Redistricting panel denies records request for confidential memos after AG opinion

Beth LeBlanc
The Detroit News

The Michigan Independent Citizens Redistricting Commission denied a conservative group's request Tuesday for legal memos and recordings related to an Oct. 27 closed-door session, even after the state's attorney general said those items should be public. 

The commission cited as the reason for its denial the part of the state's Freedom of Information Act that exempts items subject to attorney-client privilege, according to a copy of the FOIA denial. 

Attorney General Dana Nessel issued an opinion Monday that the commission shouldn't have met in closed session Oct. 27 nor should it have kept the documents discussed in that meeting secret. She noted that the Michigan Constitution required the commission to conduct its business in public and to publish data and materials that guided proposed political boundaries for the state House, state Senate and U.S. House. 

But Nessel's office also acknowledged that the commission is not a state agency that would usually be bound to follow her opinion. 

Commission spokesman Edward Woods said Tuesday the commission would discuss the attorney general's opinion at its Dec. 2 meeting but declined to comment further on Michigan Rising Action's public records request. 

“For over a year, this commission has progressively made it harder to participate in the process and increasingly more secretive," Michigan Rising Action executive director Eric Ventimiglia said in a Tuesday statement. "The people of Michigan deserve to know what the committee is hiding.”

The Detroit News also requested the memos' release in a Nov. 5 letter, but has yet to receive a response.

"The commission's efforts are of grave importance to the citizens of this state, and they should be undertaken in public and under the observation of Michigan's press and other concerned observers," The Detroit News Publisher Gary Miles said in the letter. 

The requested documents and recordings relate to an Oct. 27 closed session the commission entered to discuss confidential legal memos titled "Voting Rights Act" and "The History of Discrimination in the State of Michigan and Its Influence on Voting."

The commission, created in 2018 in an effort to increase transparency in the redistricting process, is responsible for the once-in-a-decade task of redrawing Michigan's voting district boundaries. 

The hour-and-a-half secret meeting was allowed, the commission's legal counsel argued, because the documents were exempt from disclosure under the Freedom of Information Act and the state's separate Open Meetings Act that allows private sessions if the material is "exempt from disclosure by state or federal statute." The counsel also contended no business was conducted during the closed-door session, excluding the meeting from the open meetings requirements in the Constitution. 

State Sens. Jeff Irwin, D-Ann Arbor, and Ed McBroom, R-Vulcan, asked Nessel to issue an opinion on the matter to clarify whether the closed session violated the Constitution. 

In her Monday opinion, Nessel noted that attorney-client privilege has its roots in common law and could apply to the commission so long as the shield wasn't "repugnant" or in opposition to the commission's constitutional mandate to conduct its business in public and to publish "all data" and "all supporting materials" used in the mapping process. 

Assuming the privileged documents provided "legal parameters" or "historical context" that guided the commission's work, it would be "repugnant" to the "broad publication" to keep the privileged documents secret, Nessel wrote. 

"Accordingly, it would be 'repugnant' to the Constitution to go into a closed session to discuss a memorandum that is not confidential and must ultimately be published," she wrote.

Nessel's office on Monday acknowledged the commission wasn't bound by  opinion, but noted "there is nothing prohibiting them from complying."

"The AG thought it important to issue the opinion regardless to provide guidance and to advocate for transparency," Nessel spokeswoman Lynsey Mukomel said.