State Supreme Court Failure to Rectify Disastrous FOIA Ruling ‘Must Be Fixed,’ Says Center Attorney

Legislature should act swiftly to restore the intent behind Michigan’s public disclosure law

For Immediate Release
Wednesday, June 29, 2011
Contact: Patrick J. Wright
Director, Mackinac Center Legal Foundation
Michael D. Jahr
Vice President for Communications

MIDLAND — In a setback for government transparency, the Michigan Supreme Court yesterday refused again to hear an appeal of a lower court decision that misinterpreted the Freedom of Information Act and now thwarts disclosure of improper activity by public employees. The Mackinac Center and the Michigan Press Association had filed a joint amicus brief seeking to have the state Supreme Court overturn the ruling and uphold the true meaning of the statute.

“In one sense, the Court’s decision is unsurprising, since the court rarely grants reconsideration motions,” said Patrick Wright, director of the Mackinac Center Legal Foundation. “On the other hand, the Court of Appeals completely misread the law in a way that will help government officials hide criminal activity — the exact opposite of FOIA’s intent. This ruling must be fixed either by the Legislature or by the Michigan Supreme Court in a future case.”

The case was originally filed by citizen-journalist Chetly Zarko in 2007. Zarko, who passed away in 2010, was seeking public-employee emails related to a labor conflict and potential illegal politicking in the Howell School District. The Michigan Education Association subsequently filed a suit to prevent the disclosure. A trial court ruled in Zarko’s favor, but the Court of Appeals overturned that decision in a manner that significantly undermined the effectiveness of FOIA, which was enacted post-Watergate to enable the public to ferret out illegal governmental conduct.

In December 2010, the Supreme Court denied leave to appeal the decision in a 4-3 ruling. A reconsideration motion was filed by Zarko’s attorneys in January and heard by a court that included two new justices.

“If allowed to stand, this ruling decimates FOIA and cries out for a quick fix,” said Wright. “We should not permit state and local governments to hide their criminal activity from those they serve.”