New Michigan laws restrict access to search warrants
By The Associated Press
PONTIAC, Mich. State lawmakers say two new laws that restrict public access to certain law enforcement documents protect crime victims, informants and witnesses from criminals and the media.
But civil libertarians and First Amendment attorneys argue the laws, which make search warrants and supporting documents such as affidavits unavailable to the public, invite police abuse and curtail public scrutiny.
The laws unanimously passed by the Senate and House as part of anti-terrorism legislation went into effect this week.
State Sen. Bill Bullard, R-Highland Township, who cosponsored one of the bills, said despite specific wording that makes the records nonpublic, he believes affidavits still are subject to Michigan's Freedom of Information Act.
"FOIA trumps that," Bullard told The Oakland Press for a story yesterday. "If we had wanted to amend FOIA, we would have done that."
But a memo from state Court Administrator John Ferry Jr. to courts statewide makes no such distinction. The memo tells clerks the new law "makes all search warrants, affidavits and tabulations in any court file or record retention system nonpublic."
"How else is that to be interpreted?" asked Dawn Phillips, a First Amendment lawyer with the Michigan Press Association. "People in law enforcement want to follow laws. If they are looking at that memo, they are not going to release those records."
At issue are affidavits, the sworn information police submit to courts when they want a search warrant. The information often includes the name of the person who has told police where the criminal or evidence can be found.
If a person's home is searched and they are charged with a crime, a defense lawyer can demand access to the information. If the government seeks to forfeit the person's property in a civil case, the file also would be opened. But if no charges are brought, the new law does not explain a way for people to learn why the police searched their homes.
State Rep. Ruth Johnson, R-Holly, said the point of the law was to protect victims. Judges still must approve warrants, she said.
"Everything we do is a balancing act," Johnson said. "The judge is the person that is entrusted to make sure it's done properly."
Many new records laws balance free-speech, security concerns
Analysis First Amendment advocates, state lawmakers say middle ground has been found that protects sensitive information but doesn't unnecessarily freeze out public.