Opinion: Michigan's transparency law is subverted by stalling, loopholes

Jarrett Skorup and Steve Delie

Among the tragedies of 2020 was the death of Mark Schlefer, an attorney who campaigned against government secrecy and was the key author of the Freedom of Information Act. A federal FOIA law went into effect in 1966. States across the nation, including Michigan, followed suit by adopting their own FOIA laws.

But the Great Lakes State still makes it nearly impossible to access some public information. This was particularly true in 2020, where government transparency became a casualty of pandemic policies.

When the first COVID-19 cases were discovered, Gov. Gretchen Whitmer issued an executive order relaxing the requirements of the state’s transparency laws. This was understandable, as government bodies were busy adjusting to stay-at-home orders and operating remotely.

If a public body charges for the costs of reviewing its documents, it can effectively stall for however long it likes, the authors write.

But nine months later, some public bodies act as if these temporary and now rescinded orders enable them to shirk basic transparency requirements. Many have excessively delayed responding to records requests from the public. This is a big problem for the media and everyday citizens trying to keep their government accountable.

Our organization sends dozens of FOIA requests to hundreds of public entities every year. We use the data provided in these requests to maintain a government salary database, track pension and health care debt, collect a superintendent contract database and assess law enforcement’s use of civil asset forfeiture, just to name a few. We make all this information available to the public for free. Unlawful delays in responding to these requests compromise our ability to use this data to help citizens stay up-to-date on the latest information about their state and local government.

Michigan’s FOIA law allows public entities to delay responding to a request for up to 15 business days and enables them to charge for the labor costs and time it requires to find and review the information before it is released. But there’s a loophole in the law. If a public body charges for the costs of reviewing its documents, it can effectively stall for however long it likes. It only has to produce the document within a “reasonable” time, which is left to the public body itself to determine. It is not uncommon for entities to use this loophole to delay responses for months, and use of this loophole seems to be increasing recently.

For instance, while continually citing “science” and “data” in order to justify her lockdown orders last spring, Whitmer refused to release the information leading to her decisions. If such data exists, it should be subject to a FOIA request, but Michigan is one of only two states to exempt the executive office from FOIA, and the only state that explicitly exempts the governor’s office by law.

The governor said she was relying on recommendations from experts at the University of Michigan to prohibit some activities and not others. As a public university, UM is subject to FOIA, so we sent a request in May. It was our hope that we would be able to obtain and publish the science and data alleged to have been underlying the governor’s decision.

The university delayed releasing the information until October, and the information that was produced was so heavily redacted it was of little value. UM claims it can withhold this information under a “frank communications” exemption to FOIA, but that’s a difficult argument to make about documents that are six months old and discussing executive orders that are no longer in effect. So we filed a lawsuit.

UM claims it can withhold this information under a “frank communications” exemption to FOIA, the authors write.

Earlier in 2020, the graduate employees union at Michigan State University called for the firing of Stephen Hsu, who was the vice president of research. The union claimed his work was racist, sexist and supported eugenics. Hsu defended himself and hundreds of supporters started a petition on his behalf. But he was forced to resign from his post at the request of MSU President Samuel Stanley and return to a faculty position.

So, in June, we requested emails to and from Stanley that mentioned Hsu. The university said it would take six weeks and cost $230 to get the information. Repeated extensions and increased cost estimates followed. These emails weren’t provided until nearly Christmas (and following yet another lawsuit), and even then they were filled with unnecessary, arbitrary and likely illegal redactions. This lawsuit remains ongoing.

The problem isn’t limited to universities. On June 5, we requested from a state department copies of complaints about businesses for violating COVID-19 executive orders. We paid nearly $1,400 upfront in early July for the time required to compile the information. Only after we filed a lawsuit in November, 164 days later, did we finally receive the information.

Delays aren’t the only problem. The city of Inkster, in what it calls “protective rules,” considered adopting limits on the number of FOIA requests a person could submit and who could submit them. These restrictions are clearly illegal, but, as with the other FOIA issues, it takes time and money to bring a legal challenge. The city has, for now, delayed the rules after receiving negative media coverage.

And that’s just issues with a single loophole. In addition to uniquely exempting the executive branch from public records requests, Michigan also exempts the Legislature. Only eight states do likewise.

In the spring, Whitmer put in place executive orders shutting down businesses across the state. But the governor violated her own orders by attending a protest and ignoring social distancing rules. She also admitted her husband drove 184 miles one-way to their vacation home to rake leaves, despite travel being “strongly discouraged” under the governor’s executive orders.

Whitmer violated her own orders by attending a protest and ignoring social distancing rules, the authors write.

To see if any other additional rules were being violated, we filed a public records request to see if housekeepers, cooks and landscapers were working at the governor’s mansion at a time when they were shut down across the state. This request was denied since it regarded the governor’s mansion and, thus, the executive branch. So it’s impossible for Michigan citizens to know if their elected officials are following the laws they are imposing on the rest of us.

If Michigan’s transparency laws are to have any value, they need to be timely and accessible for the typical Michigan resident. How valuable is the media if it can’t break a story about public officials until the records are released months later? How valuable is the everyday citizen’s power to hold elected officials accountable if it requires filing a lawsuit to get basic information?

This problem appears to be getting worse, and it's time for lawmakers to act. State legislators should close two key loopholes in our FOIA law — getting rid of the exemption for themselves and the governor’s office, and setting a firm time limit on when documents have to be released to those who requested it. The people of Michigan deserve this much.

Jarrett Skorup is director of marketing and communications and Steve Delie is an attorney and the center’s policy lead on open government at the Mackinac Center for Public Policy, a research and educational institute based in Midland.