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

Republican Speaker of the House Lee Chatfield has been a vocal proponent of opening lawmakers to public records requests. Senate Majority Leader Mike Shirkey may be more open to reform than his GOP predecessor, but it’s unclear whether he’ll support the current bill package. Democratic Gov. Gretchen Whitmer has already promised she would support opening her own office to FOIA.

by Jim Malewitz, Riley Beggin (Bridge)

Editor’s note: This story has been updated to include remarks from the group Progress Michigan. 

LANSING — Michigan largely keeps the public in the dark about what happens behind the scenes in the Legislature and governor’s office; it’s one of just two states exempting both from state Freedom of Information Act requests for government records.

Transparency-minded lawmakers have long sought to plug those black holes, but session after session, proposals to require the Legislature and governor to honor public records requests have died before reaching the governor’s desk.

Might this year be different?

A bipartisan package of bills to expand Michigan’s open records law will begin its journey Tuesday at a hearing of the House Government Operations Committee. This time, the proposals stand a far better chance, transparency advocates and Lansing insiders say.

Sponsored by seven Republicans and three Democrats, the 10-bill package would:

• Allow any member of the public to request email correspondence, memos, data and many other records from the governor’s office and the legislative branch;
• Outline how much public bodies can charge for fulfilling records requests;
• Create a special appeals process when a request is denied by the legislature;
• Exempt legislative public records made before January 1, 2020.

The legislation will likely see at least minor changes before reaching Gov. Gretchen Whitmer’s desk, but experts say this could be the year for a FOIA overhaul. That’s partly due to bipartisan public pressure and Lansing’s changing political landscape.

“We’ve seen a lot of issues where public opinion is changing rapidly. I think this is one that could be included in that,” said John Truscott, president of Lansing-based public relations firm Truscott Rossman and a former press secretary for Republican Gov. John Engler.

“If I had to put my money at something, I would say that we move towards a lot more information being available,” he added.

Those prospects excite open government advocates, though some say the proposal falls short of full transparency for the Legislature, which would get special treatment.

Rather than simply extending Michigan’s FOIA law to the Legislature, a separate “Legislative Open Records Act” would govern records requests to House and Senate lawmakers. The House Speaker and Senate Majority Leader would appoint a bipartisan council of lawmakers to oversee a records administrator.

Unlike for other branches of government, those challenging a denied request could appeal only to the council administrator; they could not seek a court remedy.

“It’s certainly better than doing nothing,” Lonnie Scott, executive director of Progress Michigan, a liberal group that has called for open records fixes. “But this is not the same as opening the Legislature to FOIA. There are some glaring holes and some real problematic loopholes here that can prevent real transparency from taking place.”

Scott also flagged vague language in the legislation that, by his reading, protected legislative records from destruction for no more than a month, while other rungs of government must retain records for years.

The governor’s office, meanwhile, would face the same same requirements as other state agencies under FOIA.

Whitmer, a Democrat, has called for Legislation to expand FOIA to her office and the Legislature, saying in her February State of the State speech “it’s time to ensure that the sun shines equally on every branch of state government.” That’s in contrast to her predecessor, Republican Rick Snyder, who did not express strong opinions on either side of the transparency debate.

One of Whitmer’s first executive directives ordered executive branch agencies to streamline the FOIA process and respond more quickly to requests. (She stopped short, however, of opening her office to FOIA through executive directive, telling Bridge she preferred a more permanent legislative fix that included the House and Senate as well as her office.)

House Speaker Lee Chatfield, R-Levering, has long called for similar transparency reform and said he wants to see this year’s proposal on the chamber floor soon. “I hope this chamber will take swift action on them,” he told reporters last week.

The House last year unanimously passed a FOIA overhaul similar to this year’s package only to see it thwarted in the Senate. Then-Senate Majority Leader Arlan Meekhof, R-West Olive, kept the bills buried in committee, arguing Michigan’s government was transparent enough and that opening it further would infringe upon the privacy of lawmakers and their constituents.

Now Meekhof is gone. His replacement, Sen. Mike Shirkey, R-Clarklake, says he’s willing to work with his colleagues as long as the FOIA overhaul is drawn narrowly enough to protect lawmakers’ frank internal negotiations, communications with constituents — and private conversations outside of government matters.

“If I showed you the context of half the text messages I’ve sent just this morning, some of them are state government-related that might be FOIA-able and some of them aren’t,” Shirkey told Bridge Magazine last month. “And I’m concerned and I want to protect people’s rights to their privacy, so if we limit the FOIA stuff to things that would normally and routinely be filed somewhere, then I would have no problem.”

Shirkey added that Michigan’s dismal national ranking for transparency “would be a fair amount of impetus to cause us to take [FOIA reform] up in an honest way.”

Seeking to alleviate concerns such as Shirkey’s, the bills up for debate Tuesday would exempt a variety of records from disclosure, including:

• Information whose disclosure would “constitute a clearly unwarranted invasion of an individual’s privacy,” such as social security numbers, personal financial data or internet use records;
• Communications between a legislator and a constituent who is not a lobbyist;
• Notes within a public body “of an advisory nature”;
• Records created or used in the majority or minority caucuses of each House of the Legislature.

Jane Briggs-Bunting, president of the Michigan Coalition for Open Government, said Shirkey’s replacement of Meekhof is among the biggest reasons for “real hope” this year for a transparency overhaul. (Disclosure: Bridge Senior Editor David Zeman is a member of the coalition’s board.)

“Shirkey has always been much more into transparency and accountability,” she told Bridge.

The proposed legislation could be stronger from a transparency standpoint, Briggs-Bunting said. It could include fewer exemptions for public officials to keep certain records private, and allowing only a legislative body — and not the courts — to consider a requestor’s appeal is akin to a “fox watching the chicken coop,” she said.

Nevertheless, this proposal would be a major step forward, Briggs-Bunting said, at a time when Michiganders are clamoring for a more open government.

That call for change grew louder after the Flint water crisis unfolded beginning in 2014. The public could not see what then-Gov. Rick Snyder and other administration officials knew about the crisis until he voluntarily released thousands of pages of documents around a year and a half later.

Also fueling reform cries, according to Briggs-Bunting: When GOP House leaders in 2015 initially blocked access to a report on its investigation into a sex scandal and misuse of state resources involving fellow Republican Representatives Todd Courser, Lapeer, and Cindy Gamrat, Plainwell.

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

They are sponsored by: Reps. Daire Rendon, R-Lake City; Vanessa Guerra, D-Saginaw; Donna Lasinski, D-Scio Township; Annette Glenn, R-Larkin Township; Ryan Berman, R-Commerce Township; Roger Hauck, R-Union Township; Sue Allor, R-Wolverine; Andrea Schroeder, R-Independence Township; Graham Filler, R-Ovid; and Darrin Camilleri, D-Brownstown Township.

You can watch the committee hearing on the bills beginning at 9 a.m. Tuesday here. If the bills pass committee, they must be approved by the full House, a Senate committee, the full Senate and the Governor before becoming law.

Bridge reporter Lindsay VanHulle contributed to this report.

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by Marsha Chartrand

Marsha Johnson Chartrand, a founder, writer, and copy editor with the Manchester Mirror, is a 50-year resident of Manchester. She has a long history of volunteer and community involvement.