Bills to improve Michigan transparency still have loopholes, critics say

Update: Michigan House approves records transparency for Legislature and Governor

Bipartisan legislation that would open the Michigan Legislature and Governor’s office to some public records requests moved one step closer to becoming law Tuesday when a House committee approved modified versions of the bills.

One major change, made under pressure from pro-transparency groups, would require the Legislature to hold onto records for two years rather than the 30 days outlined in the original bill.

Another change, made after negotiations with Gov. Gretchen Whitmer’s office, gave a broad exemption for communications between her office and constituents. Registered lobbyists, state employees and appointees would not fit the definition of constituent under the bill. The package already provides the same exemption for legislators’ communications with constituents.

Related: Is this the year Michigan joins the rest of America on public records?

“I think it’s a good priority to work on to make sure that the public is getting everything that they need out of us ... and also not handcuffing us so badly we can't work with our constituents way we want to,” said Rep. Jason Sheppard, R-Temperance, chair of the House Government Operations Committee. “So I think it struck a very good balance.”

Michigan is one of only two states that does not allow its citizens to view records made by the governor’s office or the legislature. That’s one reason it was ranked last in the nation for transparency in a 2015 nationwide analysis from the Center for Public Integrity.

“I think this will move us back into the mid-range of having transparency done,” Sheppard said.

Transparency advocates say the legislation making the state elected offices subject to public record requests is a major step forward.

“We feel that we’ve made progress just by the very existence of these bills,” said Lisa McGraw, spokeswoman for the Michigan Press Association, which supports the legislation. “Getting them moving toward more openness is a big step in the right direction.”

Under the proposed bills, the public would be entitled access to records such as officials’ calendars or some of their email communications — rights residents in other most other states already have.

But some also say the package should go further, and that the modified legislation carves out big loopholes for officials to continue to shield information from the public.

There’s already an exemption in the state public records law that exempts agencies from releasing information that would be an invasion of privacy, which transparency advocates argue would already protect constituents. Social security numbers, addresses and oftentimes names are already redacted from public records.

The added exemption for all constituent conversations could be used to shield emails showing large donors contacting legislators or the governor to ask for favors, said Craig Mauger, executive director of the Michigan Campaign Finance Network. That sort of communication would be of note to the public and watchdog groups including the media, he said.

“To completely exempt all emails, all communications between the governor’s office and constituents will be a very frequently used exemption when people like myself are digging into what is behind decisions that are made,” Mauger said.

Progress Michigan, a liberal advocacy group that has called for transparency reform, criticized the original version of the legislation for the limited record retention period and for lacking a form of judicial review.

The bills creating an open records policy for the Legislature (known as the Legislative Open Records Act, or LORA) creates a separate appeals system that requires those challenging a denied request to appeal to a legislatively appointed records administrator, rather than seek an independent review in court.

Sam Inglot, spokesman for Progress Michigan, said the group supports the legislation now that the record retention policy has been extended, but added “this bill package is still not perfect, so we’re going to continue to push for any changes that we see fit and try to make Michigan more transparent.”

Democratic Rep. Christine Greig, House Minority Leader and vice chair of the committee, said the modified legislation strengthened the package. Besides, she said, it would ensure much more transparency than the state currently provides.

“A lot of this, unfortunately, is new to our state,” Greig said of transparency requirements for the legislature and governor’s office. “I think what we do have going in now is really good. It's a great start.”

Transparency advocates in the legislature have tried year after year to pass similar legislation to no avail. They say this year may be different — Whitmer now supports the bill package and Senate Majority Leader Mike Shirkey has said he’s open to it as long as it shields conversations with constituents and non-governmental conversations.

“I think we have the best chance that we’ve had in five years,” Greig said.

The full House may vote on the legislation as early as this week. Once it passes the House, it must go to Senate committee and the full Senate before being approved by the governor.

The package includes House Bills 4007, 4008, 4009, 4010, 4011, 4012, 4013, 4014, 4015 and 4016.