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Transparency isn’t about journalists, it’s about public access to government

Seeing is believing , and in Michigan, we wouldn’t see much of our government without laws like the Freedom of Information Act and the Open Meetings Act.

Those laws are meant to set in stone requirements that guarantee Michiganders have a chance to pop the hood and see the inner workings of the government we pay to operate. It’s essential that we all take time to look beyond the shiny veneer regularly and examine the guts of our governance. After all, the machinations that often occur behind closed doors have a heck of a lot of impact on our lives and wellbeing.

Think about it, very little of what we know about the operation of our government — at least the stuff we all find pretty important — is handed out by bureaucrats on the street corner. Most of the important revelations about how public business is conducted on our behalf is pried loose with tools like FOIA.

Severance agreements for public officials — FOIA. Communications about groundwater contamination — FOIA. Records passed between agencies that shape pandemic response — FOIA.

Our open records law, despite frequent use by journalists, is intended to benefit and protect the people of Michigan from government that runs amok when it operates behind a shroud. And a transparent government is the least partisan issue confronting our state at the moment. Need evidence, take a minute to look at how preserving government opacity seems to consistently unite many Democrats and Republicans in the Michigan Legislature as well as the executive branch.

That’s why we spent part of this week (Sunshine Week) working to outline a roadmap to help our more curious neighbors to solicit records from their government using FOIA. We’ve outlined the basics of how to seek records and what to do when a government responds to your request. We bemoaned some of the most egregious flaws in our state’s transparency mechanism along the way.

But we saved our most important wisdom, and our biggest gripe, for last.

In Michigan, if you are denied access to records, and you believe the government you petitioned for those records erred in its denial your options are slim.

First, our FOIA law allows requestors to appeal denials in writing to the head of an agency or the elected board that oversees a government. It’s a relatively low-cost avenue to challenge a denial, one our journalists employ from time to time. Appeals are a chance to put into writing our arguments that a government ran afoul of the law by blocking access to records or by employing overzealous redactions.

Sometimes it works — think about the time the Traverse City Area Public Schools board voted to overturn erroneous redactions the district employed in response to a request for communications about former superintendent Ann Cardon. But the district’s denial of another part of that appeal highlights a fatal flaw in Michigan transparency law.

In Michigan, if a public body or agency director rejects an appeal, the only avenue for the public to overturn the decision is through a slow, expensive trip into circuit court.

The absence of an independent arbiter between appeal and court dooms many legitimately public records to obscurity in Michigan. Most people simply don’t have the time, money or patience to spend months or years overturning illegitimate denials in court.

We are hopeful bills introduced in the legislature this year and a fledgling ballot initiative will address this Achilles heel (and many other fatal flaws) in Michigan’s public records law.

In the meantime, we will continue seeking records and examining the inner workings of our government.

And we hope you join us.

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