Losing Control of Government?

(Editor’s note: The following is an edited version of the “President’s Message” from the Summer 2011 issue of Impact, the quarterly newsletter for Mackinac Center members.)

Citizens will lose a powerful means of controlling their government if the Michigan Supreme Court allows a lower court decision to stand that limits access to public records. The flawed decision would conceal government employees’ use of public resources for private gain, partisan politics or even illegal activity.

The Freedom of Information Act allows citizens to view what public servants produce with public dollars. Using FOIA, citizens can access almost all government records, including electronic documents such as emails.

Most of the time, FOIA is a quiet workhorse of public policy research and journalism. But sometimes it’s at the heart of big news. Kwame Kilpatrick is now the former mayor of Detroit partly because he used public resources to document his misconduct.

The Michigan Supreme Court will consider a challenge to the Court of Appeals decision in Zarko v. Howell Education Association. The late Chetly Zarko was a citizen activist who sought school emails to discover whether union officials illegitimately used public resources for lobbying.

Lower courts denied Zarko’s access to the emails, redefining “public record” to exclude “unofficial business.”

By definition, improper behavior is not official business, and that is the problem with the ruling. School districts are already citing the flawed decision to refuse our FOIA requests for emails planning teacher strikes. Teacher strikes are illegal in Michigan. If the current court ruling stands, the public will have no right to see whether school employees are using tax-funded email systems to plan illegal activity.

Not only is FOIA under attack in the courts, but some of FOIA’s defenders are faltering. The legacy news media once vigorously defended the public’s right to know what government is up to. But now some seem to favor limiting FOIA.

When the Mackinac Center requested Michigan State Police documents detailing the use of huge federal grants, the department billed us $7 million, and some editorial voices accused us of asking for too much information. Months later when the ACLU asked the state police for other documents, the police billed the ACLU millions of dollars. But this time, the professional journalists voiced outrage, and the police relented.

A Mackinac Center FOIA request in April sparked a national debate over proper use of public university resources. We even were targeted by violent threats because of it. Editors at The Washington Post, Lansing State Journal and elsewhere accused us of attempting to chill academic freedom. (They eventually published our full rebuttals once it was clear Wayne State University had indeed used public money for questionable purposes.)

Thankfully, the legacy media has not completely abandoned its support of FOIA. The Michigan Press Association joined the Mackinac Center in legal briefs arguing for reversal of the Zarko decision. It’s a contest we must win if citizens are to retain a means of controlling their government.

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Joseph G. Lehman is president of the Mackinac Center for Public Policy, a research and educational institute headquartered in Midland, Mich. Permission to reprint in whole or in part is hereby granted, provided that the author and the Center are properly cited.