Government transparency laws must change
Today caps 2021’s Sunshine Week, an annual celebration of government transparency laws and a chance to advocate for more government openness.
I’ve celebrated 15 Sunshine Weeks in my journalism career. In all that time, the Legislature’s done almost nothing to improve Michigan’s Freedom of Information Act, which ranks among the weakest in the country.
Lawmakers have tried, legislative term after legislative term (including the current term), to make the Legislature and Governor’s Office subject to state transparency requirements (we’re now one of only two states that don’t). But those efforts have failed every time.
Liberal group Progress Michigan wants voters to decide the issue, but the truth is, forcing lawmakers and the governor to hand over the public’s documents would only scratch the surface of the change that needs to happen.
FOIA essentially says the government must release to the public any documents the government produces, except for those that fit into a supposedly narrow list of exemptions.
The law is not designed for journalists. It’s designed for you, dear reader, so you can better understand the inner workings of your government, how it spends your tax dollars and sets the policies that govern your lives.
Such transparency can make a real difference. Alpena News reporters used FOIA’d records a couple years ago to show Hillman Community Schools had hired a substitute teacher who’d recently been fired from Alpena Public Schools for allegedly having sex with a student. Hillman changed its hiring policies very quickly after The News’ story published.
However, as written, FOIA gives far too much leeway to the government to decide what should and should not be released.
Let’s say, for example, you’re a parent trying to get the school board to overturn your child’s suspension. You’re pretty sure the superintendent has it out for your kid because your kid got the superintendent’s kid’s kicked off the hockey team. You’re also pretty sure the superintendent emailed the school board members and told them to ignore your appeal.
You should be able to force the superintendent to release those emails, but guess who gets to process the FOIA request? Probably the superintendent — or at least someone who reports to the superintendent.
If you believe the superintendent wrongly denied your request for his emails, FOIA allows you to appeal. But guess who handles the appeal? The school board, which may or may not also have it out for your kid, and which usually follows the recommendations of the superintendent.
If you think the school board wronged you, too, your only recourse is to sue the school district. Back in 2003, the Reporters Committee for Freedom of the Press said a FOIA fight can cost $7,000 to $15,000, and I’m sure things have only gotten more expensive.
You have to pay that cost up front. The judge might order the government to repay you if you win the case, but that’s a gamble. FOIA is vague enough that it’s pretty easy for the government to win on a technicality.
Even if you do win, the government officials who wronged you are very unlikely to face any personal penalties. Officials are rarely fined, sanctioned, or removed from office for violating transparency laws, that 2003 Reporters Committee story said (read the full story here: https://tinyurl.com/k3auzxrs).
I’ve never once seen a government official prosecuted for breaking transparency laws, including the time the Michigan State Police investigated my stories showing four township officials near Battle Creek had met secretly and agreed to pay a bill that they’d voted in an earlier open meeting not to pay, the clearest violation of the Michigan Open Meetings Act I’ve ever seen.
Lawmakers need to subject themselves and the governor to FOIA, but they also need to toughen the existing law.
They need to narrow and clarify the list of exemptions that allow the government to withhold records.
They need to take the power to decide what to release out of the hands of the very people those records might embarrass (I like Illinois, where the state Attorney General’s Office handles FOIA appeals).
They need to place the burden of proving something’s exempt from disclosure on the government, instead of forcing taxpayers to prove the law is on their side.
And courts and law enforcement need to actually enforce the law, so government officials proven to knowingly break the law get more than a slap on the wrist.
FOIA is supposed to make transparency a basic part of government operations.
Lawmakers need to change the law to make that clearer to our government leaders.
Justin A. Hinkley can be reached at 989-354-3112 or firstname.lastname@example.org. Follow him on Twitter @JustinHinkley.