FOIA redactions

One of the least reported, but most frightening, aspects of the now-defeated Proposal 2 was its potential impact on Michigan’s Freedom of Information Act. Proposal 2 would have given primacy to stipulations in collective bargaining agreements over state laws such as the FOIA, making it possible for government union leaders to suppress information that was once available to both journalists and everyday citizens.

The Mackinac Center for Public Policy was the first organization in the state to point out this unique angle to Proposal 2, shortly after the Michigan Supreme Court approved its placement on the ballot. In addition to posting stories on its website, the Mackinac Center also distributed its FOIA-Prop 2 work through Michigan Capitol Confidential, a special Op-Ed to The Detroit News and by issuing a joint press release on the subject with the Michigan Press Association. Sunshine Review, a leading advocate of government transparency, also promoted The Detroit News piece.

“Bob, I’m concerned about (redacted). It is certainly (redacted). Can we talk about this? I think it will not (redacted). Moreover, (redacted). Moreover, it demonstrates (redacted).”

The MPA represents member organizations such as Heritage News and is dedicated — as its homepage says — to “Preserving press freedoms … ” among other duties. Government transparency is key to the work of journalists everywhere, so the MPA had a keen interest in the potential damage Proposal 2 could inflict.

Jim Young, Michigan Press Association president and publisher of the Oceana Herald-Journal, argued that, “Even with the FOIA in effect, governments can make it hard to report vital news that affects Michigan citizens directly. Proposal 2 offers a change to the constitution that could have chilling effects on citizens’ right to know.” The press release was picked up in stories by both the Detroit Free Press and Lansing’s Gongwer political newsletter.

Michigan’s Freedom of Information Act law has its roots in the 1970s Watergate-era desire to make government more open. It gives scholars, journalists and just plain folk access to public documents subject to some obvious boundaries, such as personal tax information.

Michigan’s FOIA is extremely powerful, despite public officials’ attempts to make it less so. It was the FOIA that helped the Detroit Free Press acquire electronic communications between former Detroit Mayer Kwame Kilpatrick and others that ultimately brought an end to Kilpatrick’s administration.

Mackinac Center analysts use the FOIA to some degree almost monthly, collecting data on everything from school district contracting to government pay, not to mention corporate welfare subsidies for new manufacturing plants to movie studios. Indeed, Mackinac Center’s research arguably led to the unraveling of a movie studio subsidy package in which we discovered, through a FOIA request, that the film subsidy program director agreed with the Mackinac Center. “So disappointing,” she wrote in an email. “It looked so promising. But it’s not. This time I am agreeing with the Mackinac Center.”

Michigan Capitol Confidential has also used the FOIA to the advantage of taxpayers, requesting several years ago that school districts begin publishing their checkbook registers online. Dozens of districts complied, and the Legislature eventually passed a law requiring districts to post several layers of financial data on their websites.

FOIA requests, however, are not always met with such pleasant outcomes. Inquiries sent to the labor studies departments at three Michigan colleges in 2011 drew bomb and death threats to the Center and a protest outside of our headquarters. The Mackinac Center drew support from some unlikely sources at the time when Jack Shafer, media critic at Slate.com, wrote in response, “There’s no such thing as a bad FOIA request.”

Sometimes these FOIA requests lead to almost amusing cover-ups from our state’s top players. The Mackinac Center requested information through the Freedom of Information Act from Michigan State University and was rebuffed with a series of redactions.

In 2011 Michigan State University redacted 100 percent of an email that was two pages in length, and redacted most of several other emails in question. This “response” was designed to be a finger in the eye of the Mackinac Center, as the Center had recently caught one of its scholars plagiarizing and made that fact public. Technically, MSU responded to the Mackinac Center’s FOIA request, but the information contained therein was useless. In one of the documents — which can be found on our website — a heavily redacted email reads:

Bob, I’m concerned about (redacted). It is certainly (redacted). Can we talk about this? I think it will not (redacted). Moreover, (redacted). Moreover, it demonstrates (redacted).

In 2010 the Mackinac Center and the MPA teamed up to try and preserve the sanctity of Michigan’s FOIA, only to have the Michigan Supreme Court refuse to hear the case. The Mackinac Center Legal Foundation and MPA filed a joint amicus brief at the Michigan Supreme Court in 2010 in a case involving Howell Public Schools. Chetly Zarko, a citizen journalist who has since passed away, sent a FOIA request to the Howell schools requesting emails generated on government-owned computers and sent by teachers union officials there regarding contract negotiations.

Zarko made his request to try and determine if union business was being conducted using taxpayer-funded equipment. The Michigan Court of Appeals had ruled that Zarko’s request should be denied, claiming that the content of the emails was not official school business and so did not qualify as a public record.

The Michigan Supreme Court let the appellate court’s decision stand, a “disastrous” ruling according to Patrick J. Wright, director of the MCLF. He pointed out that government officials could use the decision to hide illegal activity, since it would also not qualify as “official business.” Unfortunately, this legal win did not stop government unions from trying to limit transparency into their affairs, such as with Proposal 2.

The bottom line is that if FOIAs were not an effective tool for monitoring the work of our government, state and local officials wouldn’t work so hard to avoid the embarrassing truths sometimes revealed by this transparency law. Big Labor may not have set out to subsume the FOIA with its support of Proposal 2, but we are confident it would have taken little time for Big Labor or Big Politicians to do so.

Michael D. LaFaive is director of the Morey Fiscal Policy Initiative at the Mackinac Center. Ted P. O’Neil is media relations manager.