“We can easily forgive a child who is afraid of the dark; the real tragedy of life is when adults are afraid of the light.” —Plato
The only state besides Massachusetts whose Freedom of Information Act (FOIA) does not extend to the state legislature or the governor, Michigan has once again failed to expand its law to embrace these.
After two measures to broaden Michigan’s FOIA sailed through the State Senate with only two dissenting votes, they’ve sat since January in the House’s Governmental Operations Committee, awaiting discussion. Meanwhile, Michigan Speaker of the House Matt Hall stated that he wasn’t interested in putting the bills on the agenda.
“We’re just not going to do FOIA,” he said.
State officials insist that the swift deletions are a matter of storage, not stonewalling.
“If this were put up for a vote in the House, it would pass,” said Senator Jeremy Moss of Bloomfield Township, co-author of the bills. “There’s no doubt. It has the votes. The question is: Why won’t the speaker put it up for a vote?”
It gets worse.
Even where FOIA does apply, Michigan has erected a further barrier: Its record-retention policy automatically deletes Microsoft Teams messages after 30 days, though state emails are retained for seven years. That tiny window to request data from Microsoft Teams—a communication and collaboration workspace for private chats, meetings and file sharing—before it disappears forever inhibits a crucial artery for the flow of information to the press and public.
Say you’re a Michigan government staffer engaging in a private discussion about policy with a lobbyist—and you’d rather that discussion stay private. The “smart” thing to do is to meet at midnight by a tree in Beal Botanical Garden. But if that’s inconvenient, communicate via Microsoft Teams. At least that way, you’ll know that any FOIA request coming in after 30 days will be stamped “the information requested does not exist.”
David Cuillier, director of the University of Florida’s Joseph L. Brechner Freedom of Information Project, finds the discrepancy between the handling of email and the handling of Microsoft Teams a head-scratcher.
It is “weird to have emails be one time length, then Teams messages be a lot shorter,” he said. “That doesn’t make any sense.”
“I imagine there’s a lot of important business being conducted in Teams that should be retained longer and the public should be able to see it.”
One example was what top Michigan Economic Development Corporation (MEDC) officials, who were under investigation for embezzlement, were chatting about online as law enforcement raided their offices last June. We know they were online on Microsoft Teams—just not what they were online about. And since nature abhors a vacuum, all we can do is speculate: What urgent messages, if any, did they type when not under the gaze of the police? “Destroy these records,” “Delete that internal memo,” “Tear that notice off the bulletin board fast”? Did one executive tell another exactly what to say and what to leave out if imminently questioned by authorities?
We’ll never know because the first FOIA request didn’t arrive until October, three months after the digital records relating to the June raid had already been deleted. Vital information that could have been used to reform or call for further accountability on the part of MEDC—or, for that matter, absolve the corporation of any wrongdoing—was lost.
State officials insist that the swift deletions are a matter of storage, not stonewalling.
But, more likely, according to the Washington Coalition for Open Government, “Technology is increasingly being used to quickly and automatically destroy records that should be preserved, organized and made available.”
Transparency advocates who are frustrated with the locked legislative FOIA gears are considering taking the issue to the people in the form of a ballot initiative to amend state law and make the governor’s office and legislature subject to FOIA at last.
Such a process would be pricey, costing an estimated $7 million to $8 million to gather enough signatures, according to officials with the Michigan Press Association. Much of that money would go toward paying people to circulate the petition, and promoting the initiative.
But even if advocates could raise the funds, past attempts show there’s no guarantee they would collect enough signatures to make the ballot.
The most efficient, economical and sensible way to expand FOIA is to simply let the House vote on it: As Senator Moss said the bills would pass if put to a vote, and a recent statewide survey shows the public wants it. Just about everyone, in short, is in agreement on the issue—with the exception of the speaker of the house.
This reform has been a long time coming. For a decade, Lisa McGraw, public affairs manager for the Michigan Press Association, has worked with lawmakers on presenting public records transparency legislation. Each time, bills got through one chamber, only to be stopped by the other. And though it’s been frustrating, she isn’t giving up.
“It’s kind of like the fire department,” she said of the need for FOIA. “You hope you never need them, but when you do, you want them to be there and you pay taxes to have them there.”
Michigan’s experience shows what happens when that safeguard is neglected. Because when you make a habit of keeping secrets, word gets out, and when you continue to throw roadblocks at a transparency apparatus like FOIA, you get a reputation. Michigan, consequently, has a bad one—failing national ethics and transparency assessments, including a 2015 damning review by the Center for Public Integrity, which ranked Michigan’s anti-corruption systems dead last.
Trust is government’s coin of the realm. By choosing secrecy over sunlight Michigan is spending theirs faster than it can ever be earned back.
