Bipartisan bill to make governor, lawmakers subject to open records law in doubt

Gov. Rick Snyder voluntarily released office emails under pressure after the Flint water crisis revealed an inept government response. Bills now pending in Lansing would require his office and the legislature to be subject to the state public records law, which they aren’t at the moment. (photo courtesy of MLive)

Backers of a measure to open the executive branch and Legislature to greater public disclosure had to be heartened by its unanimous approval last week by a House committee.

But whether the 10-bill package to extend Michigan's Freedom of Information Act to the governor’s office and Lansing legislators has a shot at becoming law this year seems less than a sure bet.

GOP House Speaker Kevin Cotter and Senate Majority Leader Arlan Meekhof continue to show caution about the legislation – and there is reason to believe passage in the GOP-dominated Senate, in particular, could be especially problematic.

Asked about the bills, Meekhof spokesperson Amber McCann stated: “The majority leader has previously stated that the senate already makes available information related to the expenditure of taxpayer dollars. Furthermore, legislative debate and the committee process are available for citizens to watch and participate.”

In March, McCann told the Detroit Free Press Meekhof was “not enthusiastic” about the measure.

With the GOP holding a 27-10 margin in the Senate, and apparently without Meekhof's backing, supporters may have trouble finding a majority in that chamber. Thus far, just two GOP senators have endorsed the plan.

Gideon D'Assandro, spokesperson for Cotter, said Cotter “has always said he opposed the many political stunts people pulled with this issue before by introducing bills just for the media hit, but that he is open to reviewing any honest proposal to improve Michigan's current laws.”

Jane Briggs-Bunting, president of the Michigan Coalition for Open Government, a nonprofit comprised of journalist groups and government watchdogs, said she remains hopeful the FOIA expansion bills will pass, noting that the House bill in particular had unusual bipartisan support.

“If this dies in committee, that would be a terrible message...that Michigan government is not transparent,” Briggs-Bunting said. “What happened in Flint, the tragedy there, could happen again and again if the employees of the State of Michigan are not held accountable. Because, frankly, if you know the boss is looking over your shoulder, and the people are the boss, you’re going to be much more likely to do your job as best you can.”

Susan Demas, publisher of Inside Michigan Politics, a Lansing newsletter, foresees possible rough waters ahead for the legislation.

“I would expect the package to pass the House in some form, perhaps with some more carve outs on the legislative piece,” she said.

“Whether the package makes it through the senate is a different story. Meekhof doesn't seem to be a big fan...It's not clear that enough senators support this package increasing transparency in FOIA, especially the part that affects them.”

Passed in 1976, Michigan’s FOIA law allows the public to access documents from public bodies but specifically exempts the governor's office. A 1986 opinion by Attorney General Frank Kelley interpreted the law as exempting state legislators as well.

These exceptions helped place Michigan last in the nation for transparency, according to a 2015 report by the Center for Public Integrity. Michigan is one of only two states that provide a broad shield for both the governor and legislature.

The issue gained urgency last fall as the Flint water crisis unfolded, with enormous pressure placed on Gov. Rick Snyder to be transparent about what the governor’s office knew, and when, about the threat of lead-poisoned water in that city’s drinking supply. Then, as now, records from his office are exempt from public disclosure, though Snyder decided to voluntarily release thousands of office emails.

Government incompetence in Flint was laid bare by communications involving, among others, the Michigan Department of Environmental Quality, which revealed a pattern of denial and bureaucratic foot-dragging through much of 2015 even as evidence mounted that Flint's water supply was tainted by dangerous levels of lead. That the public could see damning MDEQ emails, but not those flowing from the governor’s office, outraged advocates for open records and hastened calls for Michigan to loosen its grip on government documents.

“Gov. Snyder did the right thing by releasing the emails,” Briggs-Bunting, of the open records group, said. But without a law subjecting the executive branch to the state’s Freedom of Information Act, “there’s no saying what the next governor would do in a similar or dissimilar situation.”

Snyder’s release of office emails portrayed close aides as frustrated by the state’s lack of responsiveness to Flint residents on some days, and yet callously dismissive of those same residents on others. The records were also revealing for what they didn’t show: There was virtually no indication in the emails that Snyder released that close aides were sharing mounting evidence of elevated lead levels in Flint with their boss.

Read Bridge Magazine’s comprehensive timeline of the Flint water crisis

In at least one instance, Snyder’s staff seemed more interested in avoiding public scrutiny than ensuring that state agencies were communicating effectively about the water emergency.

“P.S. Note: I have not copied DEQ on this message for FOIA reasons,” Valerie Brader, deputy legal counsel and top policy advisor to the governor wrote in one email.

FOIA expansion is backed by the Michigan Press Association, various newspapers, progressive advocates such as the ACLU and Progress Michigan, as well as the free-market Mackinac Center for Public Policy.

As passed 5-0 by the House Oversight and Ethics Committee, the proposed Legislative Open Records Act would continue to exempt communications between lawmakers and their constituents. But communications with lobbyists would be subject to FOIA inquiry as would communications with corporations and public bodies.

The bills would continue to shield gubernatorial records involving appointments, the removal or suspension of a public official until after the person is removed or suspended, communications relating to pardons and commutations and related to budget recommendations. But it would allow public access to many other kinds of communications, including letters or emails to lobbyists, business interests and governmental bodies.

State Rep. Ed McBroom: “There is a lot of misinformation we need to correct.”

According to State Rep. Ed McBroom, R-Vulcan, chair of the committee, the latter exemptions were added to the measure after consultation with the governor's office. McBroom has been working on the legislation for more than a year in concert with state Rep. Jeremy Moss, D-Southfield.

“They pointed out some very specific constitutional duties of the governor. He has hundreds of appointments to make,” McBroom said.

“We felt it could stymie the amount of people willing to be candidates. We protected the governor's ability to conduct pardons and reprieves and ability to draft the budget and State of the State address. He would be free to develop that without rough drafts being taken out of context.”

By and large, Democratic leadership has been supportive of opening up the governor and legislators to FOIA inquiry.

In March, House Minority Leader Tim Greimel released a week's worth of emails and meeting calendars at the request of The Associated Press, which asked for the information from legislative leaders in 50 states. Cotter, Meekhof and Senate Minority Leader Jim Ananich — declined the request, as did Snyder.

Asked about the FOIA package, Ananich spokesperson Angela Wittrock told Bridge: “Senator Ananich and our entire caucus have spent years pushing for greater transparency and accountability. This legislation appears to be a good step in that direction, but I'm sure they'd want to see what version comes out of the House before making a final decision.”

McBroom said there continues to be confusion among some legislators about how the measure would affect their ability to communicate with constituents.

In a statement to Bridge Magazine, Meekhof spokesperson McCann said. “His concern would be subjecting constituent information to public review. Many constituents contact their legislators for assistance with matters that involve more sensitive information such as their tax information, personal financial circumstances and more.”

House Bill 5475, part of the legislative package, exempts “communications, including any related records or information, between a legislator or a legislator's office and a constituent of that legislator.”

“There is a lot of misinformation we need to correct,” McBroom said.

McBroom said he expected to meet with Speaker Cotter in the “next week or two” to hash out any concerns Cotter might have with the measure.

State Sen. Margaret O'Brien, R-Portage and State Sen.Tonya Schuitmaker, R-Lawton, are the only GOP senators to publicly declare support for the legislation.

O'Brien said she saw a similar measure function well while she served on the Portage City Council.

State Sen. Margaret O'Brien: “I think [expanding the public records law] can help restore trust.”

“I've seen it work. I've seen it protect privacy. I think it can help restore trust. It can let people see what really goes on. When you can't see something, how can you trust it?”

O'Brien said she is aware of Meekhof's reservations, but remains optimistic the measure can pass.

“It is his job to always be skeptical. I look forward to a conversation. Hopefully, we will end up on the same side of issue but that will remain to be seen.”

Snyder spokesperson Ari Adler said the governor is also waiting to see what final form the legislation takes.

“If the Legislature presents changes to the FOIA law that appropriately address transparency equally for the legislative and executive branches, then Gov. Snyder would take a serious look at them,” Adler said.

“Until we see actual legislation presented, however, it’s difficult to take a position on any of the bills. If bills are finalized and sent to the Governor, he will carefully review them and make a decision at that point.”