State House Passes FOIA Bill That Strips Governor and Legislature of Exemption

by Kathy Hoekstra | Watchdog.com

Driven by a sex scandal at the state Capitol and lead in the Flint water supply, the Michigan House of Representatives approved bills aimed at fixing the nation’s worst open records law.

The 10-bill package passed during “Sunshine Week” would lift a Freedom of Information Act (FOIA) exemption for the governor, legislators and their staff — exemptions that have been in place since FOIA took effect in 1976.

Amid the high-fives of lawmakers and cheers by open-government advocates, however, there’s skepticism that even if the bills get past stubborn Senate leadership, the sunshine would amount to no more than a sliver in overall government accountability.

The executive and legislative immunity to FOIA, along with loose adherence to deadlines and high fees, have long frustrated journalists and Michiganders and earned the state an “F” grade in a Center for Public Integrity survey of all 50 states.

Despite repeated efforts by former Democratic Rep. Brandon Dillon to lift the exemptions, most lawmakers didn’t get serious about doing so until 2015.

That’s when the Republican-led Michigan House investigated two of their own for covering up an extramarital affair on taxpayer time and dime. A House Business Office report led to the ousters of state Reps. Todd Courser and Cindy Gamrat, but the office’s refusal to share records sparked an outcry among lawmakers on both sides of the aisle.

The Flint water crisis quickly followed, and even though Gov. Rick Snyder voluntarily released thousands of emails related to the situation, bipartisan FOIA reform efforts picked up steam.

House Democratic Whip Jeremy Moss was one of the leads on the bipartisan package of bills that passed Thursday without a single “no” vote.

“We shouldn’t be satisfied that 48 other states have figured out a way to make transparency work and we haven’t,” Moss told colleagues prior to the vote. “We shouldn’t be satisfied that we rank 50th out of 50 states in terms of transparency by the Center for Public Integrity. No one here should boast to anyone that we run a translucent state government.”

All eyes are now on the Senate. A similar package of bills sailed through the Michigan House last fall on a 100-6 vote, but died in the Senate Operations Committee chaired by Senate majority leader Arlan Meekhof.

Meekhof opposed the bills then, citing concerns over constituent privacy. This time, he’s doubling down. At the Michigan Press Association’s annual meeting in February, he told a roomful of journalists, “You guys are the only people who care about this.”

In a March 13 op-ed, he wrote that existing law is transparent enough without allowing the public, media, lobbyists or political opponents to breach constituents’ trust:

“I have heard the opposition to my opinion. I have read their editorials. I was elected to serve my constituents and uphold the Constitution of the State of Michigan. I stand by my position.”

Unlike last session, however, Meekof will also have to deal with Senate bills introduced this week by two Republican Senators that mirror the House versions.

Even if the bills eventually become law, FOIA advocates have mixed reactions as to how well these bills would improve Michigan’s dismal record of transparency.

One concern is the bills would create a “legislative open records act,” or LORA, a separate administrative body within the Legislature.

Lisa McGraw, public affairs manager for the Michigan Press Association, finds the effort encouraging, especially with other recent reforms over fees and response times.

“MPA is very excited to support the changes in FOIA over the last few years in Michigan, beginning with the [Sen. Mike] Shirkey bill a few years ago that made fees more consistent, and hopefully lower, as well as more teeth in enforcement for delays,” McGraw told Watchdog.org. “We feel this and the FOIA/LORA bills going through now are great starts toward better transparency in Michigan.”

Susan Demas, editor and publisher of Inside Michigan Politics, told Watchdog.org in a statement that the House plan is a good first step, but has some serious flaws, especially the overly bureaucratic procedures for getting information from the Legislature.

“It’s a bad look for lawmakers to look like they’re playing by their own rules, so I hope they’re open to retooling the package in order to increase transparency and accountability to the people they serve,” Demas said.

Veteran Michigan journalist and political writer Chad Selweski agrees that a new, legislature-specific bureaucracy does not necessarily mean greater transparency.

“It’s extraordinarily difficult to respect a state’s public access to government documents and records when the primary elected officials making key decision are exempt,” he said. “Why should lawmakers be allowed to cloak themselves in additional regulations/protections from public inquiries when appointed state officials or local elected officials are subjected to a straightforward system?”

Far from the norm

Selweski is the architect of the CPI report that awarded Michigan an “F” in 2015. He says even after 30-plus years of working in the media, the experience was a real eye-opener.

“I thought I knew a whole lot about state government in Michigan, but when you compare our ways of doing business with 49 other states, you realize that Michigan is far from the norm,” he said.

“Beyond FOIA, the state lags remarkably in areas such as financial disclosure for officials, mitigating a ‘dark money’ political process, non-transparency in lobbying, lack of a legitimate recusal process (on the House and Senate floor, and in our courtrooms) to prevent conflicts of interest, and an overall culture of self-policing and shadowy practices.”

Selweski explained that the grading process required correspondents in each state to answer 250 questions in 13 categories such as public access to information, political financing, electoral oversight and accountability by all three branches of state government. He said even his editors grew frustrated with Michigan.

CYA prevails

“[M]y editors (I had five) would often give me a hard time about certain responses because they could not fathom how lax the Michigan system is,” he said, offering a couple of examples.

“‘You have to explain the disciplinary system for those who break election laws,’ [editors] would tell me. I would have to pound it into their heads that the Secretary of State’s Bureau of Elections typically does not punish violators, they just tell them ‘don’t do it again,’” he said. “Editors would complain that I did not detail the investigative process used by the state Ethics Board. I had to convince them that the Ethics Board doesn’t independently investigate anything.”

And while Sunshine Week offers a terrific opportunity to remind people of the importance of government accountability, Selweski says his CPI experience taught him transparency rarely cracks the top 10 among voters when it counts.

“[At] election time, more open government, which would dramatically reform day-to-day activities in the state Capitol, barely cracks the top 10 among issues that influence voters at the ballot box,” he said.

“Legislators know this. CYA prevails.”