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The Michigan Freedom of Information Act does something very few statutes do: It expressly states the public policy behind it. The second sentence of FOIA declares: “It is the public policy of this state that all persons are entitled 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.”

Courts sometimes struggle to determine the intent behind a statute. They engage in a complicated interpretive process to figure out what the Legislature meant. No need for that with FOIA. 

Justice Louis Brandeis said that sunlight is “the best of disinfectants.” In FOIA, the Michigan Legislature clearly said that it was giving us the right to turn the high beam on government and public officials.  

Michigan courts have understood and applied FOIA accordingly. In one early case, The Detroit News sought records from the City of Troy related to a controversial fatal shooting by the police. The city withheld the documents and the trial court agreed.

In a bedrock 1983 decision, the Michigan Supreme Court reversed. Recognizing the important public policy that FOIA advances, it declared that “the proper functioning of government and public control of government in a democracy require that the people have full access to public information.” 

In other words, the government works for us. We have the right to ask what it’s doing.

In some rare cases, it may serve the public interest for the government to withhold certain information, for example where disclosure would compromise prison security. Exceptions must and do exist.

Still, as our Supreme Court wisely observed in the Troy case, public bodies have a “natural” tendency not to “reveal anything it does not have to.” As a result, they try to apply FOIA narrowly and its exceptions broadly.

In light of the declared public policy of the statute, such an approach has things exactly backwards. For roughly 40 years, the Michigan courts have been sending that message through their opinions.

A case presently before the Michigan Supreme Court, Bisio v. City of Clarkston, provides another example of a public body taking a position that undermines FOIA. Fortunately, it also provides another opportunity for our highest court to set things straight.

In that case, a private citizen sent a FOIA request to the City of Clarkston seeking, among other things, documents from the city attorney’s files. Clarkston took the position that certain documents in its attorney’s files were not public records because he had never shared them with the city and because he did not fit the definition of a “public body” under the Act. The trial court agreed.

The Court of Appeals affirmed that decision. The court held that “the city attorney’s possession and use of records in his role as city attorney [is not] tantamount to the public body’s use and possession of the records in the performance of an official function.”

The Michigan Supreme Court should reverse that decision, which is why The Detroit News has joined a friend-of-the-court brief urging it to do so. 

Respectfully, the argument endorsed by the Court of Appeals is inconsistent with both the law and common sense. Public bodies do most of their business through the human beings who work for them and who serve as their agents. It makes no sense to say that a public body did not do something because it was done by someone acting on its behalf in his official role. 

The argument is also dangerous. It would allow public bodies to avoid disclosure by simply manipulating who has possession of the documents they want to hide. It would create a canyon sized loophole in the law. 

Most importantly, the argument betrays the promise of open government that FOIA makes in its opening sentences. It turns a robust right to full and complete information into an anemic right that depends whose drawer a document is in. 

James Madison famously wrote that “a popular Government, without popular information, or the means of acquiring it, is but a Prologue to a Farce or a Tragedy; or, perhaps both.” The Michigan Supreme Court quoted those words in the City of Troy case. It appears the Court will reason to quote them again.  

Jim Stewart and Len Niehoff practice at the Honigman law firm and represent The Detroit News.

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