STATE GOVERNMENT SLAMS SHUT DOORS TO THE PUBLIC
By Martha A. Churchill
From highway accidents to crime victims, Michigan government is closing
its doors to public view.
The Freedom of Information Act was enacted
by the Michigan Legislature to ensure open access to government agencies.
But some Michigan judges are not sympathetic to open government these days.
And now we have the Michigan Senate approving a bill to cut off public
information about crimes.
The proposed law, the Crime Victims Rights
Act, authorizes the government to keep certain police records secret. Suddenly,
the name and address of crime victims will no longer be available under
the Freedom of Information Act.
Under the new law, if a high government official
is assassinated, the police will be free to hide the crime victim’s name.
The proposal, passed by the state Senate earlier
this month, would hamper anyone trying to study and understand crimes.
Imagine what it would be like, trying to investigate an airline crash without
knowing the pilot’s identity. Academics and policy leaders would not have
access to critical facts about how and why crimes happen if this proposed
bill is passed into law.
This cavalier attitude by government officials
is not surprising in light of recent Michigan court cases. One of the worst
ones, the Mager decision, really set the tone for government secrecy.
Fred Mager had asked for a computer disk with names
and addresses of anyone receiving a pistol safety certificate. He hoped
to recruit gun owners to his political cause.
The trial court refused Mager access to the
records, indicating that the names and addresses were “personal” and “private.”
The Michigan Appeals Court disagreed, ordering the State Police to release
the records.
At this point, the Michigan Supreme Court tossed
out a quickie opinion without bothering to allow Friend of the Court briefs
on this important subject. Writing that the information should be suppressed,
the justices declared that folks might be “embarrassed” about being identified
as gun owners. In one impulsive moment, the high court slashed a giant
hole in the right of citizens to know about their government.
Emboldened by the Mager case, state officials
are having a field day shutting out public access to government files.
That’s probably why the Department of Natural Resources (DNR) had the nerve
to deny a routine request for information about what it spent on a public
relations project.
The request came from the Michigan United Conservation
Clubs, asking how much the DNR spent promoting cartoon characters such
as “Sandy Dune” and “Buck Wilder” as part of the state’s Millennium Project.
The DNR refused to release the information to the nonprofit organization.
Instead, the government sent it an inflated bill for the anticipated cost
of assembling its own records for inspection.
Meanwhile, we citizens took another blow to
our rights this June when the Michigan Court of Appeals ruled that names
on traffic accident reports are “private.”
The traffic accident case, titled Midwestern
Audit vs. Michigan State Police, held that activity which takes place in
the middle of the street is “private” and cannot be revealed under the
Freedom of Information Act.
After generations of open access to traffic
reports, this case is a shock. Sure, what happens inside a home is personal
and ought not be released to nosy citizens under the FOIA. But when a motorist
travels on the highway in broad daylight and crashes into another vehicle,
there is nothing “private” about it.
Not only does a traffic accident occur in public,
it involves taxpayer-supported services, such as police, ambulance, highway
maintenance, hospitals and even urban planning professionals. The public
might want to know who was ticketed and why.
When government agencies become entangled in
the lives of citizens, the Freedom of Information Act is all the more important,
to make sure our tax-supported agencies are doing a good job. It is impossible
to find out about inefficient or destructive government practices if the
police and other agencies can hide behind so-called “privacy” every time
they interact with citizens.
In yet another strike against open government
this summer, the Michigan Court of Appeals agreed to hide Jack Kevorkian
from television news reporters. Basically, the Department of Corrections
got the green light to block an ABC News television interview of “Dr. Death.”
Too many government servants display open contempt
for the public, as seen by the Kevorkian case. After the Department of
Corrections scored its big win against the public’s right to know, a prison
spokesperson made a nasty remark about the Disney-owned television network,
comparing Barbara Walters to Mickey Mouse.
The Legislature needs to stay vigilant on behalf
of the public. A few errant court decisions must not be allowed to stop
legitimate inquiry into the workings of government.
Reprinted from the Detroit News, November 8, 2000.
Published on this web site with permission from the Detroit News.
Body Blows to Sunshine Laws
By Tim Richard
Michigan's Supreme Court delivered two other body blows last year to
the "sunshine laws" in addition to letting state universities cast shadows
on their presidential searches. In the case of prison inmate Mary
Glover, the court unanimously said the Parole Board is governed by the
Corrections Act and not the Open Meetings Act. The Parole Board turned
down Glover's application without giving her a reason. It held an open
public hearing but closed the doors on its discussion and voting. Justice
James Brickley's opinion said the Legislature intended to exempt the Parole
Board from OMA but did it by amending the Corrections Act and not OMA.
Glover is serving a parolable life sentence for felony murder and assault.
In the 1976 robbery of a Shiawassee County gas station, she handed her
husband a gun which he used to shoot three persons, killing one. He's serving
life without parole.
Glover's case became celebrated when she earned a college degree, won
a prestigious literary award and "won a ground breaking federal lawsuit
that has enhanced opportunities for the female inmates of this state,"
in Brickley's words. U.S. District Judge John Feikens supported her request
for parole. The Supreme Court, however, sent the case back to the
Parole Board for a statement of reasons as required by law. The Parole
Board had written blandly:
"After full consideration of the positions taken by those testifying
at the public hearing and consideration of the adjustment, attitude and
behavior of the prisoner, the Parole Board withdraws interest in proceeding
toward parole at thistime. You will be interviewed by the Parole Board
five years from your most recent interview as indicated in the official
date above."
The high court has been consistent at least in requiring law enforcement
people to give reasons for their action. In the 1983 Evening (Detroit)
News vs. Troy case, the court said a police department couldn't just deny
a Freedom of Information Act request - "a bill of particulars is in order.
. . The justification for withholding must not be conclusory, i.e., a repetition
of the statutory language."
Comment: The decision is bothersome to the general public. It says you
can't learn the public meetings law just by reading the Open Meetings Act
- you must read the Corrections (and other) laws, too. We have pointed
out that Michigan has a Freedom of Information Act and 21 other laws affecting
public records. Worse, the Legislature has refused to list all public records
laws within the text of FOIA, deliberately creating a research problem
for people.
In the case of gun owner Fred Mager vs. the Michigan State Police,
the Supreme Court upheld the police's denial of pistol safety certificate
records. Mager, of Redford Township, said he had a legitimate interest:
to recruit others to support legislative bills easing the permit process.
But the court said, "We have no doubt that gun ownership is an intimate
or, for some persons, potentially embarrassing detail of one's personal
life," citing one of the reasons FOIA allows for exempting a record.
"It would create a virtual shopping list for anyone bent on the theft of
handguns. . . and whatever else the criminal mind might evoke." Mager's
attorney argued that pistol ownership was no more an "intimate personal"
fact that records of marriage, divorce, birth, death, incorporation, driving
and any of the other records the state keeps. Applying the previously accepted
standards, the Court of Appeals held that the records had to be disclosed.
However, the Supreme Court reversed that decision without oral argument
or normal briefing. There was no opportunity for interested organization
to file amicus briefs.
Fees for Public Records
Local officials who want to price public records out of the public's
reach have a new tool in an opinion by Attorney General Jennifer Granholm.
Officials may charge for "fringe benefits paid to its employees" as well
as their wages in looking up and duplicating documents, Granholm said in
AGO 7017. It was requested by state Rep. A.T. Frank, D-Saginaw.
Granholm said her interpretation is consistent with the 1990 Court of
Appeals decision in Virgina Tallman v.Cheboygan Area Schools, which "authorizes
a public body to recover its actual labor cost in establishing fees chargeable
for processing a FOIA request." And Granholm noted the federal government
defines direct costs as including "the basic rate of pay for the empoloyee,
plus 16 percent of that rate to cover benefits. . ."
It's the second blow in recent years to public efforts to obtain documents
at low cost. The Legislature in 1996 amended FOIA to allow a charge for
the wages of "the lowest paid public employee capable of retrieving the
information" - a change supposedly to cover the wages of computer techies
and not just junior clerks. Granholm noted, however, that the Court
of Appeals said a public body may "choose" to exercise its "legislatively
granted right to charge a fee." The public body doesn't have to charge,
or may make a nominal charge.
Comment: The FOIA Committee's experience has shown that a growing number
of public officials will charge all they can to discourage requests, whether
the officials admit it or not. Many officials view providing documents
as a nuisance for them rather than as a right of the public. Moreover,
there is nothing to prevent an official from padding the bill in terms
of the time it takes to look up a record, regardless of the wage rate.
For example, this member recalls a bar owner who was charged for a half-hour
by a police department for looking up a record of a burglary at his establishment;
yet when a police officer stops you on the road, he can take your driver's
license into his vehicle and look up your record in two or three minutes
- even on a country road.
Advice:
1. Ask to see the record before you ask for a copy. You may not need
every page, you may be able just to take notes, and the agency will tend
to charge you only for copying.
2. Check the local public library. The document may be on an open shelf.
3. Check the Internet. Many public bodies are posting public documents
there.
Guns and FOIA
by Tim Richard
Eleven years ago this month, I walked the streets of old Jerusalem and
saw what I had only read about: Teenagers openly carried Uzis, the famed
small machine gun.
The law there is that any Israeli may carry a firearm, but no Palestinian
may. It’s a method of keeping an entire people under thumb. It’s why Palestinian
kids throw rocks and burn tires.
I traveled with a group sponsored by a Christian charity which wanted
to donate an ambulance to Palestinian Christians. The government, however,
kept the ambulance on the dock for months while it professed to search
for a two-way radio, which, in Palestinian hands, is considered a threat.
I’ve since read magazine articles saying American police departments
are studying Israeli methods.
Two weeks in Israel, the West Bank, the Gaza Strip and Jordan changed
my entire attitude toward privately-held guns. Previously I shrugged. Now
I see attacks on the people’s right to keep and bear arms, and hiding public
records, as efforts to keep people under thumb.
I take no sides in the Israeli-Palestinian conflict. Israel’s method
may be appropriate in a country whose enemies would drive it into the sea.
But they are wrong for Michigan.
A Michigan Court of Appeals panel this month dealt another blow to our
knowledge of official behavior in a decision for the State Police and against
the Detroit Free Press.
Under the Freedom of Information Act, the Free Press asked "to inspect
and copy records that indicate whether the attached list of Michigan state
legislators have concealed weapons permits . . ." Its purpose: to determine
whether legislators were getting preferred treatment in their applications.
One can read easily between the lines: Are lawmakers who support
the police lobby’s perennial cry for "tough new laws" getting permits more
easily than other folks?
FOIA allows a public agency to conceal a record where the information
is "of a personal nature, the disclosure of which would constitute a clearly
unwarranted invasion of privacy." Your marriage, divorce, driving, voter
participation, hunting license and property records are public.
But the State Police deny access to concealed weapon permit records.
Its hokey excuse: "Disclosure under the FOIA to the world at large of the
names and addresses of citizens who possess registered handguns would create
a virtual shopping list for anyone bent on the theft of handguns, interested,
for malicious reasons, in the identities and addresses of citizens who
own handguns, and whatever else the criminal mind might evoke."
A fabricated excuse. I read the State Police brief in the 1999 Fred
Mager suit. The department never cited a single example of a burglar perusing
public records for a gun cache. It’s hooey.
The Michigan Supreme Court bought that line of hooey in ruling against
Mager, a pizza delivery man in Redford Township who wanted to contact other
gun owners to support a better method of issuing gun permits.
The truth is that police and law enforcement officials have a tight
grip on who gets permits, and they don’t want the Fred Magers of this world
to be able to use those records to loosen their grip. Only certain favored
persons are to get CCW permits. Only the police may see the records.
A Court of Appeals panel, citing the hokey Supreme Court decision, has
upheld dismissal of the Free Press case involving legislators. Judges Richard
Bandstra, Hilda Gage and Kurtis Wilder added: "This information is no less
private, intimate or potentially embarrassing because it concerns state
legislators or other public officials."
In sum, the State Police is tightening its grip on who has access to
gun records. It may also be improperly tightening its grip on who even
gets CCW permits. But no private citizen or corporation can get the information
to prove it.
It’s how you keep people under thumb.
Tim Richard is a retired newsman and State Capitol correspondent
who lives in Bear Lake Township.
Reprinted from the Muskegon News Advocate, November
2000
