For many years, some legislators have tried to pass laws requiring more transparency in the legislature and the governor’s office. Advocates for doing that have greater hope for success this year.
Back in 2016, during the Flint Water Crisis, Governor Rick Snyder released thousands of pages of emails and documents to the public and news media.
He didn’t have to do that.
While emails from state agencies are subject to the Freedom of Information Act, the documents from a governor’s office are not.
“There are only two states, Michigan and Massachusetts, that provide blanket exemptions to their governors, and the vast majority of states allow tremendous access to records related to the state Legislature,” said Len Niehoff, professor of law at the University of Michigan, citing a survey done by the Free Press.
Your city council, your public schools, public universities, and government agencies by law are to make documents available when requested under the Freedom of Information Act -often called FOIA. There are few exceptions.
The Act does not apply to the governor’s office and it does not apply to the Legislature.
Len Niehoff says that means those politicians -if they want to- have a better chance of hiding things from the public.
“Well, just look at the last 10 or 15 years. We've had a number of scandals related to the Legislature and individual legislators. We've had the Flint water crisis. We've had questions about executive contracts with corrections companies. Open government helps prevent those kinds of problems.”
And that is, in part, driving the current effort to put the Legislature and the governor under FOIA. (You can read the bills here and here.)
Democratic Senator Jeremy Moss, one of the sponsors of the legislation, spoke at a Senate committee meeting earlier this month.
“Those actions from bad actors were only made possible by the dark areas in our law in which they could exist, chiefly among them, that legislative records in Michigan never have to be made public.”
This is a bipartisan effort. Republican Senator Ed McBroom is a co-sponsor. When he first was elected to the Legislature, he found past FOIA bills were either full of loopholes or they were seen as partisan because the majority of the Legislature was from one party and the governor from the other.
“I started to think, well, why can't we get a bill that actually would function and be executable? And at the time, Rep Townsend and I worked a little bit on it, but it was a big project for me as a freshman member,” McBroom said at the same Senate committee meeting.
That first attempt by McBroom was in 2010. He and Democrat Jim Townsend were both newly minted representatives then.
This time the Legislature’s majority is Democratic and a Democrat is governor. The effort to subject the governor and Legislature to FOIA is not seen as being purely political.
Avoiding loopholes is still an issue.
Some legislators want to water down the legislation. They want to exempt emails and letters from their constituents from FOIA requests. Lawmakers worry that people in their districts will be reluctant to contact them with personal issues because those messages could be seen by anyone who files a FOIA request.
“There is a broad privacy exemption already within FOIA to protect personal privacy of individuals and information that is not of public interest,” said Merissa Kovach, Legislative Director of the American Civil Liberties Union in Michigan.
Not only is the ACLU, which is considered a liberal group, backing the bills, but so is the Mackinac Center for Public Policy, considered a conservative group. And, the Michigan Press Association also supports the proposed legislation.
Lisa McGraw is the Association’s Public Affairs Manager.
She said at the local government level, personal information is routinely blacked out or redacted. She says it’s not in the public interest to know if you’re contacting a legislator about a Bridge Card or something like that. She said FOIA is needed to reveal people who want to make a backroom deal.
“It's the person who donates heavily to a campaign and turns around and wants legislation that's going to help their business once the person is elected. I've gotten more cynical in my old age. And I worry about that sort of thing.”
Law professor Len Niehoff thinks the biggest effect of making the Legislature and the governor’s office subject to the Freedom of Information Act is as a deterrent.
“Because once you know that your business is going to be done in public and there will be transparency, there's certain things you don't do in certain deals, you don't strike.”
But if lawmakers allow exemptions that are too broad, it could make the laws weak; weaker than what city, township, and county officials already have to follow.
It’s likely the Governor and the Legislature will hear from advocates of transparency a lot more in a couple of weeks. March 10-16 is Sunshine Week, an annual event used to remind government officials of the need for open government and access to public records.
