The following opinion is presented on-line for informational use only and does not replace the official version. (Mich Dept of Attorney General Web Site - www.ag.state.mi.us)


STATE OF MICHIGAN

FRANK J. KELLEY, ATTORNEY GENERAL

Opinion No. 6613

March 14, 1990

AUDITOR GENERAL:

Duty and authority to audit Legislature

FREEDOM OF INFORMATION:

Records of the Auditor General's Office

LEGISLATURE:

Duty and authority of the Auditor General to audit the Legislature

PUBLIC RECORDS:

Application of FOIA to the office of the Auditor General

Pursuant to Const 1963, art 4, Sec. 53, the Auditor General has the duty and authority to conduct audits of the Legislature.

Because there is no legislative mandate regarding the frequency of audits of the Legislature by the Auditor General, it remains within the sound discretion of the Auditor General to determine the necessity and frequency of such audits.

Although the personal files and records of the Auditor General are excluded from the operation of FOIA, the general files and records of that office, including final audit reports prepared by the Auditor General's staff, are subject to FOIA and must be disclosed except to the extent that such records may be specifically exempted from disclosure by statute.

Honorable William Bryant, Jr.

State Representative

The Capitol

Lansing, MI

You have requested my opinion on several questions, all of which concern the powers and duties of the Auditor General pursuant to Const 1963, art 4, Sec. 53.

Specifically, you ask whether the Auditor General's constitutional duty to conduct audits includes the duty to audit the Legislature and, if so, whether the Auditor General is in violation of that duty. You also ask whether such legislative audits would be subject to disclosure under the provisions of the Freedom of Information Act, MCL 15.231 et seq; MSA 4.1801(1) et seq.

Const 1963, art 4, Sec. 53, states in pertinent part:

"The legislature by a majority vote of the members elected to and serving in each house, shall appoint an auditor general, who shall be a certified public accountant licensed to practice in this state, to serve for a term of eight years.... The auditor general shall conduct post audits of financial transactions and accounts of the state and of all branches, departments, offices, boards, commissions, agencies, authorities and institutions of the state established by this constitution or by law, and performance post audits thereof." (Emphasis added.)

OAG, 1963-1964, No 4284, p 278 (February 18, 1964), citing People v Board of State Canvassers, 323 Mich 523; 35 NW2d 669 (1949), and Stoliker v. Board of State Canvassers, 359 Mich 65; 101 NW2d 299 (1960), stated that the wording of Const 1963, art 4, Sec. 53, "is plain and free from ambiguity and requires no judicial construction to determine its meaning." The authors of this constitutional provision went to great lengths to name and to include all of the various sectors of state government. Clearly, the Legislature is included within the term "all branches."

This conclusion is consistent, moreover, with the official record of the Constitutional Convention at which this language was adopted. During the debate on Const 1963, art 4, Sec. 53, Mr. Downs asked Committee Chairman Martin for an explanation of the phrase "institutions of the state, whether established by this Constitution or by law." Chairman Martin answered:

"This means everything, Mr. Downs. When we first drafted the proposal, it was obviously defective because it did not include the right to audit all of the various parts of state government...." (Emphasis added.)

Official Record, Constitutional Convention 1961, p 1681. This comment clearly confirms that the all encompassing language of Const 1963, art 4, Sec. 53, was intended to provide the Auditor General with the power to conduct audits of all areas of state government including the Legislature.

It is my opinion, therefore, in response to your first question, that, pursuant to Const 1963, art 4, Sec. 53, the Auditor General has the duty and authority to conduct audits of the Legislature.

Your second question asks whether the Auditor General may be in violation of this duty. A similar question was addressed in OAG, 1967-1968, No 4637, p 241 (May 16, 1968). That opinion concluded that:

"[I]nsofar as there is an absence of specific legislative direction as to the frequency of audits that such determination is within the discretion of the auditor general."

This conclusion remains sound today.

Accordingly, in response to your second question, it is my opinion that, because there is no legislative mandate regarding the frequency of audits of the Legislature by the Auditor General, it remains within the sound discretion of the Auditor General to determine the necessity and frequency of such audits. It follows, therefore, that the Auditor General is not in violation of any duty imposed by the Legislature to perform such audits.

Finally, you ask whether such legislative audits would be subject to disclosure under the provisions of the Freedom of Information Act (FOIA), MCL 15.231 et seq; MSA 4.1801(1) et seq. Section 1(2) of FOIA, MCL 15.231(2); MSA 4.1801(1)(2), states:

"It is the public policy of this state that all persons are entitled to full and complete information regarding the affairs of government and the official acts of those who represent them as public officials and public employees...."

Section 3(1) of FOIA, MCL 15.233(1); MSA 4.1801(3)(1), requires that a public body must disclose its records, upon request, except for those records which are specifically exempted from disclosure under section 13 of the Act, MCL 15.243; MSA 4.1801(13). The clear legislative intent of FOIA was to fully inform the public about the workings of state government. Certainly, an audit of the Legislature conducted by the Auditor General would be precisely the type of record the Act intended to be disclosed to the public.

However, FOIA applies only to a "public body" as that term is defined by MCL 15.232(b); MSA 4.1801(2)(b). In the case of the legislative branch of state government, that term is defined as:

"(ii) An agency, board, commission, or council in the legislative branch of the state government."

This provision of FOIA was construed in OAG, 1985-1986, No 6390, p 375 (September 26, 1986). That opinion examined the legislative history of MCL 15.232(b); MSA 4.1801(2)(b), and found that, when the bill was originally introduced, the term "public body" in the legislative branch was defined to mean "legislator, state officer, board, commission, council, or committee in the legislative branch of state government." Later, the terms "legislator" and "state officer" were stricken from the definition and the term "agency" was added. The bill was then passed with the definition as set forth above. Having reviewed this legislative history, OAG No 6390 concluded that, due to the deliberate exclusion of the word "legislator" from the definition of the term "public body," it was clear that state legislators were not intended to be subject to FOIA. Using that same analysis, it is equally clear that, in light of the Legislature's deliberate exclusion of the term "state officer" from the definition of "public body," the Auditor General would also be excluded from the provisions of FOIA.

However, while deleting the terms "legislator" and "state officer" from the definition of "public body," the Legislature also added the term "agency ... of the legislative branch." As was observed in Letter Opinion of the Attorney General (Representative Russell Hellman, June 15, 1977), "it is clear that the legislature intended to include its agencies, boards, commissions and councils as being subject to the Act." Thus, while the Auditor General is himself a "state officer" and, therefore, not directly subject to the Act, his staff would constitute an "agency ... of the legislative branch" which would be subject to the requirements of FOIA.

It may appear somewhat anomalous to find that the Auditor General, as an individual "state officer" within the legislative branch of state government, is excluded from FOIA while his staff, as an "agency" within the legislative branch, is subject to the provisions of that same Act. It is, however, a well-established principle of legislative analysis that statutory exemptions are to be carefully scrutinized and should not be extended beyond their plain meaning. Northville Coach Line, Inc v Detroit, 379 Mich 317; 150 NW2d 772 (1967). This rule has particular application in the context of FOIA, where the courts have repeatedly held that exemptions to the application of that Act are to be narrowly construed in favor of the rights of the public to disclosure of public records. See, e.g., Evening News Ass'n v City of Troy, 417 Mich 481, 503; 339 NW2d 421 (1983) and Michigan State Employees Ass'n v Dep't of Management & Budget, 428 Mich 104, 110; 404 NW2d 606 (1987). This policy is best served by finding that, while the personal files and records of the Auditor General are excluded from the operation of FOIA, the general files and records of that office, including final audit reports prepared by the Auditor General's staff, are subject to FOIA. I am informed, moreover, that this conclusion is consistent with the existing practice of the Auditor General's office which has consistently made final audit reports available to the public under FOIA upon request.

In response to your final question, therefore, it is my opinion that, while the personal files and records of the Auditor General are excluded from the operation of FOIA, the general files and records of that office, including final audit reports prepared by the Auditor General's staff, are subject to FOIA and must be disclosed except to the extent that all or a portion of such a report may be specifically exempted from disclosure by statute.

Frank J. Kelley

Attorney General