Some good news for open government came out of Lansing this last week, on Nov. 12.
A piece of legislation that would “modernize” Michigan’s Freedom of Information Act moved out of the House Oversight Committee.
Progress on that legislation will be interesting to track as the bill possibly makes its way into state law. [.pdf of HB 4001]
For now, I’d like to focus on just one clause of the proposed legislation. And I’d like to connect that to some otherwise unrelated dots, one of which is an upcoming Ann Arbor city council vote.
That vote – on an appointment to the board of the Ann Arbor Downtown Development Authority – will take place either at the council’s next meeting on Nov. 18 or possibly at its following meeting on Dec. 2.
I’ll work backwards from the upcoming council decision.
Every year the post-election council votes, soon after being seated, to confirm membership of its own internal committees – and to make council appointments to other boards and commissions. That includes an appointment to the DDA board. Under city ordinance and state statute, the city administrator or the mayor can serve on the Ann Arbor DDA board.  For the period of John Hieftje’s long tenure as mayor, it’s been Hieftje, not the city administrator, who has filled that slot on the DDA board.
Some councilmembers might be looking for a objective, performance-based (i.e., non-political) reason to appoint city administrator Steve Powers to the DDA board, instead of Hieftje. Poor attendance by Hieftje at committee meetings over the last two years would be a possible candidate for that reason.
That’s because, according to the DDA’s bylaws, continuing membership on the DDA board is contingent on active board service. According to the bylaws, an objective measure of active service on the board includes 70% attendance at one of the board’s two standing committee meetings.  [.pdf of DDA bylaws as revised 2010]
And attendance records of those committee meetings for the past two fiscal years (from July 2011 to the present) do not reflect at least 70% attendance by Hieftje. In fact they don’t appear to indicate attendance by Hieftje at any of the committee meetings for that period. 
The connection to Michigan’s FOIA is the attendance records. The DDA produced those attendance records to The Chronicle in response to a request made under Michigan’s existing FOIA. Evaluating those attendance records was somewhat challenging, because they were kept as handwritten notes in less-than-model penmanship. 
The DDA responded to our request under the FOIA by making paper copies of the paper originals. That meets the minimum requirement of the state statute to produce copies of records. However, it does not meet the reasonable expectation for operation of a modern office – one that is equipped with a multi-purpose business machine that will scan to a .pdf file just as easily as it will make a paper copy.
The advantages of digital copies in the form of a .pdf file – compared to paper copies – are, I think, self-evident. So in responding to requests made under the FOIA, the DDA should be using the scanning functionality of its office machine and providing digital copies to requestors. The Chronicle should not need to use its time and resources to scan those documents as an extra, unnecessary step in the process. [.pdf of DDA committee attendance records, scanned by The Chronicle]
But Michigan’s current FOIA does not provide an explicit way to force a public body to use digital technology to copy records when responding to requests made under the FOIA.
And that’s the connection to the final dot. The “modernized” version of Michigan’s FOIA that moved out of committee last week includes this clause: “The requestor may stipulate that the requested records be provided on digital media, electronically mailed, or otherwise electronically provided to him or her in lieu of paper copies.”
According to a Sarah Schillio, legislative director for Rep. Jeff Irwin (D-53) of Ann Arbor, it was Irwin’s work with other representatives that resulted in the added language allowing requestors to stipulate digital copies.
To Jeff and the other legislators who helped insert that language: Thank you – I hope that clause stays in a version that is enacted into law.
 Questions have been raised about this issue, but based on a 8-page analysis by the Ann Arbor city attorney’s office, either the mayor or the city administrator can serve on the Ann Arbor DDA board.
 We can leave aside the question of whether this makes sense to include in the organization’s bylaws. But it’s worth noting that the DDA board itself does not have the power to remove one of its own members. By state statute, removal of a DDA board member (for cause) is a power reserved for the city council – after the member to be removed has been given an opportunity to be heard. It’s a decision that can be appealed to the circuit court.
 Of the DDA current board membership, an initial assessment of the attendance records by The Chronicle seems to indicate that only Hieftje and probably Russ Collins fall short of the 70% attendance threshold. The handwriting in the attendance records was in some cases challenging to decipher with some names running off the edge of the photocopied page.
 The most recent committee notes, however – included in the board’s information packet for its Nov. 6 meeting and recorded after The Chronicle’s request for attendance records – were typed out. So in the future, it should be easier to track compliance of DDA board members with the attendance requirement in the bylaws. [.pdf of October 2013 committee meeting minutes]
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