The Michigan House once again made its stance clear on an ongoing effort to include lawmakers and the governor in open records laws Thursday, voting unanimously on a 10-bill package aimed at improving the state’s bottom-of-the-barrel transparency laws.
The 10-bill package approved by House lawmakers Wednesday would subject the governor, lieutenant governor and their staff to the state’s Freedom of Information Act and establish a separate Legislative Open Records Act — albeit with an array of broad exemptions on what types of documentation could be requested by the public.
It’s by no means a new concept. The Michigan House has voted through similar iterations of the bills for several sessions in a row with broad bipartisan support. The matter has never been taken up for a floor vote in the Senate, although the Senate Oversight Committee is poised to report its own version of the package to the Senate floor next week.
House Speaker Jason Wentworth, R-Clare, has said improving government transparency is his top priority this term. In a Thursday statement, he said he was confident the time has come to get the bills to the governor’s desk.
“One of our top priorities is to regain the trust of the people of the state and this is a strong start,” Wentworth said. “They deserve access to the records of their elected officials, and we intend to give it to them.”
Related: Open records expansion poised to advance in Senate committee as group tees up ballot initiative
Currently, Michigan’s FOIA law requires publicly-funded bodies like cities, police departments, state agencies and schools to provide information upon request. But lawmakers, the governor and lieutenant governor aren’t required to disclose any of their communications or documents pertaining to how big decisions affecting Michigan residents are made.
That makes Michigan an outlier compared to the rest of the country when it comes to who is covered under FOIA. It’s one of the only states in the nation to not subject their state-level officials to some form of open records laws, and Michigan ranked last in a nationwide 2015 government transparency report from the Center for Public Integrity.
“As elected public servants we answer and are accountable to the residents who have given us the privilege of serving them in office,” said Rep. Pat Outman, R-Six Lakes. “None of us are above the law. And it’s an embarrassment to our state government, that we cannot get this passed.”
House Democrats said they were glad to see unanimous votes on the package, but are hoping lawmakers ultimately go further and change the chamber’s rules to start applying provisions in the package pertaining to the Legislature immediately instead of waiting until 2022.
“The house can independently adopt a rule and apply what we just voted on today, because there’s strong bipartisan support for this,” said Rep. Tyrone Carter, D-Detroit. “We believe this House should open up the records and be more transparent as soon as possible.”
As currently written, the legislation pending in the House and Senate includes an exemption for all communication between legislative and governor’s offices and their constituents so long as the constituent is not a registered lobbyist or state employee. Any documents created or used by legislative caucuses and records pertaining to ongoing internal or legislative investigation are also included in the exemptions.
Non-exempt documents would not be considered a public record for 15 days, and the bills aren’t retroactive, meaning no records created prior to Jan. 1, 2022 would be considered public if the package is signed.
A major distinction between FOIA and the LORA proposal is the lack of judicial review for appeals if a records request is denied. The legislation as written would send any appeals for denial of a records request to the administrator of the Legislative Council instead of the judicial review process allowed under FOIA.
Gov. Gretchen Whitmer has previously expressed support for expanding public records laws but stopped short of voluntarily subjecting her own office to FOIA when rolling out an executive directive to update the process for state agencies. She said in 2019 she’d prefer the legislative package get passed “so this isn’t just a policy for the Whitmer administration” and has a wider reach.
When it comes to the current bills, the Whitmer administration has concerns with the lack of an independent mechanism to compel the production of a legislative record under LORA and the broad exemption that would allow lawmakers in either party to deny a record simply by distributing it to their caucus.
Progress Michigan, a progressive organization that’s long advocated for transparency reform, pulled its support for the package this session over exemptions they say applies a lower standard of disclosure to the Legislature than any other public body subject to public records laws.
“I would encourage any members (of the Legislature) that value true transparency to take a look at those bills long and hard, and what they actually provide for, because it isn’t transparency, and it isn’t accountability,” Lonnie Scott, the group’s executive director, said in a Tuesday press conference. “It is a lot of additional loopholes.”
Progress Michigan on Tuesday released the language of a ballot proposal the group hopes to get on the November 2022 ballot, although Scott said the group is holding off on collecting signatures pending results of their lawsuit on signature gathering rules. They’d need just over 340,000 valid signatures to make the ballot.
Asked about the ballot drive and Progress Michigan’s concerns, House Democratic Leader Donna Lasinski, D-Scio Township, said she believes the Legislature needs to pass the existing package but would support a vote of the people if it doesn’t happen.
“We need transparency, we need accountability, and House Democrats have stood by those values for years now,” she said.
Read more on MLive:
Whitmer curbs use of controversial separation agreements in executive directive
New ad from pro-GOP nonprofit hits Whitmer on transparency, ‘hush money’
Michigan Legislature had its own series of confidential staff separation agreements
Is 2019 the year Michigan officials can agree to open their records to the public?
Progressive group to launch ballot initiative for FOIA reform in Michigan
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