Could greater transparency prevent another Flint?

As Michigan Gov. Rick Snyder (R) and Environmental Protection Agency Administrator Gina McCarthy testify in Congress Thursday about the drinking water crisis in Flint, Mich., critics say the proceedings highlight the flaws in a system that falls short of holding government leaders accountable for their decisions.

The disaster – which left about 200 children diagnosed with dangerous levels of lead in their blood – underscored not only officials’ failure to address concerns about the city’s water quality, open government advocates say. The public health crisis also reflects an overall lack of transparency in Michigan’s government, which two watchdog groups characterized as the worst in the nation.

As some, but not all, e-mails related to the decision to switch Flint's water source to the Flint River have been released, it also has called to question loopholes in the state’s Freedom of Information Act (FOIA), which some say allowed officials to function with little public oversight.

More broadly, the situation has renewed national conversation about the value of the public’s right to know and the role of accountability in effective governance.

“If there is a silver lining in what is clearly a tragedy in Flint, it’s that freedom of information, accountability, and transparency are getting noticed,” says Jane Briggs-Bunting, president of the Michigan Coalition for Open Government, a nonprofit advocacy that promotes government transparency. “People are saying, ‘You know, maybe this could’ve been avoided.’ ”

Indeed, as the crisis has unfolded, the public, advocates, and elected officials have called for reforms to Michigan’s public records law, which is the only one in the nation that statutorily exempts the governor’s office from FOIA requests. Governor Snyder has since released thousands of e-mails related to the Flint crisis. Michigan's Legislature also is exempt from FOIA.

A review of the e-mails revealed a consistent effort among state employees to sidestep disclosure of public records under FOIA, the Detroit Free Press reports. Regardless of content, messages invoked attorney client privilege or were labeled “preliminary and deliberative” – an exemption meant to be used only when the public interest in encouraging honest conversations among government officials clearly eclipsed the public interest in disclosure.

“Not subject to FOIA” was a standard subject heading, a term that has no legal standing, according to the Free Press.

“You have a culture that’s evolved over the years with employees being told they don’t need to be talking about that, or ‘You might get in trouble if you raise that,’ ” Ms. Briggs-Bunting says.

An 'F' for transparency

While the events in Flint were not directly caused by such lack of transparency, what happened does reflect an atmosphere of impunity that merits reform, says John Wonderlich, executive director of the Sunlight Foundation, a national nonprofit that advocates for open government.

“I wouldn’t want to say that secrecy caused [the crisis],” he says, “but it certainly made it worse.”

Michigan ranked last in a 2015 national study of state ethics and transparency laws by the Center for Public Integrity and Global Integrity. The two nonprofit groups cited a weak public records law and an absence of laws requiring personal financial disclosures by lawmakers and top state officials for the state's F grade.

Thursday’s hearing is the second of two Flint-related sessions that the House Oversight and Government Reform Committee is holding this week. Snyder is set to testify for the first time, as is EPA chief McCarthy.

In prepared testimony obtained by the Associated Press ahead of the hearing, Snyder maintained that he did not know that Flint’s water was contaminated until Oct. 1, 2015 – nearly a year and a half after the city began using the Flint river as its drinking water supply.

He added that as soon as he found out about the lead levels in the water, he returned the city to Detroit’s water system and ordered the distribution of water filters and the testing of residents and children for lead in the blood.

McCarthy, however, said state officials were responsible. She noted that at the time, the city was in the care of a state-appointed emergency manager, who was tasked to balance Flint’s shaky finances and approved the switch from the Detroit system to the Flint river as a way to save money. Pumped through aging pipes and fixtures without adequate corrosion control, the river water exposed Flint residents to “dangerously high levels of lead,” she says.

Yet crucial as it is, the question of who’s at fault in Flint is only one concern, critics say. Just as salient is the broader issue of government accountability – and how to ensure the public and the media are able to exercise their right to know about policy decisions that affect their everyday lives.

“The entire idea behind FOIA laws and other transparency laws is that people can make better decisions when they have accurate information available to them,” says Mike Reitz, executive vice president of the Mackinac Center for Public Policy, a Michigan-based think tank.

“Representative government doesn’t automatically hold itself accountable,” adds Mr. Wonderlich at the Sunlight Foundation. “In order for democracy to work, the public has to have a basic level of information about what officials are doing.”

Efforts for reform

At the same time, having government officials recognize they are subject to public scrutiny helps prevent abuse of of power.

“When someone is looking over shoulder, you’re more wary about what you’re doing and you make sure you’re doing everything right,” says Briggs-Bunting at the Michigan Coalition for Open Government.

Already some state lawmakers have responded to the crisis by urging greater transparency.

On Friday, House minority leader Tim Greimel released emails and meeting calendars from February at the AP’s request. And on Wednesday, a bipartisan group of House and Senate members unveiled new transparency legislation that would place the governor’s office under the purview of FOIA. In terms of greater transparency in the statehouse, a proposed bill would create a separate Legislative Open Records Act, which would not go as far as FOIA.

Still, that’s only the first step, says Mr. Reitz. Meaningful reform, he says, would include reducing the cost of obtaining public records and providing those records in electronic form. But he doubts such change would take place any time soon.

“[Freedom of information] is not a kitchen table issue for a lot of voters,” Reitz says. “It doesn’t rise to the level of jobs or taxes or education.” As a result, it often takes a crisis like Flint to spur lawmakers and the public to action.

Nonetheless, the events in Flint could bolster awareness of the importance of public information laws not just in Michigan, but across the nation.

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“I think it raises concerns about how much trust we’ve put in public officials at a time when a lot of our infrastructure is not in great shape,” Wonderlich says. “It means that there’s no one automatically looking out for when people are going to be severely hurt by failures of that public infrastructure.

“That should be a sobering thought for everyone,” he says.