Flint’s legacy may include dramatic expansion of public records law

Rep. Ed McBroom, R-Vulcan, is among a bipartisan group in the House preparing a bill that he said will make the governor’s office and the legislature subject to the state public records law.

 

In October 2014, aides to Michigan Gov. Rick Snyder had a frank email exchange about the deteriorating water situation in Flint.

As residents complained of discolored and foul-smelling water that General Motors said was corroding auto parts at its Flint Engine facility, the aides wrote of an “urgent matter to fix.” One suggestion: reverse course and return Flint to the Detroit water system.

But the discussion within the governor’s office was limited to a handful of people. And it purposely did not include staff from the Michigan Department of Environmental Quality – the regulatory state agency overseeing the Flint water situation.

The reason: In Michigan, MDEQ’s email traffic is subject to the state’s Freedom of Information Act, or FOIA, while communications within the governor’s office are exempt from public disclosure.

"P.S. Note: I have not copied DEQ on this message for FOIA reasons," Valerie Brader, deputy legal counsel and top policy advisor to the governor, wrote in one email.

Ordinarily, no one outside the governor’s office was likely to see her email because Michigan is one of only two states that exempt the executive branch from the requirements of the state’s public records law. If she had sent this policy discussion to the MDEQ, the email would have been subject to an open records request made to that agency.

The exchange, captured in more than 20,000 pages of communications involving the governor’s office, was voluntarily released by Snyder following his administration’s acknowledged failures in the Flint water crisis.

Now, in the wake of Flint, many people from across Michigan – advocacy groups on both the right and left, the media, as well as Republicans and Democrats – are clamoring for Michigan to expand the reach of state FOIA laws – considered among the most restrictive in the nation. Bills being drafted to bring the governor’s office within reach of public records laws have bipartisan support.

Michigan gets poor marks for more than shielding the governor from FOIA. The legislature is also exempt from having to release its records.

Compounding the problem, say government transparency advocates, is that many government offices across the state have been accused of charging members of the public exorbitant fees to collect government records, more than some people can afford to pay. In other cases, government offices delay the release of public documents for months citing workload pressures, an explanation that critics say is nothing more than a delay tactic intended to protect officials from embarrassing disclosures.

“There’s a crying need for major reforms of the law,” said Kary Moss, executive director of the ACLU of Michigan. It was the ACLU, through its investigative reporter Curt Guyette, that first brought to public attention the dangerously high lead levels in Flint’s drinking water supply.

“There’s a crying need for major reforms of the law,” said Kary Moss, executive director of the ACLU of Michigan.

 

Michael Reitz, executive vice president of the Mackinac Center for Public Policy, agrees with Moss.

“The Flint water crisis, as terrible as it is, has illuminated for people why the public needs access to public records.”

More debate, less secrecy

Without the voluntary release of governor's office’s emails, which ordinarily would be protected from public disclosure, few would have known that Snyder’s staff was working to get filters and bottled water to city residents while its officials were calling the water safe; that top aides advocated a switch back to Detroit water system a year before it finally happened, or that a top aide to Snyder had known of an uptick in Legionnaire’s disease in Genesee County and that a county health official suspected it was tied to the Flint River water 10 months before Snyder made that news public.

Any member of the public can request a calendar to see who meets with President of the United States in the Oval Office, but under current Michigan law there is no right to the records showing who’s meeting with the governor. Nor are the emails of staff, or other records from the governor or his staff available to the public.

That Snyder aides were concerned with keeping their discussion secret was made clear by the Brader email: When Michigan’s leaders were grappling with the biggest public health crisis in decades, some were apparently more interested in keeping the government’s response to the water crisis private than in communicating with the state’s primary environmental agency.

“That could be the difference between the right people getting the information and reacting on it sooner,” said Susan Demas, publisher of Inside Michigan Politics, a long-time fixture in Lansing that provides insight into state politics.

Groups pushing for more government transparency say they do not believe Snyder’s extraordinary decision to release his office’s internal communications relating to Flint, made under pressure earlier this year, will quiet the push to make records in the governor’s office and state legislature subject to FOIA. In part, that’s because the disclosed emails, coming over several weeks, have raised even more questions about the government’s response to the ongoing lead-poisoning crisis. Among them: Is this all of the relevant documents out there?

“How do we know these are all of the emails from his staff?” asked Lonnie Scott, executive director of Progress Michigan, a left-leaning advocacy group whose sleuthing for records led to the disclosure about how early Snyder’s office was aware of the Legionnaire’s outbreak. “How will we ever?”

Progress Michigan was also the first to reveal the state provided bottled water to state employees working in Flint at the same time the state was saying the city’s water supply was safe for the public to drink.

Longstanding frustrations

For residents, public policy researchers and government watchdog groups, including media organizations, Michigan’s open records laws have long been frustrating.

In addition to exemptions for the governor’s office and the legislature, those trying to get public records sometimes face high fees and lengthy delays, which critics of the current laws contend are often used to thwart the release of records that shed light on the inner workings of government.

Michigan recently received the worst grade in the nation for government transparency from the Center for Public Integrity, a nonpartison investigative news agency, in part because of its poor open records laws.

“We’d like to think there’s a culture of openness here, but I don’t think there is,” said Jeremy Steele, a communications professor at Michigan State and a former reporter.

That is beginning to change.

Just over a year ago, the legislature passed a FOIA bill, which Snyder signed, that capped how much the government can charge for copying records at 10 cents a page, and increased penalties for delayed responses. The law also allowed members of the public to sue over unreasonably high fees, with the possibility of government offices facing thousands of dollars of fines for violating the law.

State Rep. Ed McBroom, R-Vulcan, in the western Upper Peninsula, called the law passed last year “incremental” yet positive – capping the amount clerks can charge for copying was needed, he said, because some public bodies were charging residents as much as $2 a page.

Now, McBroom and three other representatives, Jeremy Moss, D-Southfield, Jon Hoadley, D-Kalamazoo, and John Bizon, R-Battle Creek, say they are putting the finishing touches on a bill that will sweep away the blanket exemption for the governor as well as the legislature.

“This,” he said, “is paradigm changing.”

McBroom, chairman of the House Committee on Oversight and Ethics, said he’s heard repeatedly from those who have advocated for change. He said he’s come to agree on a need to improve the law and believes the package of changes, which he hopes to introduce this week, will gain support.

“I think we’re in a very good position to see the bills passed at this point,” he said. “I think the stars are aligning.”

If approved, the measure would leave Massachusetts as the only state with broad exemptions for the state executive branch.

And though many are skeptical that real reform can take place, they also say the Flint crisis has created wide ranging support for change. Multiple newspapers have called for an end to the exemptions. Added to that are Republicans and Democrats, and progressive advocates like the ACLU and Progress Michigan and free-market organizations like the Mackinac Center.

“This could be a silver lining in a horrible crisis,” Inside Michigan Politics’ Demas said. “This is a great opportunity to improve our FOIA laws, the exemptions and the prohibitive cost issue.”

Fees as a ‘weapon’

Although Michigan has now capped the cost of copying records, it still allows government bodies to charge fees for searching for them. It can charge an hourly rate equal to the pay of the lowest-paid person capable of doing the search.

Those estimates can sometimes get into the thousands and tens of thousands of dollars, despite the limits. They have upset many and, in some cases, caused the requester to walk away – something skeptics believe is the goal of the high estimates.

“Often times, you will see governmental bodies wield cost as a weapon,” Demas said.

After Progress Michigan asked the state treasurer for “all communications” with an education advisor from Louisiana – in a request unrelated to Flint – it was given an estimated charge of $52,000. Ultimately, the fee was dropped to $1,200, Scott, of Progress Michigan, said.

“I believe this information is already public,” Scott said. “I don’t think you should be charged at all for information.”

The Mackinac Center recently got a $172,000 estimate for its request of all emails of Flint utilities and water department employees that mentioned the word “lead” in 2014 and 2015.

Flint officials wrote that it would take more than 4,900 hours – paying an employee $35 an hour – to fulfill the request. In order for the city to begin, it is requiring a deposit of just over $86,000.

The Mackinac Center has said it believes the information requested will likely have to be gathered and produced for other media or the many lawsuits that have already been filed.

“We think (the estimate is) exorbitant,” Reitz said. “They need to get a hand on their records management and hand it over.”

Michael Reitz, executive vice president of the Mackinac Center for Public Policy, said the state has sought to charge his organization as much as $6 million to turn over public records.

 

But $172,000 is still way below the highest number Reitz has seen. He said the Mackinac Center asked the Michigan State Police for records on how the state was spending Department of Homeland Security money. The estimated cost to retrieve the records topped $6 million. Reitz said the center declined to pay and did not get the information.

Public offices make their case

Those fees may seem high and, for just about anyone, they would be a barrier to a release. But public officials note that, following the law changes last year, requesters can challenge the size of the fee in court. Before, they could only challenge a denial of requested records.

But for those who staff offices in cities, counties, townships villages and school boards – any public body in the state – they say the impact of voluminous public records requests can be extensive and take employees away from other work in their taxpayer-supported jobs, said Catherine Mullhaupt, staff attorney for the Michigan Township Association. She said some unhappy residents have been known to put dozens of requests online; requests that she said border on harassment.

Mullhaupt said provisions in the law that require an upfront deposit, or that allow clerks to recover the cost of searching for records, are meant to address the burden that some searches can impose on time-crunched employees. It’s not just the media that use the open records laws, she said, the general public as well as businesses, mortgage brokers and lawyers also request records for various reasons.

“We don’t want the fees to be an obstacle” to getting public records, she said.

Critics cite delays

But frustrated members of the public say costs aren’t the only hurdle.

Under current Michigan law, government offices have deadlines for responding to a records request. An office can, for instance, approve the release of records or, for limited reasons, deny their release. But critics note that the law does not make clear how long an office can take to turn over the records once they are approved.

When Virginia Tech researcher Marc Edwards became involved in Flint (his team was instrumental in first documenting elevated lead water levels in Flint homes) he began seeking documents from the state. All told, Edwards said he paid over $3,000 for state records.

It was money he said he was willing to pay – and then share through his website flintwaterstudy.org. Among his discoveries from the records: The federal EPA had previously warned the state about the potential problems with the Flint River but the state Department of Environmental Quality misinterpreted rules about what steps the state was required to take to protect the water supply.

Edwards said he readily paid the money because he didn’t want any further delay; he said he’s waited over nine years for information from the U.S. Environmental Protection Agency. But in Michigan, he was miffed when he paid a $32 bill online only to wait several more days before the state acknowledged his payment and released the records.

“I never asked for fee waiver or fee reduction in Michigan, just because I felt it was a public health emergency, and I did not want to give them ANY excuse to delay,” Edwards said in an email.

Many states charge fees for searches, though some do not, including West Virginia, where legislators eliminated the practice in 2015 after a state supreme court ruling struck down fees by school boards.

“For small news outlets with limited budgets, it’s an impediment,” the ACLU’s Guyette said.

Guyette acknowledged the ACLU has legal and financial resources to successfully file open records requests and challenge the responses when necessary. But he said that, when it comes to cost, many others simply cannot pay for information stored at taxpayer expense by public bodies. If the laws don’t change in Michigan, he hopes someone creates a nonprofit that funds FOIA requests and FOIA experts trained “to get those documents."

Attitude shift

Beyond expanding state FOIA laws to include the governor’s office and legislature, government transparency advocates say the state needs a massive change in how it thinks about public records. They are created by the government, at taxpayer expense. Why should taxpayers then have to pay again for that information?

Snyder himself has advocated for greater transparency in how the state spends money. Now, with the Flint documents revealing many of the inner workings of government, perhaps other state leaders are ready for change.

No one suggests that the changes now under consideration would have prevented the water issues in Flint. But Jane Briggs-Bunting, a former journalism professor at Michigan State and Oakland University and president of the Michigan Coalition for Open Government, which advocates for more transparency, said government works best when everyone – including the public – can see what’s going on.

“When the boss is looking over your shoulder, you are nervous,” she said. “Secrecy is a dreadful thing. If you know someone’s going to look, you’re going to do your job better.”