Open government in Michigan

Open Meetings ActFreedom of Information Act

Michigan Open Meetings Act Enacted in 1976. Why 1976? Requires:

- Public meetings of public bodies.- Public notification of meetings.- Opportunity for the public to speak.- All decisions and deliberations must be made in public.

Open meetings

Any state or local legislative or governing body empowered to exercise governmental authority or perform a governmental function.

Applies only to legislative bodies. Does not apply to executive branch or courts.

Public bodies under OMA

A convening of a public body- Where a quorum is present. What is a quorum?- For the purpose of deliberating toward a decision.- Or making a decision.- On a matter of public policy.

A meeting, defined

Public bodies must- Annually post a list of the dates, times and places of regular meetings.- Post notice of special meetings at least 18 hours in advance.- Provide mail notification to citizens on request (press is free).

Notification

Meetings may be closed by a simple majority vote:- To consider evaluation, firing, suspension or dismissal of officials or employees, on the request of the official or employee.- To consider expelling or suspending a student on request of student or guardian.- To discuss union negotiating strategy.

Closed meetings

Can be closed by a two-thirds vote:- To consult with attorney about pending litigation (attorney/client privilege).- To review employment applications, on request of the applicant. Interviews and hiring decision must be made in public.- University presidential hires have been exempted from these requirements.

More on closed meetings

Public bodies may close their proceedings to consider purchase or lease of real estate. Why?

Public bodies may not close their proceedings to sell or lease public real estate.

This land is your land

Judge can void decisions made in illegally closed meetings.

First offense for intentional violation – fine of up to $1,000.

Second offense – fine of up to $2,000, up to a year in jail.

Lawsuits must be brought within 60 days of when meeting minutes are available.

Enforcement

If there’s a closed session on the meeting agenda, with no indication of why, go ask.

Explanation of why they closing is taking place should fall under one of the exceptions.

In general, governments that represent larger municipalities or deal with the media more are more experienced in these situations. Smaller governments may violate, unknowingly (or knowingly).

What’s going on?

Enacted in 1976. Regulates requirements for disclosure of

public records by public bodies. Some perceive this as a law primarily used

by journalists, but it is not. What profession uses the rights under this law the most?

MI Freedom of Information Act

Defined more broadly than OMA Includes

- Executive branch, state or local, except for governor and lieutenant governor.- Legislative branch, state or local.- Any other body created by and primarily funded by state or local authority.

Public body under FOIA

“A writing prepared, owned, used, in the possession of, or retained by a public body in the performance of an official function, from the time it is created.”

Applies to records that are handwritten, typed, printed, photocopied, photographed, “and every other means of recording.”

That includes electronic typing and recording, for example emails on a public official’s publicly funded computer.

Public record

There are 20 specific exemptions. Here are some general categories:- Personal information, “the release of which would constitute a clearly unwarranted invasion of an individual’s privacy.”- Non-factual advisory communications within public bodies. For example, a staff member’s memo that states an opinion on something.

Exempt records

Investigative records that would- Interfere with police work- Deprive a defendant of right to fair trial- Disclose investigative techniques or the identity of confidential sources- Endanger law enforcement personnel

Exempt records, the second

Most student records. Trade secrets. Information subject to attorney-client or

other privilege. A nice legislative catch-all term: “Records

exempted by other statutes.”

Some more exempt records

If a record is not itself exempt, but contains exempt material, the exempt material must be made illegible (redacted) and the record must be released.

Public bodies are supposed to try to keep exempt material separate from non-exempt material.

Redaction

Identify the records you want in writing. Be specific.

Government body is required to deliver written response within five (15) business days.- Accept- Deny (with explanation of rationale)- Accept in part, deny in part (with rationale)

Using the act

Reasonable fees can be charged. Right of appeal. Enforcement

- Penalties are milder than under OMA.- Document requester can use civil courts- Actual or compensatory damages plus $500 punitive damages.

Using the act and enforcement

Many times we find government officials pushing these to the max or keeping things secret beyond what the law says they can.

They may simply not know the law or their responsibilities under the law.

Lawsuits may be necessary to compel them to comply with the law.

In general

Questions?