State workers flouted FOIA in Flint emails

It’s an ongoing, low-key outrage that the state Legislature and the office of Gov. Rick Snyder are exempt from the Freedom of Information Act.

But it’s brazen and infuriating that some state employees, in agencies that are required to make records public, attempted to flout the already weak legal requirement with childish, deceptive tactics.

Government workers, going about the people’s business, create documents on taxpayer-paid devices, on the public’s dime. Such records should be available to the public. And that’s what FOIA, passed at the federal level in 1966 and in Michigan in 1976, does — ensures that any member of the public can ask for, and receive, e-mails or reports or notes related to the people’s business. It’s an important part of keeping government accountable, both practically and symbolically.  In a practical sense, citizens can literally check in on what government is doing, an oversight spot-check. And symbolically, it’s a reflection of American ownership of the governments that serve us — at our nation’s founding, a notion that turned the traditional hierarchical concept of government on its head.

Most recently, FOIA has been critical in tracing the roots of blame, cause and effect in the Flint water crisis; Flint residents were exposed to lead in the city’s drinking water after the city, under the oversight of a state-appointed emergency manager, switched its water supply and then failed to properly treat the drinking water it pumped from the Flint River — with the approval of the Michigan Department of Environmental Quality.

Michigan is one of just two states in the country where the governor and the Legislature hold such a FOIA exemption.

But the MDEQ is subject to the act, which makes the dodge some state workers employed both pathetic and despicable.

Some MDEQ employees seem to believe that writing “preliminary and deliberative,” “not subject to FOIA” or “confidential, attorney client privilege” on an e-mail or report is an effective strategy to dodge the legal requirement to make the  public’s business, well, public.

We’re tempted to follow the MDEQ’s lead, inscribing “We’re always right” on the editorials we print in the Free Press. Think that’ll work?

No, we didn’t think so, either.

Because, dear MDEQ, wishing does not make it so. While the law does describe some circumstances in which records aren’t subject to FOIA, an e-mail sent from one state worker to another — neither of whom is an attorney — cannot, by definition, be attorney-client privileged. And a state record that is, by law, subject to FOIA isn’t altered because you’ve written “not subject to FOIA” on it, no matter how badly the e-mail in question reflects upon the writer or the agency.

But such writing might confuse — or allow reasonable cover — to an office worker or FOIA coordinator culling thousands of records looking for those subject to the act.

Jarrod Agen, Snyder’s chief of staff, told Free Press reporter Paul Egan that some workers may be confused about how FOIA works, and that the governor is considering changes to the exemption — but wants to preserve state employees’ ability to confer frankly about matters of public policy.

Hogwash.

The governor’s office has opted to release hundreds of thousands of e-mails related to the Flint water crisis. And that’s a start. But the voluntary release doesn’t mean we don’t need to fix FOIA. Those e-mails were released at the governor’s discretion. That’s not the kind of transparency and accountability Michiganders require.

Bills eliminating exemptions for the governor and the Legislature are expected to hit Lansing this month. They must pass.

It’s time to close this loophole.

This editorial originally was published in the March 15, edition of the Detroit Free Press.

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Posted by Tribune News Services

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