By Anna Liz Nichols, Michigan Advance
Michigan is an outlier in government transparency, long-ranked worst in the nation for government integrity as one of only two states that broadly exempt the governor’s office and Legislature from Freedom of Information Act (FOIA) requests.
Under SB 669 and 670 taken up Wednesday by the state Senate Oversight Committee, the governor’s office, lieutenant governor’s office and Legislature would be subject to FOIA requests, allowing residents and journalists to seek out records to increase understanding and accountability in government.
However, the legislation’s bipartisan sponsors reviewed various special exemptions that will be afforded to the governor’s office, lieutenant governor’s office and Legislature outside of exemptions made for other elected officials and state agencies.
“As with any bill that you craft, you have to get the Senate to pass it, the House to pass it and the governor to sign it in order for it to become law,” sponsor state Sen. Jeremy Moss (D-Southfield) said of the “give and take” that was necessary to introduce legislation that would have a chance of becoming law.
Notably, one of the exemptions would bar FOIA requests for records of constituent correspondence, except for when the individual is required by law to be registered as a lobbyist. This exemption applies to the governor’s office, lieutenant governor’s office and the Legislature.
The constituent exemption is a prime example of the delicate balance between creating better transparency and trust in elected officials while also keeping constituent information private, Moss said.
“We have a variety of viewpoints, even from within the legislature, of legislators who feel that everything should be subject to disclosure and obviously those who want to keep the most sacred constituent correspondence of those who reach out to us in dire needs, private,” Moss said. “We are sometimes the last attempt to resolve an emergency issue, reaching out to their state senator or their state legislator, and it sometimes includes the most sensitive personal information, and we wouldn’t want that to be exploited.”
Another exemption for both lawmakers and the executive offices is that any record “created, prepared, owned, used, in the possession of, or retained by” such parties for less than 30 days can’t be requested under the legislation. Sponsor Sen. Ed McBroom (R-Vulcan) said there are still some questions he has about what that element will look like.
Records that are exempt for the governor’s office and lieutenant governor’s office:
- Appointments to departments, state agencies, commissions, councils or appointments to fill a vacancy on a court appointed by the governor.
- After an individual has been appointed to such a position the exemption no longer applies, except for information concerning letters of recommendation or references.
- Decisions to remove or suspend judges or public officials
- After the individual has been removed or suspended, the exemption does not apply
- Decisions to grant or deny a reprieve, pardon, or commutation
- Budget recommendations or reductions in expenditures
- Messages or recommendations made to the legislature
- Information about the executive residence
- Documents protected by executive privilege
- Documents that could impact the security of the governor or lieutenant governor.
The governor’s office had originally proposed 30 to 40 different exemptions, McBroom said, and that number has been significantly pared down.
“For those who think, ‘Well, these don’t go too far, or they offer too many exemptions’ … I think the most important step forward is to get something implemented. Allow it to begin to work,” McBroom said. “We’ll have the time in the future to repair and improve and reform things as we see how parts work and parts don’t.”
Other records that are exempt for the governor’s office, lieutenant governor’s office and the Legislature:
- Constituent correspondence, not including individuals who have received appointments or are otherwise employed by the state. Individuals required to be registered as lobbyists are also not exempt.
- Information about an internal investigation.
- Information relating to a civil action for which either office is a party
- Exemption no longer applies once the matter has been settled
- Records “created, prepared, owned, used, in the possession of, or retained by a qualifying party for less than 30 days.
Information from before the bills were enacted would not be exempted.
It’s been almost a decade in the making, but the bills mark a major step in creating trust in government that is greatly needed, Moss said.
“We’ve all endured over the last several years here from this legislature, ethical questions at best and criminal activity at worst that made headlines across our state,” Moss said.
In the last year, GOP former House Speaker Rick Johnson was sentenced to about four and half years in prison for taking bribes as the head of the state’s marijuana regulatory board.
The Detroit News found in an investigation last year that Rep. Angela Witwer (D-Delta Twp.), chair of the House Appropriations Committee, has maintained a close relationship with Edge Partnerships, the consulting firm she founded. Members of the legislature have called into question whether she has ever violated the law while playing a crucial role in the state budget process.
“We have to catch up to almost the rest of the nation where journalists and residents alike can serve as watchdogs over their government,” Moss said.
And having the ability to hold power to account is crucial to governmental processes, Moss said, recalling an assignment from his time as a journalism student at Michigan State University where students had to FOIA counties for mundane information like the salt budget for the county road commission.
“When we came back to class and reported our results, there were a variety of outcomes. Some students just got an easy answer. Some students were told they had to pay for that information. Some students were denied the request, and some students never received a response at all,” Moss said. “So I understood then from a journalist’s perspective, if government can shield people from reviewing the salt budget, what of more consequence might it be able to hide.”