Lawmakers try again to expand open records laws to Legislature, governor
Lansing — A bipartisan package of House bills that would open the Michigan Legislature and Governor’s Office to public-records requests received a first public hearing Tuesday.
The House Government Operations Committee heard testimony Tuesday on the most recent attempt to change the state’s open records law to allow Michigan to join 48 other states that subject the governor and Legislature to the public-records law.
The package of bills would create a second section to the Freedom of Information Act, called the Legislative Open Records Act, that would require legislative disclosure of public records and remove FOIA exemptions for the governor, lieutenant governor and executive office employees.
Lawmakers delayed a vote on the measures, saying the final product likely will undergo changes.
The package is nearly identical to House legislation that has been introduced in the last two legislative sessions, neither of which were taken up by the Senate. Sponsors hope for better luck this time with Gov. Gretchen Whitmer and Legislative leaders expressing some support for the legislation.
GOP House Speaker Lee Chatfiled and Senate Majority Leader Mike Shirkey have voiced support for the concept. But Shirkey has concerns about how the change would affect Legislative policy deliberations through email and whether the new laws would capture communications via personal cellphones or computers.
The deliberations would need to include “a robust discussion about how we might deal with advances in technology changing the workplace and workday, and ensure we keep personal communication from being captured based on laws meant to ensure transparency in the workplace,” said Shirkey’s spokeswoman Amber McCann.
In February, Whitmer issued an executive directive closing loopholes in the state’s FOIA, but did not close the loophole exempting her office and the Legislature.
Sen. Jeremy Moss, D-Southfield, and Sen. Ed McBroom, R-Vulcan, expressed hope that the legislation would reach the Senate this year. Moss and McBroom were among the original sponsors of the package as representatives in 2016.
“When we shield things from public light, it simply breeds distrust in the members of the public,” McBroom said. “It leads to wild conspiracy theories.”
Moss and McBroom began collaborating on the legislation in the wake of expulsion proceedings in 2015 for former GOP state representatives Todd Courser and Cindy Gamrat. Courser and Gamrat were accused of using state resources to try to cover up their affair.
But Michigan’s lack of access to legislative and gubernatorial records was propelled into the national scene during the Flint water crisis, Moss said.
The legislation includes several exemptions, including lawmakers’ correspondence with constituents and caucus correspondence regarding policy deliberations. The bills would make public items such as a legislator’s calendar or a legislator’s communications with state departments regarding a constituent’s complaint, McBroom said.
The bills also would include a 15-day “ripening” period or holdover between when a record is created and when it could be released.
The bills would create the Legislative Open Records Act separate from FOIA to sidestep enforcement problems other states have experienced, Moss said, referring to legislators who have avoided judicial appeals rulings by invoking the Constitution's speech and debate clause. The clause provides legal immunity to lawmakers for activities in the legislative sphere.
“The judicial branch has no ability to weigh in on the way that we carry out our Constitutional duties to do our job here,” Moss said.
Instead of a judicial review of public records denials and appeals, the Legislative Open Records Act would appoint a coordinator in the House and Senate business offices to handle public records requests. An appeal of a public records denial would go to the administrator of the bipartisan legislative council.
The lack of a path to appeal a denial to an independent judge is a flaw in the law, as is the lack of a retention policy for records subject to the act, Progress Michigan Executive Director Lonnie Scott told legislators.
“We feel that the Legislature should not get its own special set of rules when it comes to FOIA,” Scott said. “They should be subject to the same judicial review and retention policies.”
The Legislative Open Records Act coordinator and personnel costs are expected to cost $285,750 in the 2019-20 fiscal year and $381,000 in the 2020-21 fiscal year, according to an analysis by the House Fiscal Agency. A FOIA coordinator in the Governor’s Office is expected to cost $95,250 the first year and $127,000 in the second year.