Government transparency plan passes Michigan Senate — which had been roadblock

• Michigan Senate approves transparency plan to subject Legislature, governor’s office to public records requests
• The Senate blocked similar efforts in recent years but now awaits action by the House
• Michigan one of two states that does not allow residents to request documents from the Legislature or governor’s office 

LANSING — Efforts to increase government transparency in Michigan took a step forward Wednesday as state senators overwhelmingly approved bipartisan legislation to open the governor’s office and Legislature to public records requests.

The 36-2 votes to expand the Freedom of Information Act came more than 100 days after senators sent the bill to the chamber floor, and is part of a near-decade-long effort to broaden public information access in the state. 

The plan now heads to the House for further consideration, which is not likely to happen until fall. For the time being, Michigan will remain one of just two states to fully exempt the governor’s office and Legislature from its FOIA law. 

“Michigan government just cannot sustain being one of the worst in the nation in terms of ethics, and one of the only states that bans the public from accessing our records here, and in the governor’s office,” Sen. Jeremy Moss, a Southfield Democrat who co-sponsored the package, said in a floor speech.

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Lawmakers celebrated the Wednesday vote in the Senate, calling it a historic step for a chamber that had in recent years blocked similar proposals. But some transparency advocates remained concerned about the practicality of the proposal and its potentially troubling loopholes.

Those so-called loopholes — which include allowing the governor to withhold communications with constituents, broadly defined as anyone in the state who is not a registered lobbyist — went unaddressed Wednesday as lawmakers revised and approved the legislation. 

The legislation proposes a series of other exemptions to block public disclosure of certain records, including forms considered “attorney work product privilege” or documents related to legislative appointments. 

Sen. Jim Runestad, a White Lake Republican who has long tried to implement his own public records reforms, told Bridge Michigan he thinks the new bills are “better than nothing.” But exemptions proposed for the governor’s office, he said, are “really disconcerting.” 

Runestad questioned a provision that would shield records from the governor’s office for the first 30 days after they are created or retained, suggesting those documents could be destroyed before then, or transferred to a lawyer, making them subject to attorney-client privilege. 

The legislation proposes the same exemption for records created, prepared, owned, used or possessed by the Legislature. 

“The Democrats have worked a mighty effort to create loopholes to run around the serious scenario where people, who really want to know an answer, could be denied those answers,” said Runestad, who ultimately voted for the proposal despite his concerns. 

What’s in the bills

 The legislation approved Wednesday differed little from the version that advanced out of a Senate committee in March — including a number of record request carve outs for legislators.

Legislative offices would not have to disclose communications between a lawmaker and their constituents, internal investigation records, caucus counsel records, personal cell phone numbers and records related to ongoing civil actions until those matters are settled. 

Communications between a lawmaker and a constituent would only be made public if that constituent was a registered lobbyist – but not if the constituent was part of a special interest group or a powerful business leader. 

Transparency advocates like the Michigan Press Association (MPA) have decried the proposed constituent exemption because it would likely shield from public view records that shed light on how lawmakers make decisions. 

The exemption to the law does not exist for local governments.

“We need to be able to look at what’s going on in their offices, who they’re meeting with and what issues they’re talking about,” Lisa McGraw, MPA’s public affairs manager, told Bridge. 

McGraw referenced former House Speaker Lee Chatfield, a Levering Republican who served in the lower chamber from 2015 through 2020 and is now fighting a slew of felony charges. Prosecutors allege he and his wife used hundreds of thousands of dollars in political and nonprofit funds to pay off credit cards, buy luxury products and take vacations.

Were people able to request public records from his office, McGraw said, there’s a chance the Chatfields’ alleged misconduct could have come to light sooner.

“Some (public officials) do share that voluntarily,” she added, “but it’d be nice if it was in law.”

Coordinator concerns

Another contentious part of the proposal: It would allow House and Senate leaders to appoint a public records coordinator, who would be responsible for processing information requests and denials. 

In March, Republicans took issue with those provisions, suggesting the minority party would have little to no say in what records would be released by legislative leaders. Those concerns appeared unaddressed Wednesday.

Senate Minority Leader Aric Nesbill, R-Porter Township, pushed to make the coordinator appointment a bipartisan decision.

But Moss, the lead sponsor, defended the proposed appointment protocols for what he called a “nonpartisan personnel decision of who is the most qualified to do the job.”

Sen. Ed McBroom, a Waucedah Township Republican who co-sponsored the legislation, acknowledged in a floor speech that the proposal has shortcomings and that “a lot of what is required is of fairly small scale.” 

McBroom also said he has concerns that any laws subjecting the Legislature to FOIA would survive a constitutional challenge. “However, different attorneys have different opinions, and some believe this will sustain,” he said. “I hope so.”

Michigan’s transparency problems

Michigan and Massachusetts are the only states to fully exempt the governor’s office and lawmakers from FOIA laws, a situation that good-government groups have decried and legislators have promised for years to fix.

Michigan is considered one of the worst states in the country for government transparency, earning a failing grade on a 2015 report card on government ethics from the Center for Public Integrity. 

A more recent report, in 2020 from the Coalition for Integrity, ranked Michigan 48th among 50 states and the District of Columbia.

As a candidate in 2018, now-Gov. Gretchen Whitmer pledged to voluntarily open her office to public records requests if the Legislature did not require it.  Six years — and one 10-point plan calling for a more “open, transparent and accountable” state government — later, she has yet to do so.

Last fall, after the Legislature again failed to pass reforms, the Democratic governor told reporters she was refraining from “unilaterally” making her records public to keep pressure on lawmakers to change the law.

The new legislation proposes several exemptions to block certain disclosures by the governor and lieutenant governor, including cell phone numbers and information or records pertaining to gubernatorial appointees and decisions about whether to commute prison sentences. 

The proposal would initially shield gubernatorial records regarding decisions to remove or suspend public officials or judges from office. Those records could become available once the official has been suspended or removed from their position, however.

What comes next

The bills now move to the House but are not likely to be taken up any time soon as lawmakers prepare to begin summer recess. 

The House “does not have a timeline for action,” said Amber McCann, a spokesperson for Democratic House Speaker Joe Tate, D-Detroit.

“While there is support for expansion generally, there has not yet been a caucus conversation on these bills,” she told Bridge, noting “there would likely be “a renewed effort on a number of priorities once we have completed the budget process.”