Letter to the editor: colorful pol’s complaint

Communications among politicians exist along a continuum, from obviously public to obviously private. At one extreme we find documents such as government budgets, statutes, and appointments to office.

Obviously, these belong to the public, and are subject to disclosure except in very narrow circumstances, such as impending purchases of real estate, or the blueprints of prisons.

What triggered Governor Whitmer’s order was the attempt by certain officials in Governor Snyder’s administration, to conceal results of Flint water testing by deliberately using private email accounts. I completely agree with the policy that official actions should strictly employ official channels.

At the other end of the spectrum are various kinds of private communications, such as information about the personal problems of other people or suspicions about dishonest coworkers. This kind of “soft” but potentially important information can be uncertain, defamatory, political, scandalous, or derived from confidential sources. Every person on earth knows such secrets and acts on them every day.

In the newspaper business, there’s a huge gulf between what you know privately, and what belongs in the paper. We politicians are no different. There are things we know which we don’t discuss openly at public meetings, but which we take into account. Prohibiting private communication by email would simply mean our gossip sessions would move to text messaging or phone calls. Our most vapid public officials may pretend to make decisions solely on information contained in public records, but everybody knows they’re talking out of their rears.

The difficult problems don’t lie at the extremes, but in the middle of the continuum, where the matters are a mix of public and private. As I said 25 years ago, when I wrote the Ingham County Ethics Policy, we should focus our attention on situations where an elected official’s actions involve a simultaneous mix of public and private aspects.  It is precisely when we can’t really decide whether an action is public or private that hard ethical issues arise. The only way I know to solve such problems is to take specific situations as they arise and try to find transparent but workable policies.

Let’s take a simple example of a mixed-case document - this letter.  My preliminary drafts of this letter are not subject to FOIA, because they’re “private”. If I decided finally not to send it to you, even the final version wouldn’t be subject to FOIA, just as a reporter’s unpublished story isn’t public. 

If I send out a draft version to one or two members of the Board of Commissioners, asking for editing suggestions, I think it would still not be subject to FOIA - although that’s a closer call. But merely sending the final version to the City Pulse won’t make it subject to FOIA, because I am not “a public body” under the statute, and neither is the City Pulse. 

The Michigan Court of Appeals, in Howell Education Assoc v. Howell Bd of Education, (287 Mich. App 228 (2010)) held that private use of a government email system didn’t mean the emails were subject to FOIA, and indeed the Court obviously thought such informal private use was not a big deal.

I think my letter would legally become a “public document” subject to FOIA when sent to a quorum of the Board of Commissioners, or to Board staff. At that point, it would become a record in the possession of Ingham County, which is a public body under the law. Of course, Ingham could adopt a stricter policy, but as of today, the legal status of emails is about the same as hand-written notes passed from one person to another.

My approach to ethical issues has always been to study problems which actually arise, and to design solutions which head off the situations before they fester into public issues. In the 44 years since I first ran, there has never been a single lawsuit — or even a public dispute — over access to anything I have written. It’s not as if I am hostile to FOIA or public disclosure. I get drawn into these controversies because I try to answer media questions honestly, which means I say things that aren’t politically prudent.

The idea that every communication by every elected official must be subject to FOIA, regardless of its content and purpose, may make a good sound bite, but it isn’t the law, and it wouldn’t work.

— Mark Grebner

(The writer is an Ingham County commissioner)