Government transparency is woeful in Michigan. Lawmakers vow change (again)

• Michigan’s Legislature and governor’s office could soon be subject to the Freedom of Information Act following a Senate panel decision
• The state Senate, historically, has been a major roadblock to similar transparency legislation though appears to support current efforts
• Michigan is just one of two states which fully exempts both state lawmakers and the governor from public records requests

LANSING — A bipartisan bill package to open state legislators and the governor to public records requests passed out of a Senate committee on Wednesday, a major milestone in a chamber that has historically blocked such efforts.

Whether it will actually make it across the finish line and gain Gov. Gretchen Whitmer’s signature, however, remains uncertain. Similar policy has made it through the House in years past, though has never received a vote from the full Senate due to disinterest from Republican leadership. 

“This is going to be an ongoing project,” said Sen. Jeremy Moss, D-Southfield, “but we have taken on this task of laying the foundation for the very first time and figuring out what works, what’s missing (and) what types of communications should we further include within this law.”

Related:

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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 earned a failing grade as part of 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.

Moss and others promised to reform Michigan’s records laws last year, but the effort went nowhere. On Wednesday, amid Sunshine Week, which promotes government transparency, a bipartisan bill package passed out of the Senate Oversight Committee.

“This is a historic moment, at least for the Senate, who has been the block of making this law for the last couple sessions,” said Sen. Sam Singh, D-East Lansing, chair of the Senate Oversight Committee. 

Singh told Bridge on Wednesday it was likely the package would come up for a vote before the full Senate next week. 

What’s in the bills

In its current iteration, the package contains a number of exemptions related to communications released from the Legislature. 

These would include in-district constituent communications — unless that person is a registered lobbyist, public employee or is appointed to a public board — internal investigation records, caucus counsel records, personal cell phone numbers and records related to ongoing civil actions until those matters are settled. 

Communications between lawmakers and Michiganders who live in their district, however, would not be protected.

Groups including the Michigan Press Association and others have decried the constituent exemption because it would shield from public view all manner of records that could shed light on how lawmakers make decisions. The exemption to the law does not exist for local governments.

A FOIA coordinator in both the House and Senate, as designated by the House speaker and Senate majority leader at the time, would be tasked with determining what communications can be released to the public. 

Sen. Jonathan Lindsey, R-Coldwater, took issue with that requirement, saying it would be “one more thing” that would empower the Senate majority leader or House speaker.

He was the lone member of the committee to abstain from voting on the bills. 

That concern is actively being worked on, said Sen. Ed McBroom, R-Waucedah Township, who has partnered with Moss to extend the records law to the Legislature and governor’s office. It’s his hope additions to the legislation could “provide a way for the minority party in both chambers to also participate” in appointing House and Senate FOIA coordinators. 

That conversation is still ongoing, with McBroom saying lawmakers “need a bit more time to figure it out.”

The package also outlines similar exemptions for what the governor and lieutenant governor are not required to release. This includes cell phone numbers and information or records pertaining to gubernatorial appointees. 

It also includes records regarding commuted prison-sentence decisions and ongoing decisions to remove or suspend a public official or judge from office, though those records could become available once the official has been suspended or removed from their position. 

Moss, the Southfield Democrat, acknowledged that while not perfect, the bills were “sure as hell better than the system we have now.”

“We’re casting a net here and still trying to figure out what’s the balance … (but) don’t want to make perfect the enemy of good,” he said.

What’s next?

The bills still need a vote of the full Senate and to go through the state House before landing on Whitmer’s desk, though she seems likely to sign off on the measure. 

When Whitmer took office in 2018, she promised to voluntarily open her office to public records — even if the Legislature didn’t take action.

For six years, she has yet to do so. Last fall, after the Legislature again failed to pass reforms, Whitmer told reporters she was refraining from “unilaterally” making her records public to keep pressure on lawmakers to change the law.

“We have an opportunity to pass good government legislation that has stalled for decades,” Stacey LaRouche, Whitmer press secretary, told Bridge Michigan.

“We will work with the Legislature as those bills begin to move because Michiganders deserve a state government that works every day to serve people in the best way possible,” she said, adding that Whitmer “believes that state government must be open, transparent and accountable to taxpayers.”