Michigan newspapers sue for access to redistricting memos, meeting recording

Three news outlets and the Michigan Press Association filed suit Tuesday in the Michigan Supreme Court to force Michigan's Independent Citizens Redistricting Commission to release records they say should be public.

The emergency complaint from The Detroit News, Bridge Magazine and Detroit Free Press seeks recordings from an Oct. 27 closed-door session and several confidential memos submitted to the commission on the basis that the state constitution requires the commission to conduct all business in public and to publish "all data and supporting materials" used while preparing the redistricting plans. 

“We made every effort to convince the redistricting commission to follow the law and, unfortunately, all of those attempts failed,” said Gary Miles, editor and publisher of The Detroit News. “As the first independent citizens redistricting commission, this group will set the precedent for decades. That precedent must be for openness and not secrecy.”

A commission spokesman responded to the lawsuit Wednesday afternoon by saying the group looked forward "to asserting its right to attorney-client privilege in court."

Spokesman Edward Woods also noted the commission has livestreamed 133 regular meetings and public hearings since it began its work. 

"We are not surprised or distracted by this lawsuit and will continue our mission to draw fair maps through public engagement openly and transparently," said Woods.

The suit comes three weeks ahead of the commission's planned vote on final drafts of Michigan's voting district maps for the state House, state Senate and Congress.

The filing follow's the commission's 7-5 vote Thursday against releasing the memos. The 13-member panel was told by its lawyer that publishing the documents would be a "self-inflicted" wound, would hamper attorney-client privilege and would potentially create future legal problems as the commission faces expected litigation over its maps. 

The news outlets filing the suit Tuesday said they disagree with the commission's interpretation of the constitution regarding its duties. They noted their court filing was preceded by a series of written and verbal requests for the documents and meeting recordings that the commission ultimately denied.

Since the documents were discussed privately, the suit said, nearly 40 days have lapsed without public access to the information, 24 of which have occurred during the final 45-day public comment period on the proposed maps. 

"Michigan voters went to great lengths to ensure transparency and meaningful public participation in the redistricting process," according to the lawsuit. "Accordingly, plaintiffs, as members of the public, have the necessary clear legal right to public disclosure of the redistricting materials."

The redistricting commission on Oct. 27 entered a more than hour-long closed session to discuss memos titled "Voting Rights Act" and "The History of Discrimination in the State of Michigan and Its Influence on Voting." The session came after lawmakers and residents criticized the redistricting commission at prior hearings about the lack of majority minority districts in the proposed maps, which they argued wouldn't ensure the election of enough Black and other minority lawmakers and potentially violated the Voting Rights Act.

At the time, the commission's legal counsel argued the materials were exempt from disclosure under the Freedom of Information Act and that the state's Open Meetings Act allowed for closed sessions if the material is exempt from disclosure under state or federal law. 

But the lawsuit filed Tuesday argued the panel violated the 2018 constitutional amendment that created it because the language includes a provision requiring the commission to conduct all business in public and requiring the publication of "all data and supporting materials used to prepare" the mapping plans. 

The suit suggests the commission is attempting to "constitutionalize" state public records and open meetings laws by invoking those as reasons prohibiting disclosure. 

"... Allowing the commission to apply OMA would impermissibly expand the commissioners' power by allowing them to hold closed meetings that are not otherwise authorized under the redistricting amendment," the lawsuit said. 

While the lawsuit argues the two memos discussed Oct. 27 were clearly related to commission business, it asks the justices to review several other separate confidential memos to determine whether they too relate to commission business and are ripe for disclosure. 

Attorney General Dana Nessel issued a formal opinion last month finding that the commission should not have held a closed session nor should it have kept the two memos discussed in that meeting confidential. 

Given the titles of the memos, Nessel said, the information discussed likely guided the commission's actions and should have been disclosed publicly. 

Several Republican lawmakers and Democratic Secretary of State Jocelyn Benson have called for the release of the memos. 

On Thursday, the Michigan Senate voted unanimously to amend the state's Open Meetings Act to clarify that the provisions allowing for a closed-door session do not apply to Michigan's Independent Citizens Redistricting Commission.

eleblanc@detroitnews.com

Staff Writer Craig Mauger contributed.