A cloud over Sunshine Week

March 16, 2015

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This week (March 15-21) is Sunshine Week, a nation-wide initiative to promote open government. I'm all for open government. I'm a long-time user of Michigan's Freedom of Information Act. It was passed in 1976, and by 1979 I was using it get information from my own employer, the City of Lansing. That was 30 years ago. My latest FOIA request was sent just yesterday - to the City of Lansing.

 

A bill was passed last year that makes extensive changes to the FOIA. They go into effect July 1, and the changes should make it much easier and cheaper to get public documents. A summary of the changes is here. A little-known fact about the FOIA, however, is that there are exemptions that do not appear in the Act itself.

 

For example, Governor Snyder signed a bill in December of 2012 that prohibits public employers from releasing the details of an employee's pension. The provision was slipped into Senate Bill 797 (page 22), which became Public Act 347 of 2012. This is what it said (in part):

Except as otherwise provided in this subsection, information regarding the calculation of actual or estimated retirement benefits for members of the system is exempt from disclosure by the system or the political subdivision sponsoring the system pursuant to Section 13(1)(d) of the Freedom of Information Act, 1976 PA 442, MCI 15.243.

Senate Bill 797 was an amendment of the Public Employee Retirement System Investment Act, Act 314 of 1965, whose summary is as follows:

An act to authorize the investment of assets of public employee retirement systems or plans created and established by the state or any political subdivision; to provide for the payment of certain costs and investment expenses; to authorize investment in variable rate interest loans; to define and limit the investments which may be made by an investment fiduciary with the assets of a public employee retirement system; and to prescribe the powers and duties of investment fiduciaries and certain state departments and officers.

Since Act 314 has to do with the "investment of assets of public employee retirement systems," the provision exempting pension details from the FOIA seems entirely out of place. It doesn't belong. I'm convinced that it was secreted into Senate Bill 797 to avoid being noticed.

 

In an attempt to find out how it got in there, I purchased from the Senate Appropriations Committee a video of the May 9, 2012 hearing at which the bill was discussed. The exception to the Freedom of Information Act was not mentioned.

 

All other details of a public employee's compensation are open to the public, but not the pension amount or the details of the pension's calculation. This is a major exception, because the pension is a huge part of employee compensation.

 

I suspect the provision was included to thwart me. At the time, I was posting all retirements from the City of Lansing on this website, and I was linking them to the actual pension calculation sheets, which I obtained with FOIA requests. You can still see them: police and firefighter retirements here, other City employees here. But you won't see any pension amounts or pension calculation sheets after April 1, 2013, when the amendment went into effect.

 

I don't know how many other exceptions to the FOIA are out there in other statutes, but I can suggest a solution: add a provision to the FOIA that says any exception/exemption to the Act must appear in the Act itself, and those that exist in other statutes are void.

March 18 update: An early reader of this story (I email it to a little over 1500 people; Google won't let me send to more than 500 recipients every 24 hours, so it takes me 4 days to reach everyone) tells me that including the ban on releasing pension details in Act 314 may violate Article IV, Section 24 of Michigan's Constitution, which says (in part), "No law shall embrace more than one object, which shall be expressed in its title."

Send comments to stevenrharry@gmail.com.

 

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