Michigan lags nation in government transparency. Lawmakers promise change

• Michigan is one of two states that exempts the Legislature and governor’s office from records requests
• Lawmakers vow to take up FOIA expansion, other transparency measures in coming months
• Potential sticking point: Whether lawmakers’ public records are included in FOIA or handled under a separate statute

LANSING — As of today, Michigan remains one of two states in the country where lawmakers and the governor are wholly exempt from public records requests. 

This week, lawmakers on both sides of the aisle vowed that that won’t be the case for much longer. 

Along with Massachusetts, Michigan fully exempts the executive and legislative branches from its Freedom of Information Act, which requires state departments and local governments to provide documents upon request and administrative fee payment.

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With Democrats now holding the majority, Sen. Jeremy Moss, D-Southfield, said he expects the issue will be taken up and be passed by the Legislature in a matter of months. 

“The framework for our FOIA reform is there and has been there for almost eight years now,” Moss told Bridge Michigan this week. “There's definitely a new energy for this on my end now that we're in a position to really get this thing done.”

Since 2015, the state House has voted through four packages to include the governor’s office under FOIA and subject lawmakers to a separate Legislative Open Records Act (LORA) that would operate similarly to FOIA, except that appeals of denials would be handled in-house by legislative council instead of going through the judicial process. 

Three of those efforts have had unanimous, bipartisan support. All were halted in the Senate, where Republican leaders objected to opening lawmaker communications up to the public. 

Moss said the current plan is to pick back up the effort where it left off in the Senate Elections and Ethics Committee, which he chairs, once his committee works through the implementation process for ballot Proposals 1 and 2, which included new financial disclosure requirements for lawmakers, nine days of early voting and other changes to election procedure. 

That could take a few months, Moss acknowledged, noting that any laws needed to implement the ballot proposals require added urgency due to constitutional deadlines and elections looming on the horizon. 

Prior to Proposal 1’s passage, Michigan was one of two states without any financial disclosure requirements for sitting state lawmakers. 

Republicans, too, have indicated interest in picking up the mantle on public records expansion. 

A group of House Republicans led by Rep. Bill G. Schuette, R-Midland, on Wednesday reintroduced bills passed by the House last term that would subject the governor’s office to FOIA and the Legislature to LORA, as well as other legislation to require financial disclosure for lawmakers as outlined in Proposal 1, create a bipartisan ethics committee and other transparency reforms. 

“Michigan has long been toward the bottom of national rankings for transparency in government. It’s unacceptable, and it’s time we forgo this status quo,” Schuette said. “These proposals are steps in the right direction.”

Democratic Gov. Gretchen Whitmer has said she supports expanding public records laws, but she has not yet honored her 2018 pledge to open her own office up to public record requests if the Legislature did not change the law. 

Her stance differs from versions previously supported by lawmakers in that she wants the state’s FOIA law to be “equally applied” to lawmakers and her own office. 

“Part of the reason that we never found common ground with legislators is because they didn’t want to subject themselves to the same standards,” Whitmer recently told reporters, arguing that creating a separate statute for the Legislature “doesn’t make a whole lot of sense.”

Whitmer did not need the Legislature to change any laws, however, to release records from her own administration — and she has failed to do so voluntarily.

Moss said he’s in talks with other lawmakers and the governor’s office to work through any sticking points. But in the current Legislature, he said expanding public records laws “shouldn’t take heavy lifting,” seeing as Democrats and Republicans alike agree on the overall concept, if not the exact approach. 

“I feel like we're still in the same car — I think we just shifted who's driving it,” he said. “I intend and hope to keep this project as bipartisan as possible…we're not trying to politicize this issue at all.”

Rep. Erin Byrnes, a first-term Dearborn Democrat chairing the House Ethics and Oversight Committee, recently told Bridge she is also interested in looking at ways to improve existing Freedom of Information Act policies, including ensuring there are enough staff in place to handle incoming FOIA requests. 

Byrnes, a former city council member, said Michigan having stronger transparency laws at the local government level than in the state legislature “is something that’s always baffled me.” 

“My goal for this term is just to take Michigan from a failing grade to an A+ in ethics,” Byrnes said.