Is placement of FOIA exemption unconstitutional?

June 9, 2015

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In May of this year, I sent a Freedom of Information Act request asking for the pension details for a Lansing firefighter who retired in 2012. The City denied my request. The reason:

        MCL 15.243(1)(d) provides that the City may exempt from disclosure records described as exempt in another statute. With regard to the information you have requested, MCL 38.1140(h)(3) specifically provides that ". . . 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 [MCL 15.243(1)(d)]." [Emphasis added.]

MCL 15.243 is the Freedom of Information Act. Therefore, it is the Act itself that says "Records or information specifically described and exempted from disclosure by statute" are exempt. However, that provision seems to be in conflict with Article IV, Section 25 of the Constitution:

§ 25 Revision and amendment of laws; title references, publication of entire sections.

     Sec. 25. No law shall be revised, altered or amended by reference to its title only. The section or sections of the act altered or amended shall be re-enacted and published at length.

Section 25 appears to be saying that you can't amend a law without including the change in the law itself. In this case, if pension details are to be exempt from disclosure, it must say so in the Freedom of Information Act, even if that same Freedom of Information Act says it's not necessary. The Freedom of Information Act can't overrule the Constitution.

 

The provision protecting pension details from disclosure was an amendment to the Public Employee Retirement System Investment Act, Act 314 of 1965. It was included in Senate Bill 797, which became Public Act 347 of 2012. In November of 2012, I wrote Governor Snyder a letter arguing that it was wrong to conceal public employee pension details from the public. I also told him the exemption seemed out of place in a bill whose title was

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.

I asked him to veto the bill, but I apparently overestimated my influence. Governor Snyder signed the bill on December 5, 2012.

 

It wasn't until March of this year that someone told me there may be constitutional problems with the placement of the exemption. Now the question is, can the City of Lansing's denial of my FOIA request be successfully challenged on constitutional grounds? If someone can assure me we can win this, I would like to appeal.

 

Send comments to stevenrharry@gmail.com.

 

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