arm themselves with the power which knowledge gives.”
The stated purpose of the informational panel was to inform people about their rights, how FOIA and OMA work, and to raise awareness of the problems the general public encounters.
Most of Wednesday night’s participants were members of the media, though there were a few concerned citizens there to learn more.
Irwin asked each panelist to talk about the “good” stories and the horror stories in FOIA and OMA requests. Luce Herrmann mentioned the Detroit Kwame Kilpatrick case as an example of successful FOIA use, but said most people get the story wrong. The Detroit Free Press obtained the infamous text messages in what she called the “good old-fashioned way,” from a confidential source, but it was the FOIA request for the settlement documents in former Deputy Police Chief Gary Brown’s suit against Detroit that fueled the newspaper’s investigation of Kilpatrick.
The panelists had horror stories aplenty, many involving police departments or school boards. Amendments to Michigan’s FOIA law in 1986 exempted some police activities, but panelists felt police departments had abused, or misunderstood, those exemptions.
There was general acknowledgment that there are many shades of gray in the FOIA and OMA processes. Protected health care information, the right to privacy of those in drug or mental health courts, the need for employment applicants to keep job searches from their current employers, and other issues pose thorny problems in terms of balancing public rights versus individual rights.
But everyone agreed that the mostly-financial barriers they encountered in local government requests were often not legitimate and needed fixing.
MPA’s Public Affairs manager Lisa McGraw, there as part of the audience along with Executive Director Mike McLaren, said she has been working with members of the legislature to make FOIA easier and less costly. Rep. Mike Shirkey has introduced House Bill 4001, which aims to cap charges and make them consistent across different jurisdictions. It also imposes a penalty for governmental office delays in granting FOIA requests in the form of daily percentage reductions in the fees the governments may charge.
The Grand Rapids forum was one of the Open Government Initiative sessions around the state. There was one in Lansing on July 17 and two upcoming: in Traverse City on August 1 and Troy on August 7.
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