FOIA expansion to the governor and Legislature makes it out of Michigan Senate committee

Sens. Jeremy Moss (D-Southfield) and Ed McBroom (R-Vulcan) speak after the Senate Committee on Oversight meeting on March 13, 2024. (Photo: Anna Liz Nichols)

By Anna Liz Nichols, Michigan Advance

For nine years, Michigan state Sens. Jeremy Moss (D-Southfield) and Ed McBroom (R-Vulcan) have been pushing for legislation to subject the Legislature and governor to Freedom of Information Act (FOIA) requests. 

On Wednesday, their bills made it out of committee and now move to the Senate floor for consideration.

“It’s a new day,” Moss said after members of the Senate Oversight Committee sent legislation to expand FOIA onto the Senate floor for a vote. “When we started talking about this, this was not the most popular issue in town, going to our colleagues and telling them, ‘Release your emails upon request.’ We had to build that case lawmaker by lawmaker, issue by issue. And the sad reality is that every scandal that we’ve endured here has also built the case for this legislation to move. So here we are. Nine years into this project on Sunshine Week, seeing that light at the end of the tunnel.” 

Together, SB 669 and SB 670 would allow residents and journalists to file requests for information from the legislature and governor to increase transparency and understanding in governance.

Trust in state government in Michigan is a strained issue as the state ranked last in the nation for integrity in a 2015 report from the Center For Public Integrity.

Currently, Michigan is one of the only states that exempts the governor’s office and legislature from FOIA and even if the bills became law, they create a series of exemptions for the denial of requests that other state agencies don’t have.

Under these bills, the Legislature, governor’s office and lieutenant governor’s office do not have to fulfill requests for their constituent correspondence outside of those who have received appointments, government employees and registered lobbyists. After the committee hearing, Moss said the respective FOIA officers could exercise discretion to fulfill FOIA requests when clearly an individual isn’t contacting their local legislative representative and is simply corresponding with elected leaders outside their district.

This specific exemption has been called into question by media members, as it leaves a level of freedom to the respective FOIA officers to deny requests even if the information would expose bad actors and is a matter of public interest.

Moss and McBroom both said their colleagues expressed concern over sensitive correspondence between constituents seeking help from their lawmakers as a last resort being made accessible. When asked by the Advance why the laws can’t simply allow existing exemptions that protect personal information to offer protection to constituents, McBroom said that the stakes in the Legislature are different than other organizations subject to FOIA, such as police departments.

“When they come in and they look for a legislative solution to something, it’s last resort oftentimes. And beyond that, it becomes very political possibl[y in] nature that, in a way, doesn’t happen at a hospital or at a police department,” McBroom said. “The politics here and how it can be utilized through FOIA in order to advance a cause or to stop a cause, our colleagues are very sensitive to [that], I think we have to remain sensitive to that.”

The bills received some testimony with concern during their first hearing in February and changes to address some of those issues were added to the bills before they were voted out of committee.

One of the changes would create more specificity in exemptions to the governor’s office for records requests for appointments to state agencies, departments and commissions, which had previously been broadly exempt under the legislation. In addition, McBroom testified in committee that he’s interested in adding an exemption from people being able to FOIA for the application materials individuals submit when being considered for appointments.

“If somebody works already somewhere else, they don’t necessarily want the fact that they applied for a different job to be exposed,” McBroom said.

Another change added to the legislation was changing the process for denials. Instead of the person requesting a FOIA having to prove that their request is in the public’s interest, the burden would be on the FOIA coordinator to demonstrate that what’s being requested is not in the public’s interest and should not be released under FOIA rules. 

The original version of the bills said that records from lawmakers or the executive offices that are “created, prepared, owned, used, in the possession of, or retained by” such individuals for less than 30 days  aren’t eligible for FOIA. The legislation has been amended to be more specific, narrowing records that are exempt to opinions, advice or recommendations pertaining to public policy and work in lawmakers’ districts.