Are public employee pension amounts exempt from FOIA?
August 25, 2017
In December 2012, Governor Snyder signed Senate Bill 797, an amendment to the Public Employee Retirement System Investment Act, Public Act 314 of 1965. It included a provision that seemed to have nothing to do with investment of public employee retirement funds:
I don't remember how I happened to notice this - I don't customarily read pending legislation - but I did, and I interpreted it to mean that public employee pension amounts could no longer be obtained through the Freedom of Information Act. I'd been using the FOIA to get pension amounts for City of Lansing retirees so I could post them on my website.
After the bill had passed both houses of the legislature, I sent Governor Snyder a letter asking him to veto the bill. He was not persuaded. He signed the bill on December 5.
It seemed like I was the only person in Michigan who was aware of the FOIA exemption for pensions. There was nothing about it in the news. I wasn't sure I was interpreting it properly. The wording was strange; the exemption was for "information regarding the calculation of actual or estimated retirement benefits." Why didn't it just say pension amounts were exempt? Or pension amounts and final average compensation (FAC)? The only other factors in the formula are years of service and the multiplier, which are easily obtained.
I wrote a story about it and posted it December 21.
The minutes of the February 19, 2013 meeting of the Police & Fire Retirement Board confirmed my fears. They said that Board attorney Ken Lane discussed recent amendments to the Public Employee Retirement Investment Act, including "the FOIA changes making calculations for individuals confidential."
The amendment didn't go into effect until April 1, 2013. Later in April, as a test, I sent a FOIA request asking for former Lansing police chief Teresa Szymanski's pension calculation sheet. My request was denied. The basis given for the denial was MCL 15.243(1)(d) and 2012 PA 347. MCL 15.243(1) is the section of the Freedom of Information Act that lists the circumstances in which a public body may exempt a public record from disclosure and (d) is "Records or information specifically described and exempted from disclosure by statute." Public Act 347 was the 2012 amendment to the Public Employee Retirement System Investment Act.
I wrote another story and posted it May 2. And then three more in 2015:
And then, on August 10 of this year, the Lansing State Journal published a story titled Overtime spikes pensions for dozens of Lansing police, fire retirees. In the story, reporter Beth LeBlanc says the LSJ sent the City a FOIA request asking for "base pay, final average compensation and pension information for Lansing police and fire retirees. . . The city claimed retirees’ final average compensation data was shielded by a 2012 law, PA 314 Sec 38.1140H (3), which exempts pension calculation data from disclosure." But later, "the city of Lansing agreed to release the base pay and pension amounts for each police and fire retiree between 2010 and 2016."
But not the FAC, apparently, which is a bit puzzling, because if you have the pension amount, years of service (which for the P&F Retirement System is almost always 25, since 25 is the minimum for anyone under age 55 and the maximum for all), and multiplier (3.2%), you can calculate the FAC:
And then, on August 11, I got an email from the Michigan Office of Retirement Services. (I am a retired state employee.) It says ORS recently received a FOIA request from an outfit called American Transparency asking for each retiree’s name, pension amount, and retirement effective date. And, it says, the FOIA requires ORS to comply with this request.
I wish I had a clever ending for this story, but I just don't know what to say.
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