Sunshine Week: Former Michigan AG "didn't like" exempting elected officials from FOIA
It’s Sunshine Week, when Americans celebrate access to public information (and highlight instances where there isn't enough transparency). The Freedom of Information Act became law in Michigan in 1976. But it came with a big loophole:, exempting the governor and the lieutenant governor and their staff.
This meant documents and records could be shielded from the public, except in rare occasions.
Then, in 1986, the law was amended to make that loophole bigger – exempting the Michigan Legislature as well.
Frank Kelley was Michigan’s Attorney General for 37 years (1961-1999), longer than anyone has ever held that position anywhere in the country. In 1986, he was asked to offer an opinion of the changes made to the FOIA law.
“I obviously wanted the Freedom of Information Act to be as broad as possible, but the Legislature, for their own purposes, exempted themselves,” said Kelley. “And I was asked formally … for an opinion on it and of course we got into it. And we found direct quotes in there, and they’re in my opinion, that the Legislature did exempt themselves from the Freedom of Information Act, applying it to all other bodies of government except themselves.
I obviously wanted the Freedom of Information Act to be as broad as possible, but the legislature, for their own purposes, exempted themselves
“I didn’t like it at the time, but I had to issue an opinion because that was the law,” added Kelley.
The Flint water crisis has highlighted that Michigan is among just a handful of states that exempts their elected officials exempt from FOIA. The crisis could lead to massive FOIA reform in the state.
But FOIA aside, Kelley says on his watch the Flint situation could have been avoided.
"Had I been attorney general, the matter would have been handled quite a bit differently,” said Kelley. “I don’t think we would have ever gotten to the point where Flint would have converted to the water in the first place.”
How would things have been different?
“The attorney general would have gotten in the act a lot earlier,” said Kelley. “If you look at the staff of the attorney general, even then, we had a public health department. We had a municipal affairs department. We had attorneys who did nothing but look after health and look after cities. They would have been on the ball and would have seen that coming and would have taken steps to avoid it back in those days.
Listen to the full interview below to hear Kelley’s thoughts on the FOIA law.
Also joining the show was John Lindstrom, the publisher of the Gongwer News Service, which keeps tabs on everything happening at the capitol.
Lindstrom feels that if lawmakers weren’t exempt from FOIA, then our government could be a lot different.
“I think anybody is always a little bit more careful about what they do when they think that someone is watching them,” said Lindstrom. “Not wanting to ascribe bad motivations, but clearly when you think you have something of a free pass, in terms of materials getting out to the public, then you clearly feel you have a freer hand in doing certain things … free speech is often more praised than it is practiced to protect it.”
Lindstrom points out that the further away we get from the origins of FOIA, the more people became complacent with the changes that have been made to the law over the years.
“All of these laws, by and large, came into effect after Watergate in the 70s,” said Lindstrom. “But as people have gotten away from Watergate, as they’ve gotten away from the idea of government conspiracies in large measure, we’ve seen governments try to make things more convenient for themselves. What we’ve seen now with the Flint water situation certainly puts a bit emphasis on making changes to FOIA.
“I wouldn’t put a big bet on any major changes happening to FOIA any time soon. Not under the current political structure anyway,” added Lindstrom.
Listen to the full interview below to hear more about Lindstrom’s commentary on the challenges of FOIA and the value of secrecy he felt the governor’s staff had in the lead-up to the Flint water crisis.