February 2, 2016

When Michigan Gov. Rick Snyder released emails related to the ongoing water crisis in the city of Flint earlier this month, he was under no obligation to do so. Michigan is one of only two states in the country (Massachusetts is the other) where the state’s Freedom of Information Act excludes the governor’s office from public records searches.

Missing from Gov. Snyder’s voluntary 274-page disclosure were emails from before 2014, when the governor-appointed emergency manager in charge of Flint made the decision to switch the city’s water source from Detroit public water to the Flint River, a poorly-managed transition which resulted in the lead poisoning of thousands of Flint residents. Emails from staff members as well as emails sent to and from the governor’s public email account were also left out.

In the absence of those emails, it is still unclear when and to what extent the Snyder administration was involved in and aware of the decision to switch water sources and the resultant public health emergency. Democrats have accused him of “cherry picking” the released emails.

The Flint water crisis is the latest and most striking example of how holes in the state’s sunshine laws have sharply reduced transparency between citizens and elected officials.

Even before Flint made national news, Michigan was in the spotlight for its lack of transparency. In the Center for Public Integrity’s 2015 State Integrity Study, the state came in dead last — 50th — and earned “F” grades in 10 of 13 categories including public access to information and executive accountability. The nonprofit referred to the state’s ethics laws as, “an honor system with no honor.”

Some say the lax sunshine laws and a resulting lack of accountability amongst public officials may have even delayed state action in Flint.

“The fact that they were able to deny, deny, deny — it’s much easier to do when you don’t have to reveal the discussions you’re having about this situation,” said Brandon Dillon, chairman of the Michigan Democratic Party and a former state representative.

“I do think it’s arguable that if the public and the press would have had access to the kind of information that they do in 48 other states earlier, that this would not have dragged on so long,” he said.

Dillon, who served in the Michigan House from 2011 to 2015, introduced two bills to eliminate exemptions from the FOIA during his time in office. He said he saw firsthand how the lack of transparency in the state emboldened state lawmakers, who were exempted from public records requests by a 1986 attorney general decision.

“I’ve heard legislators say things like, ‘Well, they can’t FOIA this anyway,'” Dillon said.

Jane Briggs-Bunting, president of the Michigan Coalition for Open Government, said the problem is not with the way the state’s Freedom of Information Act is written, but how it has been interpreted and amended since its passage in 1976.

“There’s very good language in the statute itself,” Briggs-Bunting said. “It just has not been robustly protected by court decisions or by public officials themselves and it keeps getting chipped away by the legislature.”

One example is Michigan House Bill 4540, which would exempt oil and gas infrastructure from Freedom of Information Act requests for reasons of national security. The proposed law comes at a time when state environmental groups have called for more oversight of a large energy pipeline running underwater through the Great Lakes. The pipe is owned by Enbridge, the Canadian company that also owns the pipeline that failed in the 2010 Kalamazoo River spill. Critics have called the law a “sweetheart bill” for the company.

Lawmakers have also sought in recent years to shield police body camera footage, gun ownership and licensing information and donations to political campaign issue ads from the public eye.

Fees and delays, common complaints of FOIA requests nationally, have also been a problem in Michigan.

Last year, a FOIA request about an earlier FOIA request found that a treasury department official told another staff member to use a “fee approach” in response to an “overly broad” request by liberal group Progress Michigan instead of issuing a denial. The department then asked the group for $52,108.72 in fees to complete the request.

Briggs-Bunting said despite their limitations, the state’s sunshine laws have helped to make public multiple documents from local authorities and state agencies that have advanced the reporting on the Flint water crisis.

FOIA requests have revealed among other things:

  • The governor’s former chief-of-staff worried that the people of Flint were being “blown off” by the state last summer
  • The city of Flint misled citizens when it said it was testing the highest-risk homes for lead
  • State workers in Flint received bottled water months before city residents were told that the city’s water was unsafe.

Still, in light of the public health emergency in Flint, many are calling for stronger transparency laws in the state, starting with the removal of FOIA exemptions for the governor and state legislators.

“If you have a robust FOIA where people can get information more easily, you’re much less likely to have public officials that will hide things because they know they’ll be accountable,” Briggs-Bunting said.

With trust in government at rock bottom in Michigan, the political climate may finally be right for updating the state’s hobbled Freedom of Information Act.

“I don’t know if folks really understood the urgency for it,” Dillon said, “but they do now.”

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Annie Byrnes is a freelance journalist based in Grand Rapids, Michigan. Her work has appeared in The New York Times, The Wall Street Journal and…
Annie Byrnes

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