Ignore the Man Behind the (Software) Curtain in Michigan's Public Planning

Beginning of article

Knowledge will forever govern ignorance, and a people who mean to be their own governors must arm themselves with the power that knowledge gives. A popular government without popular information or the means of acquiring it, is but a prologue to a farce or a tragedy, or perhaps both.

James Madison, Ray v Turner 587 F2d 1187 (1978) fn 10

J. Skelly Wright concurring

INTRODUCTION

The Michigan Freedom of Information Act (FOIA), MCL 15.231; MSA 4.1801, (1) was born in 1976, a decade during which laws were passed all over the United States driven by citizens' desire to have a larger direct contribution to government. Martha A. Churchill calls this statute "a Big Stick," which the narrow topic of this paper will show to be a slight hyperbole. (2) If information is power, then such a law would seem to be important in society-shaping works of sometimes vast cost, such as new highways. For example, in early 2001, Detroit-area publications were citing over a billion dollars for full-bore modification of the Edsel Ford Expressway, whilst sprawling Oakland County very recently tendered an estimate of $1.7 billion over ten years for itself, since "70 percent of needs involve roads that are congested now or are likely to become congested this decade" (emphasis mine) (3) Clearly, enormous expenditures of tax money are based on projections of land use.

If by contemporary values the citizens should participate in municipal planning, what is the limit of their reach when policy goals and performance standards are machine programmable? This article examines the state of Michigan's treatment of citizen access to processes by which needs for transportation needs are projected.

THE STATUTE

Policy for the Freedom of Information Act is straightforward: A person is "entitled to full and complete information regarding the affairs of government.... The people shall be informed so they may fully participate in the democratic process." 15.231(2)

The salient language in the FOIA about information that may reside in computerized form is as follows:

"Field name" means the label or identification of an element of a computer database that contains a specific item of information, and includes but is not limited to a subject heading such as a column header, data dictionary, or record layout. MCL 15.232(a)

"Public record" means a writing prepared, owned, used, in the possession of, or retained by a public body. ... Public record does not include computer software. MCL 15.232(e)

"Software" means a set of statements or instructions that when incorporated in a machine usable medium is capable of causing a machine or a device having information processing capabilities to indicate, perform, or achieve a particular function, task, or result. Software does not include computer-stored information or data, or a field name [that] does not violate a software license." MCL 15.232(f) (emphasis added)

Regarding access generally,

[A] public body shall furnish a requesting person a reasonable opportunity for inspection and examination or its public records. ... A public body may make reasonable rules necessary to protect its public records and to prevent excessive and unreasonable interference with the discharge of its functions." MCL 15.233(3)

There are a host of "[e]xemptions from disclosure." "A public body may exempt. ... [r]ecords or information specifically described and exempted from disclosure by statute" MCL 15.243(1)(d). In a mixture, "the public body shall separate the exempt and nonexempt material and make the nonexempt material available for examination and copying. MCL 15.244(1)

CASE LAW

In 1985 the Michigan Supreme Court found that the Freedom of Information Act extended beyond a "core purpose" as urged by the Attorney General. "By declining to confine use of the FOIA to its core purpose, the Legislature seems to have decided that society would be better off if the government shares valuable information" United Plant Guard Workers v Dept of State Police, 422 Mich 432, 443). The lower courts have consistently reiterated this position, as in Nicita v City of Detroit, 216 Mich App 746, 751 (1996): "The FOIA protects a citizen's right to examine and to participate in the political process." Farrell v City of Detroit, 209 Mich App 7, 12 (1995), cites the classic Kestenbaum v Michigan State University, 97 Mich App 5, 24 (1980) in "furthering the purpose of the FOIA 'so that [the citizen] might be able to monitor governmental affairs.'" Very recent (2000), the Michigan Supreme Court said yet again, "On its express terms, the FOIA is a prodisclosure statute ... Herald Co v Bay City, 463 Mich 111, 11 9.

"The exemptions to disclosure must be narrowly construed" (Herald Co v Ann Arbor Public Schools, 244 Mich App 266, 272, 1997. The Nicita court held at 755: "[T]he mere showing that a document falls under the general category of documents that may be subject to nondisclosure is not adequate. Rather, the public body must also show that the need for nondisclosure clearly outweighs the public interest in disclosure." Furthermore, "[t]he Act's requirement is one of reasonableness," and the appellate courts have pointed to the statutory provision for separation of exempt from non-exempt material, per Evening News Assn v City of Troy, 417 Mich 481, 503 (1983).

Blue Cross and Blue Shield v Insurance Bureau, 104 Mich App 113, 128-129 (1981) addresses trade secrets. A public body may (but need not) exempt from disclosure a proprietary document, which public contractors would do well to consider, but with limits. However DeMaria Building Co v Dept of Management and Budget, 159 Mich App 729 …