FOREWORD

The public policy behind passage of Michigan's Freedom of Information Act ("FOIA"), Mich. Comp. Laws Ann. ("Mich. Comp. Laws Ann.") §§ 15.231 -.246, is set forth in its first section:

It is the public policy of this state that all persons, except those persons incarcerated in state or local correctional facilities, are entitled to full and complete information regarding the affairs of government and the official acts of those who represent them as public officials and public employees, consistent with this act. The people shall be informed so that they may fully participate in the democratic process.

Mich. Comp. Laws Ann. § 15.231. This section was recently amended twice; it previously stated that FOIA's purpose was to provide all persons with information regarding "governmental decision making" and, before that, information regarding "the affairs of government and the official acts of those who represent them." It is unclear whether these changes in FOIA's purpose will affect how courts interpret it.

The state's tradition of giving the public the broadest possible access to its records did not begin with enactment of the FOIA in 1977. Michigan courts throughout the state's history have both expressed and implemented the fundamental principle that the records of government belong to the public and not to the government officials who are their custodians. The public's access and inspection are a matter of fundamental right. The public does not have the burden of justifying the requested inspection but, to the contrary, the custodian has the duty to facilitate inspections and the heavy burden of justifying any exemptions, restrictions, or delays he or she may attempt to impose. Nowack v. Auditor Gen., 243 Mich. 200, 219 N.W. 749 (1928) (common law); Burton v. Tuite, 78 Mich. 363, 44 N.W. 282 (1889); Booth Newspapers Inc. v. Muskegon Probate Judge, 15 Mich. App. 203, 166 N.W.2d 546 (1968); Booth Newspapers Inc. v. University of Michigan Board of Regents, 444 Mich. 211, 507 N.W.2d 422 (1993) (FOIA). Nowack v. Auditor Gen., a leading case, both in Michigan and nationally, which enforced a newspaper's right of inspection by the extraordinary remedy of mandamus, contains one of the more noteworthy statements of this fundamental principle:

If there be any rule of the English common law that denies the public the right of access to public records, it is repugnant to the spirit of our democratic institutions. Ours is a government of the people. Every citizen rules. . . . Undoubtedly, it would be a great surprise to the citizens and taxpayers of Michigan to learn that the law denied them access to their own books for the purpose of seeing how their money was being expended and how their business was being conducted. There is no such law and never was either in this country or in England.

219 N.W. at 750.

The court then cites the 1889 case of Burton v. Tuite, supra, as an example of Michigan's historical commitment to the principle of free access, concluding, "There is no question as to the common-law right of the people at large to inspect public documents and records. The right is based on the interest which citizens necessarily have in the matter to which the records relate." 219 N.W. at 750 (citing Burton v. Tuite, supra, at 374 ("I do not think that any common law ever obtained in this free government that would deny to the people thereof right of free access to, and public inspection of, public records.")). This principle was affirmed in Muskegon Probate Judge, supra, which enforced a newspaper's right of inspection by the extraordinary remedy of superintending control:

The fundamental rule in Michigan on the matter before us, first enunciated in the case of Burton v. Tuite, (1889), 78 Mich. 363, is that citizens have the general right of free access to, and public inspection of, public records. . . . The Nowack decision has "placed Michigan at the vanguard of those states holding that a citizen's accessibility to public records must be given the broadest possible effect."

166 N.W.2d at 547-48 (quoting 1961-62 Op. Att'y Gen. 581, 587).

More recently, in Swickard v. Wayne County Medical Examiner, 438 Mich. 536, 475 N.W.2d 304 (1991), the Michigan Supreme Court declared that these same policies apply to FOIA:

One of the reasons prompting the legislation was concern over abuses in the operation of government. A policy of full disclosure underlies the FOIA.

. . .

In construing the provisions of the act we keep in mind that the FOIA is intended primarily as a prodisclosure statute and the exemptions to disclosure are to be narrowly construed.

475 N.W.2d at 307.

As discussed below, Michigan's FOIA also provides a procedure and remedy for improper governmental refusal to disclose public records, including the award of reasonable attorney’s fees and actual and punitive damages. Mich. Comp. Laws Ann. §§ 15.240 (6) and (7).

Since at least 1851 the policy of open access to public records also has been expressed and implemented by other Michigan statutes. For example, the Michigan Penal Code provides that: "[a]ll official books, papers or records created by or received in any office or agency of the state of Michigan or its political subdivisions, are declared to be public property, belonging to the people of the state of Michigan." Mich. Comp. Laws Ann. §§ 750.491. The next section enforces the policy:

Any officer having the custody of any county, city or township records in this state who shall when requested fail or neglect to furnish proper and reasonable facilities for the inspection and examination of the records and files in his office and for making memoranda of transcripts therefrom during the usual business hours, which shall not be less than 4 hours per day, to any person having an occasion to make examination of them for any lawful purpose shall be guilty of a misdemeanor, punishable by imprisonment in the county jail not more than 1 year, or by a fine of not more than $500.00; Provided, that the custodian of said records and files may make such reasonable rules and regulations with reference to the inspection and examination of them as shall be necessary for the protection of said records and files, and to prevent interference with the regular discharge of the duties of such officer.

Mich. Comp. Laws Ann. §§ 750.492.

Open Meetings. Michigan's Open Meetings Act ("OMA"), Mich. Comp. Laws Ann. §§ 15.261, et seq., discussed in detail, infra, also reinforces the state's policy of insuring open access to government operations by providing for open access to public meetings. In Booth Newspapers Inc. v. University of Michigan Board of Regents, supra, for example, the Michigan Supreme Court stated:

Legislators hailed [the OMA] as "a major step forward in opening the political process to public scrutiny." During this period, lawmakers perceived openness in government as a means of promoting responsible decision making. Moreover, it also provided a way to educate the general public about policy decisions and issues. It fostered belief in the efficacy of the system.  . . .  To further the OMA's legislative purposes, the Court of Appeals has historically interpreted the statute broadly, while strictly construing its exemptions and imposing on public bodies the burden of proving that an exemption exists.

507 N.W.2d at 427-28 (citations and footnote omitted).

Unlike Michigan's Freedom of Information Act, which complements existing laws, the Open Meetings Act ("OMA"), Mich. Comp. Laws Ann. § 15.261, et seq., was, in part, intended to resolve conflicting provisions of law and expressly provides that it "shall supersede all local charter provisions, ordinances, or resolutions which relate to requirements for meetings of local public bodies to be open to the public." Mich. Comp. Laws Ann. § 15.261(2).

The OMA also provides that public officials who intentionally violate the OMA have committed misdemeanors for which they can be fined and potentially imprisoned. Further, unlike FOIA, which provides for recovery of reasonable attorney’s fees to a prevailing plaintiff, OMA provides for the recovery of actual attorney’s fees. Mich. Comp. Laws Ann. § 15.271(4).