Reitz: Five ways to make government more accountable

Michael Reitz

The Flint water crisis provides a vivid and tragic reminder about the importance of open government. Whether the topic is the day-to-day conduct of government or its response to a crisis, it is natural and appropriate for people to expect accountability.

One of the tools available to Michiganians is the Freedom of Information Act. The law provides access to government records to ensure that people have “full and complete information regarding the affairs of government and the official acts of those who represent them as public officials and public employees.” This law allows citizens to evaluate decisions that were made and how they were reached.

Unfortunately, the city of Flint is making it difficult to obtain records about its response to concerns about water quality. The Mackinac Center requested two years’ worth of city emails that contain the word “lead.” The city responded with an estimate of $172,000, adding that the search would take 4,917 hours to complete. That works out to one full-time employee working 40-hour weeks taking more than two years to complete the task.

Sunshine Week, this week, is a reminder that government accountability is strongest when citizens can evaluate the decisions and the decision-making process of public officials.

Here are several reforms the Legislature should consider to strengthen accountability:

Place the office of the governor under FOIA’s purview. Michigan is the only state in which the governor is statutorily exempted from complying with FOIA. Lawmakers would need to evaluate whether this change should be in statute or in the constitution, and whether any unique exceptions should apply to the governor’s deliberations.

Address the cost of public records. The Legislature took a good step forward in 2014 by standardizing the price that public agencies can charge for copying records. But the cost of obtaining public records is still a startling obstacle for residents. Agencies are permitted to charge for the labor costs of the employee who searches for and reviews records. Fees for doing searches and copying records can quickly run into thousands of dollars — an insurmountable cost for individuals that is little different, practically speaking, from an outright refusal to provide records. Some states do not charge search fees for public records; Michigan should evaluate its high costs of disclosure.

Clarify the proper use of and access to public email accounts. A 2010 Court of Appeals ruling held that emails sent on a school district computer system were not public records and therefore not subject to FOIA. The court reasoned that since the emails discussed collective bargaining involving several public employees, they were of a personal matter and not the public’s business. This ruling created the possibility of agencies concealing wrongdoing by claiming certain records are exempt.

Strengthen the penalties for noncompliance. Requesters can seek penalties in court if an agency improperly refuses to turn over a record. But those penalties are a weak deterrent for agencies. Adding a per-day penalty for each day a record is withheld improperly would add teeth to the law.

Explore new electronic means of providing records. When Michigan’s public records law was enacted in 1976, the drafters could not have predicted technological advances that exist today. Government agencies should explore low-cost methods of storing and providing public records electronically.

If government is to be, in the words of Abraham Lincoln, “of the people, by the people, and for the people,” citizens must work hard to keep it accountable by understanding what it is doing. Legislators, for their part, can assist in that task by making it easy for the regular person to have access to public records and public meetings.

Michael Reitz is the executive vice president of the Mackinac Center for Public Policy.