Open government in Michigan

1. Open government in Michigan Open Meetings Act Freedom of Information Act

2. Open meetings • 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.

3. Public bodies under OMA • 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.

4. A meeting, defined • 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.

5. Notification • 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).

6. Closed meetings • 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.

7. More on 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.

8. This land is your land • 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.

9. Enforcement • 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.

10. What’s going on? • 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).

11. MI Freedom of Information Act • 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?

12. Public body under FOIA • 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.

13. Public record • “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.

14. Exempt records • 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.

15. Exempt records, the second • 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

16. Some more exempt records • Most student records. • Trade secrets. • Information subject to attorney-client or other privilege. • A nice legislative catch-all term: “Records exempted by other statutes.”

17. Redaction • 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.

18. Using the act • 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)

19. Using the act and enforcement • 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.

20. In general • 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.

21. Questions?