May 2015

May 1, 2015

Following Michigan lawmakers enactment of the Michigan Freedom of Information Act, Act 442 of 1976, I was not a big fan.

An outgrowth of the Watergate scandal on the national level, the act at first seemed to slow the flow of information rather than increase access to public records which was the intent of the law when it went into effect in April of 1977. Where in the past local and state officials had generally been good about supplying documents requested by news organizations, the implementation of the FOIA, as the act is commonly known, seemed to delay the flow of information, and in some cases gave public officials a prescribed means of denying requests thanks to a list of exemptions allowed in the new law.

At least that was my perception from a deadline business viewpoint, where previously a call to a local official produced whatever was generally needed to give the public a complete picture in a government-related story. The FOIA, for some officials, became more of a shield to withhold information, rather than encourage transparency.

But that was nearly 40 years ago and my take on the FOIA has changed considerably, as has the thinking of government officials who appear generally concerned about the appearance of transparency when it comes to supplying public documents when requested.

On the face of it, the FOIA was well intended. The act was designed, according to its own language, to prove “public access to certain public records of public bodies,” along with outlining response times government officials had to meet, fees that could be levied, duties of public officials charged with supplying documents, exemptions for specific classes of records, and penalties and a course of relief if a request has been denied.

The FOIA has been amended a number of times in the last nearly 40 years, sometimes for the better and sometimes not. And challenges to the law through the courts, for the most part by media organizations, have helped set precedent and expand the reach of the act over time.

This year, effective July 1, further changes to the FOIA will take effect, thanks to the efforts of media organizations and the Michigan Press Association last year to have the legislature address some road blocks that existed with prior versions of the law. Although not perfect, the new changes lower the fees that can be charged for records – an impediment to the press and the general public in the past when records could run into the hundreds of dollars, and sometimes into the thousands. The changes also provide that requesters can appeal administratively and initiate lawsuits if the fees seem excessive. Fines have also been increased for government officials who delay responses to FOIA requests for records, not uncommon in the past. And to bring the law into the modern age, electronic versions of records, if the technology exists, can now be requested.

So on balance, the public's interest has benefitted from adoption of the FOIA nearly four decades ago.

In the media world, the FOIA has become a routine part of the toolbox when attempting to supply information to the public, although generally readers remain unaware of what efforts go into bringing them the news. On occasion, the public gets an inside look at how the FOIA has helped shape the news.

Probably the most noted use of the open records law in recent years was reliance on the FOIA by the Detroit Free Press to gain access to the text messages of former Detroit Mayor Kwame Kilpatrick, which allowed everyone a front row seat as the scandal in the city's administration unfolded.

As I look back on our news efforts in recent weeks and months, the FOIA has allowed us to bring a more complete story on a number of important issues in the area covered by our monthly newsmagazines. Among those efforts, we employed the FOIA to gain access to fees charged to Bloomfield Township by an investment advisory firm. In Commerce, the FOIA allowed us access to the list of candidates who applied for appointment to a township trustee appointment when officials suggested that final interviews would be conducted in a less than transparent fashion. And in recent weeks, use of the FOIA allowed us to bring a more complete picture about the situation surrounding a Bloomfield Hills varsity baseball coach/teacher who fled from the scene of a car accident during school hours, including police reports, e-mails between school officials and other records documenting his history of alcohol-related driving infractions.

What has been most heartening in our own experience in each of these incidents is the dramatic change in attitude on the part of local officials. In each instance, we found more of a willingness on the part of the government to treat the records as public documents, something that was lacking decades ago.

Progress has definitely been made when it comes to public records, and for that we have the FOIA to thank.


David Hohendorf
Publisher
DavidHohendorf@downtownpublications.com

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