By Zachary Gorchow
Executive Editor and Publisher
Posted: February 14, 2017 1:34 PM
As the House gears up to open up some legislative records to the public for the first time, as well as records of the governor’s office, there’s one constant, bipartisan refrain from lawmakers: constituent communications will be exempt.
Lawmakers who have championed greater sunshine laws for Michigan’s legislative branch of government for years have said much the same. Materials involving constituent communications – the underappreciated but essential role of legislators to aid those who live in their districts with problems they are experiencing with state government – are off-limits.
The blanket exemption would make the Legislature the only public body in the state where communications between people and their governments, and the materials showing how governments handled those requests, are wholly exempt from public record laws.
That’s right, communications between the public and their city council, township board, county board, mayor, township supervisor, school board, school superintendent, road commission, etc., are subject to the Freedom of Information Act – subject to the act’s exemptions.
Let’s repeat that: subject to the act’s exemptions.
Viewed in the best light, legislators understandably are concerned about their constituents contacting them about private situations, perhaps involving their children’s education, their health, a tip about illegal activity and problems they are encountering as a business owner.
Under the existing Michigan Freedom of Information Act, all such records and materials already are exempt from disclosure. The wide-ranging exemption of “information of a personal nature if public disclosure of the information would constitute a clearly unwarranted invasion of an individual's privacy” provides another layer of protection.
So what is the value of making constituent communications that do not fall into one of those exemptions public?
For starters, it can provide a feel for what is moving the needle with the public. Are ordinary citizens so concerned about an issue that they feel motivated to write their legislator? Communications from those living outside the legislator’s district would be public, but those would largely consist of mass mail campaigns.
When then-Detroit Mayor Kwame Kilpatrick was under siege, I obtained via the Freedom of Information Act the communications his office received from Detroiters to get a sense of what Detroiters wanted to tell the mayor as he confronted the text message scandal. It would be interesting to see what former Rep. Brian Banks’ constituents were writing him as he faced charges that ultimately led to his recent resignation.
The chance to see how legislators and their staff handle constituent communications also would provide some sunshine on which ones excel at it and which ones do not. While news coverage mostly focuses on the policy-making role of the Legislature, most legislators will say how they vote on bills pales in importance as far as their standing with their district to running a strong constituent service operation that assists their constituents, i.e. voters, with navigating the state bureaucracy on a pothole, problem with Medicaid, an issue at a state park, etc.
Additionally, making constituent communications public, with appropriate redactions to protect privacy within the FOIA’s existing exemptions, would allow reporters and others to look for any trends in problems with state operations.
The woes besieging the Unemployment Insurance Agency, which falsely determined through a computer system that tens of thousands of those approved for jobless benefits did so fraudulently, did not break into the open until spring 2015. In reality, the false fraud scandal began in late 2013, and legislators have said now that they were hearing an earful from their constituents about it.
What if those constituent emails had been public three years and several months ago? Might the public have learned of the unfolding debacle at the unemployment agency sooner? And might the agency have stopped using that computer system as the sole arbiter of whether someone committed fraud before August 7, 2015, when it did so? How many people would have been spared having to pay to the state tens of thousands of dollars in unjust penalties and interest?
Those are questions we can only ponder. And they are questions we will have to continue pondering under the bills as drafted.